Legal Reasoning and growth of law
In India, in the wake of Kesavananda Bharati (1973), Maneka Gandhi (1978), ABSKS (1981) S.P. Gupta
(1982) etc. have led to a democracy-fundamental rights enforcement cum-judicial independence
syndrome which constitute the macro-jurisprudential sociological structure in the late nineties and
even beyond. These developments in law and society have been possible on account of a free and
independent judiciary which has been envisaging that all socio-legal transformation must take place
within the framework of a free society and the Constitution. Accordingly judiciary has become not
only corrective to legislative and executive excesses and irregularities, its power of judicial review
has come as a boon to under privileged individuals or groups since its verdicts have been in
consonance with basic freedoms and liberties of the people in the context of time and space. In
justice delivery system the Courts have evolved new theories, principles and practices by elbowing
out old notions and contradicting time tested traditional jurisprudential false beliefs like that judges
do not make law, the doctrine of separation of powers and the doctrine locus standi and have
innovated new principles of combat socio-economic problems, promote collective rights and protect
social interests in respect of consumerism and environmental hazards etc. Likewise the Supreme
Court has evolved a new natural law doctrine over and beyond the Constitution in Kesavananda
Bharati, which embodies the principles of higher natural law, cherished moral values, social and
political goals in the backdrop of changing needs of social life of our democratic polity. As Justice
Mathews puts it ‗...... the fundamental rights themselves have no fixed content, most of them are
empty vessels into which each generation must pour ifs content m the light of its experience.......
that in building a just social order it is sometimes imperative that fundamental rights should be
subordinated to directive principles.‘ In Maneka the Court evolved a liberal and pragmatist slant in
human rights jurisprudence by injecting the U.S. due process of law into Article 21 overruling the
Gopalan and subjecting enacted ‗law‘ to due process of law in order to be just, fair and reasonable
and not draconian and arbitrary. For, according to justice Krishna Iyer,1 ‗.......... procedural
safeguards are the indispensable essence of liberty. In fact, the history of personal liberty is largely
the history of procedural safeguards and the right to hearing has a human right ring.....‘ and a
fascinating subject of sociological relevance in many areas.‘ In Judges Transfer case, the Court
declared the need of independence of judiciary vis-a-vis a committed judiciary which had required
the judges to follow the social philosophy of the Governments. These juristic developments reflect
the social realities of India of today so that law and legal theory could respond to meet effectively
the needs of the poor and the oppressed. Indeed a legal revolution is taking place in India within the
framework of rule of law and the Constitution where judiciary is using legal and constitutional
devices for providing the content and quality of justice-social, political and economic especially
through public interest litigation. While the Preamble enshrines goals and direction of social change
in accordance with spirit and ethos of the Constitution it is the judiciary which has
explored a new meaning and content to such goals making them more effective and resilient to
meet the ever changing requirements of Indian democracy. These are :
1- Independence of judiciary,
2- Social Justice and Equality—Mandalisation,
3- Dignity and freedom of the individual,
4- Secularism, and
5- Democracy.
Importance of Precedents in Common law systems
Independence of Judiciary
An independent judiciary is the substratum on which the whole edifice of constitutional fabric,
democratic way of life, the rule of law and legal process rest. The vitality of democratic processes
and the ideals of justice, the imperatives of social change and other great values of human liberty,
equality and freedoms are all dependent on the tenor and tone of the judiciary. Where judicial wings
are clipped, trimmed or transgressed by way of politically motivated supersession or transfer to
brow-beat the judges to follow the social philosophy of the Government rather than the philosophy
of the Constitution the consequences of such a policy are disastrous to the Rule of Law and the
Constitution. It is the judicial independence which ensures democratic form of government, the rule
of law and basic rights and liberties of the citizens. According to International Commission of Jurists
which met at Athens in 1955 declared :‗An independent judiciary is an indispensable requisite of a
free society under the Rule of Law. Such independence implies freedom from interference by the
Executive or Legislature
IMPROVE JUDICIAL PROCESS
The effective judicial process requires the cooperative effort of all three organs of the Government.
To this effect I suggest following reformation which should follow by the executive, judiciary and
legislature –
Legislature: Legislature being policy formulator must perform following works-
(1) Parliament must in exercise of its power under article 32(3) empower the lower courts to
exercise the writs jurisdiction within their local limits under, so that common people may have easy
access to the justice.
(2) Parliament must in consultation with judiciary to frame a time limit within which the matter
should be disposed of and its failure to attract the punishment.
(3) Parliament should make necessary amendment in advocate Act 1961 to prevent the frequent
entry of incompetent person as lawyers.
(4) Alternative dispute resolution system must be proper funded and equipped with necessary
infrastructure, So as to reduce the arrears of cases
(5) Parliament should by an act nullify the judgment given by Supreme Court in Ram Jawaya case and
Re-presidential Reference case.
(6) Legislature by law must fix the rules according to which the quorum of the judges be fixed, so as
to avoid the personal influence of the convening authority on the decision.
(7) Presently there is no supervisory jurisdiction of Supreme Court on the High court to prevent the
misuse of their power except in appeal by quashing the judgment, So Parliament should empower
the Supreme court to ask the explanation from a High court judge when it found that he had
exercised his power illegally
(8)Parliament by a law establishes an independent body consisting of impartial legal experts to
enquire into the conduct of judges whose decisions is quashed by Supreme Court or High Court in
appeal.
(9)The parliament through a law should empower UPSC to hold an All India Judicial services
examination to fill up the vacancies in High Courts and no judge of high court be appointed in his
home state except chief justice of that high court (as he can run the administration more efficiently
than non regional judges); so that the concept of uncle judges can be removed. The vacancy in
Supreme court must be filled up by a selection committee having statutory competence, which
consists of chief justice of India, prime minister, law minister, leader of opposition party in Lok Sabha
and President. The decision must be taken by the majority of 3:2 and if it is 2:2 the decision of
president should be final to elevate or not a high court judge in supreme court.
(10) An amendment in the constitution be made so as to make Article 39A as fundamental right,
Article 13(3) should also be amended and the word personal contract should be inserted.
(11) Section 197CrPC should be repealed because it is against article 14 as it gives unequal
protection to the corrupt officers and protect their illegal actions and hence is an hindrance in
execution of 166 IPC.
Executive:
Role of executive is policy implementation and ordering of facts from is to ought. Delivery of justice
is basically falls within the province of executive which is rendered through access to the
administrative authorities. Article 14 casts an unconditional duty on the state to provide equal
treatment of law and equal protection of laws to every person. Unfortunately due to lack of
ineffective implementation of Article 256 read with 365 and 356, the state often does not fulfil their
constitutional obligation, hence the union government should use these supervisory and
consequential provision to compel the states to fulfil their duties
Judiciary
The role of judiciary is policy control which comes into picture when executive fails to deliver the
justice. In order to make judicial process effective the court must observe following guidelines-
Judiciary must keep in mind that its work is to say authoritatively what the law i.e. policy is
controlling. Provisions of Article 142 and 226 of constitution, Section 482 Cr.P.C and 151 of C.P.C
though gives inherent power to the supreme court and high court to render complete justice , it
means only to fill the gap within the parameter of the constitution and statutes and it does not
mean to supersede the constitution or statute as it did in Ramjawaya kapoor and S.C Advocates on
Records case.
OTHER REFORMATION
Section 166 of IPC, 1860 should be enforced ‗ which provides –― Whoever, being a public servant,
knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such
public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause
injury to any person, shall be punished with simple imprisonment for a term which may extend to
one year, or with fine, or with both. ―. Under Article 14 of the Constitution it the duty of judiciary
(Judiciary is a State as laid down in A.R. Antulay v R.S.Nayak AIR 1988 SC 1531) to render justice but
where it fails, it amounts injury under section 44 IPC. Judges being public servant within the meaning
of section 21 of IPC, injury caused by them amounts offence under Section 166 and accordingly they
should be punished.
CONCLUSION
On ground of above analysis of the Indian Judicial process under various heads the writer comes to
the conclusion that present adversery judicial system is against the sprit of the constitution and is
open violation of its Normative character. Judicial process is run by the persons (advocates), who
have no where mention in the constitution (except under Article 22(1)) and justice is not done but is
purchased.
All three organs of the state has failed to fulfill their constitutional obligation to render justice
according to the mandate of the constitution as various laws which are unconstitutional are still
operating in the Indian judicial process few examples of which are sec 302 I.P.C, Court fees Act 1867,
law of limitation , sec 197 Cr.P.C etc .Judiciary as a state within the meaning of Article 12 is duty
bound to do complete and Restitutive justice under Article 14 read with Article 142, but on several
occasions it has acted as dispute settlement forum. It is also duty bound under section 57(1) of the
Indian Evidence Act 1872 to take judicial notice of all existing laws having force , whether it is
mentioned in the plaint or not but judges deliberately fails to take notice of this section which
proves their incapacity and misconduct to deal with the cases rendering them liable for punishment
under section 166 IPC and for removal from the post by parliament , but still the legislature has fails
to set an example of punishment by virtue of removal of any high/supreme court judge. Under
constitutional power arrangement the work of judiciary is to say authoritatively what the law is i.e.
policy controlling . Provisions of Article 142 and 226 of constitution, Section 482 CrPC and 151 of CPC
though gives inherent power to the supreme court and high court to render complete justice , it
means only to fill the gap within the parameter of the constitution and statute and it does not mean
to supersede the constitution or statute as it did in Ramjawaya kapoor and S.C Advocates on Records
case. The decision that consultation means concurrence amount to the amendment in the
constitution without procedure and the statement that Indian government system is based on
Westminster form of government and not on advanced presidential form of government amounts to
change the nature of government from republic to oligarchic which is not permitted to the judiciary.
