SUBMITTED TO-

DR. EQBAL HUSSAIN

Umang Dixit
B.A.LL.B(HONS.)Regular- IV Semester
JUDICIAL PROCESS: JUSTICE IN
ADAPTING TO CHANGE
Jurisprudence I Assignment
Judicial Process: Justice in Adapting to Change

Contents
ACKNOWLEDGEMENT .............................................................................................................. 3

Introduction ..................................................................................................................................... 4

Article 32: Instrument of Social Ordering .................................................................................. 5

Backward Classes of the Society ............................................................................................ 5

Bigamy .................................................................................................................................... 5

Bride Burning.......................................................................................................................... 6

Bonded Labourers ................................................................................................................... 6

Caste system and Judicial Process .......................................................................................... 6

Child Labour ........................................................................................................................... 6

Child Prostitution .................................................................................................................... 6

Dowry Death ........................................................................................................................... 6

Equality: Man and Woman ..................................................................................................... 7

Female Foeticide and Judicial Process. .................................................................................. 7

Goal of Judicial Process .............................................................................................................. 7

Harassment of Woman ............................................................................................................ 7

Immoral trafficking ................................................................................................................. 8

Judicial Process and Social Order ............................................................................................... 8

Maintenance ............................................................................................................................ 8

Need of Judicial Process ............................................................................................................. 9

Outraging Modesty of Woman ............................................................................................... 9

Prevention of Atrocity............................................................................................................. 9

Rape ........................................................................................................................................ 9

JUDICIAL PROCESS IN MODERN INDIA .............................................................................. 10

(i) ACCESS TO JUSTICE .................................................................................................... 10

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(ii) HURDELS IN ACCESS TO JUSTICE .......................................................................... 11

(iii) DELIVERY OF JUSTICE ............................................................................................. 12

Legal Realist Perspective .............................................................................................................. 12

I. The Law as the Product of the Judicial Process .................................................................... 12

II. EXCLUSION OF THE LEGISLATIVE & EXECUTIVE FUNCTIONS........................... 13

Conclusion .................................................................................................................................... 14

BIBLIOGRAPHY ......................................................................................................................... 15

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ACKNOWLEDGEMENT
“What you see, you forget,

What you hear, you remember,

What you do, you understand”

I would like to take this opportunity to offer my acknowledgements to all those who
helped me during the course of this project. I thank profusely Dr. Eqbal Hussain, my
teacher and guide of Jurisprudence I, without whose support and supervision this project
would not have been a success. Indeed, the experience has been insightful and most often,
thought provoking. A deeper understanding of such an important topic has enriched our
knowledge.

I also wish to express our gratitude to the all library staff for their patience and cooperation
in helping us find the apt research material and being generous with the due dates. My
thanks further extend to all my other sources of information and of course, to my friends
and seniors, without whose insightful thoughts and relevant criticisms, the project would
not have been complete.

Last but not the least, I wish to thank my parents and the almighty for their help and
constant support through various means.

I also hope that I will be provided with similar opportunities to work on such other
interesting topics in the future.

-UMANG DIXIT

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Judicial Process: Justice in Adapting to Change

Introduction

“ Judicial Process” means any judicial proceeding in connection with the dispensation of justice
by any court of competent jurisdiction and “ Social Ordering” means activating the instrument of
Judicial Process in setting right the wrong done or eliminating injustice from the society. But
here we are mainly concerned with role of the constitutional courts evolving new juristic
principles during the course of judicial process for upholding social order keeping in view the
need of fast changing society. Therefore, it would be appropriate to examine as to whether
Judicial Process , is an instrument of social ordering?

The most important understanding of the judicial process requires us to think about more than
formal law and procedure. The first question which often comes in one mind after analysing the
topic is what do you exactly mean by critical analysis of judicial process? Is it merely a
statement of criticism or something beyond the imagination of one’s thinking? However, if we
closely analyse our present topic, then all the doubts become crystal clear because sixty two
years after independence, the entire judicial system is on the verge of collapse. While the
superior courts have earned praise from citizens for intervening in citizen’s concerns raised
through public interest petitions, only those with resources or cunning can hope to get ordinary
justice. Over three crore cases are presently pending in various courts. In most cases, citizens
have little hope of getting justice in their lifetime. Corruption and abuse of court processes are
rampant.

For centuries hundreds of writers in thousands of articles and books have tried to determine what
is the essence of the judicial or adjudicatory process, what distinguishes it from the legislative
and administrative processes. During the last several centuries this exercise in political taxonomy
has taken on special urgency and normative concerns. For under the doctrine of separation of
powers it became improper for legislatures to engage in the judicial process—issuance of bills of
attainder, for example—or for judges to assume functions that are thought to be with the
legislative process.

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Article 32: Instrument of Social Ordering

Article 32 of the Constitution empowers the Supreme Court to issue directions or orders or writs
for enforcement of any right conferred under the Constitution for securing social justice. The
Supreme Court has granted great relief in cases of social injustice to the affected groups of the
society under this provision. Article 32 is an important instrument of judicial process to enforce
social ordering. Article 32 of the Constitution of India itself is a fundamental right, which
accorded free hand to the Judicial Process enable the Supreme Court to take suitable action for
the enforcement of social order. Deprivation of the fundamental rights often results in to social
disorder. The Supreme Court is a sentinel of all fundamental rights, and we are satisfied to see
that the Apex Court has taken recourse of judicial process effectively in every area of social
disorder to set it right and granted relief for each type of evil prevailing in the society. The
Supreme Court has played positive role in implementing social order.

Now it will be appropriate to examine the areas in which judicial process played a vital role in
eliminating social dis-order:-

Backward Classes of the Society

In "Indra Sawhney v. Union of India", AIR 1993 SUPREME COURT 477, the Apex Court has
innovated concept of 'creamy layer test' for securing benefit of social justice to the backward
class, needy people, and excluded persons belonging to 'creamy layer .'

Bigamy

Bigamy is a social evil which often creates social disorder. The Apex Court has tightened the
noose over those avoiding punishment by taking plea of conversion to Islam. In "Lily Thomas v.
Union of India", AIR 2000 S C 1650, it was held by the Apex Court that the second marriage of
a Hindu husband after conversion to Islam without having his first marriage dissolved under law,
would be invalid, the second marriage would be void in terms of the provisions of Section 494,
IPC and the apostate-husband would be guilty of the offence punishable under Section 494, IPC.
This verdict of the Apex Court would certainly be helpful in eliminating social evil of bigamy.

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Bride Burning

In "Paniben v. State of Gujarat", AIR 1992 S C 1817, the Apex Court held that it would be a
travesty of justice if sympathy is shown when cruel act like bride burning is committed. Undue
sympathy would be harmful to the cause of justice. The Apex Court directed that in such cases
heavy punishment should be awarded.

Bonded Labourers

Bandhua Mukti Morcha v. Union of India", AIR 1984 S C 802, is a good example of social
ordering by way of judicial process. The Apex Court has tried to eliminate socio-economic evil
of bonded labour, including child labour and issued certain guide lines to be followed, so that
recurring of such incidents be eliminated.

Caste system and Judicial Process

In "Lata Singh v. State of U. P.", AIR 2006 SC 2522, the Apex Court has given protection to the
major boy and girl who have solemnized inter-caste or inter-religious marriage.

Child Labour

In "M.C. Mehta v. State of T.N.", AIR 1997 S C 699, the Supreme Court has issued direction the
State Governments to ensure fulfillment of legislative intention behind the Child Labour
(Prohibition and Regulation) Act (61 of 1986). Tackling the seriousness of this socio-economic
problem the Supreme Court has directed the Offending employer to pay compensation, a sum of
Rs. 20,000/ for every child employed.

Child Prostitution

In Gaurav Jain v. U.O.I. AIR 1997 SC 3021, the Apex court issued directions for rescue and
rehabilitation of child prostitutes and children of the prostitutes.

Dowry Death

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Dowry death is perhaps one of the worst social disorders prevailing in the society, which
demands heavy hand of Judicial Process to root-out this social evil. In "Raja Lal Singh v. State of
Jharkhand", the Supreme Court has laid down that there is a clear nexus between the death of
Gayatri and the dowry related harassment inflicted on her, therefore, even if Gayatri committed
suicide, S. 304-B of the I. P. C. can still be attracted.

Equality: Man and Woman

In AIR India v. Nargesh Meerza, AIR 1981 SC 1829, the Apex Court declared that – “the
provision of AIR India Service Regulation 46 (i) (c)” or on first pregnancy whichever occurs
earlier” is UN-constitutional, and is violative of Article 14 of the constitution.

Female Foeticide and Judicial Process.

Leading to unhindered female infanticide affecting overall sex ratio in various states causing
serious disorder in the society. In "Centre for Enquiry into Health and Allied Themes (CEHAT)
v. Union of India", AIR 2001 S C 2007, the Apex Court has held that despite the PNDT Act
being enacted by the Parliament five years back, neither the State Governments nor the Central
Government has taken appropriate actions for its implementation. Hence, directions are issued by
the Court for the proper implementation of the PNDT Act, for eliminating this Social evil.

Goal of Judicial Process

Ultimate goal of Judicial Process , undoubtedly, is to ensure social order and to make the society
safer for its people. Law cannot be effective and useful without taking recourse of judicial
process in maintaining social order. Justice P. N. Bhagwati and Justice V. R. Krishna Iyer, both
were of the opinion that law is an instrument of social change, social justice and social ordering.
Justice Rangnath Mishra, former C.J.I., has rightly observed that ' Law is a means to an end and
justice is the end.' Therefore, undoubtedly we can say that Judicial Process, which operate laws,
is an instrument of social ordering.

Harassment of Woman

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The Apex Court in Vishaka v. State of Rajsthan (AIR 1997 SC 3011) created law of the land
holding that the right to be free from sexual harassment is fundamental right guaranteed under
Articles 14, 15 and 21 of the Constitution. The Court has issued guidelines to be followed by
employer for controlling harassment of woman at her work place.

Immoral trafficking

Immoral trafficking has now become a widespread social disorder. This is a deep rooted social
evil has to be controlled. The Apec Court is of the opinion that accused persons are to be dealt
with heavy hands of the Judicial Process in such cases. In "State of Maharashtra v. Mohd. Sajid
Husain Mohd. S. Husain", AIR 2008 SUPREME COURT 155 , the Court has rejected
application for anticipatory bail, in a case where a minor girl was driven to flesh trade by accused
persons , comprised of police officers, politicians and all were absconding for long time.

Judicial Process and Social Order

It is satisfying to see that achievements of Judicial Process in respect of social ordering has been
significant . Judiciary has not shied away from its responsibility of enforcing social order.
Looking to the need of hour and demands of the changing society, the Supreme Court has
innovated various tools and techniques, for securing social order. One can see how the Supreme
Court of India has innovated, case after case, various juristic principles and doctrines, for
upgrading social order. Needless to say that , Articles14, 15, 16, 17, 38, 39A and 42 to 47 of the
Constitution of India deal with facets of social justice. Courts have played very wide role in
interpreting the Connection for achievements of social justice.

Maintenance

In Mohd. Ahmed Khan v. Shah Bano, AIR 1985 SC 945, the Apex Court , for the first time,
granted maintenance to divorced Muslim woman under section 125 Cr. P. C., ignoring her
personal law, keeping in view essence of equality before law.

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In "Dimple Gupta v. Rajiv Gupta", AIR 2008 S C 239, the Apex Court has granted Maintenance
to illegitimate child under S. 125 Cr. P.C. This path breaking judgment has given breath to the
innocent children who were victim of no fault of their own. These verdicts are judicial
instruments of social ordering.

Need of Judicial Process

Noble preamble of our Constitution promises citizens of India to secure Justice, – inter alia ,
social justice, transforming social order. Judicial Process has played a significant role in order to
deliver social justice, by eliminating socio-economic imbalance and social injustice from the
society.

Outraging Modesty of Woman

Outraging the modesty of a woman is a serious social disorder has to be taken seriously by courts
during the course of Judicial Process. In "Kanwar Pal S. Gill v. State (Admn. U. T.
Chandigarh)", the accused slapped on the posterior of the prosecutrix, Mrs. Rupan Deol Bajaj, an
I. A. S. officer , in the presence of other guests. The accused, who was then the D.G.P. of the
State of Punjab. The CJM convicted him under Sections 354 and 509 IPC.Appeal filed by the
accused was dismissed by the Apex Court. That by itself is setting a model for others and it is a
good example in connection to social ordering.

Prevention of Atrocity

When members of the S. C. and S. T. assert their rights and demand statutory protection, vested
interest try to cow them down. In these circumstances, anticipatory bail is not maintainable to
persons who commit such offences, such a denial cannot be considered as violative of Article 14
as held in "State of M.P. v. R. K. Balothia", AIR 1995 S C 1198.

Rape

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In "State of M.P. v. Babulal", AIR 2008 SUPREME COURT 582, the Court has laid down the
principle that rape cases need to be dealt with sternly and severely. A socially sensitized Judge is
a better armour in cases of crime against women. Once a person is convicted for an offence of
rape, he should be treated with a heavy hand and must be imposed adequate sentence. This goes
to show that how the Supreme Court is keen in eliminating social disorder by the heavy hands of
judicial process.

JUDICIAL PROCESS IN MODERN INDIA

After independence India adopted a normative constitution . The present Indian judicial process
is governed by British imposed adversary system even though there is no mention of it in the
constitution . Main attributes of this system can be understood under following heads:–

(i) ACCESS TO JUSTICE

The term access to justice is variable according to the variation of the definition of
justice, earlier access to justice meant 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.1 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,

1
P P Rao, “Access to Justice and delay in disposal of cases”, 30 IBR 208 (2003)

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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 gurantee 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 , and is anathema to any kind of arbitrariness . Law of
limitation is nothing but a restatement of exploiting British imposed law of limitation act , thus it
is also hit by Article 13(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 dismissed2. 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 . Thus in this situation , the determining factor for the judicial process and
justice is the competency of lawyer which depends upon the financial capacity of the party ,
which results in absolute denial of the parity of power guaranteed by Article 14.

2
Ibid O- ix R 2 .

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4. Procedural hurdles: After institution of the suit the aggrieved person has to go through the
procedures of C.P.C or Cr.P.C which does not reflects the values of the constitution but the
values chosen by the colonial masters.

(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.

Legal Realist Perspective

I. The Law as the Product of the Judicial Process

A. Ratio Decidendi

•Ratio decidendi of a case acquires an important character and function.

•As the product of legal reasoning ratio decidendi becomes a vital factor in the prognostication of
the result of other similar or nearly similar cases.

•According to Justice Holmes, if there are no interstices or lacuna in the statute or rule under
consideration in which the molar to molecular motion can play or operate, then, there is simply
no place for judicial elaboration. This rule of thumb posited by Justice Holmes simply note that
courts cannot judicially legislate, in this given situation, in a wholesale manner.

B. Judicial Realist View of Modern Judicial Process

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•The judicial legal realist view of modern judicial process presented in a mathematical formula:

(jR x mF) x (m1S x jP) =L

First Quantity

Based on the formula presented above the first quantity (jR x MF) represents the modification of
the formalist concept of the judicial process with the qualification of raw facts (rF) into material
facts (mF). The variable “jR” as involve in the first quantity represents the jural rules while
“mF” signify the element of material facts.

Furthermore, material facts as distinguished from the raw facts simply means, that not all raw
facts (rF) go into adjudicative function. With regard to material facts, it does not mean that it
only pertains necessarily to the actual facts but this also includes circumstances relied upon or
even assumed by judges as basis of their decisions in a particular case.

Notably, “facts” become important in the determination of the dipositive portion of the decision
and the underlying principle of the case which alone can be precedent in the future case.

Second Quantity

In the second quantity, (m1S) represents the metalegal stimuli which affects the judicial
personality (jP).

II. EXCLUSION OF THE LEGISLATIVE & EXECUTIVE

FUNCTIONS

In judicial legal realism both executive and legislative organs are considered only as producing
agencies of law. The explanation behind the exclusion of the two organs rests on the fact that in
the adjustments of conflicting or overlapping interests and purposes, the judicial organ is the
ultimate authority in the interpretation and application of legal rules.

John Chipman views that statutes enacted by the legislative and orders issued by the executive
department are only sources of law. Thus, this simply means that all agencies of the government

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engaged in decision-making form part of the adjudicative organ, regardless of their political and
governmental classification.

Conclusion

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”.

Yet it would be wrong to conclude that judges are merely passive instruments reflecting current
sentiments and tools of the dominant political groups. For judges themselves are active members
of the governing elites and create as well as respond to the political situation. And within stable
democratic regimes where the community is divided, judicial support for particular values will
often be the critical factor in their emergence as the controlling rules of the community. To have
the judges on one’s side and to have their stamp of legitimacy for one’s course of conduct can be
an important political asset. Most of the time the judicial rulings will “stick,” although without

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significant political support they will not stick for long. The key word, of course, is “significant,”
and with additional research we may be able to specify the conditions under which the law
announced by the judges will control the behavior of the community.

BIBLIOGRAPHY
▪ BOOKS
➢ A.W.Brian Simpson: Reflections on the concept of law, Oxford Univ. Press,
London
➢ Dr. B.N. Mani Tripathi: Jurisprudence: Legal Theory
➢ H.L.A. Hart: The Concept Of Law
➢ John Rawls: A theory of Justice, Harvard University press, London
▪ WEBSITES
➢ www.scconline.com
➢ www.manupatra.com
➢ www.legalindia.com
➢ www.indiankanoon.com
▪ SOURCES
➢ Black’s Law Dictionary
➢ Times of India (Speaking Tree)
➢ The Hindu

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