JUDICIAL PROCESS

PART A JULY 2023

1. Examine the concept of 'Rule of Law' and its importance under the
Indian Constitution.
The rule of law is a fundamental principle that ensures that all individuals and
institutions within a country are subject to the same laws and held accountable
for their actions. It means that no one is above the law. Everyone, including
lawmakers, leaders, law enforcement officials, and judges, must abide by the
law. The rule of law promotes equality. It prevents the arbitrary use of power
and guarantees a fair and just society.

History Of Rule Of Law

o The rule of law has a long history. Around 350 BC, Greek philosophers
such as Plato and Aristotle addressed the notion of the rule of law.
o Sir Edward Coke, the Chief Justice during James I's reign, invented the
notion of the rule of law.
o The rule of law in England originated in approximately 1215 when King
John of England signed the Magna Carta.
o The signing of the Magna Carta represented the Monarchy of England’s
permission to be subject to the law and for the law to be supreme.
o Prof. Albert Venn Dicey evaluated the concept of the Rule of Law, and as
per his theory rule of law is based on various principles

Principles of the rule of law

In essence, the rule of law states that no one may be detained, punished, or
legitimately made to suffer in body or in goods unless via due process of law
and for a violation of a law created in the regular legal method before the
ordinary courts of the realm.
o The rule of law applies to everyone, regardless of rank, status, or position.
Whims and fancies have no place in a state where the rule of law reigns
supreme.
o No one shall suffer as a result of the arbitrariness of another. Only the
method defined by law and the breach of such legislation can result in
punishment.
o The Rule of Law is built on the lack of arbitrariness and arbitrary
decision-making. The rule of law implies equality before the law and
equal legal protection.
o People with specific authority are given certain abilities. Such authority
must be exerted while bearing in mind the constraints and bounds
established by the law.
o The rule of law gives safety and justice in the face of dictatorial
presidential action. The judiciary is both the keeper and the guardian of
the rule of law. It is intended to be objective and free of bias.
o Every action conducted by the executive should be done in accordance
with the law, and everyone should be treated fairly.
o A fast trial is a fundamental component of the rule of law. It implies that
‘justice delayed is justice denied.’

Important Factors of Rule of Law

o Legal Equality: The rule of law requires that all individuals, regardless
of their status, are equal before the law. It means that everyone should be
treated fairly and impartially by the legal system.
o Transparency: Transparency is a crucial aspect of the rule of law. It
means that laws, regulations, and legal processes should be clear and
publicly available. This ensures that individuals understand their rights
and can hold the legal system accountable.
o Accountability: The rule of law holds individuals and institutions
accountable for their actions. This includes government officials and
entities. It means that those who violate the law should be held
responsible.
o Fair and Impartial Judiciary: A fair and impartial judiciary is essential
for the rule of law. It ensures that legal disputes are resolved in a just
manner, without any bias or influence. Judges should be independent.
They should make decisions based on the law and evidence presented
before them.
o Access to Justice: The rule of law requires that everyone has access to
justice. This means that individuals should have the right to seek legal
remedies. They should have their cases heard in a timely manner and
receive a fair judicial process.
o Respect for Human Rights: The rule of law goes hand in hand with the
protection of human rights. It requires that legal practices respect and
uphold fundamental human rights. No one should be subjected to
arbitrary arrests, torture, or other human rights abuses.
o Consistency and Predictability: The rule of law demands consistency
and predictability in the application of laws. Laws should be applied
uniformly to all individuals and situations. It should not have favoritism
or arbitrary decision-making. This ensures that people can rely on the law
and make informed choices.
o Separation of Powers: The rule of law is closely connected to the
principle of separation of powers. It means that the powers of government
are divided among different branches. This separation prevents the
concentration of power. It provides checks and balances within the
system.

Importance Of Rule Of Law

o The rule of law is founded on traits such as legal clarity and

predictability, which ensures the establishment of a welfare state and
political stability.
o The rule of law is valuable because it prevents arbitrary decisions,
ensures fairness, and prevents tyranny and oppression. It restricts the
power of individuals in positions of authority.
o The rule of law plays a crucial role in protecting civil and political rights
and liberties, as well as the equality and dignity of all people.
o It helps discourage corruption, achieve social and economic development
targets, and strengthen peace and security at the international and national
levels.

Rule Of Law And Indian Constitution

The rule of law in India may be traced back to the Upanishads, which were
eventually included by the drafters of the Constitution.

o The declaration of the Indian state as a sovereign in the constitution

restores the notion of the Rule of Law.
o The Constitution is the supreme law of the land, and anything that runs
counter to it will be ruled unconstitutional by the courts.
o The preamble to the constitution offers the core principl+++es and ideals
important to people.
o The framers of the Constitution did not want to risk being ruled by a
dictator. Therefore, they thoroughly embedded the Rule of Law in the
constitution, making it the Supreme Law. The Indian government is
organized into three branches: the Legislature, the Administrative, and
the Judiciary of India.
o This establishes a separation of powers among the three organs, with one
organ not interfering with the operation of the other.
o Part III of the constitution, i.e., the fundamental rights, satisfies all of
Dicey’s prerequisites for a country to be governed by the Rule of Law.
o The idea of equality before the law and equal protection under the law, as
described by Dicey, is enshrined in Article 14 of the Indian
constitution. Article 21 of the constitution guarantees the fundamental
right to life and personal liberty.
o Article 19 guarantees the people of India the right to free speech and
expression. The constitutional idea of double jeopardy and self-
incrimination has also been appropriately enshrined. Articles 14, 19, and
21 are so fundamental and crucial to the constitution that they are
commonly referred to as the Golden Triangle Articles.

Exceptions Of The Rule Of Law

The rule of law demands both rulers and ruled to be accountable to the law,
which is of indisputable significance in modern democratic countries. It may be
claimed that the rule of law is not an accurate representation of any condition of
events but rather a complicated notion that becomes even more complex when
put into action.

o Ambassadors and diplomats cannot be sued or prosecuted in the nations

where they serve since they are above the law of the host country;
instead, they can be deported.
o There are certain people who are immune to the country’s laws. The
President and Vice President, Governors, members of the Parliament
(National Assembly), and other high-ranking government officials are
among those who fall within this category.
o The expanding domain of judges and attorneys, as well as their
encroachment on areas formerly reserved for politicians and voters, leads
to the loss of much that is politically and democratically valued.
o When there are catastrophic situations that force the government to
proclaim a state of emergency or when there is war, the government
normally exercises some discretionary powers.

Conclusion

The Rule of Law governs the unfettered exercise of power by the supreme law-
making authority of the territory, whereas the Rule by Law is established by the
highest law-making authority of the land. Despite the fact that the rule of law
was largely derived from British jurisprudence, its presence in Indian politics is
undeniable. The rule was taken into consideration by the authors of the
constitution, who ensured that it was appropriately incorporated into the
country’s framework. There is also a need to take the necessary steps to
establish a timely justice delivery system in order to fully implement the Rule of
Law.

2. Critically analyze the judicial law-making and judicial activism of the

Supreme Court of India.

Judicial Activism, Restraint & Overreach

What does it Mean?

 Judicial Activism:

o Judicial activism signifies the proactive role of the

Judiciary in protecting the rights of citizens.
o The practice of Judicial Activism first originated and
developed in the USA.
o In India, the Supreme Court and the High courts are
vested with the power to examine the constitutionality
of any law, and if such a law is found to be inconsistent
with the provisions of the constitution, the court can
declare the law as unconstitutional.
o It has to be noted that the subordinate courts do not
have the power to review constitutionality of laws.
o Origin:

 The term judicial activism was coined by

historian Arthur Schlesinger, Jr. in 1947.
 The foundation of Judicial Activism in India
was laid down by Justice V.R Krishna Iyer,
Justice P.N Bhagwati, Justice [Link]
Reddy, and Justice D.A Desai.
o Criticism:
 Judicial Activism has led to a controversy in
regard to the supremacy between Parliament
and Supreme Courts.
 It can disturb the delicate principle of
separation of powers and checks and
balances.
 Judicial Restraint:

o Judicial Restraint is the antithesis of Judicial

Activism.
o Judicial Restraint is a theory of judicial interpretation
that encourages judges to limit the exercise of their
own power.
o In short, the courts should interpret the law and not
intervene in policy-making.
o Judges should always try to decide cases on the basis
of:

1. The original intent of those who wrote the constitution.

2. Precedent – past decisions in earlier cases.
3. Also, the court should leave policy making to
others.
o Here, courts “restrain” themselves from setting new
policies with their decisions.
 Judicial Overreach:

o When Judicial Activism goes overboard, and becomes

Judicial Adventurism, it is referred to as Judicial
Overreach.
o In simpler terms, it is when the judiciary starts
interfering with the proper functioning of the
legislative or executive organs of the government.
o Judicial Overreach is undesirable in a democracy as it
breaches the principle of separation of powers.
o In view of this criticism, the judiciary has argued that it
has only stepped when the legislature or the executive
has failed in its own functions.
Why is it Required?
 Judicial Activism:

o Judicial activism has arisen mainly due to:

 The failure of the executive and

legislatures to act.
 Since there is a doubt that the legislature and
executive have failed to deliver the desired
results.
 It occurs because the entire system has been
plagued by ineffectiveness and
inactiveness.
 The violation of basic human rights has
also led to judicial activism.
 Due to the misuse and abuse of some of
the provisions of the Constitution, judicial
activism has gained importance.
o Necessity of Judicial Activism:
 To understand the increased role of the
judiciary, it is important to know the causes
that led to the judiciary playing an active
role.
 There was rampant corruption in
other organs of government.
 The executive became callous in
its work and failed to deliver
results required.
 Parliament became ignorant of its
legislative duties.
 The principles of democracy were
continuously degrading.
 Public Interest Litigations brought
forward the urgency of public
issues.
 In such a scenario, the judiciary was forced to play an active role.
It was possible only through an institution like judiciary which is
vested with powers to correct the various wrongs in society. In
order to prevent the compromise of democracy, the Supreme Court
and High Courts took the responsibility of solving these problems.

o For example, in G. Satyanarayana vs Eastern Power

Distribution Company (2004), Justice Gajendragadkar
ruled that a mandatory enquiry should be conducted if a
worker is dismissed on the ground of misconduct, and
be provided with an opportunity to defend himself. This
judgement added regulations to labour law which was
ignored by legislation.
o Similarly, Vishaka vs State of Rajasthan (1997) is an
important case that reminds the need of Judicial
activism. Here, the SC laid down guidelines that ought
to be followed in all workplaces to ensure proper
treatment of women. It further stated that these
guidelines should be treated as a law until Parliament
makes a legislation for enforcement of gender equality.
 Some other famous cases of Judicial Activism include -

o Kesavananda Bharati case (1973): The apex court of

India declared that the executive had no right to
intercede and tamper with the basic structure of the
constitution.
o Sheela Barse v. State of Maharashtra (1983): A letter
by Journalist, addressed to the Supreme Court
addressing the custodial violence of women prisoners in
Jail. The court treated that letter as a writ petition and
took cognizance of that matter.
o I. C. Golaknath & Ors vs State Of Punjab & Anrs.
(1967): The Supreme Court declared that Fundamental
Rights enshrined in Part 3 are immune and cannot be
amended by the legislative assembly.
o Hussainara Khatoon (I) v. State of Bihar (1979): The
inhuman and barbaric conditions of the undertrial
prisoners reflected through the articles published in the
newspaper. Under article 21 of the Indian Constitution,
the apex court accepted it and held that the right to
speedy trial is a fundamental right.
o A.K. Gopalan v. State of Madras (1950): The Indian
Supreme Court rejected the argument that to deprive a
person of his life or liberty not only the procedure
prescribed by law for doing so must be followed but
also that such procedure must be fair, reasonable and
just.
 Judicial Restraint:

o Judicial restraint helps in preserving a balance among

the three branches of government, judiciary,
executive, and legislative.
o To uphold the law established by the government in
the legislature.
o To show solemn respect for the separation of
governmental problems.
o To allow the legislature and the executive to follow
their duties by not reaching in their arena of work.
o To mark a respect for the democratic form of
government by leaving the policy on policymakers.
o Trends in Judicial Restraint:

 S.R. Bommai v Union of India (1994) is a

famous example often stated to show
restraint practiced by Judiciary. The
judgement stated that in certain cases the
judicial review is not possible as the matter is
political. According to the court, the power
of article 356 was a political question, thus
refusing judicial review. The court stated that
if norms of judiciary are applied on matters
of politics, then it would be entering the
political domain and the court shall avoid it.
 Similarly, in Almitra H. Patel Vs. Union of
India (1998) the Supreme court refused to
direct the Municipal Corporation on the issue
of assigning responsibility for cleanliness of
Delhi and stated that it can only assign
authorities to carry out duty that is assigned
as per law.
 Judicial Overreach:

o The direct effect of legislative and executive negligence

or inability is "judicial overreach".
o Weak and injudicious results, not only in the making of
laws, but also in their application.
o The Indian judiciary has been criticized by many legal
scholars, lawyers and judges themselves, for playing an
exceedingly activist role and overreaching.
o Impact of Judicial Overreach:

 Since the legislature is lagging behind in its

function, the judiciary tends to Overreach
from its function causing a conflict between
legislature and judiciary. The clear impacts
from such an Overreach of Judiciary are as
follows:

 There is a threat to the doctrine of

separation of powers which
undermines the spirit of the
constitution. There is a lack of
harmony between legislature and
judiciary and an impression on the
public of inaction by the
legislature.
 In certain scenarios like that of
environmental, ethical, political,
expert knowledge is required
which the judiciary might not
possess. If it renders judgement
while having no experience in
these domains, then it not only
undermines expert knowledge but
also can prove harmful to the
country.
 Judicial Overreach can lead to an
expression of disregard by the
judiciary in the elective
representation. This can decrease
the faith of the public in the
institution of democracy.
o Hence, It is an obligation on the part of courts to remain
under their jurisdiction and uphold the principle of
separation of powers. The Supreme court has itself
reminded other courts, in 2007, to practise Judicial
restraint. It stated "Judges must know their limits and
must try not to run the government. They must have
modesty and humility, and not behave like emperors."
Further, it said, "In the name of judicial activism, judges
cannot cross their limits and try to take over states
which belong to another organ of the state".
o Examples of Judicial Overreach:

 A famous case of Judicial Overreach

is censorship of the Film Jolly LLB II. The
case was filed as a writ petition, and alleged
that the film portrayed the legal profession as
a joke, making it an act of contempt and
provocation. The Bombay High Court
appointed a three person committee to watch
the movie and report on it. This was viewed
as unnecessary, as the Board Of Film
Certification already exists and is vested with
the power to censor. On the basis of the
report of the committee, four scenes were
removed by the directors. It was seen as
violative of Article 19(2), as it imposed
restriction on freedom of speech and
expression.
 On a PIL about road safety, the Supreme
Court banned the Sale of Liquor, at retail
shops, restaurants, bars within 500m of any
national or state highway. There was no
evidence presented before the court that
demonstrated a relation of ban on liquor on
highways with the number of deaths. This
judgement also caused loss of revenue to
state governments and loss of employment.
The case was seen as an Overreach because
the matter was administrative, requiring
executive knowledge.
How is it Manifested?
 Judicial Activism:

o Through Judicial Review

 Judicial review is the doctrine under which

legislative and executive actions are subject
to review by the judiciary.
 Judicial review is an example of check and
balances in a modern governmental system.
 Judicial review is adopted in the Constitution
of India from the Constitution of the United
States of America.
 It gives power to the Supreme Court to
examine the constitutionality of any
law and if such a law is found to be
inconsistent with the provisions of the
Constitution, the Court can declare the law as
unconstitutional.
o Through Public Interest Litigation:

 Public interest litigation means a suit filed in

a court of law for the protection of public
interest.
 Judicial activism in India acquired
importance due to public interest litigation. It
is not defined in any statute or act.
 In India, PIL initially was resorted to towards
improving the lot of the disadvantaged
sections of the society who due to poverty
and ignorance were not in a position to seek
justice from the courts.
 Justices P.N. Bhagwati and V.R. Krishna
Ayer has played a key role in promoting this
avenue of approaching the apex court of the
country.
o Through Constitutional Interpretation:

 Constitutional interpretation comprehends

the methods or strategies available to people
attempting to resolve disputes about the
meaning or application of the Constitution.
 The possible sources for interpretation
include the text of the Constitution, its
"original history," including the general
social and political context.
o Through Access to international statutes for
ensuring constitutional rights:

 The court refers to various international

statutes in its judgements.
 This is done by the apex courts to ensure the
citizens of their rights.
 International Law is referred to by Supreme
Court's judgments in many cases. Example:
Recently, SC reaffirmed the rights of
disabled person to live with dignity in Jeeja
Ghosh v. Union of India. The court
underlined the Vienna Convention on the law
of treaties, 1963 which requires India's
internal legislation to comply with
international commitments.
 Judicial Restraint:

o Through referring to the original intent of those who

wrote the constitution:

 Judges look to the original intent of the

writers of the Constitution.
 Judges refer to the intent of the legislatures
that wrote the law and the text of the law in
making decisions.
 Any changes to the original Constitution
language can only be made by constitutional
amendments.
o Through Precedent:

 Precedent means past decisions in earlier

cases.
 Judicially-restrained judges respect stare-
decisis, the principle of upholding
established precedent handed down by past
judges.
o Through leaving the legislature and executive to
decide policies:

 Judicial Restraint is practised when the court

leaves policy making to others.
 The courts generally refer to interpretations
of the constitution by the Parliament or any
other constitutional body.
How do they Differ?
 Judicial Activism VS Judicial Restraint:

o On basis of Meaning:
 Judicial activism: interpretation of the
constitution to advocate contemporary values
and conditions.
 Judicial restraint: limiting the powers of
the judges to strike down a law.
o On basis of Goals:

 Judicial restraint: the judges and the

court encourage reviewing an existing
law rather than modifying the existing law,
whereas in judicial activism: it gives the
power to overrule certain acts or
judgments.
o On the basis of Intent:

 Judicial activism judges should look beyond

the original intent of the framers.
 In Judicial restraint, Judges should look to
the original intent of the writers of the
Constitution.
o On basis of Power:

 In Judicial activism, the judges are required

to use their power to correct any injustice
especially when the other constitutional
bodies are not acting.
 Judicial restraint is limiting the powers of the
judges to strike down a law.
o On basis of their Role:

 Judicial activism has a great role in

formulating social policies on issues like
protection of the rights of an individual, civil
rights, public morality, and political
unfairness.
 Judicial restraint helps in preserving a
balance among the three branches of
government, judiciary, executive, and
legislative.
Conclusion
 In India, Judiciary has played an active role through its activism,
especially through PIL. This has restored the rights of
disadvantaged sections of the society.
 The Supreme Courts and the High Courts have worked in favour
of progressive social policies and citizens hold a high regard for
the institution of judiciary.
 However, in a democracy, it is important to maintain the principle
of separation of powers and uphold the legitimacy of the three
organs of government.

o It can be possible only when the executive and

legislature are attentive and functional.
o At the same time, the Judiciary should be cautious of
stepping into spheres of activity that does not belong to
it.
[Link]
restraint-overreach
December 2018 part a 3.
3. Discuss the concept of justice or dharma in Indian thought.
INTRODUCTION
Dharma have been derived and supersede from the vedic concept of
Rita, which literally meant, ‘the straight line’. Rita refers to the Law
of Nature, it signifies moral laws, and based on righteousness. When
something is Rita it simply meant that thing is true, right and nothing
more. Dharma signifies natural law. Anything is right, just and moral
is Dharma. Dharma was a duty based legal system that is every
individual owed a duty towards other member of the society and duty
is something explained by Duguit as “right possessed by every man.”
If we observe “Puranas” people of that time was guided by their
Karma. They believed their Karma is their Dharma. That is Why
Yudhistir from Mahabharat was known as “Dharma Raj”.
WHAT IS DHARMA
As is the case with many other Sanskrit words, it is rather difficult to
find an exact equivalent for the Sanskrit word ‘Dharma’ in English or
any other. It has been translated as ordinance, duty, right, justice,
morality, law, virtue, religion, ethics, good works, code of conduct,
and so on. There is no word in any other language, corresponding to
Dharma. Dharma has its legal, moral and social shades of meanings
which are developed during the course of tradition and historical
development.4
The word ‘Dharma’ has its root ‘dhr’5 meaning ‘to uphold’, ‘to
support’, and ‘to sustain’. The famous verse from Mahabharat savs:6
“They call it Dharma since it is Dharma that upholds people. That
which upholds the created universe, supports it and sustains it,
without which the universe just falls apart, is 'Dharma'. Dharma
sustains and maintains the social, moral, political and economic
order.”
WHAT IS JUSTICE
Justice is a broad notion that is based on a concept of moral rightness that incorporates varying
perspectives on fairness, ethics, rationality, religion and law .It is one of the most important moral
and political concepts.

The word comes from the Latin jus, meaning right or law. The Oxford English Dictionary defines the
“just” person as one who typically “does what is morally right” and is disposed to “giving everyone
his or her due,” The idol of Justice blindfolded with balance in hand gives the expression of
balancing, weighing and impartial judging which applies to disputes and conflicts. For this purpose
justice becomes the referee to give decision of victory or defeat to parties. It seems that Justice has
more utility for a conflict situation.

Concept of Justice?
Justice — Indian Heritage Law and morality are mutually helpful
instruments for sensitising and promoting justice. In every human
society ancient or modern the history bears testimony of inseparable
and eternal relationship between this trinity. All the three in their
meaning, content and perception have been rightly interchangeably
used, understood and interpreted inter alia for a good social order
which is possible by a harmonious observance and blending of these
concepts. It is rightly said ‗Law without morality is a tree without
fruit and morality without law is a tree without root.‘ Law and
morality are the social tools which make justice accessible to
individuals free from personal and vested prejudices as is evident
from Hindu scriptures, shastras, Hebrew and Christian Bibles and
Islamic and Buddhistic scriptures. The basis raison d‘etre of law and
morality has been to seek and promote justice varyingly described as
truth, righteousness, evenmindedness, moral virtue, true happiness,
equality, equilibrium, duty, etc.