JUDICIAL PROCESS

JUDICIAL PROCESS & CREATIVITY IN LAW

A.NANSIPUSHPALATHA
1ST YEAR L.L.M.
REG NO: PH17015
 GOVERNMENT LAW COLLEGE TIRUNELVELI

NAME : A.NANSIPUSHPALATHA
CLASS : 1ST YEAR L.L.M
REGISTER NO : PH17015
SUBJECT : JUDICIAL PROCESS
TITLE : JUDICIAL PROCESS &
CREATIVITY IN LAW

DATE OF SUBMISSION: 22.11.2017

PLACE OF SUBMISSION: TIRUNELVELI
MARKS PROVIDED:
 INDEX

S.NO. CONTENT PAGE NO.

1) INTRODUCTION 1

2) HISTORICAL PERSPECTIVE 2

3) ROLE OF ACTIVIST JUDGES IN 3

JUDICIAL CREATIVITY

4) JUDICIAL CREATIVITY & 4-12

CONSTITUTION INTERPRETATION

5) COMMON LAW MODEL 13-17

6) LEGAL REASONING 17-19

7) CONCLUSION 20

8) BIBLIOGRAPHY AND 21
WEBLIOGRAPHY

9) LIST OF STATUES 22

10) LIST OF CASE LAWS 23

 1

INTRODUCTION:
Judicial process in India is a creative concept which makes judges to play a active role
when upholding the justice in deciding cases. The law making power was not exclusively given
to judges but it was impliedly done by them when there is a lacuna in law while providing
justice.

Judicial review1 is a expressed power given by the Indian constitution to judiciary check
on the legislative and executive. In A.K.Gopalan v. State of Madras2 Kania CJ., pointed out
that the framers of our constitution inserted the special provisions in Article 13. But the judicial
activism is a emerged process which act as a tool to judges to render justice.

Common law, case law and precedents were made by judges while deciding the case
which becomes a law for the cases arise afterwards with the same grounds and circumstances.
Indian constitution is a copy paste of many constitution i.e., Fundamental rights are from the
model of American constitution and so Judicial Review, parliamentary system of government
from the United Kingdom, Directive Principle of State Policy from the constitution of Ireland,
Emergency in the light of Constitution of German Reich and the Government of India Act,1935
which makes dynamic interpretation possible.

Judicial process is a developing process which act in the prospective mode to give life
to the Directive Principles of State Policy by moving it to the Fundamental Rights using
Judicial Review, Activism, Common law principles, Natural Justice, Equity and Social
welfare. The judiciary restraint itself to over reach into the matters of legislation since we are
federal state3

HISTORICAL PERSPECTIVE:

Most of the concepts of our Indian constitution was taken from the British constitution
and so the emergence of the common law principles, equity etc.. The common law system is a
system of law based on recorded judicial precedents which came to India with the British East

1. The State of Madras v. G.Row AIR 1952 SC 196

2. AIR 1950 SC 27
3. A.D.M. Jabalpur v S.Shukla AIR 1976 SC 1207
 2

India Company. The company was granted charter by King George I in 1726 to establish
“Mayor’s Courts” in Madras, Bombay and Calcutta (now Chennai, Mumbai and Kolkata
respectively). Judicial functions of the company expanded substantially after its victory in
Battle of Plassey and by 1772 company’s courts expanded out from the three major cities. In
the process, the company slowly replaced the existing Mughal legal system in those parts.

Following the First War of Independence in 1857, the control of company territories in
India passed to the British Crown. Supreme courts were established replacing the existing
mayoral courts. These courts were converted to the first High Courts through letters of patents
authorized by the Indian High Courts Act passed by the British parliament in 1862.
Superintendence of lower courts and enrolment of law practitioners were deputed to the
respective high courts.

During the Raj, the Privy Council acted as the highest court of appeal. Cases before the
council were adjudicated by the law lords of the House of Lords. The state sued and was sued
in the name of the British sovereign in her capacity as Empress of India.

Coding of law also began in earnest with the forming of the first Law Commission. Under
the stewardship of its chairman, Thomas Babington Macaulay, the Indian Penal Code was
drafted, enacted and brought into force by 1862. The Code of Criminal Procedure was also
drafted by the same commission. Host of other statutes and codes like Evidence Act (1872)
and Contracts Act (1872).

“Stare decisis” which means that the judgement will be followed by precedents was came
from the common law courts of British empire which was followed by the judges. But the
judges can also according to changing societies can over rule the precedents.

The Judicial Review was first introduced by the Supreme Court of America in its famous
judgement in Marbury v.Madison4. In India the Judicial Review is expressed provision but in
America it was in the state of doctrine. Whereas the Judicial Activism is the trending concept
of the recent times. Judges cannot say that there is no law and so we cannot provide justice.
The actual job of the judges is not to make laws but to interpret and apply it to the cases which

4. 2L Ed.60.
 3

comes before them. But if there is no law to render justice in cases like Vishaka v. State of
Rajasthan5 and M.C.Mehta v. Union of India6 then the judiciary started making laws in the way
of directions and guidelines which results in Judicial Activism.

Hence the historical prospective of judicial process almost touches part of British and
American constitution. Simply judicial process is a development and changes adapted and
created by the judiciary in the course of time to render justice according to the prevailing laws,
common laws, precedents, doctrines etc..

ROLE OF ACTIVIST JUDGES IN JUDICIAL CREATIVITY:

The activist judges plays a vital role in the development of judicial process. Their
creativity is the main essence of the evolution of judicial activism. The interpretation made by
the creative judges leads to the formation of different directions and guidelines. Even the
Supreme Court used the international convention to interpret the fundamental rights of the
people provided by the constitution of India.

Justice Cardozo has concluded that “there is an element of creation and discovery where
the judge can play a creative role in matter of constitutional interpretations. Each case coming
before the judge has its own peculiarities requiring application of fresh mind and skill. The
judge has constantly to be a creative artist. His work, therefore, require constant thinking and
display of talent and creativity.”

According to justice P.N.Bhagwati judicial activism is:

“The Indian judiciary has adopted an activist goal oriented approach in the matter of
interpretation of fundamental rights. The judiciary has expanded the frontiers of fundamental
rights and the process rewritten some parts of the constitution through a variety of techniques
of judicial activism. The Supreme Court of India has undergone a radial change in the last few

5. AIR 1997 SC 3011

6. AIR 1987 SC 1087
 4

years and it is now increasingly identified by the justice as well as people the last resort for the
purpose bewildered.”

“There is no need for judges to feel shy or apologetic about the law creating roles. In the
last few years the Supreme Court has, through intense judicial activism, become a symbol of
hope for the people of India”7

The role of activist judges like Justice V.R.Krishna Iyer, Justice P.N.Bhagwati, Justice
O.Chinnappa Reddy, Justice S.Verma, Justice A.S.Anand etc. pays way for the development
of judicial process in India. Now Judiciary were applying the creative mind while deciding the
cases before them due to the evolution of judicial process.

JUDICIAL CREATIVITY & CONSTITUTIONAL INTERPRETATION:

Out of all the statuory laws in India, the judicial creativity is much necessary in the
Supreme law of the country i.e, Constitution of India. Because the Constitution should be
interpreted in the way which satisfies the social, economical and cultural changes occuring in
the society. Sometimes even the cases with the same facts and issue should need to be decided
differently due to the change of social, economical and cultural needs of the society.

Precedents should not be followed in all the circumstances. If there is a absence of law or
lacuna in a law to decide a particular issue then the judges should show some creativity in their
judicial decision making process which sometimes results in law making process.

 FUNDAMENTAL RIGHTS & JUDICIAL CREATIVITY:

Mostly the judicial creativity of judges were shown between the Article 12 to Article
35 which is the fundamental rights of the people. In Maneka Gandhi v Union of India8,
Supreme Court has held that the provisions of Part III should be given a widest possible
interpretation. While delivering the judgement, Justice Bhagwati., said, “the correct
way of interpreting the provisions of Part III is that of the court should be to expand the

7. Judicial Activism in India by Justice P.N.Bhagwati

8. AIR 1978 SC 597
 5

reach and ambit of the fundamental rights rather than to attenuate their meaning and
content”.

In Gopalan’s case9, the court had taken the view that each Article dealt with
separate rights and there was no relation with each other. In other words, they were
mutually exclusive. This view has been held to be wrong in Menaha Gandhi’s case
where the court has taken the view that they are not mutually exclusive but form a single
scheme in the constitution, that is they are all parts of an integrated scheme in the
constitution.

The validity of a law infringing fundamental rights can be judged not only with
reference to particular Article under which such a law is enacted but also with reference
to other Article. In Gopalan's case it was held that the validity of a deprivation law
enacted under Article 21 could not be tested under Article 19. This view has now been
overruled in Maneha Gandhi's case and it has been held that a law depriving a person
of his personal liberty under Article 21 must also satisfy the test of “reasonableness”
under Article 14 and 19 of the constitution.

Article 21 was now interpreted in a balloon manner which can be expanded

accordingly to include many things and rights. In Menaka Gandhi's case the court give
a new dimension to Article 21. It has been held that the right to ‘live’ is not merely
confined to physical existence bug it includes within the ambit the right to live with
human dignity.

Following Menaha Gandhi and Francis Coralie cases the Supreme Court in
Peoples Union for Democratic Rights v. Union of India10, held that the non-payment of
minimum wages to the workers employed in various Asian Projects in Delhi was a
denial to them of their right to live with basic human dignity and violative of Article 21
of the constitution. Bhagwati.J., speaking for the majority held that the rights and
benefits conferred on the workmen employed by the contracted under various labour
laws are “clearly intended to ensure basic human dignity to workmen and if the

9. AIR 1982 SC 1473

10. AIR 1986 SC 180; (1985) 3SCC 545
 6

workmen are deprived of any of these rights and benefits, that would clearly be a
violation of Article 21”.

This decision has heralded a new legal revolution. It has clothed millions of
workers in factories, fields, mines and project sites with human dignity. They had
fundamental right to minimum wages, drinking water, shelter creches, medical aid and
safety in the respective occupation covered by the various welfare legislations.
In Olga Tellis v. Bombay Municipal Corporation 11 , popularly known as
‘pavement dwellers case' a five judges bench of the court has finally ruled that the
word ‘life’ in Article 21 includes the ‘right to livelihood' also. In R.Rajagopal v. State
of TamilNadu 12 popularly known as “Auto Shankar case” the Supreme Court has
expressly held that “right to privacy”, or the right to be let alone is guaranteed by Article
21 of the constitution. A citizen has a right to safeguard the privacy of his own, his
family, marriage, procreation, motherhood, child bearing and education among other
matters. None can publish anything concerning the above matter without his consent
whether truthful or otherwise and whether laudatory or critical.

In the field of fundamental rights the judicial creativity is playing a very active role
when compared to other region. Wide interpretation of Part III of the constitution is
possible only with a judicial creativity of the judges which sometimes results in Judicial
Activism.

 NATURAL JUSTICE & JUDICIAL CREATIVITY:

In Maneha Gandhi's case the Supreme Court has held that the ‘procedure’
depriving a person of his ‘life or personal liberty must be just, fair and reasonable'. It
must satisfy the requirement of natural justice which is an essential component of fair
procedure under Article 21. “Natural justice is a distillate of due process” observed
Krishna Iyer, J. The concept of natural justice and due process which were rejected in
Gopalan's case forming part of our constitutional scheme have not held to be an

11. (1994) 6 SCC 549

12. AIR 1980 SC 1579
 7

essential part of the constitutional scheme guaranteeing fundamental rights. “ True, our
constitution has no ‘due process' clause or the VIII Amendment of the American
Constitution, but after Cooper and Maneka Gandhi's cases the consequence is the
same”, Krishna Iyer,J., observed.

 WRITS & JUDICIAL CREATIVITY:

The dynamic role of judicial remedy after Sunil Batra's case imparts to the habeas
corpus with a versatile vitality and operational utility as bastion of liberty even within
the jails. Wherever the rights of a prisoner either under the constitution or under any
other law are violated the writ power of the court can and should run to rescue. The
habeas corpus writ can be issued not only for releasing a person from illegal detention
but also for directing the jail authorities to provide necessary amenities to prisoners and
to protect them from inhuman and barbarous treatment.

In fact, in Sunil Batra v. Delhi Administration13 , the petitioner, a convict under

the death sentence did not seek his release from the prison because he was sentenced to
life imprisonment and was to remain in jail but he sought the protection of the court
from inhuman and barbarous treatment with which he was treated by jail authorities.
Batra, a convict under death sentence in Tehar Central Jail, brought to the notice of the
court through a letter regarding inhuman treatment with another prisoner in which he
sustained serious injury because a rod driven into the aperture by a jail warden to extract
money from his visitors. Since the bleeding did not stop, the prisoner was shifted to jail
hospital and then to another hospital. The court converted this informal information
into the habeas corpus petition and issued directions to jail authority to release the
petitioner from punishment cell and not to subject him with severity until fair procedure
as laid down in Menaka Gandhi's14 case is complied with.

13. AIR 1978 SC 1675

14. Maneka Gandhi v. Union of India, AIR 1978 SC 597
15. Keshavananda Bharati v. State of Kerala, AIR 1973 SC 1461
 8

So in writ jurisdiction the judges plays a vital role and bring about a dynamic
changes in the Part III of the constitution of India using judicial process. Even in
Fundamental Rights case 15 wherein the Supreme Court propounded the Doctrine of
Basic Structure through its judicial creativity and activist approach.

 HUMAN RIGHTS & JUDICIAL CREATIVITY:

In its decision one finds extensive reference s of the human right by the
Supreme Court, particularly for protecting prisoners from various inhuman and
barbarous treatment. “Today, human right jurisprudence in India has constitutional
status” says Krishna Iyer. J,. In Sunil Batra's case.

In 1979, India became party to the International Covenant on Civil and Political
Rights. Article 10 of the International Covenant provides that “All persons deprived of
their liberty shall be treated with humility and with respect for the inherent dignity of
the human persons. Article 5 of the U.N.Declaration of Human Rights, 1948, says, “No
one shall be subjected to torture or to cruel inhuman or degrading treatment or
punishment”. In Prem Shankar v. Delhi Administration16, Krishna Iyer,J., said that in
interpreting constitutional and statutory provisions the Court must not forget the core
principle found in the Article 5 of the U,N,Declaration of Human Rights, 1948. Homage
to human rights which calls for prisons, prison staff and prisoners reform, his Lordship
declared.

This is a welcome trend. It would certainly be able to in calculate a sense of

accountability in public authorities discharging public duties towards the people and
particularly towards the weaker section of the society. This new trend of interpreting
the provisions of the Part III of the constitution , it is submitted, would go to a long way
in protecting fundamental rights of the citizens, outside the prison and within the
 9

prison, and securing a social order where individual shall be free from inhuman and
barbarous treatment.

 DIRECTIVE PRINCIPLE OF STATE POLICY & JUDICIAL

CREATIVITY:

Article 36 to 51 deals with the Directive Principle of State Policy which was
not enforceable through law. But the judicial creativity of the intelligent judges make it
possible to enforce. In Randhir Singh v. Union of India17, Supreme Court has held that
the principle of “Equal pay for equal work though not a fundamental right” is certainly
a constitutional goal and, therefore capable of enforcement through constitutional
remedies under Article 32 of the constitution. The doctrine of equal pay for equal work
is equally applicable to persons employed on a daily wage basis. They are also entitled
to the same wages as other permanent employees in the department employed to do the
identical work18.

However,the doctrine of “equal pay for equal work” cannot be put in a strait
jacket. This right, although finds place in Article 39, is an accompaniment of equality
clause enshrined in Article 14 and 16 of the constitution. Reasonable classification,
based on intelligible criteria having nexus with the object sought to be achieved is
permissible.

Employment of children in Clause (f) was modified by the constitution (42nd

Amendment) Act, 1976 with a view to emphasis the constructive role of the state with
regard to children. In M.C.Mehta v. State of Tamilnadu19, it has been held that in view
of Article 39 the employment of children within the match factories directly connected
with the manufacturing process of matches and fireworks cannot be allowed as it is

16. AIR 1980 SC 1535

17. AIR 1982 SC 879

18. Surindersing v Engineer-in-Chief, C.P.W.D., AIR 1989 SC 534

19. (1991) 1 SCC 283
20. (1993) 1 SCC 645
 10

hazardous. Children can, however, be employed in the process of packing but it should
be done in area away from the place of manufacturing to avoid exposure to accidents.

In M.C.Mehta v. State of Tamilnadu, known a (Child Labour Abolition case) a

three bench judge of the Supreme Court (comprising Kuldeep Singh, B.L.Hansaria and
S.B.Mazumdar, JJ.) has held that children below the age of 14 years cannot be
employed in any hazardous industry, or mines or other works. The matter was brought
in the notice of the court by public spirited lawyer Sri. M.C.Mehta through a public
interest litigation under Article 32. He told the court about the plight of children
engaged in Sivakasi Crackers Factories and how the constitutional right of these
children guaranteed by Article 24 was being grossly violated and requested the court to
issue appropriate direction to the government to take steps to abolish child labour. The
court also issued the direction which leads to judicial activism.

In a landmark judgement in Unni Krishnan v. State of A.P20, the Supreme Court

has held that the “Right to Education” up to the age of 14 years is a fundamental right
within the meaning of the Article 21 of the constitution, but thereafter the obligation of
the state to provide education is subject to the limits of its economic capacity. “ The
right to education flows directly from right to life”, the court declared which leads to
The constitution (86th Amendment ) Act, 2002.

Even in moving the policies in Directive Principle of State Policy to the status
of Fundamental Rights the creativity of the jurist plays a great role. The judicial process
makes changes in the constitution by showing that the society was changed according
to the development of the country.

 JUDICIAL REVIEW & JUDICIAL CREATIVITY:

Article 13 of the Constitution of India expressly give the power of judicial review
to the judges. The creativity of judges were welcomed in this Article only. Yet the
Article itself makes judges to provide a very intellectual interpretation which results in
many doctrines. The doctrine of severability, doctrine of eclipse, doctrine of waiver,
 11

doctrine of lifting the veil etc. were all created by the judges to implement judicial
review in the course of life.

 JUDICIAL ACTIVISMS & JUDICIAL CREATIVITY:

Simply judicial activism means that the judiciary taken over the role of
legislation. The judiciary cannot be allowed to voluntarily makes law but it was allowed
if the case comes before it. If there is a lacuna in the existing laws then the judiciary for
the purpose of rendering justice involve in the legislation process by giving guidelines
and directions through the judgement.

Judicial creativity which is a result of principle activism is very good, but if it

propelled by partisanship, it may result in catastrophic consequences generating
conflicts which may result in social change. For e.g. in 1857 when the American
Supreme Court headed by Chief Justice Taney ruled in Dredd Scott v. Standford21 that
Negros were not equal to whites and the rights guaranteed under the Constitution were
not available to them, the decision had accelerated the civil war between the Northern
and southern States ultimately resulting in the abolition of slavery and strengthening of
the union.
PIL- Public Interest Litigation , a manifestation of judicial activism,has
introduced a new dimension regarding judiciary’s involvement in public
administration. The sanctity of locus standi and the procedural complexities are totally
side tracked in the causes brought before the courts through PIL. In
A.B.S.K.Sangh(Rly) v. Union of India22, it was held that the Akhil Bhartiya Soshit
Karmachari Sangh(Railway), though an unregistered association could maintain a writ
petition under Article 32 for the redressal of a common grievance. Access to justice
through ‘class action', ‘public interest litigation’ and ‘representative proceedings' is the
present constitutional jurisprudence, Krishna Iyer,J., declared.
M.C.Mehta a social activist make use of PIL to put an end to many social
demons. In M.C.Mehta(2) v. Union of India23, the petitioner brought a public interest
litigation requiring a court to issue appropriate direction for the prevention of Ganga

21. 60 U.S.393 (1857)

22. AIR 1981 SC 298
23. (1996) 4 SCC 750
 12

water pollution. The Supreme Court held that the petitioner, although not a riparian
owner (living on the river side) is entitled to move the court for the enforcement of
various statutory provisions which imposes duties on the municipal and other
authorities. He is a person interested in protecting the rights of the people who make
use of the ganga water. The nuisance caused by the pollution of the river ganga is a
public nuisance which is wide spread and affecting the life of large number of persons
an therefore any particular person can take proceedings to stop it as distinct from the
community at large. Accordingly the court directed the Kanpur Nagar Mahapalika to
submit its proposals for effective prevention and control of water pollution within 6
months to the Board constituted under the water Act. It also directed the Mahapalika
to get the dairies shifted to a place outside the city and arrange for removal of waste
accumulated at the dairies to prevent it to reach the river ganga, to lay sewerage line
wherever not constructed, to construct public latrines and urinals, for the use of poor
people free of charge, to ensure that dead bodies were half burnt bodies were not thrown
into the river ganga an to take action against the industries responsible for pollution,
licences to establish new industries should be granted only to those who made adequate
provisions for the treatment of trade effluent flowing out of the factories.

In another case of M.C.Mehta v. Union of India 24 , the Supreme Court had

ordered the shifting of 168 hazardous industries operating in Delhi as they were causing
danger to the ecology and directed that they be reallocated lands to the National Capital
Region as provided in the Master plan of Delhi. The court directed these industries to
close down w.e.f on 30.11.1996. the court gave necessary specific direction for the
protection of the rights and benefits of the workmen employed in these industries.

M.C.Mehta make well use of PIL provision and bring about many changes in
the society through judicial activism. Control of pollution in Taj Mahal, Child labour
case and in many social issues this activist brings the random changes. Because of the
use of judicial activism, the PIL existed which results in the development of society in
many fields in our country.

According to Justice Bhagwati the question of importance is that can the judges
escape their duty towards the society and can they overlook social injustice, also is it

24. (1996)
 13

not the duty of the judge as per the constitution to fulfill the demands of his judicial
function.

He revolutionized the judicial process and widen the sphere of relief under the
existing models. He is called the champion of the PIL, Legal Aid and Lok Adalat. His
legal and social activism has broadened the frontiers of constitutional jurisprudence.
Royappa v. State25 is a leading case that defines the citizen’s right to equality before
the state. In Maneka Gandhi v. Union of India26 the judgement given by the Supreme
Court has become a strong weapon for fighting for Human Rights and in Hussainara
Khatoon v. Union of India27 the floodgates for PIL was opened.

The judicial activism has modified the rules of judicial process especially the
doctrine of Locus Standi whereby the process has been made easier. The procedural
hindrances have been removed. Now, courts can take action suo moto and letters and
postcards have been recognized as writ petition. This has revolutionized the judicial
process.

COMMON LAW MODEL:

Most nations today follow one of two major legal traditions: common law or civil law.
Common law is a body of law derived from judicial decisions (also known as judicial
precedent or judge-made law or case law) as distinct from statutes or constitutions and distinct
from a civil law system and ecclesiastical law; in common law jurisdictions, it is the basic
system of legal concepts, together with the techniques of applying them in courts of law. At
the heart of all common law systems lies the principle, known as stare decisis, that judges
should decide cases according to consistent principles and rules, so that similar facts will yield
similar results.

Common law systems originated during the Middle Ages in England, and from there
propagated to the colonies of the former British Empire and of the British "Thirteen Colonies"
in North America. England's common law was stated in Halsbury's Laws of England, to be

25. AIR 1974 SC 555

26. AIR 1978 SC 597
27. AIR 1979 SC1377
 14

nothing else but the common custom of the realm, and not to be confused with the jus
commune of the Church of Rome.

 COMMON LAW: DEFINITION AND ORIGINS:

The Common Law is a body of law derived from judicial decisions known as case laws,
rather than from statutes. The Common Law derived its authority from the universal consent
and practice of the people from time immemorial. This system of jurisprudence initially
originated in England. Common Law is unintelligible until expressed in a judgment. It includes
those rules of law which derive their authority from the statement of principles found in the
decisions of courts. This system of law includes tradition, custom and usage, fundamental
principles and modes of reasoning. It is the embodiment of broad and comprehensive unwritten
principles, which were derived out of natural reasoning and innate sense of justice.

A Common Law system requires several stages of research and analysis to determine the
appropriate law in a given situation. The facts are ascertained properly, relevant cases and
statutes are to be identified, and the principle, ideas by various courts need to be understood
and applied in order to determine how they would help in understanding the point of law in
question within that case. The common law is quite different from codified law as it follows
the judgment while the codified law precedes it. Therefore it can be said that it is a system of
rules and declarations of principles from where the judicial ideas and legal definitions are
derived. This law is ever changing as its principles are influenced by the changing conditions
and requirements of the society.

The origin of the common law system can be traced back to England, where after the
Norman conquest28. The new ruler of England William II brought about a varied number of
governmental reforms, as a consequence he also overhauled the legal setup of England. Earlier
the legal system of England comprised of county courts presided by the bishop and the county
sheriffs, who exercised both criminal and civil jurisdiction. William II introduced the system
of Eyre, wherein four judges were appointed by the King, their main function was to review
the activities of the county courts and hear cases of appeals. It was used as a tool to centralize

28. (1066 A.D.)

 15

control over local courts, thus it provided a basis for the development of common law in
England.

The dawn of this system came with Henry II ascendance to power. He is considered the
harbinger of a common law system as he created a system of law, common to the whole of
England. Hence the culmination of a centralized system of law with the practice of keeping
record of decided cases for future reference wherein customs also played an exemplary role to
decide nuanced points of law together gave birth to what is referred to as “The common law”.

 COMMON LAW IN INDIA: A BACKDROP:

The existing Indian legal system can be said to have a contemporaneous existence i.e. with
the advent of the English in India. When the enterprising English East India Company29 forayed
into India on the backdrop of trading interests little did the Indian masses or even their future
rulers know that they would shape the very foundation of the modern Indian society. This
transformation happened in various ways but the most relevant of those developments was the
setting up of a new type of judicial system, which was primarily based on the common law
system followed in England. As the East India Company took control of territories, leased to
them by the Mughals for trading purposes, they were anointed the power to govern all persons
belonging to the English government and the company within these territories according to the
English common laws by the Crown.

After the company won the battle of Plassey (1757), the Mughal legal system was slowly
replaced by the English legal system. In the seventeenth-century admiralty courts were set up
in the three presidency towns of the British i.e. Bombay, Madras, Calcutta. These courts
derived jurisdiction directly from the company and not the crown to decide civil and criminal
matters. In the eighteenth century through a royal charter Mayors were established, they
derived authority from the crown. This was the first step in the establishment of a uniform legal
system in India. A system of appeals to the Privy Council (a body of advisors to the crown)
from such courts was also initiated. In the late eighteenth century, the mayor’s court was
replaced with a supreme court in the presidency towns. “This was the first attempt to create a
separate and independent judicial organ in India, under the direct authority of the King. The

29. 1600
 16

Chief Justice and puisne Judges were appointed by the King. This court had jurisdiction over
civil, criminal, admiralty and ecclesiastical matters and was required to formulate rules of
practice and procedure. Appeals from this court lay to the Privy Council.”30It was to be a court
of record and was to hold such jurisdiction as the court of Kings Bench had in England by the
common law of England. Local civil and criminal justice was left under a system known as the
“adalat system”.

Later by the mid nineteenth century through another act of the crown i.e. Letter Patents Act
of 1862, the High Courts were established in place of the Supreme Court in each of the
presidency towns and were further established in other provinces as well. These courts
exercised the same powers as that of the Supreme Courts and appeals lay to the Privy Council.
The setting up of The Law Commission to review the Indian legal setup lead to the coding of
the laws, such as the Indian Penal Code of 1862 regarding criminal matters was drafted under
the stewardship of T.B Macaulay. The Evidence Act of 1872 and The Contracts Act of 1872
were envisaged by the same commission. Thus all these developments lead to the creation of a
judicial system, which was predominantly based on the Common Law system of England.

 COMMON LAW: DOES IT APPLY IN INDIA?

The application of common law has been overarching in the Indian context; it has been
enshrined in the Indian legal system over the space of two centuries by the English to the point
that one can’t allocate an individual identity to Indian jurisprudence. Thus it can be said that
common law has been applicable here though in a different format than that of England as the
needs and demands of the Indian society were different from that of the English. It is to be
found out that much of the law compiled in codes we have today were primarily derived from
the Common Law principles. The basic statutes governing civil and criminal justice are the
Indian Penal Code, 1860, Indian Evidence Act, 1872, the Code of Criminal Procedure, 1973
and the Code of Civil Procedure, 1908. It has already been discussed how these laws came into
being, one thing can be said about these legislations is that they have stood the test of time with
minimal amendments. Codification of laws made the law uniform throughout the country and

30. KG Balakrishnan, An Overview of the Indian Justice Delivery Mechanism,2008 ,

 17

fostered a kind of legal unity in fundamental laws. The Codes apply uniformly throughout the
nation.

Another contribution to Indian legal system by Common Law has been the adversarial
system of trial. In this system the accused is presumed to be innocent and the burden is on the
prosecution to prove beyond reasonable doubt that he is guilty. The accused also enjoys the
right to silence and cannot be compelled to reply. The truth is supposed to emerge from the
respective versions of the facts presented by the prosecution and the defence before a neutral
judge. Both the parties have a right to question their witnesses and the opposing side has a right
to test their testimony by questioning them. . The judge acts like an umpire to see whether the
prosecution has been able to prove the case beyond reasonable doubt and gives the benefit of
doubt to the accused, his ultimate duty being to pronounce the judgment regarding the matter.

The system of Precedents derived from the Common Law too has wide application
within the Indian legal system, a precedent in Common Law parlance means a previously
decided case which establishes a rule or principle that may be utilized by the court or a judicial
body in deciding other cases that are similar in facts or issue. Initially the English judges and
barristers presiding and practicing in the Indian courts followed the decisions of the courts in
England, thus slowly the concept of precedents came to be ardently followed within the Indian
courts. This law has been carried forward in the present day Legal system as in regard to the
judgments of the Supreme Court of India the Indian Constitution provides that “The law
declared by the Supreme Court shall be binding on all courts within the territory of India 31.”
Hence it can be said unequivocally that Common Law has wide application within the Indian
Legal fold as many of the features of this system have been adopted and further developed
from that of The English Common Law System, even though its application hasn’t been
discussed in entirety and only the major principles derived from it have been discussed.

Thus it can be said that common law traces back its origins to England and is primarily
a method of administering justice, which has incorporated different aspects of the legal
pedagogy and practice with the help of deliberations of laymen and the learned over the course
of time. In the Indian context the common law initially was applied for the convenience of the
English, so they could govern their territories properly but, as they became the overlords of
India the common law became common for Indians. There developed a symbiotic relationship

31. Indian Constitution, Art. 141.

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between the Indian customary law and the common law which gave birth to the modern day
Indian legal system. Hence we can say India has an organic law as a consequence of the
common law system.

LEGAL REASONING:
Legal reasoning is a method of thought and argument used by lawyers and judges when
applying legal rules to specific interactions among legal persons. Legal reasoning in the case
of a court’s ruling is found in the ‘Discussion or Analysis’ section of the judicial ruling.
It is here that the court gives reason for its legal ruling, and it helps other courts, lawyers and
judges to use and follow the ruling in subsequent proceedings. Therefore, the ‘discussion or
analysis’ section must be well reasoned and written.

 PRECEDENT & ANALOGY:

The two central forms of legal reasoning are arguments from precedent and analogy. These are
found in many legal systems such as the common law which is found in both England and the
United States.

 Precedent is where an earlier decision is applied in a later case because the two cases
are same.
 Analogy involves an earlier decision being used in a later case because the later case is
similar to the earlier one.

Precedent and analogy do however present philosophical problems. For instance, when are two
cases deemed ‘same’ so as to apply precedent? When two cases are considered ‘similar’ to
justify analogy? In both situations, why should the decision in the earlier case affect the
decision in the latter case?

Inherent within legal reasoning is the acceptance of the law and a leaning towards working
within the existing legal framework. It is true to say that there is a bias towards maintaining the
existing rules. Nevertheless, the bias does not presume the law as it is to be just, fair or practical
and thus immune from change.

Judges have often in the past made use of provisions in the law to avoid applying precedent or
analogy in instances where such an application would result in unfair or undesirable outcomes.
 19

 ELEMENTS OF LEGAL REASONING:

Legal reasoning reveals why and how the court, lawyer or judge came to their decision or
argument on the case.

There are core elements that must appear and be addressed in the reasoning:

 The question or the legal issue before the court

 The relevant facts of the case
 The legal rule
 Other considerations that may be brought before the court

As such, there is the burden to address the stated elements clearly and concisely. This may be
done using a deductive or analytical reasoning.

 DEDUCTIVE REASONING:

This is a means of drawing out ruling from another judicial opinion, or existing constitution,
legislative provision and applying it in another case. The rule statement is mostly broad rather
than narrow when using deductive reasoning. This approach is mechanical and is therefore
effective only in ideal situations and often unsatisfactory.

The approach faces many challenges among them being:

 Semantic difficulty – due to the various meanings that words hold, it is often impossible
to attribute one particular meaning to a specific word and so to be understood by all
parties
 There may arise unremunerated circumstances that would demand a different legal
treatment
 The occurrence of obstacles preventing the upholding of previous rule statements
 Rules based on ontological principles being insufficient to determine between
conflicting interests
 20

 ANALOGICAL REASONING:
This involves the identification of the similarities and differences of the facts in the
precedential and the case to be determined. After the identification, then deciding whether the
case to be determined is similar or different from the precedent in the important aspects with
regards to the matter being decided. Following the findings, the case precedent may then be
followed or distinguished.

It is important to note that there are peculiar situations where both of the above methods
will not suffice in determining a case, and the judge may then rule according to personal
preference.

Circumstances that may prompt such a treatment include but are not limited to:

 Where the law is obscure: the rules are too fragmentary, imprecise or partial to describe the
present case facts

 Where there are no rules provided.

CONCLUSION:
Judicial process is a developing phenomena in our society which include the judicial
activism, judicial review, legal reasoning, common law principles, natural justice, human
rights, precedents and a lots of doctrines. If this goes on without any restraint there may be a
collapse in separation of power in our constitution.

For restraining the judiciary to enter into the process of legislation a phenomena called
Judicial Self-Restraint was originated. In the infamous decision in A.D.M.Jabalpur v. Shukla32
known as Habeas Corpus case, the Supreme Court self-restraint themselves by saying that
Constitution is Supreme.

In the diversified country like India a accurate separation of power is quite impossible.
Also for the development of the country certain change in process and procedure should be

32. AIR 1976 SC 1207

 21

accepted. So the evolution of a revolutionary concepts in the judiciary were the base for
changes in society and also act as a steps to attain the status of developed country.

BIBLIOGRAPHY:

 PRIMARY SOURCE:

 The Constitution of India, 1950

 SECONDARY SOURCE:

 Dr. J.N.Pandey, Constitutional Law of India, 54th Edition, Central Law Agency,
Allahabad Publication.

 A.Lakshminath, Judicial Process- Precedent in Indian Law, Third Edition, East

Book Company.

 Dr.G.P.Tripathi, Judicial Process, First Edition, Central Law Publication.

 S.P.Sathe, Judicial Activism in India, Second Edition, Oxford University Press.

 22

 Dr.Sheetal Kanwal, Judicial Process, First Edition, Amar Law Publications.

WEBLIOGRAPHY:

 https://www.cleverism.com

 https://www.lawctopus.com

 https://indiakanoon.org

 www.livelaw.in

 www.legalservicesindia.com

 www.lawyersclubindia.com

LIST OF STATUES REFERRED:

 Protection of Children from Sexual Offences Act (POCSO), 2012

 Sexual Harassment of Women at Workplace

(Prevention, Prohibition and Redressal) Act, 2013

 The Constitution of India, 1950

 The Right to Education Act, 2010

LIST OF CASE LAWS REFERRED:

 23

 A.B.S.K. Sangh(Rly) v. Union of India AIR 1981 SC 298

 A.D.M.Jabalpur v. S.Shukla AIR 1976 SC 1207

 A.K.Gopalan v. State of Madras AIR 1950 SC 27

 Dredd Scott v. Standford 60 U.S. 393 (1857

 Hussainara Khatoon v. Union of India AIR 1979 SC 1377

 Keshavananda Bharati v. State of Kerala AIR 1973 SC 1461

 Maneka Gandhi v. Union of India AIR 1978 SC 597

 Marbury v.Madison 2L Ed.60

 M.C.Mehta v. Union of India AIR 1987 SC 1087

 M.C.Mehta v. State of Tamilnadu (1991) 1 SCC 283

 M.C.Mehta (2) v. Union of India (1996) 4 SCC 750

 Olgo Tellis v. Bombay Municipal Corporation (1994) 6 SCC 549

 People Union for Democratic Rights v. Union of India AIR 1986 SC 180,

(1985) 3SCC 545

 Prem Shankar v. Delhi Administartion AIR 1980 SC 1535

 R.Rajagopal v. State of Tamilnadu AIR 1980 SC 1579

 Randhir Singh v. Union of India AIR 1982 SC 879

 Royappa v. State AIR 1974 SC 555

 Sunil Batra v. Delhi Administration AIR 1978 SC 1675

 Surundersing v. Engineer in Chief, C.P.W.D. AIR 1989 SC 534

 The State of Madras v. G.Gow AIR 1952 SC 196

 Unni Krishnan v. State of A.P. (1993) 1 SCC 645

 24

 Viahaka v. State of Rajasthan AIR 1997 SC 3011