LM Judicial Process PDF

UTTRAKHAND OPEN UNIVERSITY LM-107
SCHOOL OF SOCIAL SCIENCE न्याययक प्रक्रिया
(JUDICIAL PROCESS)
Expert Committee
Prof. K.C. Joshi Prof. Girija Prasad Pande

Rtd. Vice Chancellor Director School of Social Scienc
Kumaoun University, Nainital Uttrakhand Open University,
Haldwani
Prof. Harbansh Dixit Prof. P.C. Joshi

Principal HOD Law Department
SSJ Campus Almora
Maharaja Harishchandra
Kumaoun University, Nainital
P.G. College (Moradabad)
U.P.
Mr. Narendra Kumar Jaguri

Academic Associate
Law Departmet
Uttrakhand Open University
Haldwani
Course Coordination & Editing

Mr. Narendra Kumar Jaguri
Law Departmet
Uttrakhand Open University
Haldwani, Nainital
Unit Writers No. Of Unit
Dr. Dinesh Kumar Sharma 1-12

Assistant Professor
Law Department
Gov. Law College
Gopeshwar (Chamoli)
Narendra Kumar Jaguri 13

Academic Associate
Law Department
Uttarakhand Open University
Haldwani (Nainital)
Copy Right @UTTRAKHAND OPEN UNIVERSITY
Edition% June 2013
Publisher % Director Study & Publish
mail : [email protected]
Uttrakhand Open University, Haldwani (Nainital) &263139
UTTRAKHAND OPEN UNIVERSITY

HALDWANI
LL.M.-12
न्याययक प्रक्रिया
(JUDICIAL PROCESS)
BLOCK-1 Nature of judicial process Page- 1-83

Unit-1- Judicial process as an instrument of social ordering; the tools and techniques of creativity
and precedents Page-1- 27
Unit-2- Judicial process and creativity in law- common law model-Legal Reasoning
and growth of law- change and stability. Page-28-51
Unit-3- Legal development and creativity through legal reasoning under statutory and
codified systems. Page-52-83
Block-II-Special Dimensions of Judicial Process in Constitutional

Adjudications. Page-84-155
Unit-4- Notions of judicial review; Role in constitutional adjudication - various theories of

judicial role. Page-84-104
Unit-5- Tools and techniques in policy-making and creativity in constitutional adjudication.

Page-104-134
Unit-6- Problems of accountability and judicial law-making. Page-135-155
Block- III- The Concepts of Justice Page-156-234
Unit-7- The concept of justice or Dharma in Indian thought; Dharma as the foundation of
legal ordering in Indian thought and sources. Page- 156-178
Unit-8- The concept and various theories of justice in the western thought. Page-179-206
Unit-9- Various theoretical bases of justice: the liberal contractual tradition, the liberal;
utilitarian tradition and the liberal moral tradition. Page-207-234
Block- IV : Relation between Law and Justice Page- 235-354
Unit-10- Equivalence Theories - Justice as nothing more than the positive law of the
stronger class. Page-235-269
Unit-11- Dependency theories - For its realization justice depends on law, but justice is
not the same as law. Page-270-303
Unit-12- The independence of justice theories - means to end relationship of law

and justice; the relationship in the context of the Indian constitutional
ordering. Page-304-328
Unit-13- Analysisof selected cases of the Supreme Court where the judicial process can
be; seen as influenced by theories of justice. Page- 329-354
JUDICIAL PROCESS LM-107
LL.M. Part-2
Subject: JUDICIAL PROCESS
Block I- Nature of judicial process

Unit-1- Judicial process as an instrument of social ordering; the
tools and techniques of creativity and precedents
STRUCTURE
1.1 INTRODUCTION
1.2 OBJECTIVES
1.3 What is judicial process?
1.4. Judicial process as an instrument of social ordering
1.5 The tools and techniques of creativity and precedents
1.6 SUMMARY
1.7 SUGGESTED READINGS/REFERENCE MATERIAL
1.8 SELF ASSESSMENT QUESTIONS
UTTARAKHAND OPEN UNIVERSITY

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1.1 INTRODUCTION
The judiciary is one of the pillars on which the edifice of the

constitution is built. It is the guiding pillar of democracy, what is
happening inside it is a fascinating study. Its logbook shows that
often the judgments of the Apex court degenerated into a dismal
failure. There are many self inflicted wounds. This is the story of 59
years of the Supreme Court.
In this unit we shall discuss about the concept, definition, and nature
of judicial process. We shall also read about the judicial process as
an instrument of social ordering apart from that the tools and
techniques of judicial precedents shall also be discussed so as to
understand the whole concept of judicial process.
1.2 OBJECTIVES
After reading this unit you will be able to:
 Understand the concept, definition, and nature of judicial

process.
 Discuss the judicial process as an instrument of social
ordering.
 Describe the tools and techniques of judicial precedents in
India.
1.3 WHAT IS Judicial process?
―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
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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?
So, what exactly judicial process is?
Everything done by judge in the process of delivery of justice is
called Judicial Process .It basically confines itself to the study of ―is‖
to ―ought‖ of the law.
Or,
Judicial process is basically ―whole complex phenomenon of court
working‖ and what went wrong with this phenomenon is the issue in
my current project.
The judiciary is one of the pillars on which the edifice of the
constitution is built. It is the guiding pillar of democracy, what is
happening inside it is a fascinating study. Its logbook shows that
often the judgments of the Apex court degenerated into a dismal
failure. There are many self inflicted wounds. This is the story of 59
years of the Supreme Court.
Speaking of the Supreme Court of United States of America,
Jackson J., of the court said,
“we are final, not because we are infallible, we are infallible
because we are final.” The judgments of the Supreme Court are
final but not infallible. They require constructive criticism,
especially to take them out of the morass of alien concept and
ideas foreign to the land and culture. The Supreme Court is
virtually the proverbial ivory tower, with the judges sitting on
the top. Disturbed by some of its judgments, Pt. Nehru once
said in a diatribe, “judges of the Supreme Court sits on ivory
towers far removed from ordinary men and know nothing about
them.” The Supreme Court is sometimes said to be beyond the
reach of a common person.

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Now, a question arises;

What is justice? Is an age long question since the beginning of
civilization? It is an elusive term. What appears justice to one person
and from one viewpoint may be injustice to another or in another
prospective. We cannot have such elusive concept as a yardstick.
There must always be some objectives test to form a foundation of
just society. Jurisprudence formulates that test as ―justice according
to rules‖. Therefore, W. Freidman said, ―justice is an irrational
concept‖. He concludes that justice as a generally valid concept is
the goal to which every order aspires as a ―purposeful enterprise‖.
The question arises as to what actually went wrong to judicial
process in India? Because the Supreme Court, instead of searching
and basing its judgments on first principles or fundamentals of
jurisprudence has sometimes has taken a shortcut by resorting to
the supposed fiat of article 142. This article was employed as a tool
to pass final decisions, apart from and without recourse to the law of
the land. The concept of expanding universe is not confined to
astronomy alone. There is fast expanding judicial firmament. The
expansion of judicial world sometimes reads on fields occupied and
reserved for others. It is very necessary that Supreme Court act with
self restraint. Let us remember the proverb, ―power corrupts and
absolute power corrupts absolutely‖.
Critical analysis of the present system of Judicial Process
An introductory analysis of Indian judicial process:
A vision of equal, expeditious and inexpensive justice for India‘s
millions, a passion for effective delivery of social justice for the
victimized masses and a mission of constitutional fulfilment through
a dynamic rule of law geared to democratic values, operated by a
fearless judicial personnel with a positive people oriented
jurisprudence broad based an access to a sensitive, streamlined,
functional jurisprudence- that is the command of the Preamble to the
Constitution and the categorical imperative of Article 39-A. Our
socialist Republic now hungers for human justice through human law
and staggers towards nowhere since courts have lost their credibility
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and are writing their own obituary through retiring chief justices.
Today judicial justice has come to a grinding halt, the judicature has
caricatured itself and the Bench and the Bar, alas, have become a
law into themselves, Indian humanity having alienated itself from the
feudal forensic system and the cult of the robbed process. If all the
judges and lawyers of India pull down the shutters of their law shops
nationwide, injustice may not anymore escalate, if at all, litigative
waste of human and material resources may be obviated.
Now, a situation arises that the entire Indian justice system is now
under severe threat. With the police force that has been condemned
by everyone as being incompetent and corrupt, with the prosecution
system that is inept and selective and a judiciary that is corrupt
where is the room for justice in the Indian context?
Indian Judicial system has collapsed totally. Be it the justice delivery
system existent in criminal side or civil side, there is no hope for
justice for common man. Entire fabric has been exploited and
doomed. The condition of Indian judicial system worsened so much
that Attorney General of India, Mr. Soli Sorabjee remarked, ―Criminal
Justice system in India is on the verge of collapse owing to
inordinate delay in getting judicial verdict and many a potential
litigant seem to take recourse to a parallel mafia dominated system
of 'justice' that has sprung up in metros like Mumbai, Delhi etc‖.
"Hamlet's lament about the laws delays still haunts us in India and
the horrendous arrears of cases in courts is a disgraceful blot on our
legal system, especially the criminal justice delivery system," Striking
an alarm bell, Sorabjee said: "criminal justice system is on the verge
of collapse. Because Justice is not dispensed speedily, people have
come to believe that there is no such thing as justice in courts.
"This perception has caused many a potential litigant who has been
wronged to settle out of court on terms which are unfair to him or to
secure justice by taking the law into his own hands or by recourse to
a parallel mafia dominated system of 'justice' that has sprung up in
metropolitan centers like Mumbai.

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"The gravity of this development cannot be underestimated. Justice

delayed will not only be justice denied, it will be the rule of law
destroyed," he said The Attorney General said the time has come to
ask, "Have the ideals of justice, liberty, equality and fraternity
proclaimed in the preamble in grandiloquent language been realised
in the working of the Constitution during the last 53 years? Have we
redeemed our tryst with destiny? Have fundamental rights been
merely in the realm of empty rhetoric or have become living realities
for the people of India.‖Mutual appreciation of society of judges and
advocates constitute extra constitutional power and this lead to
imbalance of power spectrum in society. What we need is, whatever
the SC said, don‘t take it as gospel of God. We should be able to
discover the truth; we should be able to analyze that whether the
particular question is in conformity with Fundamental Rights. We
should have the ability to identify what is wrong, where? Now, the
analysis of governmental functioning is ―the executive is failing, the
legislature is failing and the judiciary has failed.‖ Article 13(2) clearly
provided ―the state shall not make any law which take away or
abridges the rights conferred by this part and any law made in
contravention of this clause shall, to the extent of the contravention,
be void.‖Now, question arises, who is the custodian of this right? The
answer is President of India under Article 60 and Governor under
Article 159. President is not bound to sign the Bill which is
unconstitutional, as an obligation is imposed under Article 60 that he
shall preserve, protect and defend the constitution and the law.
There has to be unity of command to direct state and we have
President and Governor for that purpose. Article 14 compels every
functionary including the judges to decide according to the
provisions of the Constitution.
According to professor Burgess, the idea of complete constitution is
like this:
1.Amending power of the Constitution given under Article 368 of the
Constitution.
2. Liberty: consist in three modules:
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i. Declaration of liberty
ii. Guarantee of liberty
iii. Suspension of liberty under Article 358 and 359
3.Organs of Governmental power: legislature, executive and
judiciary.
Professor Bluntschli, added one more,
Presidential form of government has power to choose policy, what
he required is only support from legislature.
If one analyze the recent opinion of CJI that judges are not bound to
disclose their assests. What the CJI trying to do? He is just claiming
unequal protection of law which is not guaranteed under Article 14 of
the constitution as he is attempting to take more protection of law;
therefore, the equality clause is violated by the judges.
Education and economic development are the only two methods
mentioned of correctness under Article 46 of the Constitution. But in
the recent decision of SC regarding reservation policy for weaker
section of the society is totally a blunder created by it. Nobody has
grievance that the weaker section of society should prosper, but it
does not mean robbing upper strata of society of their opportunities
and development. Forward section of society cannot be pulled down
to promote weaker section of the society. The basic funda is ―unless
there is capacity building from primary level, reservation does not
help.‖
The answer of all the grievances are given under Article 14 of the
Constitution but the judiciary lost the beauty of this particular Article
through classification. By and large Courts failed to deliver complete
justice. Article 14 talks of restitutive justice and restitutive justice has
the touchstone of time count. Moreover, procedural complexities
should not hamper the way to justice. As lay down by SC that if you
move the High court under Article 226 then you can come to SC only
under Article 136. What is this nonsense? Is it the denial to the
people that by way of procedural complexities they cannot enforce
their rights against the wrong doer? It is highly unconstitutional.
Nobody can forfeit your right to move to SC under Article 32 if you
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exhaust your first remedy under Article 226, because it is violative to

the protection given under Article 14. What is wrong here is the
manner of working, system is good enough to lead to equality.
Judicial Process under the Indian Constitution
Judicial process is basically the path or the method of attaining
―justice‖. Justice is the approximation of the ‗is‘ to ‗ought‘. Judicial
power is involved in the legal ordering of facts and is under the
obligation to approximate ‗is‘ with the ‗ought‘. This ordering is
nothing but the performance of administrative duties. Supremacy of
law implies that it is equally applied and nobody is above the law.
Everyone is equal in the eyes of law so that a level playing field is
created in order to strengthen parity of power.
Indian Constitution adopted this principle in the form of Article 14
and the Preamble which provide equality of status and opportunity.
Thus, Constitution ensues to establish parity of power which requires
that every person must be on the same plane. The wording of Article
14 made it an ‗umbrella‘ Article under which all other rights, both
constitutional and statutory, find protection. This is so because all
laws treat every individual with equality and the protection of laws is
extended to all without any discrimination, then all others rights are
automatically enforced. This duty to extend equality before the law
and equal protection of the laws has been casts on the state.
Article 256 makes it obligatory upon the executive of every state to
ensure compliance with the law made by Parliament and any
existing law which applies in that state. The Union executive is
empowered to give such directions to a state as may appear
necessary to ensure the compliance of the laws by the state
executive. Thus, according to Article 256, it is the duty of the
executive to ensure compliance with the laws and that too in a
manner that satisfies the mandate of Article 14.
Article 256, is in fact, the reflection of the true tradition of the

Rajadharma Principles which regarded it the responsibility of the
executive to deliver justice through affirmative executive action to
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ensure strict compliance with the applicable law. Article 256 states
the whole mechanism to ensure the implementation of every law by
the executive power. It thus, envisages the delivery of justice
through administrative mode. The administrative mechanism of
providing justice as promised under Article 14 is provided in Article
256. It is well established that the judiciary is the outcome of the
dissatisfaction of the working of the administrative machinery. The
need for a dispassionate judgment of the executive action has given
rise to judiciary. Essentially, the judiciary while resolving disputes is
ensuring implementation of laws. Thus, its functions are basically
administrative in nature. Law is always based on the policy when the
judiciary implements or reverse the action of the executive, thus,
judiciary acts as a policy controller. This view has been endorsed by
Karl Lowenstein who held that adjudication is basically
execution.[31]
But the present Indian judicial system is by all accounts unusual.
The proceedings of the Courts are extra ordinary dilatory and
comparatively expensive. A single issue is often fragmented into a
multitude of court actions. Execution of the judgment is haphazard,
the lawyer seem both incompetent and unethical; false evidence is
often commonplace; and the probity of judges is habitually suspect.
Above all, the courts often fail to bring the settlement of disputes that
give rise to litigation. The basic reason for this state of affairs is that
present mode of access to justice through courts operating in India is
based on Adversarial legalism. This is where the power structure
given in the Constitution has been distorted. As per Article 53(1) the
executive of the power vested in the President, who has taken the
oath to preserve, protect and defend the Constitution.
Therefore, we can say that effective justice dispensation through the
Courts requires three elements: access to courts, effective decision
making by judges, and the proper implementation of those decisions
because the primary responsibility of judiciary is policy control and
dispute resolution is only incidental to it.
Conclusion and Suggestions
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In today‘s era, it becomes crystal clear that our judicial process is on

the verge of total collapse. The adversarial system which Indian
legal system follows has failed to answer the test of Article 14 read
with Article 256 as it is required party must do everything from
paying court fees to execute the decree which actually is the task of
the state.
Constitution is the supreme law of the land governing conduct of
government and semi governmental institutions and thier affairs.In
ancient India king is the fountain head of justice. Sage Yajnavalkaya
declared that ―the king, divested of anger and avarice, and
associated with the learned should investigate judicial proceedings
conformably to the sacred code of laws‖. In ancient India, legal
procedure is governed by the principles of Rajadharma. All the
Dharmas merged into the philosophy of ‗Rajadharma‘ and it was
paramount Dharma. It is a classic example of trans-personalized
power system.
The adversarial system lacks dynamism because it has no lofty ideal
to inspire. It has not been entrusted with a positive duty to discover
the truth in the inquisitorial system. When the investigation are
perfunctory and ineffective. Judges seldom take any initiative to
remedy the situation. During the trial, the judges do not bother if
relevant evidence is not produced and passive role as they don‘t
have any duty to search for the truth. As the prosecution has to
prove the case beyond reasonable doubt, the system appears to be
skewed in favour of the accused. It is therefore, necessary to
strengthen the adversarial system by adopting with suitable
modifications some of the good and useful features of the
inquisitorial system.
How to reform judicial process?
An epiloguic thought repeating what has been said earlier may be
needed to strength our submission that the court will commit blunder
if it does not guard its reputation more seriously. A post script in this
prospective, may drive home my point, treating the Bench and the
Bar as a complex agency of public justice. A learned Judge mild in
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his words, who retired last year from the Supreme Court, wrote with
restraint t o a former colleague of his still on the High Court, what
makes poignant reading: ―the judiciary is sinking. The destruction is
from within; it is for judges like you to restore the fast disappearing
credibility of the High Courts and the Apex court.‖ Equal protection of
the laws is the fundamental right of the citizen which has a forensic
dimension and procedural projection. The obligation of every court
from the summit to base is to afford the same facility for hearing of
case to the rich and the poor, to the dubious billionaire to the bonded
labourer. Now, there exists a mutual appreciation of society between
judges and advocates which led to the failure of justice delivery
system. The judiciary is the fiduciary of people‘s justice and has
accountability to the country for scrupulously equal judicial process.
The crisis is not resolved by some martyrs from the class of
advocates courting displeasure by exposure of oblique events but by
a people‘s movement which will compel the judges and advocates
against the privatisation of judicial process. Your monopoly obligates
accountability and if there is culpability it cannot be gagged by
contempt proceedings. In our system, both the robe and the gown
must remember is that the court is what the court does. The new
dimension of justice delivery and new vision of alternative justicing
will have to be explored and executed if the first promise of the
Constitution were to be actualised. Therefore, today, in adversarial
system of justice, what we need to reform are:
Court fees to be abolished:
The purpose of justice is delivering the promise of law and hence the
role of state is not merely limited to establish the judicial institutions
but also to fulfill the expectations of the people which they attached
to the state while conferring role and seat of power. To charge fees
for justice is like sealing the promise of law and flouting the
constitutional duty of state to provide justice to the people at their
door step, merely laying down the foundations of judicial shops and
washing their hands of from the process of justice delivery is not
warranted on the part of the state. To get revenue for the
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enforcement of rights and to charge it in rigorous ways, failure to pay

would entail the justice not access able to because one cannot
afford it in terms of money, is the misery and apathy, the courts in
India are continuing with. The proper course would be abolition of
court fee because it seriously undermines the parity of power
principles as it places the richer one in advantageous position which
offends the spirit of Constitutional goals.
Advocate fees to be abolished:
As it is clearly provided under the provisions of Advocates Act that
advocates are the officers of the Court, then why the clients are
bound to pay hefty fees to lawyers for contesting thier cases. There
should be provision for public advocates which are available to
everyone and should be paid by state.
Selection of Judges:
CJI committed blunder when in one of the most controversial case
he held that consultation by CJI means his consent. Here, by this
observation the power of President is reduced to zero and whole
spectrum of power given under the constitution is disturbed. The
judges should be appointed by President only with the consultation
of CJI and not by his consent.
Moreover, the provision of advocates becoming judges after certain
required years of practise should be abolished. Judges and
advocates are different profession and they should not be
intermingled. There should not be any mutual appreciation of
society.
Adversarial system to be abolished:
The present adversarial system should be abolished and replaced
with inquisitorial system of justice. Judicial process is essentially
deductive reasoning and it is to tell authoritatively what law is. The
judge should take judicial notice of all the law. The judge is to
investigate the case before him, by approximating ‗is‘ to the ‗ought‘,
after the parties present their case. By virtue of Article 14 r/w 256,
there should be an affirmative action by the policy implementing
organ. It should protect the citizen with thier affirmative action, just
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like the ancient Indian system. The present Indian legal system is
continuing the colonial legacy where the ends justify the means, but
since now, we are living under the umbrella of a controlling
Constitution, the means should justify the ends.
The Limitation Act should be struck down:
The Limitation Act should be stuck down as unconstitutional since it
is violative of Article 14. Under Article 14 there is no distinction
between state action and private action. If any person fundamental
rights are infringe, how can the state fix a time limit to curtail the right
to move the court for justice. It cannot withstand the test of Article
14, or the six counts of the power spectrum. Hence, Limitation Act,
doctrine of Delay and Laches and procedural hassles are
undoubtedly unconstitutional.
Judges should not have any immunity:
The judges should not have any immunity because the functions of a
judge is twofold; the judicial function is only to state authoritatively
what law is. All others are administrative functions. The fundamental
law is the Constitution and it is the only supreme authority. If judges
committed any negligence or there is dereliction of duty on their part,
then such judges should be punished under Section 166 of the IPC
because they are the public officers and hence liable for punishment
for negligence of duty.
According to Rajadharma principles, the king himself is liable to be
punished for an offence, one thousand times more penalty than what
would be inflicted on an ordinary citizen. Perhaps, it is high time that
this principle is getting working especially as under the Constitution
none is above the law and there is no immunity for crime. If judges of
the Superior Court in China and Japan can be prosecuted and
punished for violations of law, why not in India which has a basic
structure command to ensure equal subjection of all to the law.
Delays should be avoided:
The delays in our legal system are well known. There 30 million
cases pending in various Courts. The average time span for dispute
to be resolved through the court system is about 20 years. Litigation
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has become a convenient method for avoiding prompt retribution by

many people on the wrong side of law. The Bible says that the path
to hell is paved with good intention. The legal system is meant to
punish the criminal and to protect the law abiding citizens. Many a
time, the criminal exploits the legal process itself to escape
punishment.
Supreme Court to have Benches throughout the country:
Article 130 of the Constitution provides that the SC shall sit in Delhi
or in such other place or places, as the CJI may with the approval of
President. From time to time appoint. This provision of the
constitution has not been applied so far. If the SC has a seat on
other places, that is seat in every state then it will be relief to the
aggrieved and justice will be assessable to them, which will result in
reduction of cost of litigation and will cause less hardship to the
litigant.
No presumption should be raised in favour of anyone:
The presumption is always in the favour of constitutionality of
statute, and it is a gross misapplication of a justice as it tends to
presume the preponderance of power in favour of one party and tilts
the balance unjustly. This totally upset the balance of parity of
power, which is ensured through the guarantee of ―equal protection
of laws‖ under Article 14 as well as Article 13 (2) and (3) of the
Constitution, respectively. The burden of justifying the constitutional
validity of the law as well as the fact that the state action was in
accordance with such law should be on the state, and not on the
person who challenges its constitutional validity. Asking the injured
party to prove the wrong or injury suffered destroyed the guarantee
of equal protection of laws. Such an opinion of the part of court is
extremely low on the ethical count of the power spectrum.
Judges should play active and not passive role while deciding
cases:
Article 14 of the Indian Constitution made it obligatory on the state to
provide justice to all at the door step. Thus, the Indian Constitution
necessarily envisages inquisitorial mode. So, the judges should go a
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mile extra in deciding cases as the judges supervising the cases are
independent and are bound by law to direct thier inquiries either in
favour or against the guilt of any suspect and play an active role
while deciding cases.
Accountability of Judges:
In India, the judiciary is separate and independent organ of the state.
The legislature and the executive are not allowed by the constitution
to interference in the functioning of the judiciary. The functioning of
the judiciary is independent but it doesn‘t mean that it is not
accountable to anyone. In a democracy the power lies with the
people. The judiciary must concern with this fact while functioning.
The high courts have the power of control over the subordinate
courts under article 235 of the constitution of India. The high courts
have the power of control over the subordinate courts under Article
235 of the Constitution of India. The SC has no such power over
High court. The CJ of High courts/ India have no power to control or
make accountable other judges of the Court.
Reluctant approach of Supreme Court to accept petition under
Article 32:
The rule made by SC under article 145 laying down the procedure to
be followed by the SC in performing its functions involves lot of
technicalities. It is the duty of the SC to grant relief under Article 32
and it is mandatory as it is obvious from the word ―the Supreme
Court shall‖ in Article 32. But the SC is reluctant to perform its
functions.
To conclude one can say that whatever may be the system the
procedural laws must be minimum, simple and must be litigant
friendly
1.4 Judicial process as an instrument of social ordering
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

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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.
Bride Burning

Page 16
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
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

Page 17
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
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

Page 18
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.
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.
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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
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.
Page 20
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‖.
1.5 The tools and techniques of creativity and precedents
The Importance of Precedent

To understand how to make legal arguments, it is important to have
an understanding of our court system. This section focuses on the
Federal Court system. Every state has its own state court system,
which is separate from the federal system.
1. The Federal Court System
The federal court system is not separated by state, but rather by
―districts‖ and ―circuits.‖ A federal suit begins in a United States
District Court. The District Court is the trial court of the federal
system. In total there are 94 U.S. District Courts. Some states, such
as Alaska, only have one district. Others have several. New York, for
example, is composed of four districts: the Northern, Western,
Eastern, and Southern Districts. District Courts all have the name of
a state in them, like the ―Eastern District of New York.‖
Someone who loses in the District Court has a legal right to appeal
to the United States Circuit Court of Appeals. The Court of Appeals

Page 21
is divided into regions called ―circuits.‖ There are 11 circuits in the

United States that have number names. Washington, D.C. is just
known as the ―D.C. Circuit‖ and does not have a number. Each
Circuit Court contains a number of district courts. For instance, the
―First Circuit‖ includes all the districts in Maine, New Hampshire,
Massachusetts, Rhode Island, and Puerto Rico.
Someone who loses in the Court of Appeals can ask for review by
the United States Supreme Court. This is called ―petitioning for
certiorari.‖ Generally, the Supreme Court can decide which decisions
it wishes to review, called ―granting cert.‖ and can refuse to review
the others, called ―denying cert.‖
2. How Judges Interpret Laws on the Basis of Precedent
Most of the claims we have talked about in this book are based on
one of the Constitutional Amendments, which are reprinted in
Appendix E at the back of this book. Amendments are very short and
they are written in very broad and general terms. Courts decide what
these general terms mean when they hear specific lawsuits or
―cases.‖ For instance, you probably already know that the Eighth
Amendment prohibits ―cruel and unusual punishment.‖ However,
there is no way to know from those four words exactly which kinds of
punishments are allowed and which aren‘t. For instance, you may
think to yourself that that execution is very ―cruel and unusual.‖ But,
execution is legal in the United States. To understand how judges
interpret ―cruel and unusual punishment‖ you need to read cases in
which other people, in the past, argued that one type of punishment
or another was ―cruel and unusual‖ and see how they turned out.
Each court decision is supposed to be based on an earlier decision,
which is called ―precedent.‖ To show that your constitutional rights
have been violated, you point to good court decisions in earlier
cases and describe how the facts in those cases are similar to the
facts in your case. You should also show how the general principles
of constitutional law presented in the earlier decisions apply to your
situation.

Page 22
Besides arguing from favorable precedent, you need to explain why

bad court decisions which might appear to apply to your situation
should not determine the decision in your case. Show how the facts
in your case are different from the facts in the bad case. This is
called ―distinguishing‖ a case.
The most important precedent is a decision by the U.S. Supreme
Court. Every court is supposed to follow this precedent. The next
best precedent is a decision of the appeals court for the circuit in
which your district court is located. This is called ―binding
precedent‖ because it must be followed.
The third-best precedent is an earlier decision by the district court
which is considering your suit. This may be by the judge who is in
charge of your suit or by a different judge from the same court.
Some questions in your case may never have been decided by the
Supreme Court, the Circuit Court, or your District Court. If this is the
case, then you can point to decisions by U.S. Appeals Courts from
other circuits or by other U.S. District Courts. Although a district
court is not required to follow these kinds of precedents, it should
consider them seriously. This is called ―persuasive authority.‖
One complication is that you should only cite cases which remain
―good law.‖ Good law means that a case has not been reversed on
appeal, or overruled by a later case. For example, in Chapter Three
we wrote at length about Overton v. Bazzeta, 539 U.S. 126 (2003), a
Supreme Court case about prisoners‘ rights to visits. Before the
Supreme Court heard the case, the Sixth Circuit Court of Appeals
heard the prison officials‘ appeal from a district court decision finding
that Michigan‘s prison visit policy violated prisoners‘ constitutional
rights. The Sixth Circuit decision is reported at Overton v. Bazzeta,
286 F.3d 311 (6th Cir. 2002). The Sixth Circuit agreed with the
district court that the plaintiffs‘ constitutional rights were being
violated, and wrote a wonderful decision. However, because the
Supreme Court later granted cert and came to a different conclusion,
you cannot rely on any of the parts of the (good) Sixth Circuit opinion
that the Supreme Court reversed.
Page 23
Order of Precedents:
Supreme Court (Strongest)

↓
Appeals Court for your Circuit
↓
District Court for your District
↓
Another Appeals Court
↓
Another District Court in your Circuit
↓
Another District Court outside your Circuit. (Weakest, but still
important)
Sometimes it is hard to tell, from reading a decision, whether the
whole thing has been reversed or not. Some part of a lower court
decision can remain good law after an appeal. If only one part of the
case is appealed, while other claims are not, the portion of the lower
court decision that was not appealed is still good law. You can cite
it. And of course, if a case is affirmed on appeal, meaning that the
Appellate court agrees with what the district court said, the district
court decision is still good law, and you can cite to it. In that
example, however, you may want to cite to the appellate decision
instead, as an appellate decision is higher up in the order of
precedent.
Let‘s go back to the Overton v. Bazetta example. In that case,
plaintiffs argued before the district court that Michigan rules
restricting visits violated their First and Eighth Amendment rights, as
well as procedural due process. They had a trial at the district court
and won. The appellate court ―affirmed‖ or agreed with that
decision. When the Supreme Court decided to hear the case it
decided to review the First and Eighth Amendment claims. It went
on to reverse on those claims, holding that Michigan‘s policies did
not violate the First and Eighth Amendment. So, the Supreme Court
Page 24
decision does not affect the lower courts‘ procedural due process
decision. That part of the Sixth Circuit opinion is still ―good law.‖
How do you find out if a case is still good law? Most lawyers today
do it using an internet legal research system. In prison, you can do it
using books called ―Shepards.‖ These books tell you whether any
court has made a decision that affects a case that you want to rely
on. They also list, to the exact page, every other court decision
which mentions the decision you are checking. To research federal
cases, you need Shepards Federal Citations. A booklet that comes
with each set of citations explains in detail how to use them. It is very
important for you to read that booklet and follow all of the directions.
When you use Shepard‘s Citations, it is often called ―shepardizing.‖
Shepardizing a decision is the only way you can make sure that
decision has not been reversed of overruled. It also can help you
find cases on your topic. Be sure to check the smaller paperback
―advance sheets‖ which come out before each hardbound volume.
3. Statutes
Federal courts use the same method to interpret laws passed by the
U.S. Congress. These laws are called ―statutes.‖ Judges interpret
the words in these laws in court cases. This method also governs
how judges apply the Federal Rules of Civil Procedure, which are
made by the U.S. Supreme Court. Since statutes and rules are more
specific than provisions in the Constitution, they leave less room for
judicial interpretation.
4. Other Grounds for Court Decisions
Sometimes no precedent will be very close to your case, or you will
find conflicting precedent from equally important courts. Other times
there may be weak precedent which you will want to argue against.
In these situations it helps to explain why a decision in your favor
would be good precedent for future cases and would benefit society
in general. This is called an argument based on ―policy.‖
You can refer to books and articles by legal scholars to back up your
arguments. Sometimes when a judge writes an opinion to explain his
decision, he will set forth his views about a whole area of law
Page 25
relevant to that decision. Although the judge‘s general views do not

count as precedent, you can quote his view in support of your
arguments just as you would quote a ―legal treatise‖ or an article in a
―law review.‖ A ―legal treatise‖ is a book about one area of the law
and a ―law review‖ is a magazine or journal that has essays about
different parts of the law written by legal scholars.
1.6 SUMMARY
The duty of the judge is to interpret and apply the law to the cases
before him. When a judge decides a case, he does something more
than simply applying a law; he interprets and moulds the law to fit in
with the facts and circumstances of the case. According to Cardozo,
while moulding the law, he may use the methods of philosophy, of
history, of sociology or of analogy. He moulds the law so as to best
serve the requirements of the society. The methods of philosophy,
history, sociology and analogy are the tools using which a judge
performs his duty. Using these methods, he fulfils his obligations
towards the society which require him to give his view, his notion of
law.
In this unit we have discussed about the concept, definition, and
nature of judicial process. We have also learned about the judicial
process as an instrument of social ordering apart from that the tools
and techniques of judicial precedents have also been discussed so
as to understand the whole concept of judicial process.
1. (1986)3 SCC 615

2. AIR 1978 SC 597
3. The Nature of the Judicial Process
4. Cardozo,‗The Nature of the Judicial Process‘ at page 141.
5. (1997) 6 SCC 241

Page 26
6. (1995)3 SCC 635

7. AIR1995 SC 1531
8. AIR 2001 Del 126 and Union of India v. association for
Democratic Reforms, JT 2002(4) SC 501
9. M.P. Jain, 'Indian Constitutional Law', Fifth Edition at page
1557
10. http://sanamurtaza.blogspot.com/2011/05/judicial-
process-as-instrument-of.html
11. http://jpinstrumentofsocialordering.blogspot.com/
1. What is judicial process?

2. What do you understand by the concept of judicial process;
discuss its relation with social ordering?
3. Explain the nature of judicial process?
4. Write down a short note on judicial process under the Indian
constitution.
5. How to reform judicial process?
6. Discuss the tools and techniques of judicial process.

Page 27
LL.M. Part-2

Unit-1-Judicial process and creativity in law- common law
model-Legal Reasoning and growth of law- change and
stability
STRUCTURE
2.1 INTRODUCTION
2.2 OBJECTIVES
2.3 Judicial process and creativity in law
2.4. Legal Reasoning and growth of law
2.5 Importance of Precedents in Common law systems
2.6 SUMMARY

Page 28
2.1 INTRODUCTION
In the previous unit you have read about the concept, definition, and
nature of judicial process. We have also learned about the judicial
process as an instrument of social ordering apart from that the tools
and techniques of judicial precedents have also been discussed so
Judicial process is the method of attaining justice which seeks to
achieve the desirables, and prohibit undesirables. Justice, is itself
an irrational concept, However in a layman word justice means
absence of fear which is possible only when there is - lack of
arbitrariness , freedom of liberty, and equal access to the quick
affordable satisfactory credible dispute settlement forum . The
essence of justice lies in Rule of law which requires that law of land
is stable and not arbitrary that is to say, law is not ruled by the
changing government rather the government and its instrumentalities
are ruled by the law.
In this unit we shall discuss about the creativity in law and the
judicial process as Legal Reasoning and growth of law. We shall
also read about the Importance of Precedents in Common law
systems and describe the tools and techniques of judicial
precedents in India so as to understand the whole concept of judicial
process.
2.2 OBJECTIVES
 Understand the creativity in law

 Discuss the judicial process as Legal Reasoning and growth
of law.
 Discuss the Importance of Precedents in Common law
systems

Page 29

India.
2.3 Judicial process and creativity in law

are ruled by the law. In the modern times there are two
interpretations of the Rule of law, the first the more traditional view is
that of the plenary adhering to the rules of the laws while the second
view allows the encompassing of the ideal rules based on criteria of
morality and justice within its province. Modern states follow the
second principle of rule of law because a law which is stable
becomes oppressive after some time, due to its failure to satisfy the
needs of the progressive society.
law.The judge who moulds the law by the method of philosophy may

Page 30
be satisfying an intellectual craving for symmetry of form and

substance. But he is doing something more. He is keeping the law
true in its response to a deep seated and imperious sentiment. By
the method of philosophy, the judge makes use of his own reasoning
and standards of public good. Under this method, the judge makes
use of his own inner sub conscious element and gives to the society
his own notion of right and wrong, of just and unjust, of equality,
fairness and justice.By the method of history, it is meant that the
judge makes use of the past decisions. He follows the doctrine of
precedent. He compares the case he has in hand with the past
decisions and makes use of the one which most closely resemble
with the one he has to decide. The doctrine of precedent is based on
the principle that like should be treated alike and that there is
stability and certainity in law. However, while dealing with the
precedents, the judge has to distinguish between those which are
liberal and beneficial for the future and those which are oppressive
to the society. The judge has to choose those precedents which best
serve the purpose of the society.According to Cardozo, the method
of sociology demands that within the narrow range of choice, the
judge shall search for social justice. The judge has to see that his
work leads to the attainment of social order. He has to provide for
the welfare of the society. The judge has keep the welfare of the
society as the ultimate aim of his work. He cannot attempt an action
which would not be beneficial for the society at large.
By the method of analogy, it means that the judge makes use of the
alien jurisprudences. It is a case where the judge borrows from other
jurisprudences. While borrowing from other jurisprudences, the
judge has to make use of the similarity in laws and prevailing social
conditions of the region from where he borrows the provisions. The
judge compares the case with similar problems in other regions. In
the case of Bijoe Emmanuel v. State of Kerala[1], the Supreme
Court of India made use of the law prevailing in other countries to
decide the issue. In this case, the Supreme Court made reference of

Page 31
the similar cases decided by the courts in Australia and U.S.A. to

deal with the special case of a particular sect.
For a judge, law is never static. It is dynamic and keeps changing.
The judge has to mould it in accordance with the needs of the
society. The judge plays a very dynamic role in shaping the law so
as to best serve the society.
The judge has to take care that the law is progressive and protects
the interests of the society and is not oppressive and suffocating.
The aim of judicial process is the attainment of social good. The
judge has to see that the law helps the society at large and does not
infringe the goals of justice and liberty.
Social order: the purpose of law There have been different
approaches to law. According to Austin, law is the command of the
sovereign. Bentham proposed his utilitarian calculus, according to
which the aim of law is to bring about maximum good of the largest
number. Bentham‘s hedonistic calculus was based on the concept of
social utility. According to Roscoe Pound, the purpose of law is
social engineering. Law aims to achieve social good. The welfare of
the society is the paramount consideration of law. Law aspires to
end all social evils and to bring about social order.
Cardozo has stated that the final cause of law is the welfare of
society. When judges are called upon to say how far existing rules
are to be extended or restricted, they must let the welfare of society
fix the path, its direction and its distance.
Law and society are interdependent and neither can be separated
from the other. The good of the society is its greatest requirement.
Law serves the role of protector of the social order. Law aims to
attain the good and order in the society.
Social order is what the law aims to achieve. It is the ultimate object
of all laws. Law has to provide social order in order to protect the
society from disintegrating.
Role of judges in bringing about social order
The ultimate aim of all law is to bring about social order. The judge is
an important member of the legal institution. He plays an important
Page 32
role in shaping the law to serve the social interest. For a judge, law
is never static.
A judge is empowered to review the various provisions of law. He is
an independent and impartial authority which can verify the
reasonableness of a law. Being independent from the influence of
the executive and the legislative machinery, a judge can form an
unbiased opinion on any question of law.
A social problem requires a solution and judges have the role of
resolving disputes. While settling a dispute, the judge is also
required to take into consideration the various social requirements.
Amongst the various options being available before him, a judge has
to choose the one which best serves the interests of the society.
The welfare of the society must be the guiding force for a judge
when he sits to perform his duty. His obligation towards the society
is to fulfill the various social requirements of justice, order and
security. He has to give the welfare of the society a paramount place
while dealing with any issue. Being the interpreter of the society of
its sense of law and justice, the judge has to be careful in his work
as his decisions determine the rights and obligations of various
members of the society and effect the people at large.
The judge provides for social order during his job as an interpreter.
The various ways in which he can provide for social order are by the
methods of interpretation, supplying of omissions, suggesting and
recommending changes and new regulations and also through
mediation process. These are the techniques by which a judge
brings about social order.
(a) Interpretation
The judge is the interpreter of the community of its sense of law and
order and therefore, he must supply omissions, correct uncertainties
and harmonies results with justice through a method of free decision.
While dealing with a case, the judge is required to apply law on the
facts. While applying law he may be faced with a question of law
which requires him to interpret the various legal provisions placed
before him.
Page 33
While interpreting a statute, a judge can take either a literal

approach or a liberal one.In literal interpretation, the judge sticks to
the letter of the word and there is not much creativity in his
job.Sometimes when a literal approach does not give a satisfactory
result, that the judge goes for the liberal interpretation of the statute.
In liberal interpretation, the judge makes use of his knowledge of
various laws, the customs and his own creativity.One of the most
important rules of interpretation is the mischief rule, in which the
judge has to determine the mischief which the law had sought to
make good. Using the mischief rule, the judge has to imagine and
understand the problems in the society which required that a
particular law be made.
Another important principle in interpretation is that there a
presumption of constitutionality of the statute. The judge has to
presume that the statute is constitutional and the legislator had not
intended to infringe the fundamental rights.
Further, there is the rule of harmonious interpretation, which states
that all the provisions are to be interpreted harmoniously so as to
give meaning to all the provisions. The rule of harmonious
interpretation underlines the principle that all the provisions of a
statute are complementary to each other and are not mutually
destructive. While interpreting a statute, the judge has to take care
that he gives such an interpretation to the provision that when the
statute is read in its entirety, there is no conflict between the
provisions.
The role of a judge as an interpreter requires great skill from his
side. He is required to give such an interpretation to the legal
provisions which best serve the interest of the society.
While interpreting the legal provisions, the judge has to think what
purpose, what end of the society his interpretation would serve. He
has to take the interest of the society as the paramount issue. The
statutes affecting the society at large require the most careful
interpretation as the interests of a large number of individuals may
be lying at stake.
Page 34
Thus, when a judge interprets a written Constitution, he has to take

utmost care while expressing his view on the problem. The written
Constitutions are generally given a very wide and liberal
interpretation because they are the supreme laws of the land and all
the other statutes owe their authority to the Constitution.
Using liberal interpretation, in the case of Maneka Gandhi v. Union
of India[2], the Supreme Court enlarged the scope of right to life to
mean a dignified life and not just mere animal existence.
While interpreting a law, the judge has to interpret it in a manner that
it benefits the society at large.
(b) Filling up of blanks
Sometimes a judge has to do something more than just simply
interpret a statute. He may be required to correct all errors in it. He
may further be required to fill in the missing blanks in a statute. It is
not possible for the legislator to imagine each and every
circumstance which could arise in the future. While interpreting a
statute, a judge may be required to imagine what the legislator
would have provided for that particular circumstance. When a judge
starts to imagine what the legislator would have intended, he takes
the place of the legislator. He has to act for the legislator, giving
sense to the statute as a whole and making up what had been left
behind.
A judge cannot legislate infinitely. According to Cardozo, ―He
legislates only between gaps. He fills the open spaces in the
law.‖While interpreting any statute, the judge has to keep within the
restraints laid down by the legislator. The role of the judge is not of
legislating but of interpreting and applying the law. It is during his
job as an interpreter that a judge maybe required to fill in the missing
blanks in the statute. However, while filling up the blanks, a judge
has to take precaution that what he supplies to the law protects the
spirit of the law and does not destroy it.
A judge has to take care that he maintains the harmony between the
various provisions of a statute. While supplying omissions, the judge
has to protect and preserve the spirit of the law.
Page 35
According to Cardoz, ―when the question is one of supplying the

gaps in the law, it is not of logical deductions, it is rather of social
needs, that we ask the solution.‖
Thus, in order to fulfill the needs of the society, the judge supplies
the gaps in the statutes. However, the law making work of a judge is
restrained as ―He is not a knight errant roaming at will in pursuit of
his own ideals of beauty or of goodness. He is to draw his inspiration
from consecrated principles.‖
(c) Recommendations
Often a judge may be required to give his recommendations or
suggestions to enact the particular law which would serve the social
need.
A judge plays a very important part in social ordering when he lays
down suggestions or recommendations regarding any social
problem.
Where the law is silent, the judge may be required to cross his
bounds and take up the role of legislators. He may be required to
give suggestions in order to resolve certain social problems. These
suggestions play a very vital role in satisfying the various
requirements of the society.
The public interest litigations play a very important role in protecting
the interests of the society. By means of public interest litigations,
the lawyers and judges attempt to eradicate certain social problems.
Public interest litigations play a very useful role when the legislature
and the executive fails to find out a solution for the existing
problems. Public interest litigations are a recent creation of the
courts by which they aim to provide the cure for the ills prevalent in
the society. The judges are very instrumental in eradicating the
social problems.
The judiciary took a very active role while laying down the procedural
requirements required while making an arrest in the case of D.K.
Basu v. State of West Bengal[5]. In this case the Apex Court laid
down various guidelines which are to be followed by the policemen
while making any arrest. The reason behind laying down such
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provisions was that there were complaints of police atrocities in the

police lock ups.
Similarly, in the case of Vishakha v. State of Rajasthan[6], the
Supreme Court again laid down guidelines for the safety of working
women. In this case, the instances of sexual harassment of working
women at their workplace were an issue. The Supreme Court laid
down various guidelines to be implemented by the employer for the
protection of the working women. In this case, the court even
declared that the sexual harassment of the female employees
amounted to the violation of the right to work and is discriminatory
against them.
In the case of Sarla Mudgal v. Union of India[7], while dealing with
the problem of anomalies in different personal laws and people
making use of these differences to defeat the end of justice, the
Supreme Court had expressed a view that the uniform civil code
should be implemented. In this
case also the judiciary tried to provide for the social requirement for
a uniform civil code which would take care of all the problems
relating to the differences in the personal laws.
The Supreme Court has also laid down certain rules to be followed
when the adoption of an Indian child is made by any foreigner. The
reason behind such recommendations was the presence of the
menace of the use of young children in beggar and slavery. These
rules help in protecting the child from economic, social, physical and
sexual exploitation.
Further, in the case of Association for Democratic Reforms v. Union
of India[8], the Delhi High court and on appeal the Supreme Court
has given guidelines for cleansing of the electoral process from the
impact of criminals and wealth and bringing about electoral reform in
India.
Similarly, the courts have taken active parts in issues related to
illegal constructions, anomalies in school admissions, ragging at
university level( Lingdow committee report) and so on. The court had
taken these steps in order to ensure social justice.
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The judiciary may be required to take up the role of legislators when

the legislative fails to provide sufficiently for the social requirement.
This act of judiciary is known as judicial activism. The judiciary has
acquired its activist power from its review power. The judicial
activism has played an important role in attaining social order as it
satisfies the various requirements of the society.
(d) Mediation proceedings
The social institution requires certain relationships to be protected
and sanctified. In order to prevent minor problems developing into
irresolvable issues, the judges take the role of mediators. The role of
a judge as a mediator is a very recent one. Till date, judges used to
solve the disputes. Now they try to prevent the disputes from arising.
In cases of minor discords, the judges help in solving the issues
before they take the form of major disputes.
The judges suggest out of court settlement of disputes in order to
prevent certain relationships from breaking down.
In the present day society, judges suggest the use of mediation
proceedings specially when the need is to protect an institution as
sacred as the institution of marriage. Judges serve as the mediator
in various cases to prevent a relationship from breaking down.
The law mandates mediation and the courts encourage and endorse
it. It is a cheaper, simpler and more productive manner of dispute
resolution. It helps to restore the broken relationships and focuses
on improving the future and not on dissecting the past. The benefit
of mediation is that it is a voluntary process and both the parties are
able to assess their case and come up to an amicable solution. The
judges play an active role in encouraging and endorsing mediation
proceedings.
Conclusion A judge is the interpreter of the society. He makes visible
the various laws.
While interpreting a law, the judge also corrects the errors present in
the law, he supplies the omissions in the law. The main object of law
is to bring about social order and the judges play an important part in
attaining that objective.
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The judiciary has taken an active role in attaining social order and
justice. To serve the purpose of the social utility, the judge had to
play the part of the legislator as well. A role, which has been much
criticized but is very important for fulfilling the needs of the society.
A democracy needs a forum, other than the legislature and the
executive, for redressing the legitimate grievances of the minorities-
racial, religious, political or others. In India, at the present time, the
Supreme Court is laying great emphasis on vindication of the rights
of the poor and deprived people. The court has acknowledged this
fact. Thus, in Punjab Rickshaw pullers‘ case[9], the Supreme Court
had stated that ―Judicial activism gets its highest bonus when its
order wipes some tears from some eyes.‖
Thus, it can be concluded that judicial process has a very active and
positive role in social ordering.
2.4. Legal Reasoning and growth of law
In India, in the wake of Kesavananda Bharati (1973), Maneka

Gandhi (1978), ABSKS (1981) S.P. Gupta (1982) etc. have led to a
democracy-fundamental rights enforcement cum-judicial
independence syndrome which constitute the macro-jurisprudential
sociological structure in the late nineties and even beyond. These
developments in law and society have been possible on account of a
free and independent judiciary which has been envisaging that all
socio-legal transformation must take place within the framework of a
free society and the Constitution. Accordingly judiciary has become
not only corrective to legislative and executive excesses and
irregularities, its power of judicial review has come as a boon to
under privileged individuals or groups since its verdicts have been in
consonance with basic freedoms and liberties of the people in the
context of time and space. In justice delivery system the Courts have
evolved new theories, principles and practices by elbowing out old
notions and contradicting time tested traditional jurisprudential false
beliefs like that judges do not make law, the doctrine of separation of

Page 39
powers and the doctrine locus standi and have innovated new
principles of combat socio-economic problems, promote collective
rights and protect social interests in respect of consumerism and
environmental hazards etc. Likewise the Supreme Court has evolved
a new natural law doctrine over and beyond the Constitution in
Kesavananda Bharati, which embodies the principles of higher
natural law, cherished moral values, social and political goals in the
backdrop of changing needs of social life of our democratic polity. As
Justice Mathews puts it ‗...... the fundamental rights themselves have
no fixed content, most of them are empty vessels into which each
generation must pour ifs content m the light of its experience.......
that in building a just social order it is sometimes imperative that
fundamental rights should be subordinated to directive principles.‘ In
Maneka the Court evolved a liberal and pragmatist slant in human
rights jurisprudence by injecting the U.S. due process of law into
Article 21 overruling the Gopalan and subjecting enacted ‗law‘ to due
process of law in order to be just, fair and reasonable and not
draconian and arbitrary. For, according to justice Krishna Iyer, 1
‗.......... procedural safeguards are the indispensable essence of
liberty. In fact, the history of personal liberty is largely the history of
procedural safeguards and the right to hearing has a human right
ring.....‘ and a fascinating subject of sociological relevance in many
areas.‘ In Judges Transfer case, the Court declared the need of
independence of judiciary vis-a-vis a committed judiciary which had
required the judges to follow the social philosophy of the
Governments. These juristic developments reflect the social realities
of India of today so that law and legal theory could respond to meet
effectively the needs of the poor and the oppressed.
Indeed a legal revolution is taking place in India within the

framework of rule of law and the Constitution where judiciary is using
legal and constitutional devices for providing the content and quality
of justice-social, political and economic especially through public

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interest litigation. While the Preamble enshrines goals and direction

of social change in accordance with spirit and ethos of the
Constitution it is the judiciary which has
explored a new meaning and content to such goals making them

more effective and resilient to meet the ever changing requirements
of Indian democracy. These are :
1- Independence of judiciary,
2- Social Justice and Equality—Mandalisation,
3- Dignity and freedom of the individual,
4- Secularism, and
5- Democracy.
2.5 Importance of Precedents in Common law systems
Independence of Judiciary
An independent judiciary is the substratum on which the whole

edifice of constitutional fabric, democratic way of life, the rule of law
and legal process rest. The vitality of democratic processes and the
ideals of justice, the imperatives of social change and other great
values of human liberty, equality and freedoms are all dependent on
the tenor and tone of the judiciary. Where judicial wings are clipped,
trimmed or transgressed by way of politically motivated supersession
or transfer to brow-beat the judges to follow the social philosophy of
the Government rather than the philosophy of the Constitution the
consequences of such a policy are disastrous to the Rule of Law
and the Constitution. It is the judicial independence which ensures
democratic form of government, the rule of law and basic rights and
liberties of the citizens. According to International Commission of
Jurists which met at Athens in 1955 declared :‗An independent
judiciary is an indispensable requisite of a free society under the
Page 41
Rule of Law. Such independence implies freedom from interference

by the Executive or Legislature. Consequently the slightest erosion
of judicial independence by way of brow-beating judges, or
denigrating or scandalising, the judiciary is looked upon as a danger
to the entire fabric of society and the Constitution itself as the
judiciary is the sentinels of the Constitution and the rule of law and
judicial independence is a basic feature, of the Constitution. In
Krishna Swamy, the Court envisaged ‗the need to keep the stream
of justice clean and pure and the judges must be endowed with
sterling character, impeccable integrity and upright behaviour.
Erosion thereof would undermine the efficacy of the rule of law and
the working of the constitution itself.‘However, democracy, rule of
law, individual liberties, legal and social justice are such vibrant
noble concepts which are made purposive and meaningful and
which grow and develop only under the canopy of a free and
independent judiciary. It is a cardinal principle of the Constitution.
There cannot be free society without a free independent judiciary. In
the words of Justice Krishna Iyer, ‗Independence of the Judiciary is
not genuflexion nor is it opposition of Government‘. At one point
Justice Iyer characterised this concept as a ‗Constitutional Religion.‘
According to Justice Pandian, ‗this concept of independence of
judiciary.... is a ‗fixed star‘ in our constitutional consultation and its
voice centres round the philosophy of the Constitution‘—Justice
Pandian quotes with approval observations, of Bhagwati, J. in Union
of India v. Sakal Chand Himatlal Sethi wherein he remarked that
:‗independence of the judiciary is a fighting faith of our Constitution.
Fearless justice is the cardinal creed of our founding document......
But it is necessary to remind ourselves that the concept of
independence of the judiciary is not limited only to independence
from executive pressure or influence that it is much wider concept
which takes within its sweep independence from many, other
pressures and prejudices.‘But its raison d‘etre is correctly pin-
pointed by Justice Sawant when he remarked :‗The rule of law is the
foundation of the democratic society. The judiciary is the guardian of
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the rule of law. Hence, judiciary is not only the third pillar, but the
central pillar of the democratic State...... If the judiciary is to perform
its duties and functions effectively and true to the spirit with which
they are sacredly entrusted it, the dignity and authority of the courts
have to be respected and protected at all costs. Otherwise, the very
corner-stone of our constitutional scheme will give way and with it
will disappear the rule of law and civilised life in the society.... ‗The
foundation of the judiciary is the trust and the confidence of the
people in its ability to deliver the fearless and impartial justice...........‘
SUGGESTIONS TO IMPROVE JUDICIAL PROCESS

The effective judicial process requires the cooperative effort of all
three organs of the Government. To this effect I suggest following
reformation which should follow by the executive, judiciary and
legislature –
Legislature: Legislature being policy formulator must perform
following works-
(1) Parliament must in exercise of its power under article 32(3)
empower the lower courts to exercise the writs jurisdiction within
their local limits under, so that common people may have easy
access to the justice.
(2) Parliament must in consultation with judiciary to frame a time limit
within which the matter should be disposed of and its failure to
attract the punishment.
(3) Parliament should make necessary amendment in advocate Act

1961 to prevent the frequent entry of incompetent person as
lawyers.
(4) Alternative dispute resolution system must be proper funded and
equipped with necessary infrastructure, So as to reduce the arrears
of cases
(5) Parliament should by an act nullify the judgment given by
Supreme Court in Ram Jawaya case and Re-presidential Reference
case.

Page 43
(6) Legislature by law must fix the rules according to which the
quorum of the judges be fixed, so as to avoid the personal influence
of the convening authority on the decision.
(7) Presently there is no supervisory jurisdiction of Supreme Court
on the High court to prevent the misuse of their power except in
appeal by quashing the judgment, So Parliament should empower
the Supreme court to ask the explanation from a High court judge
when it found that he had exercised his power illegally
(8)Parliament by a law establishes an independent body consisting
of impartial legal experts to enquire into the conduct of judges whose
decisions is quashed by Supreme Court or High Court in appeal.
(9)The parliament through a law should empower UPSC to hold an
All India Judicial services examination to fill up the vacancies in High
Courts and no judge of high court be appointed in his home state
except chief justice of that high court (as he can run the
administration more efficiently than non regional judges); so that the
concept of uncle judges can be removed. The vacancy in Supreme
court must be filled up by a selection committee having statutory
competence, which consists of chief justice of India, prime minister,
law minister, leader of opposition party in Lok Sabha and President.
The decision must be taken by the majority of 3:2 and if it is 2:2 the
decision of president should be final to elevate or not a high court
judge in supreme court.
(10) An amendment in the constitution be made so as to make
Article 39A as fundamental right, Article 13(3) should also be
amended and the word personal contract should be inserted.
(11) Section 197CrPC should be repealed because it is against
article 14 as it gives unequal protection to the corrupt officers and
protect their illegal actions and hence is an hindrance in execution of
166 IPC.
(12) Distinction as to bailable and non-bailable offence under section
436 and 437 CrPC should be abolished because it is against article
14, 19, 21. There is no reasonable classification as accused is
treated as per the convicted person beside this there is also violation
Page 44
of presumption of innocence unless prove guilty. Denial of bail also

amounts the complete denial of freedom protected under 19(1)(a)-
(g) which is unconstitutional under article 13(1) .
(13) Guidelines given by the Supreme Court in D.K Basu and
Joginder Singh cases should be incorporated in section 41 Cr.P.C
for arrest without warrant
(14) An amendment in section 101, 102 and 103 of Indian Evidence
Act be made so as to provide that it shall not be applicable under
article 32 and 226. Under these Articles when Petition lies it shall be
the state upon whom burden of proof shall lie that its act was
constitutional. Because in absence of this amendment the petitioner
who is already victim of wrong or injury or whose fundamental right
is violated has to prove that all it happens against him which is
against the ethical and coercion band of power spectrum.
Executive:
Role of executive is policy implementation and ordering of facts from
is to ought. Delivery of justice is basically falls within the province of
executive which is rendered through access to the administrative
authorities. Article 14 casts an unconditional duty on the state to
provide equal treatment of law and equal protection of laws to every
person. Unfortunately due to lack of ineffective implementation of
Article 256 read with 365 and 356, the state often does not fulfil their
constitutional obligation, hence the union government should use
these supervisory and consequential provision to compel the states
to fulfil their duties.President and governor before giving his assent
to an act must satisfy himself that the act is in consonance with the
provision of the constitution because he has taken the oath under
article 60 or 159 to preserve, protect and defend the constitution and
the law.
The President under article 124 (3) (a) should also appoint the
distinguished jurist as supreme court judges.
The Government should implement the guideline given by the
Supreme Court in Prakash singh case, so as to separate the

Page 45
investigating police from the law enforcing police and also to make
the police free from frequent transfers, political interference etc.
The government should establish more fast track courts to remove
the arrears of cases. It should also equip the judiciary with the
modern technology like e-filing of suits, amendments, affidavits, etc.
it should also enable the police with these modern technology.
Judiciary
The role of judiciary is policy control which comes into picture when
executive fails to deliver the justice. In order to make judicial process
effective the court must observe following guidelines-Judiciary must
keep in mind that its work is to say authoritatively what the law i.e.
policy is controlling. Provisions of Article 142 and 226 of constitution,
Section 482 Cr.P.C and 151 of C.P.C though gives inherent power
to the supreme court and high court to render complete justice , it
means only to fill the gap within the parameter of the constitution
and statutes and it does not mean to supersede the constitution or
statute as it did in Ramjawaya kapoor and S.C Advocates on
Records case. The decision that consultation means concurrence
amount to the amendment in the constitution without procedure and
the statement that Indian government system is based on
Westminster form of government and not on advanced presidential
form of government amounts to change the nature of government
from republic democracy to oligarchic democracy which is not
permitted to the judiciary.
When a petition is made to test the legality of the decision of any
subordinate court/tribunal the court should only issue the writ of
certiorari if grounds are satisfied, it must not issue other writs unless
the statutory remedies are exhausted.
The chief justice of India in exercise of his power under Art 130
should constitute at least its four regular benches in and for the
eastern, western , northern and southern regions to hear the
appeals from the regional high courts . It will help the people to have
easy access to the Supreme Court. It is also in consonance to the
time , ethical , and influence bands of the power spectrum.
Page 46
Judiciary must accept the norm of democracy that justice not only be
done but it appears to be done. How government could fight against
corruption if judiciary itself against the Right to Information Act,
regarding disclosure of assets on ground of being not a public
servant but constitutional authority. It amounts to double standing
as on one hand they claim salaries and other benefits on ground of
being public servant and denying the liability to disclose the assets
by saying not a public servant . However true fact is that they are
public servant within the meaning of sec 21 I.P.C Supreme Court
must also correct its illegal wrong judgments which are still being
followed in the country.They must provide the justice when the
aggrieved party knocks its door and not try to compromise the
dispute as it did in Maneka Gandhi case, because art 14 guarantees
Restitutive Justice .Judges should play an active role in bringing the
truth and not merely being a silent spectator of the dispute.
There should not be presumption of constitutionality of the Act
because it tends to presume a preponderance of power in favour of
one party and tilts the balance unjustly. This totally affects the
principle of parity of power which is ensured through guaranty of
equal protection of laws under article 14 as well as article 13(1) and
13(2) respectively, asking the injured party to prove the wrong or
injury suffered destroys the guaranty of equal protection of laws.
Such an opinion on part of court is extremely low on the ethical
count of power spectrum.
OTHER REFORMATION
Section 166 of IPC, 1860 should be enforced ‗ which provides –―
Whoever, being a public servant, knowingly disobeys any direction
of the law as to the way in which he is to conduct himself as such
public servant, intending to cause, or knowing it to be likely that he
will, by such disobedience, cause injury to any person, shall be
punished with simple imprisonment for a term which may extend to
one year, or with fine, or with both. ―. Under Article 14 of the
Constitution it the duty of judiciary (Judiciary is a State as laid down
in A.R. Antulay v R.S.Nayak AIR 1988 SC 1531) to render justice but
Page 47
where it fails, it amounts injury under section 44 IPC. Judges being

public servant within the meaning of section 21 of IPC, injury caused
by them amounts offence under Section 166 and accordingly they
should be punished.
Since section 197 Cr.P.C is hindrance and violative of equality
provisions of art 14 it should be repelled by legislature.
Court fees Act should be abolished as art 14 imposes unqualified
duty on the state to render justice not to do business with justice.
Law of limitation act 1963 should be abolished as it is also against
the Restitutive Justice envisaged by art 14. Alternative mode of
adverbial system that is inquisitorial system should be implemented,
as it is also envisaged by the art 14 and is in consonance with the
objective of the preamble to secure justice social, economic and
political because. , despite of above reformative measures it is
difficult to avoid the interference of extra constitutional people
(lawyers) to play with justice. In this context we can also take the
help of inquisitorial system of French and Italy.
CONCLUSION
On ground of above analysis of the Indian Judicial process under
various heads the writer comes to the conclusion that present
adversery judicial system is against the sprit of the constitution and
is open violation of its Normative character. Judicial process is run
by the persons (advocates), who have no where mention in the
constitution (except under Article 22(1)) and justice is not done but is
purchased.
All three organs of the state has failed to fulfill their constitutional
obligation to render justice according to the mandate of the
constitution as various laws which are unconstitutional are still
operating in the Indian judicial process few examples of which are
sec 302 I.P.C, Court fees Act 1867, law of limitation , sec 197 Cr.P.C
etc .Judiciary as a state within the meaning of Article 12 is duty
bound to do complete and Restitutive justice under Article 14 read
with Article 142, but on several occasions it has acted as dispute
settlement forum. It is also duty bound under section 57(1) of the
Page 48
Indian Evidence Act 1872 to take judicial notice of all existing laws
having force , whether it is mentioned in the plaint or not but judges
deliberately fails to take notice of this section which proves their
incapacity and misconduct to deal with the cases rendering them
liable for punishment under section 166 IPC and for removal from
the post by parliament , but still the legislature has fails to set an
example of punishment by virtue of removal of any high/supreme
court judge. Under constitutional power arrangement the work of
judiciary is to say authoritatively what the law is i.e. policy controlling
. Provisions of Article 142 and 226 of constitution, Section 482 CrPC
and 151 of CPC though gives inherent power to the supreme court
and high court to render complete justice , it means only to fill the
gap within the parameter of the constitution and statute and it does
not mean to supersede the constitution or statute as it did in
Ramjawaya kapoor and S.C Advocates on Records case. The
decision that consultation means concurrence amount to the
amendment in the constitution without procedure and the statement
that Indian government system is based on Westminster form of
government and not on advanced presidential form of government
amounts to change the nature of government from republic to
oligarchic which is not permitted to the judiciary.
The main reasons for the injustice is due to non supervisions of the
working of laws in the states , even though the constitution has
envisaged the method of supervision under article 256 read with
article 365 and 356. The president and Governors has failed to full-
fill their oath taken under Article 60 and 159.
Thus we see that present Indian judicial process is not working
according to the constitution and there is a need for revival of the
ancient inquisitorial system which is also the mandate of article 14.
Inquisitorial method alone guarantees parity of arms and disposal of
matters on pure legal basis. Individuals cannot overcome disability
created due to unequal power balances created due to personal
qualification, legal knowledge, and finance and so on. Inquisitorial
mode of judicial process would help state to stand for the victim by
Page 49
eliminating advocacy all together alongwith improved administrative

inquiry into the matter concerned.
2.8 SUMMARY
An independent judiciary is an indispensable requisite of a free

society under the Rule of Law. Such independence implies freedom
from interference by the Executive or Legislature. Consequently the
slightest erosion of judicial independence by way of brow-beating
judges, or denigrating or scandalising, the judiciary is looked upon
as a danger to the entire fabric of society and the Constitution itself
as the judiciary is the sentinals of the Constitution and the rule of law
and judicial independence is a basic feature, of the Constitution. The
duty of the judge is to interpret and apply the law to the cases before
him. In this unit we have discussed about the nature of judicial
process. We have also learned about the legal reasoning and the
growth of law. Finally, we have also discussed the importance of
judicial precedents so as to understand the whole concept of judicial
process.
1. See also Unni Krishnan v. State of A.P., A.I.R. 1993 SC 2178.

2. Meneka Gandhi v. Union of India, AIR 1978 SC 597 at 658-59.
3.S.P. Gupta, 189.
4. In re: Vinay Chandra Mishra, AIR 1995 SC 2348.
5. Rajiv K. Garg v. Shanti Bhushan, AIR 1995 SC 573; Dalip
6. Singh Gill v. Union of India, AIR 1993 P&H 263.
7. G.C Kanungo v. State ofOrissa, AIR 1995 SC 1655.
1
Krishna Swamy v. Union of India, AIR 1993 SC 1407, See also
Sub-Committee of Judicial Accountability v. Union of India, AIR 1992
SC 320.
8.Mainstream, Nov. 22, 1980.

Page 50
9. S.C. Advocates-on-Record Assocn v. Union of India, AIR 1994 SC

268 at 314.
10. AIR 1977 SC 2328, See also All India Judges‘ Association v.
Union of India, AIR 1992 SC165.
11. In re: Vinay Cliandra Mishra, 2366.
1. What do you understand by creativity in law?

2. Write a short note on Legal Reasoning and growth of law?
3. Discuss the Importance of Precedents in Common law
systems?

Page 51
LL.M. Part-2

Unit-3- Legal development and creativity through legal
reasoning under statutory and codified systems
STRUCTURE
3.1 INTRODUCTION
3.2 OBJECTIVES
3.3 Judicial process and Development of Law
3.4. Creativity in Law through Legal Reasoning
3.5 Importance of Precedent in Statutory and Codified Systems
3.6 SUMMARY

Page 52
3.1 INTRODUCTION
In the previous unit you have read about the concept of the legal
reasoning and the growth of law. We have also discussed the
importance of judicial precedents so as to understand the whole
concept of judicial process.
are ruled by the law.
In this unit we shall discuss about the creativity in law and the
judicial process as Legal Reasoning and development of law. We
shall also read about the Importance of Precedents in statutory and
codified systems and describe the tools and techniques of judicial
precedents in India so as to understand the whole concept of judicial
process.
3.2 OBJECTIVES
 Understand the creativity in law through legal reasoning

 Discuss the judicial process as Legal Reasoning and
development of law.
 Discuss the Importance of Precedents in statutory and
codified systems
India.

Page 53
3.3 Judicial process and Development of Law

are ruled by the law. In the modern times there are two
interpretations of the Rule of law, the first the more traditional view is
that of the plenary adhering to the rules of the laws while the second
view allows the encompassing of the ideal rules based on criteria of
morality and justice within its province. Modern states follow the
second principle of rule of law because a law which is stable
becomes oppressive after some time , due to its failure to satisfy the
needs of the progressive society. 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‖.
3.4. Creativity in Law through Legal Reasoning

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The ideal notion of the rule of law can be traced in ancient Indian
legal system which laid greater emphasis on the duty, by making the
king as the head of administration. Dharma in ancient India did not
denote any kind of religion or right but only the performance of the
duties . Everyone had to perform his assigned Dharmas (Duties)
.The duties assigned to the king was known as Rajadharma which
was a combination of several Dharmas , hence it was considered as
very pious and supreme Dharma. Although the king was the fountain
head of the administration of justice, his powers were limited by the
norms of Rajadharma . He neither could impose arbitrary taxes nor
could favour his relatives, and if he deviated from the performance of
the norms of Rajadharma , the punishment prescribed for him was
thousands times more than an ordinary individual . There was no
distinction between weaker and stronger and the weaker was able to
prevail over stronger with the assistance of the king if his rights or
liberty was encroached. This duty approach setup of Rajadharma
was distorted with the coming of the Moughals and subsequently
after the coming of Britishers.
Power is like a river, if controlled, it brings happiness and prosperity
otherwise destruction and curse . Justice without power is inefficient,
power without justice is tyranny So in order to make power of the
government purposive, efficient and in interest of the people, India
adopted a normative written constitution on 26th day of November
1949 demarcating the power arrangement between the three organs
of the state namely executive, judiciary, and legislature. The
constitution also kept few most cherished values of the humankind
beyond the reach of these three organs. Constitution seeks to
remove three kind of disparity namely social, economic and political ,
so that weaker can prevail over stronger with the help of law if his
right is violated and, Each organ of the state is required to work in
this context without violating the power arrangement of the
constitution .
2. JUDICIAL PROCESS IN ANCIENT INDIA

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The Policy of self-restraint was the governing principle in ancient

India, which was based on norms of righteous conduct named
Dharma. There was no sanction and People used to follow Dharma
on their own, because of its intrinsic merit. however this ideal
stateless society didn‘t last for a long time as some person out of ,
selfish worldly desires, began to flout dharma and created a situation
of 'Matsyanyaya' (big fish devouring small fish) . This situation
forced the law abiding people to search for a remedy, which resulted
in creation of the institution of kingship and formulation of
"Rajadharma" (law governing kings), which was the synthesis of all
Dharmas. The object of Rajadharma was to assist and support the
achievement by individuals of the threefold ideals (Trivarga) ,and to
ensure that they secure wealth (Artha) and fulfil their desires (Kama)
in conformity with Dharma and do not transgress Dharma . Dharma
had a very wide connotation involving social ,moral, legal religious
aspect. Since Dharma was entirely dependent upon the effective
implementation of Rajadharma it was considered as supreme
dharma.
Dicey regarded supremacy of law is an essential of the ―rule of law‖
in 1885 . This supremacy of Law has long before found prominence
in the principles of Raja dharma , the constitutional law of ancient
India . Rajadharma is a classic example of trans- personalized
power system which did not allow any personalized or
depersonalized power to take over the requirements of justice .
3. ATTRIBUTES OF ANCIENT LEGAL SYSTEM
The main attributes of ancient Indian legal system as derived from
social and legal literatures can be summarised as below:
There was rule of law. Unlike western kings whose command
constituted the imperative law, in ancient India Dharma (law) was a
command even to the king and was superior to the king . Rules of
Dharma were not alterable according to the whims and fancies of the
king . The prevalent doctrine was that 'the law is the king of kings'.
The doctrine that 'the king can do no wrong' was never accepted in
our ancient constitutional system. If the king violated the
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Rajadharma the punishment prescribed for him was one thousand

times more penalty than what would be inflicted on an ordinary
citizen.
Sources of laws (Dharmas) were based on following priority orders
–Vedas/Shrutis, Dharmasastras,The Smrities, Mimansa, Nibandas
or commentaries . Customs and sadhachars were also were also
applied if they were in conformity to the Dharmas.There was
separation of power. King had no legislative power; It was vested in
a sabha (committee) of wise people. King had only corrective power,
thus he could invalidate any custom if it was inconsistent with the
Dharma but can‘t create a new law (Dharma). Though the court
presided by the king was the highest court he had no direct role in
judicial process where an elaborate system of judiciary consisting of
royal courts and people‘s tribunal was operational. King was
required to exercise his judicial authority in accordance with the
opinion of the judicial officers of the court who were under a clear
mandate not to connive with the King when he acted unjustly. The
judges were under an obligation to protect the Dharma even if their
decisions were against the wishes of the King. Thus in ancient India
there was independent judiciary and independent legislature. Access
to justice was very easy. Rajadharma envisaged a mechanism
wherein the mere fact of information of violation of one‘s right was
enough to set the law into motion. The King, under the codes of
Rajadharma was bound to take cognizance, and therefore bringing a
matter to his notice was enough to render it fit for judicial
proceeding, to redress the grievances. Thus the king was supposed
to restore the stolen property to its owner and if he failed in
performance of his duties he had to pay the owner the actual cost of
the stolen property.Procedures were not allowed to defeat the justice
. Emphasis was on substance not on form. The method of inquiry
was of inquisitorial nature where judge played an active role in
bringing the truth and limited aliens (like modern advocates) were
allowed so that parity of power can be maintained .,The principle of
"the greatest good of the greatest number", according to which, in
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order to secure the good of a large number of persons, injustice

could be caused to a small number of personshd no application in
Ancient India. The ideal laid down was that all the people should be
happy (Sarve Janah Sukhino Bhavantu).
4. PARITY OF POWERS AND CRATOLOGICAL ANALYSIS OF
ANCIENT INDIAN LEGAL SYSTEM (JUDICIAL PROCESS).
―Law is the king of the kings; nothing is superior to the law; the law
aided by the power of the king enables the weak to prevail over the
strong.‖ [20]
The beauty of this verse is that it emphasis on the parity of power
between the parties and if there is no parity of power than it is the
duty of the king i.e., executive to provide help to the disadvantaged
so as effectuate the equality principle . It also shows that the law
was recognised as a mighty instrument for the protection of the
individual rights and liberties. Whenever the right or liberty of an
individual was encroached upon by another, the injured individual
could seek protection from the law with the assistance of the king,
however, powerful the opponent (wrong doer) might be. Thus there
was parity of powers between the individuals to seek the equal
protection of laws.
ANALYSIS OF ANCIENT JUDICIAL PROCESS
If we analyze the ancient legal system on the basis of power
spectrum , we can say that all six power spectrum bands are
balanced in equilibrium to give a just legal system because head
count was satisfied with a very high degree, time count was also
satisfied because of quick contemporary judgments, ethical count is
satisfied because law (Dharma) was the shared conviction of the
society having maximum social and moral values , coercion band is
satisfied because Praja (people) and Prajapalak(king) both were to
follow the dharma in their conduct, interest and influence count is
satisfied because vesting of power was in depersonalised manner
avoiding the arbitrariness and king was subordinate to the
Rajadharma, besides it just upholding the interest of the public and
having positive influence to mass was the rule.
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5. 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 justicemeant 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.[21]
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, 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 guarantee 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
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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 dismissed. 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[24].
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.
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. The main procedural hurdles can be
summarised below -
(A* The aggrieved person has to prove that legal wrong has been
committed against him by the defendant.
(B*The aggrieved person has to pay the cost of all kinds of judicial
processes. [25].
(C* Under adversarial criminal system the rule is that unless a
person proved guilty beyond reasonable doubt he is innocent but
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these rule is violated by the courts, when court refuses to give the
bail to the accused on ground of making a classification between
Bail-able and non Bail-able offences under sec 436 and 437 Cr.P.C
(*DELAY : The aggrieved party has to face inordinate delay in
getting justice due to unnecessary excess time given in filing of
written statement ,counter statement , amendments in plaints , filing
of unnecessary affidavit , Adjournment at every stage of the
proceeding , Professional interest of the lawyer in prolonging the life
of the suit , vexatious issuing of interlocutory orders, huge arrears of
cases are other reasons for causing delay in getting justice Even if
the aggrieved person get the decree its execution is not easy. Now
justice is a generation to generation fight over one‘s legal right .
examples of delay can be seen in Bhopal gas tragedy case , Rudal
Sah case[26] , Mohini jain case[27] etc.
(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. It‘s analysis can be
done through following
6. CASE ANALYSIS
S.C. Advocates- On- Record Association v/s Union of India[28]
FACTS: In this case a class petition was filed by the petitioner with
regard to filing of the vacancies in Supreme Court and high courts.
The issue in this case was with regard to the role of chief justice of

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India in appointment, transfer and fixation of number of judges in

Supreme Court and high courts.
JUDGMENT : Supreme court held that –
(1* The initiation for the appointment of the judges in supreme court
and High courts shall be taken by a collegiums, wherein decision be
taken by the chief justice of India after consultation with two senior
most judges of supreme court . The President in matter of
appointment of supreme court and high court Judges, is bound by
the opinion of the chief justice of India , and the term consultation
used in Article 124(2) and Article 217(1) means concurrence.
(2* The opinion of chief justice of India does not have mere primacy
but is determinative in the matter of transfer of judges of high courts
under Article 222.
(3* Number of judges in high courts is sufficient but Supreme Court
is empowered to order the union to constitute a committee in future
for fixation of number of judges.
CRITICAL ANALYSIS OF THE JUDGMENT :
This case is criticised on the following grounds –
(1)Supreme court has destroyed the power arrangement envisaged
by the constitution, the Grund-norm of the country. It has exercised
its authority beyond the power conferred by the court. The term
consult cannot be interpreted as concurrence. Power lies in
President, what is required is only that he shall consult to the chief
justice in case of appointment of a Supreme Court judge. In case of
appointment of a high court judge he is required to consult such
number of high court and supreme court judges as it deem fit . our
constitution is a normative constitution based on check and balance
of powers among three branches of the government, which has
been destroyed by this per-inquirium judgment . No doubt the
Supreme Court is given the inherent power to render justice under
art 142 but that power is only for approximation of is to ought within
the parameter of the constitution and statute, not to override the
constitution or statute.

Page 62
(2) Making consultation as concurrence amount to amendment in the

constitution without the procedure established by the constitution.
(3) Article 222 says that President may after consultation with chief
justice of India transfer a high court judge . it means that the
president is not bound by the opinion of the C.J.I , Thus the
statement that the opinion of chief justice of India does not have
mere primacy but is determinative in the matter of transfer of high
courts judges ,is per aquarium .
(4) Determination of the number of judges in courts falls within the
domain of the executive, not of the judiciary.
Thus we see that this judgment does not stand the test of
constitutionality being an arbitrary, per aquarium decision, in
violation of the art 14 and render the judges liable for punishment
under section 166 of I.P.C for deliberately violating the provisions of
constitution .
Maneka Gandhi v Union of India
FACTS: In this case the passport of the Petitioner was seized on
ground of interest of public by the central government under section
10(3)(c) of the Passport Act 1967 without giving her opportunity of
any hearing . Hence she filed a writ petition under art 32 on following
grounds –
(1* Section 10(3)(c ) is violative of Article 21 as it does not
prescribed any procedure for the seizure of the passport.
(2* Section 10(3)(c) is violative. of Article 14 as power conferred to
the delegate is excessive .
(3* Section 10(3)(c) is violative of Article 19 (1)(a) and Article
19(1)(g) .
(4* She was denied from the opportunity of hearing which amount to
the arbitrary exercise of the power violating of Article 14.
JUDGMENT: in this case supreme court observed (not given the
judgment) after assessing the evidences that the seizure of the
passport was mala fide in violation of Article 14 , 19 , 21 . Procedure
established by the law means a procedure which is just, fair and
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reasonable. Rule of Audi Alteram Partem is a part of natural law

protected underArticle 21. Illegal seizure of passport violates Article
19 (1)(a) ,19(1)(g) having a direct bearing on right to food protected
under art 21. Realising that there was fatal defect and decision of
the court would render the central government‘s order, as void, the
attorney general gave the assurance that - ―The opportunity of
hearing and representation shall be given to the petitioner within two
weeks and representation will be dealt with expeditiously in
accordance with the law ―. On getting this assurance the Supreme
Court disposed the case.
CRITICAL ANALYSIS OF THE JUDGMENT:
This case is criticised on the following grounds-
(1* Duty of the supreme court is to render Restitutive Justice under
art 14 but it failed to render the complete justice and hence, Article
142 remained unanswered.
(2*The judgment of supreme court holds the authority of law under
Article 141 , and so it is expected from it to resolve all the issues
once for all ,in the form of judgment not observations. It is a justice
delivery institution not to a compromise making body.
(3* Supreme court failed to take the notice of Section 166 of IPC
under Section 57(I) of the Indian Evidence Act 1872 , and punishing
the wrongdoers .
ADM Jabalpur v/s Shivkant Shukla
FACTS: In 1975, the president on the advice of the P.M. declared
emergency under Art 352 on the ground that the security of India
was threatened by internal disturbance35. And also issued an order
under Article 35936 suspending the right to access to the courts to
the enforcement of the fundamental rights. The questions which fall
for consideration in this case was two- ―Whether in view of the
Presidential order under clause (1) of Article 359 of the constitution
any writ petition under Article 226 before a H.C. for habeas corpus or
any other writ or order or direction to challenge the legality of an
order of detection on the ground that the order is not under or in
Compliance with the Act is maintainableor is vitiated by mala fides
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factual or legal or is based on extraneous considerations . Second, if

such a petition is maintainable, what is the scope or extent of judicial
scrutiny‖
JUDGMENT : Supreme court by majority (except Justice H.R.
Khanna) held that emergency is declared to overcome certain
imminent contingencies , and permission to enforce one‘s
fundamental right would frustrate the object of emergency , hence
no person has locus standi to challenge the validity of his detention
during the operation of art 359(1) ,however wrong his detention may
be .
CRITICAL ANALYSIS OF THE JUDGMENT :
This case can be criticised on the following grounds –
(1) Rule of law is the antithesis of arbitrariness; the State has got no
power to deprive a person from his life or liberty without the authority
of law. The vesting of power of detention without trial in the
executive, has the effect of making the same authority both the
prosecutor as well as the judge and is bound to result in arbitrariness
which is violative of Article 14 [33] read with Article 19 (1)(a)to (g),
20, 21 and 22 .
(2) A Presidential order under Article 359(1) can suspend during the
period of emergency only the right to move any court for
enforcement of the fundamental rights mentioned in the Order it
can‘t deny to avail the procedural safeguards in the preventive
detention act .
(3) The court failed to take notice of the law of tort and IPC under
sec 57(1)) of Indian evidence act regarding wrongful confinement of
the petitioner and penalising the wrongful authorities.
(4) Nowhere in the constitution is prescribed that suspension of

enforcement of fundamental rights means denial of testing the
legality of exercise of the power under the constitution, hence
supreme court and high court both are competent to issue the writ of
habeas corpus under art 32 and art 226 respectively .
Kasturilal v State of U.P
Page 65
FACTS : in this case the appellant was apprehended by police and

some silver and gold were seized and deposited by the police in
police Malkhana, from where the Gold was misappropriated by a
constable who fled to the Pakistan .
JUDGMENT: The court held depositing of gold by police , in police
Malkhana is a soverign function and hence the government is not
liable for the misappropriation of the gold.
CRITICAL ANALYSIS:
this was an absolutely wrong judgment because
(1 * The court found that there was gross negligent on part of police
authorities but it failed to punish the wrong authorities under section
166 of I.P.C[35].
(2 * Neither keeping Gold in Malkhana nor its misappropriation
amount to the sovereign function , sovereign function are those
function which can be performed by the state only in comparison to a
private person .
(3 * Even if keeping gold was a sovereign function of the state , the
state(judiciary) is duty bound to give Restitutive justice under Article
14 . The court also failed to take judicial notice of law of tort under
sec 57(1) of Indian Evidence Act 1872, that where there is
infringement of a legal right there exists remedy Thus in this case
there was absolute denial of justice.
Dhananjoy Chatterjee alias Dhana v State of West Bengal and
Ors
FACTS:The Petitioner filed an appeal against the death penalty

awarded by Calcutta high court for committing an offence under
section 376 and 302 of I.P.C against a minor girl.
JUDGMENT : The court held that the act of petitioner amounts to
the rarest of rare case and hence is liable for death penalty.
CRITICAL ANALYSIS :
(1 * According to Article 21 , No person shall be deprived from his
personal life and liberty except procedure established by ‗law‘ and
that Law must be just, fair and reasonable. Where a death penalty is
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given to a person, he cannot exercise the rights under Article

19(1)(a) to( g), because it amounts to the absolute restriction on
those freedoms which is unconstitutional because law requires only
reasonable restriction on those freedoms on grounds prescribed
under Article 19(2) to (5). Besides it section 302 of I.P.C is a pre
constitutional law which is also hit by the art 13(2) of the constitution.
(2 * Doctrine of rarest of rare case does not have the quality of
predictability according to law but life of a person is kept at the sweet
will of the judge which is against the rule of law envisaged by the
constitution under Article 14.
(3 *Petitioner was given double punishment for the same offence in
violation of the art 20(2) first punishment he faced was 14 years
living in jail under death row and second was the capital punishment
itself .
Examples of gross constitutional faults can also be seen in
Ramjawaya kapoor[37], A.K.Gopalan[38] , Champakam
Dorairajan[39] cases.
1.5 Importance of Precedent in Statutory and Codified Systems
In common law legal systems, a precedent or authority is a

principle or rule established in a previous legal case that is either
binding on or persuasive for a court or other tribunal when deciding
subsequent cases with similar issues or facts. The general principle
in common law legal systems is that similar cases should be decided
so as to give similar and predictable outcomes, and the principle of
precedent is the mechanism by which that goal is attained. Black's
Law Dictionary defines "precedent" as a "rule of law established for
the first time by a court for a particular type of case and thereafter
referred to in deciding similar cases."[1] Common law precedent is a
third kind of law, on equal footing with statutory law (statutes and
codes enacted by legislative bodies), and regulatory law (regulations
promulgated by executive branch agencies).

Page 67
Stare decisis is a legal principle by which judges are obliged to

respect the precedent established by prior decisions. The words
originate from the phrasing of the principle in the Latin maxim Stare
decisis et non quieta movere: "to stand by decisions and not disturb
the undisturbed."[2] In a legal context, this is understood to mean that
courts should generally abide by precedent and not disturb settled
matters.[2]
Case law is the set of existing rulings which have made new
interpretations of law and, therefore, can be cited as precedent. In
most countries, including most European countries, the term is
applied to any set of rulings on law which is guided by previous
rulings, for example, previous decisions of a government agency -
that is, precedential case law can arise from either a judicial ruling or
a ruling of an adjudication within an executive branch agency. Trials
and hearings that do not result in written decisions of a court of
record do not create precedent for future court decisions.[3]
The principle of stare decisis can be divided into two components.
The first is the rule that a decision made by a superior court, or by
the same court in an earlier decision, is binding precedent that the
court itself and all its inferior courts are obligated to follow. The
second is the principle that a court should not overturn its own
precedent unless there is a strong reason to do so and should be
guided by principles from lateral and inferior courts. The second
principle, regarding persuasive precedent, is an advisory one that
courts can and do ignore occasionally.[4]
Case law in common law systems
In the common law tradition, courts decide the law applicable to a
case by interpreting statutes and applying precedent which record
how and why prior cases have been decided. Unlike most civil law
systems, common law systems follow the doctrine of stare decisis,
by which most courts are bound by their own previous decisions in
similar cases, and all lower courts should make decisions consistent
with previous decisions of higher courts.[5] For example, in England,
the High Court and the Court of Appeal are each bound by their own
Page 68
previous decisions, but the Supreme Court of the United Kingdom is

able to deviate from its earlier decisions, although in practice it rarely
does so.
Generally speaking, higher courts do not have direct oversight over
the lower courts of record, in that they cannot reach out on their own
initiative (sua sponte) at any time to overrule judgments of the lower
courts. Normally, the burden rests with litigants to appeal rulings
(including those in clear violation of established case law) to the
higher courts. If a judge acts against precedent and the case is not
appealed, the decision will stand.
A lower court may not rule against a binding precedent, even if it
feels that it is unjust; it may only express the hope that a higher court
or the legislature will reform the rule in question. If the court believes
that developments or trends in legal reasoning render the precedent
unhelpful, and wishes to evade it and help the law evolve, it may
either hold that the precedent is inconsistent with subsequent
authority, or that it should be distinguished by some material
difference between the facts of the cases. If that judgment goes to
appeal, the appellate court will have the opportunity to review both
the precedent and the case under appeal, perhaps overruling the
previous case law by setting a new precedent of higher authority.
This may happen several times as the case works its way through
successive appeals. Lord Denning, first of the High Court of Justice,
later of the Court of Appeal, provided a famous example of this
evolutionary process in his development of the concept of estoppel
starting in the High Trees case: Central London Property Trust Ltd v.
High Trees House Ltd [1947] K.B. 130.
Judges may refer to various types of persuasive authority to reach a
decision in a case. Widely cited non-binding sources include legal
encyclopedias such as Corpus Juris Secundum and Halsbury's
Laws of England, or the published work of the Law Commission or
the American Law Institute. Some bodies are given statutory powers
to issue Guidance with persuasive authority or similar statutory
effect, such as the Highway Code.
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In federal or multi-jurisdictional law systems there may exist conflicts

between the various lower appellate courts. Sometimes these
differences may not be resolved and it may be necessary to
distinguish how the law is applied in one district, province, division or
appellate department. Usually only an appeal accepted by the court
of last resort will resolve such differences and, for many reasons,
such appeals are often not granted.Any court may seek to
distinguish its present case from that of a binding precedent, in order
to reach a different conclusion. The validity of such a distinction may
or may not be accepted on appeal. An appellate court may also
propound an entirely new and different analysis from that of junior
courts, and may or may not be bound by its own previous decisions,
or in any case may distinguish them on the facts.
Where there are several members of a court, there may be one or
more judgments given; only the ratio decidendi of the majority can
constitute a binding precedent, but all may be cited as persuasive, or
their reasoning may be adopted in argument. Quite apart from the
rules of precedent, the weight actually given to any reported
judgment may depend on the reputation of both the reporter and the
judges.
Binding precedent
Precedent that must be applied or followed is known as binding
precedent (alternately metaphorically precedent, mandatory or
binding authority, etc.). Under the doctrine of stare decisis, a lower
court must honor findings of law made by a higher court that is within
the appeals path of cases the court hears. In state and federal
courts in the United States of America, jurisdiction is often divided
geographically among local trial courts, several of which fall under
the territory of a regional appeals court. All appellate courts fall
under a highest court (sometimes but not always called a "supreme
court"). By definition, decisions of lower courts are not binding on
courts higher in the system, nor are appeals court decisions binding
on local courts that fall under a different appeals court. Further,
courts must follow their own proclamations of law made earlier on
Page 70
other cases, and honor rulings made by other courts in disputes

among the parties before them pertaining to the same pattern of
facts or events, unless they have a strong reason to change these
rulings (see Law of the case re: a court's previous holding being
binding precedent for that court).
Binding precedent in English law
Judges are bound by the law of binding precedent in England and
Wales and other common law jurisdictions. This is a distinctive
feature of the English legal system. In Scotland and many countries
throughout the world, particularly in mainland Europe, civil law
means that judges take case law into account in a similar way, but
are not obliged to do so and are required to consider the precedent
in terms of principle. Their fellow judges' decisions may be
persuasive but are not binding. Under the English legal system,
judges are not necessarily entitled to make their own decisions
about the development or interpretations of the law. They may be
bound by a decision reached in a previous case. Two facts are
crucial to determining whether a precedent is binding:
1. The position in the court hierarchy of the court which decided
the precedent, relative to the position in the court trying the
current case.
2. Whether the facts of the current case come within the scope of
the principle of law in previous decisions.
Persuasive precedent
Persuasive precedent(also persuasive authority or advisory
precedent) is precedent or other legal writing that is not binding
precedent but that is useful or relevant and that may guide the judge
in making the decision in a current case. Persuasive precedent
includes cases decided by lower courts, by peer or higher courts
from other geographic jurisdictions, cases made in other parallel
systems (for example, military courts, administrative courts,
indigenous/tribal courts, state courts versus federal courts in the
United States), statements made in dicta, treatises or academic law

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reviews, and in some exceptional circumstances, cases of other

nations, treaties, world judicial bodies, etc.
In a case of first impression, courts often rely on persuasive
precedent from courts in other jurisdictions that have previously dealt
with similar issues. Persuasive precedent may become binding
through its adoption by a higher court.
In Civil law and pluralist systems, as under Scots law, precedent is
not binding but case law is taken into account by the courts.
Lower courts
A lower court's opinion may be considered as persuasive authority if
the judge believes they have applied the correct legal principle and
reasoning.
Higher courts in other circuits
A court may consider the ruling of a higher court that is not binding.
For example, a district court in the United States First Circuit could
consider a ruling made by the United States Court of Appeals for the
Ninth Circuit as persuasive authority.
Horizontal courts
Courts may consider rulings made in other courts that are of
equivalent authority in the legal system. For example, an appellate
court for one district could consider a ruling issued by an appeals
court in another district.
Statements made in obiter dicta
Courts may consider obiter dicta in opinions of higher courts. Dicta
of a higher court, though not binding, will often be persuasive to
lower courts.
The obiter dicta is usually translated as "other things said", but due
to the high number of judges and several personal decisions, it is
often hard to distinguish from the ratio decidendi (reason for the
decision).
For this reason, the obiter dicta may usually be taken into
consideration.
Dissenting opinions

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A case decided by a multi-judge panel could result in a split

decision. While only the majority opinion is considered precedential,
an outvoted judge can still publish a dissenting opinion. A judge in a
subsequent case, particularly in a different jurisdiction, could find the
dissenting judge's reasoning persuasive. In the jurisdiction of the
original decision, however, a judge should only overturn the holding
of a court lower or equivalent in the hierarchy. A district court, for
example, could not rely on a Supreme Court dissent as a rationale
for ruling on the case at hand.
Development
Early English common law did not have or require the stare decisis
doctrine for a range of legal and technological reasons:
 During the formative period of the common law, the royal
courts constituted only one among many fora in which in the
English could settle their disputes. The royal courts operated
alongside and in competition with ecclesiastic, manorial,
urban, mercantile, and local courts.
 Royal courts were not organised into a hierarchy, instead
different royal courts (exchequer, common pleas, king's
bench, and chancery) were in competition with each other.
 Substantial law on almost all matters was neither legislated
nor codified, eliminating the need for courts to interpret
legislation.
 Common law's main distinctive features and focus were not
substantial law, which was customary law, but procedural.
 The practice of citing previous cases was not to find binding
legal rules but as evidence of custom.
 Customary law was not a rational and consistent body of rules
and does not require a system of binding precedent.
 Before the printing press, the state of the written records of
cases rendered the stare decisis doctrine utterly impracticable.
These features changed over time, opening the door to the doctrine
of stare decisis:

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By the end of the eighteenth century, the common law courts had
absorbed most of the business of their nonroyal competitors,
although there was still internal competition among the different
common law courts themselves. During the nineteenth century, legal
reform movements in both England and the United States brought
this to an end as well by merging the various common law courts
into a unified system of courts with a formal hierarchical structure.
This and the advent of reliable private case reporters made
adherence to the doctrine of stare decisis practical and the practice
soon evolved of holding judges to be bound by the decisions of
courts of superior or equal status in their jurisdiction.[19]
English legal system
The doctrine of binding precedent or stare decisis is basic to the
English legal system, and to the legal systems that derived from it
such as those of Australia, Canada, Hong Kong, New Zealand,
Pakistan, Singapore, Malaysia and South Africa. A precedent is a
statement made of the law by a Judge in deciding a case. The
doctrine states that within the hierarchy of the English courts a
decision by a superior court will be binding on inferior courts. This
means that when judges try cases they must check to see if similar
cases have been tried by a court previously. If there was a
precedent set by an equal or superior court, then a judge should
obey that precedent. If there is a precedent set by an inferior court, a
judge does not have to follow it, but may consider it. The Supreme
Court (previously the House of Lords) however does not have to
obey its own precedent.
Only the statements of law are binding. This is known as the reason
for the decision or ratio decidendi. All other reasons are "by the way"
or obiter dictum. See Rondel v. Worsley [1969] 1 AC 191. A
precedent does not bind a court if it finds there was a lack of care in
the original "Per Incuriam". For example, if a statutory provision or
precedent had not been brought to the previous court's attention
before its decision, the precedent would not be binding. Also, if a
court finds a material difference between cases then it can choose
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not to be bound by the precedent. Persuasive precedent includes

decisions of courts lower in the hierarchy. They may be persuasive,
but are not binding. Most importantly, precedent can be overruled by
a subsequent decision by a superior court or by an Act of
Parliament.
Interpretation
Judges in the U.K use three primary rules for interpreting the law.
The normal aids that a judge has include access to all previous
cases in which a precedent has been set, and a good English
dictionary.
Under the literal rule, the judge should do what the actual legislation
states rather than trying to do what the judge thinks that it means.
The judge should use the plain everyday ordinary meaning of the
words, even if this produces an unjust or undesirable outcome. A
good example of problems with this method is R v Maginnis (1987)
in which several judges found several different dictionary meanings
of the word "supply". Another example might be Fisher v Bell, where
it was held that a shopkeeper who placed an illegal item in a shop
window with a price tag did not make an offer to sell it, because of
the specific meaning of "offer for sale" in contract law. As a result of
this case, Parliament amended the statute concerned to end this
discrepancy.
The golden rule is used when use of the literal rule would obviously
create an absurd result. The court must find genuine difficulties
before it declines to use the literal rule.[verification needed] There are two
ways in which the Golden Rule can be applied: the narrow method,
and the broad method. Under the narrow method, when there are
apparently two contradictory meanings to a word used in a
legislative provision or it is ambiguous, the least absurd is to be
used. For example, in Adler v George (1964), the defendant was
found guilty under the Official Secrets Act of 1920. The act said it
was an offence to obstruct HM Forces in the vicinity of a prohibited
place. Mr. Adler argued that he was not in the vicinity of a prohibited
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place but was actually in a prohibited place.[27] The court chose not
to accept the wording literally. Under the broad method, the court
may reinterpret the law at will when it is clear that there is only one
way to read the statute. This occurred in Re Sigsworth (1935) where
a man who murdered his mother was forbidden from inheriting her
estate, despite a statute to the contrary.
The mischief rule is the most flexible of the interpretation methods.
Stemming from Heydon's Case (1584), it allows the court to enforce
what the statute is intended to remedy rather than what the words
actually say. For example, in Corkery v Carpenter (1950), a man
was found guilty of being drunk in charge of a carriage, although in
fact he only had a bicycle.
In the United States, the courts have stated consistently that the text
of the statute is read as it is written, using the ordinary meaning of
the words of the statute.
 "[I]n interpreting a statute a court should always turn to one
cardinal canon before all others. ... [C]ourts must presume that
a legislature says in a statute what it means and means in a
statute what it says there." Connecticut Nat'l Bank v. Germain,
112 S. Ct. 1146, 1149 (1992). Indeed, "[w]hen the words of a
statute are unambiguous, then, this first canon is also the last:
'judicial inquiry is complete.' "
 "A fundamental rule of statutory construction requires that
every part of a statute be presumed to have some effect, and
not be treated as meaningless unless absolutely necessary."
Raven Coal Corp. v. Absher, 153 Va. 332, 149 S.E. 541
(1929).
 "In assessing statutory language, unless words have acquired
a peculiar meaning, by virtue of statutory definition or judicial
construction, they are to be construed in accordance with their
common usage." Muller v. BP Exploration (Alaska) Inc., 923
P.2d 783, 787–88 (Alaska 1996);
Practical application

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Although inferior courts are bound in theory by superior court

precedent, in practice judges may sometimes attempt to evade
precedent by distinguishing it on spurious grounds. The appeal of a
decision that does not obey precedent might not occur, however, as
the expense of an appeal may prevent the losing party from doing
so. Thus the inferior court decision may remain in effect even though
it does not obey the superior court decision, as the only way a
decision can enter the appeal process is by application of one of the
parties bound by it.
Pros and cons
There is much discussion about the virtue or irrationality of using
case law in the context of stare decisis. Supporters of the system,
such as minimalists, argue that obeying precedent makes decisions
"predictable." For example, a business person can be reasonably
assured of predicting a decision where the facts of his or her case
are sufficiently similar to a case decided previously. This parallels
the arguments against retroactive (ex post facto) laws banned by the
U.S. Constitution. An argument often used against the system is that
it is undemocratic as it allows judges, which may or may not be
elected, to make law.
A counter-argument (in favor of the concept of stare decisis) is that if
the legislature wishes to alter the case law (other than constitutional
interpretations) by statute, the legislature is empowered to do so.[33]
Critics sometimes accuse particular judges of applying the doctrine
selectively, invoking it to support precedent that the judge supported
anyway, but ignoring it in order to change precedent with which the
judge disagreed.
Regarding constitutional interpretations, there is concern that over-
reliance on the doctrine of stare decisis can be subversive. An
erroneous precedent may at first be only slightly inconsistent with
the Constitution, and then this error in interpretation can be
propagated and increased by further precedent until a result is
obtained that is greatly different from the original understanding of
the Constitution. Stare decisis is not mandated by the Constitution,
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and if it causes unconstitutional results then the historical evidence

of original understanding can be re-examined. In this opinion,
predictable fidelity to the Constitution is more important than fidelity
to unconstitutional precedent. See also the living tree doctrine.
3.8 SUMMARY
In common law legal systems, a precedent or authority is a

principle or rule established in a previous legal case that is either
binding on or persuasive for a court or other tribunal when deciding
subsequent cases with similar issues or facts. The general principle
in common law legal systems is that similar cases should be decided
so as to give similar and predictable outcomes, and the principle of
precedent is the mechanism by which that goal is attained. Black's
Law Dictionary defines "precedent" as a "rule of law established for
the first time by a court for a particular type of case and thereafter
referred to in deciding similar cases." Common law precedent is a
third kind of law, on equal footing with statutory law (statutes and
codes enacted by legislative bodies), and regulatory law (regulations
promulgated by executive branch agencies). In this unit we have
discussed about the creativity in law and the judicial process as
Legal Reasoning and development of law. We have also read about
the Importance of Precedents in statutory and codified systems and
describe the tools and techniques of judicial precedents in India so
1. ‗Justice is the fair and proper administration of laws‘ Black‘s law

dictionary VII edition by west group pub. P.g. 869
2. Desirables includes principles of rule of law, natural justice,
equity, equality , liberty etc
3. Examples of a good number of undesirables can be traced in the
provisions of Indian Penal Code 1860.

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4. The notion of justice evokes the cognition of the rule of law, of the
resolution of conflicts, of institutions that make law and of those who
enforce it; it expresses fairness and the implicit recognition of the
principle of equality.
5. There can‘t be any universal definition of Justice as it varies from
person to person.
6. ―Dharma‖ is that which upholds, nourishes or supports the
stability of the society, maintains the social order and secures the
general well-being and progress of mankind‖ M. Rama jois, LEGAL
AND CONSTITUTIONAL HISTORY OF INDIA: Ancient Legal,
Judicial and Constitutional System‖, Universal Law Publishing Co.
Pvt. Ltd p 25 .
7. Justice is a system specific we need to search for the meaning of
justice from the Constitutional text itself. Therefore, justice means
delivery of substantive promise of law and this substantive promise
of law may be fulfilled by virtue of Article 14 of the Constitution as
this provision says that ― the State shall not deny the equal
protection of laws within the territory of India.‖
8. Power is an ability to affect another by its exercise. However by
considering the present arrangement of the power arrangement of
the power structure, one question arises that is it separation of
powers or separation of functions? If we look at the present situation
we can see that the Government and Parliament are not separate.
The Government is made of the same people who are also members
of the Parliament. This system hinders the separation of powers.
What is prevailing is a sort of separation of functions with shared
powers.
9. The Preamble of the Constitution of India states that: WE, THE
PEOPLE OF INDIA, having solemnly resolved to constitute India into
a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC
and to secure to all its citizens: JUSTICE, social, economic and
political; LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them
all FRATERNITY assuring the dignity of the individual and the unity
Page 79
and integrity of the Nation; IN OUR CONSTITUENT ASSEMBLY this

twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT
AND GIVE TO OURSELVES THIS CONSTITUTION. See the
Preamble of Indian Constitution 1950.
10. These most cherished values can be seen in part III of Indian
constitution. See Ibid.
11. Dharma' is used to mean Justice (Nyaya), what is right in a given
circumstance, moral values of life, pious obligations of individuals,
righteous conduct in every sphere of activity, being helpful to other
living beings, giving charity to individuals in need of it or to a public
cause or alms to the needy, natural qualities or characteristics or
properties of living beings and things, duty and law as also
constitutional law. See supra no 6.
12. There was neither kingdom nor the king, neither punishment nor
the guilty to be punished. People were acting according to dharma
and thereby protecting one another.
13. ‘According to Kautilya in Artshastras ‗People suffering from
anarchy, as illustrated by the proverbial tendency of the bigger fish
to devour the small ones, first elected Manu, the Vaivasvata, to be
their king, and allotted one-sixth of grains grown and one-tenth of
merchandise as sovereign dues. Being fed by this payment, the
kings took upon themselves the responsibility of assuring and
maintaining the safety and security of their subjects
(Yogakshemavahah) and of being answerable for the sins of their
subjects when the principle of levying just punishment and taxes had
been violated‘ P-22: (P 24 S)
14. All Dharmas are merged in Rajadharma, and it is therefore the
Supreme Dharma ,Mahabharata shantiparva Ch.63, 24-25
15. Dharma ,Artha ,Kama are trivarg or three Purusharthas.
16. For e.g. - when the word ‗Dharma‘ is used to indicate the giving
of one‘s wealth for a public purpose, it means charity, when the word
‗Dharma‘ is used in the contract of civil rights(civil law),it means that
it is enforceable by the state, in the case of criminal offence(in
criminal law),it means breach of duty which is punishable by the
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state and when ‗dharma‘ is used in the context of duties and powers
of the king, it means constitutional law(Raj Dharma).
17. "Being free from anger, (Akrodaha) sharing one's wealth with
others, (Samvibhagaha) forgiveness, (Kshama) truthfulness,
procreation of children from ones wife alone, purity (in mind, though
and deed), (shoucham) not betraying the trust or confidence
reposed, (Adrohaha) absence of enmity, maintaining the persons
dependent on oneself, these are the nine rules of Dharma to be
followed by persons belonging to all sections of society". The Shanti
Parva (60- 7 -8) in Mahabharatha
18. The law was the king of kings and nothing was superior to law.
See Ramajois , supra no 6 at 24.
19. Kula (gathering or family councils), Shreni (corporation), Gana
(assembly), Adhikrita (court appointed by king). Nripa (king himself).
Among these each mention later is superior to the one mentioned
earlier. Nar.p.6-
20. Justice M. Ramajois, ―Seeds of Modern Public Law in Ancient
Indian Jurisprudence and Human Rights-Bharatiya Values,‖
(Lucknow, Published by Eastern Book Company, Edition, 200), p.
24.
21 P P Rao, Access to Justice and delay in disposal of cases, Indian

Bar Review, vol-2003, p 208
23. O-vii R – 6 of Civil Procedure Code 1908 .
24. Ibid O- ix R 2 .
25. According to Julius stone there are six power bands through
which we can determine the proper exercise of the power.
1.Coercion spectrum:- this band deals with the degree of coercion
and sanctions behind a policy, decision (judicial or executive) and
law. This count highlights the role of compulsions in the
implementation or execution of any decision or law.
2. Ethical component spectrum:- this count deals with ethical and
moral aspects of law and it emphasizes that every law, decision, or
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policy must satisfy minimum standards of ethics and morality of the

society, which differ from society to society. A uniform standard of
ethics cannot be laid down for it differs from society to society.
3. Interest Affected Spectrum:- This count draws attention to the
problems faced by the subject (yielder),as a consequence of
improper exercise of power, that is when their interests are affected
by and subordinated to the interests of power wielders. Interest
affected band protects the interest of general masses by prescribing
instances of improper exercise of power. Example, doctrine of
reasonable classification.
4. Influence spectrum:- this band differs from the coercion band as
influence is a positive concept and there is no necessity of sanction,
but the former is a negative concept and sanction and fear are the
operative force behind the law or decision. Influence is self–reflexive
and has its independent existence whereas coercion is a nonentity
without fear and sanction. This counts deals with the factors which
influence any decision or law and are influenced by it.
5. Head count spectrum:- this count signifies the number of persons
affected by any decision or law. The underlying idea of this band is
to protect the interests of maximum number of persons.
6.Time Count:- this band has two facets. One, it highlights the fact
that continuance and antiquity makes any law or a practice stronger.
The second facet of time count is delay i.e., delay acts as an
impediment to access and realization of justice and that preventive,
as well as and protective remedies should be provided without
delay. See Julius Stone, Social Dimensions of Law and Justice,
Delhi University Law Pub. Co., 1999. p. 598.
25. See supra no 22 , Section 35, 35-A and 35-B .
26. Rudal Sah v. State of Bihar AIR 1983 SC 1086
27. Mohini Jain v. State of Karnataka (1992) 3 SCC 666

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1. What is creativity in law? What does it mean by legal

reasoning?
2. What do you understand by creativity in law through legal
reasoning?
3. Discuss the role of judicial process as Legal Reasoning and
development of law.
4. Discuss the Importance of Precedents in statutory and
codified systems?
5. Describe the tools and techniques of judicial precedents in
India.

Page 83
LL.M. Part-2
Block- II- Special Dimensions of Judicial Process in

Constitutional Adjudications
Unit-4- Notions of judicial review; Role in constitutional
adjudication - various theories of judicial role
STRUCTURE
4.1 INTRODUCTION
4.2 OBJECTIVES
4.3 WHAT IS Judicial Review?
4.4. Judicial Review in Constitutional Adjudication
4.5 Theories of Judicial Role
4.6 Relation between Judicial Process and Constitution
Adjudication: Indian Position
4.7 SUMMARY

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4.1INTRODUCTION
In the previous unit we have discussed about the creativity in law

and the judicial process as Legal Reasoning and development of
law. We have also read about the Importance of Precedents in
statutory and codified systems and describe the tools and
techniques of judicial precedents in India so as to understand the
whole concept of judicial process.
Judicial review is the doctrine under which legislative and executive
actions are subject to review (and possible invalidation) by the
judiciary. A specific court with judicial review power must annul the
acts of the state when it finds them incompatible with a higher
authority (such as the terms of a written constitution). Judicial review
is an example of check and balances in a modern governmental
system (where the judiciary checks the other branches of
government). This principle is interpreted differently in different
jurisdictions, which also have differing views on the different
hierarchy of governmental norms. As a result, the procedure and
scope of judicial review differs from country to country and state to
state.
Judicial review is one of the main characteristics of government in
the federal republic of the United States and other democratically
elected governments. It can be understood in the context of two
distinct—but parallel—legal systems (civil law and common law),
and also by two distinct theories on democracy and how a
government should be set up (the ideas of legislative supremacy
and separation of powers).In this unit we will discuss about the
definition, concept and notions of judicial review. We will also
discuss its role in constitutional adjudication and various theories of
judicial role in India.
4.2 OBJECTIVES

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 Understand the concept of judicial review.

 Explain the meaning of judicial review.
 Describe the role of judicial review in constitutional
adjudication.
 Discuss the various theories of judicial role in India.
4.3 WHAT IS Judicial Review?
Judicial review is the doctrine under which legislative and executive

actions are subject to review (and possible invalidation) by the
judiciary. A specific court with judicial review power must annul the
acts of the state when it finds them incompatible with a higher
authority (such as the terms of a written constitution). Judicial review
is an example of check and balances in a modern governmental
system (where the judiciary checks the other branches of
government). This principle is interpreted differently in different
jurisdictions, which also have differing views on the different
hierarchy of governmental norms. As a result, the procedure and
scope of judicial review differs from country to country and state to
state.
Judicial review is one of the main characteristics of government in
the federal republic of the United States and other democratically
elected governments. It can be understood in the context of two
distinct—but parallel—legal systems (civil law and common law),
and also by two distinct theories on democracy and how a
government should be set up (the ideas of legislative supremacy
and separation of powers). First, two distinct legal systems, civil Law
and common law, have different views about judicial review.
Common-law judges are seen as sources of law, capable of creating
new legal rules, and also capable of rejecting legal rules that are no
longer valid. In the civil-law tradition judges are seen as those who
apply the law, with no power to create (or destroy) legal rules.
Secondly, the idea of separation of powers is another theory about
how a democratic society's government should be organized. In

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contrast to legislative supremacy, the idea of separation of powers

was first introduced by Montesquieu; it was later institutionalized in
the United States by the Supreme Court ruling in Marbury v.
Madison. Separation of powers is based on the idea that no branch
of government should be more powerful than any other; each branch
of government should have a check on the powers of the other
branches of government, thus creating a balance of power among all
branches of government. The key to this idea is checks and
balances. In the United States, judicial review is considered a key
check on the powers of the other two branches of government by the
judiciary (although the power itself is only implicitly granted).
Differences in organizing "democratic" societies led to different views
regarding judicial review, with societies based on common law and
those stressing a separation of powers being the most likely to utilize
judicial review. Nevertheless, many countries whose legal systems
are based on the idea of legislative supremacy have learned the
possible dangers and limitations of entrusting power exclusively to
the legislative branch of government. Many countries with civil-law
systems have adopted a form of judicial review to stem the tyranny
of the majority.
Another reason why judicial review should be understood in the
context of both the development of two distinct legal systems (civil
law and common law) and the two theories of democracy
(legislative supremacy and separation of powers) is that some
countries with common-law systems do not have judicial review of
primary legislation. Though a common-law system is present in the
United Kingdom, the country still has a strong attachment to the idea
of legislative supremacy; consequently, the judicial body in the
United Kingdom does not have the power to strike down primary
legislation. However, since the United Kingdom became a member
of the European Union there has been tension between the UK's
tendency toward legislative supremacy and the EU's legal system
(which empowers the Court of Justice of the European Union with
judicial review).
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Most modern legal systems allow the courts to review administrative

acts (individual decisions of a public body, such as a decision to
grant a subsidy or to withdraw a residence permit). In most systems,
this also includes review of secondary legislation (legally-
enforceable rules of general applicability adopted by administrative
bodies). Some countries (notably France and Germany) have
implemented a system of administrative courts which are charged
with resolving disputes between members of the public and the
administration. In other countries (including the United States,
Scotland and the Netherlands), judicial review is carried out by
regular civil courts although it may be delegated to specialized
panels within these courts (such as the Administrative Court within
the High Court of England and Wales). The United States employs a
mixed system in which some administrative decisions are reviewed
by the United States district courts (which are the general trial
courts), some are reviewed directly by the United States courts of
appeals and others are reviewed by specialized tribunals such as
the United States Court of Appeals for Veterans Claims (which,
despite its name, is not technically part of the federal judicial
branch). It is quite common that before a request for judicial review
of an administrative act is filed with a court, certain preliminary
conditions (such as a complaint to the authority itself) must be
fulfilled. In most countries, the courts apply special procedures in
administrative cases. Within the English jurisdiction judicial review as
of June 2012 is an arbitrary course of action as this avenue of
appeal is now covered by the Judicial Review and Courts Act 2012.
Judicial review of primary legislation
There are three broad approaches to judicial review of the
constitutionality of primary legislation—that is, laws passed directly
by an elected legislature. Some countries do not permit a review of
the validity of primary legislation. In the United Kingdom, statutes
cannot be set aside under the doctrine of parliamentary sovereignty.
Another example is the Netherlands, where the constitution

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expressly forbids the courts to rule on the question of

constitutionality of primary legislation.
In the United States, federal and state courts (at all levels, both
appellate and trial) are able to review and declare the
"constitutionality", or agreement with the Constitution (or lack
thereof) of legislation that is relevant to any case properly within their
jurisdiction. In American legal language, "judicial review" refers
primarily to the adjudication of constitutionality of statutes, especially
by the Supreme Court of the United States. This is commonly held to
have been established in the case of Marbury v. Madison, which was
argued before the Supreme Court in 1803. A similar system was
also adopted in Australia.
Review by a specialized court
In 1920, Czechoslovakia adopted a system of judicial review by a
specialized court - the Constitutional Court. This system was later
adopted by Austria and became known as the Austrian System,
being taken over by a number of other countries. In these systems,
other courts are not competent to question the constitutionality of
primary legislation, they often may, however, initiate the process of
review by the Constitutional Court.
Mixed model. Brazil adopts a mixed model since (as in the US)
courts at all levels, both federal and state, are empowered to review
primary legislation and declare its constitutionality; as in the Czech
Republic, there is a constitutional court in charge of reviewing the
constitutionality of primary legislation. The difference is that in the
first case, the decision about the laws adequacy to the Brazilian
Constitution only binds the parties to the lawsuit; in the second, the
Court's decision must be followed by judges and government
officials at all levels.
4.4. Judicial Review in Constitutional Adjudication
Adjudication is the legal process by which an arbiter or judge

reviews evidence and argumentation including legal reasoning set

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forth by opposing parties or litigants to come to a decision which

determines rights and obligations between the parties involved.
Three types of disputes are resolved through adjudication:
Disputes between private parties, such as individuals or
corporations.
Disputes between private parties and public officials.
Disputes between public officials or public bodies.
Other meanings
Adjudication can also be the process (at dance competitions, in
television game shows and at other competitive forums) by which
competitors are evaluated and ranked and a winner is found.
In construction [edit]The relevant legislation in the UK is the
Housing, Construction and Regeneration Act 1996, (1996 Chapter
53).
In healthcare
'Claims Adjudication' is a term used in the insurance industry to refer
to the process of paying claims submitted or denying them after
comparing claims to the benefit or coverage requirements. The
adjudication process consists of receiving a claim from an insured
person and then utilizing software to process the claims and make a
decision or doing so manually. If it‘s done automatically using
software or a web-based subscription, the claim process is called
auto-adjudication. Automating claims often improves efficiency and
reduces expenses required for manual claims adjudication. Many
claims are submitted on paper and are processed manually by
insurance workers.After the claims adjudication process is complete,
the insurance company often sends a letter to the person filing the
claim describing the outcome. The letter, which is sometimes
referred to as remittance advice, includes a statement as to whether
the claim was denied or approved. If the company denied the claim,
it has to provide an explanation for the reason why under regional
laws. The company also often sends an explanation of benefits that
includes detailed information about how each service included in the
claim was settled. Insurance companies will then send out payments
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to the providers if the claims are approved or to the provider‘s billing

service.The process of claims adjudication, in this context, is also
referred to as "Medical Billing Advocacy".
Pertaining to Background Investigations
Adjudication is the process directly following a background
investigation where the investigation results are reviewed to
determine if a candidate should be awarded a security clearance, or
be suitable for a public trust or non-sensitive position.
From the United States Department of the Navy Central Adjudication
Facility: "Adjudication is the review and consideration of all available
information to ensure an individual's loyalty, reliability, and
trustworthiness are such that entrusting an individual with national
security information or assigning an individual to sensitive duties is
clearly in the best interest of national security."
Emergency Response. Adjudication is the process of identifying,
with reasonable certainty, the type or nature of material or device
that set off an alarm and assessing the potential threat that the
material or device might pose with corresponding implications for the
need to take further action.
Referring to a minor
Referring to a minor, the term adjudicated refers to children that are
under a court's jurisdiction usually as a result of having engaged in
delinquent behavior and not having a legal guardian that could be
entrusted with being responsible for him or her.
Different states have different processes for declaring a child as
adjudicated.
The Arizona State Legislature has this definition:
"'Dually adjudicated child' means a child who is found to be
dependent or temporarily subject to court jurisdiction pending an
adjudication of a dependency petition and who is alleged or found to
have committed a delinquent or incorrigible act."
The 'Illinois General Assembly' has this definition:
"'Adjudicated' means that the Juvenile Court has entered an order
declaring that a child is neglected, abused, dependent, a minor
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requiring authoritative intervention, a delinquent minor or an

addicted minor. "
Adjudication is a relatively new process introduced by the
Government of Victoria in Australia, to allow for the rapid
determination of progress claims under building contracts or sub-
contracts and contracts for the supply of goods or services in the
building industry. This process was designed to ensure cash flow to
businesses in the building industry, without parties getting tied up in
lengthy and expensive litigation or arbitration. It is regulated by the
Building and Construction Industry Security of Payment Act 2002.
4.5 Theories of Judicial Role
Definition:
The kind of action or activity proper to the judiciary, particularly its
responsibility for decision making, used only for discussions of the
role of judges or courts in decision making, not routinely for
individual court cases.
Theories of Judicial Role explains how the judiciary should interpret
the law, particularly constitutional documents and legislation (see
statutory interpretation). An interpretation which results in or
supports some form of law-making role for the judiciary in
interpreting the law is sometimes pejoratively characterized as
judicial activism, the opposite of which is judicial lethargy, with
judicial restraint somewhere in between.
In the United States, there are various methods of constitutional
interpretation:
 Textualism is when judges consult the actual language of the
Constitution first, and perhaps last, according to government
scholar John E. Finn, who added that the method has an
"obvious appeal" for its simplicity but can be hampered when
the language of the Constitution itself is ambiguous.[1]
 Strict constructionism is when a judge interprets the text only
as it is spoken; once a clear meaning has been established,

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there is no need for further analysis, and judges should avoid

drawing inferences from previous statutes or the constitution
and instead focus on exactly what was written.[2] For example,
Justice Hugo Black argued that the First Amendment's
wording in reference to certain civil rights that Congress shall
make no law should mean exactly that: no law, no exceptions,
end of story, according to Black.
 Founders' Intent is when judges try to gauge the intentions of
the authors of the Constitution. Problems can arise when
judges try to determine which particular Founders or Framers
to consult, as well as try to determine what they meant based
on often sparse and incomplete documentation.[1]
 Originalism is when judges try to apply the "original" meanings
of various constitutional provisions.[1]
 Balancing happens when judges weigh one set of interests or
rights against an opposing set, typically used to make rulings
in First Amendment cases. But this approach was criticized by
Supreme Court justice Felix Frankfurter who argued that the
Constitution gives no guidance about how to weigh or
measure divergent interests.[1]
 Prudentialism discourages judges from setting broad rules for
possible future cases, and advises courts to play a limited
role.[1]
 Doctrinalism considers how various parts of the Constitution
have been "shaped by the Court's own jurisprudence",
according to Finn.[1]
 Precedent is when judges decide a case by looking to the
decision of a previous and similar case according to stare
decisis, and finds a rule or principle in the earlier case to guide
the current case.[1]
 Structuralism is a method judges use by finding the meaning
of a particular constitutional principle only by "reading it
against the larger constitutional document or context,"
according to Finn.[1]
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4.6 Relation between Judicial Process and Constitution

Adjudication: Indian Position
In the pre-Constitution era Gandhiji had blazed the trial of higher law
against State by expounding the doctrine of legitimacy of right
means to achieve right ends. He never hesitated to disobey unjust
laws, customs and traditions which were an affront to human liberty
and dignity. The concept of higher law in so far as human dignity,
liberty and equality is concerned is clearly epitomised in different
Articles of the Constitution. Articles 19, 21 and 22 especially
guarantee personal freedoms and civil liberties which are the very
soul of democracy and of a free society. However, curbs on civil
liberties and personal freedoms in free India are not uncommon. To
curb communists or naxalities or communalists civil liberties have
been curtailed and abrogated from time to time.
The Bombay Public Security Act, 1947, the Bihar Maintenance of
Public Order Act, 1947, the West Bengal Security Act, 1948, The
Preventive Detention Act, 1950, the Maintenance of Internal Security
Act, 1971 (MISA), the National Security Act, 1980, etc. are such
statutory measures which have been upheld by the courts being
reasonable restrictions on Fundamental Rights guaranteeing civil
liberties and personal freedoms. In Gopalan,2 the constitutional
validity of the Preventive Detention Act came for consideration
wherein the Court was asked to pronounce upon true meaning of
Article 21 of the Constitution guaranteeing right to life and right to
personal freedom. The Court declared that the words ‗according to
procedure established by law‘ in Article 21 meant ‗according to the
substantive and procedural provisions of any enacted law.‘ If,
therefore, a person was deprived of his life or personal liberty by law
enacted by a legislature, however, drastic and unreasonable the law,
he would be rightly deprived of his life and liberty. There would be no
infringement of personal liberty or freedom in such a case. In effect

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the Gopalan meant that in respect of civil liberties and personal

liberty no person in India had any remedy against legislative action.
In this connection Justice Mukherjee observed ‗My conclusion,
therefore, is that in Article 21 the word ‗law‘ has been used in the
sense of State-made law and not as an equivalent in the abstract or
general sense embodying the principles of natural justice.‘ It was
held the term ‗law‘ has been used in Article 21 in the sense of lex
(State made law). The Gopalan approach has been characterized as
the ‗high water mark of legal positivism.‘ The Supreme Court‘s
approach was liberal, rigid and strict too much coloured positive or
imperative (Austinian approach) theory of law. The similar attitude of
the Court is discernable in the Habeas Corpus,3 case wherein the
Court revolves around Austinian positivism.
It was Subba Rao, Chief Justice of India who introduced the concept
of natural law at its zenith in the Golak Nath, 4 during sixties. Its
influence, however, diminished especially during the Internal
Emergency of 1975. It has once again revived with greater vigour in
the post-Emergency era. The Supreme Court in the Maneka, 5
corrected its error of the Gopalan case in which it had strictly
interpreted the word ‗law‘ and had not taken into consideration the
‗procedure‘ which ought to be just, fair and reasonable. Both
Bhagwati, J. and Krishna Iyer, J. are emphatic that the procedure in
Article 21 means fair and reasonable procedure. The Court
observed,6 ‗the ambit of personal liberty protected by Article 21 is
wide and comprehensive. It embraces both substantive rights to
personal liberty and procedure provided for their deprivation.‘ Thus
Maneka has over-ruled Gopalan. Maneka rejects the theory that
each fundamental right is a self-contained code itself. Bhagwati, J.
and Krishna Iyer, J. have highlighted the need to keep in view the

Page 95
synthesis of these rights while interpreting each right according to

social milieu of changing times, place and situation.
Thus, a number of cases on personal liberty have enriched Indian
jurisprudence on human rights. As already observed Maneka has
enriched and enlarged personal liberty, Nandini 7 saves the poor
suspects from terrorised and tortured into involuntary discrimination,
Batra8 rescues prisoners from solitary confinement and iron bars.
Hosfcof,9 gives the convict the fundamental right to file appeal and
the legal aid needed to file such an appeal. Charles Sobraj,10 has
drawn the attention of the courts that imprisonment does not bid a
farewell to Fundamental Rights, and Bhantidas,11 protects the dignity
of convicts laying down that conviction does not degrade a person
into a non-person. Prem Shankar12 too protects prisoners kept as
undertrials from police brutalities and indignities. Moti Ram, 13
succeeds in expanding and liberalising age old concept of bail so as
to make in, more responsive to the needy and poor and in Madhav, 14
the Supreme Court clarifies the larger questions who silently suffer
behind the stone walls due to deprivation of liberty caused by
unreasonableness, arbitrariness and unfair procedures. In
Shivkumar,15 the High Court of Allahabad sets aside the prosecution
of the accused extolling naxalite activities and asking people to
boycott elections. Mantoo Maztimdar16 is an instance of callous
detention of the prisoner not 90 days but 1900 days or more without
bothering for the law of the land as the Supreme Court observed, ‗If
the salt hath lost its flavour wherewith shall it be salted? It he law
officers charged with the obligation to protect the liberty of the
persons are mindless of Constitutional mandate and Codes how can
freedom survive for ordinary citizens. Hussainam17 is another
example of Supreme Court concern for men, women, and children

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who are behind prison bar for years waiting trials and the Supreme
Court says ‗speedy trial..........is an integral part of the fundamental
right to life and liberty enshrined in article 21‘.
In Bachan Singh18 the Court through judicial interpretation ingrafted
the concept of reasonableness in the entire fabric of the Constitution
personal liberty would, therefore, have to stand the test of
reasonableness, fairness and justice in order to be outside the
inhabitation of Article 21‘ : The Court thus laid down that death
sentence can be inflicted only in the rare of the rarest cases when
the ‗alternative option is unquestionably foreclosed‘ or for ‗special
reasons‘ to be recorded. Of course ‗special reasons‘ justifying capital
punishment, in the absence of legislation or guiding principles are
bound to vary from judge to judge,19 depending upon his ‗attitude
and approaches, predilections and prejudices, habits of mind and
thought and his social value system.‘ Although the Apex Court has
justified the imposition of death sentence,20 when according to the
judge the nature of the crime is ‗brutal‘, ‗cold-blooded‘, ‗deliberate‘,
‗heinous‘, ‗violent‘ etc. But prolonged delay in the execution of
sentence of death is one such ground where it has been substituted
by imprisonment for life. The Court unanimously accepted, 21 the
view that undue delay in the execution of death sentences not only
leads to inhuman suffering and dehumanising treatment but it is also
unjust, unfair and unreasonable deprivation of life and liberty of a
condemned prisoner and, therefore, infringes the mandate of Article
21 of the Constitution.
New Jurisprudence—New liberal setting
Prior to 1973 the Court with great difficulty had to acquiesce with the
prevailing view which existed since the adoption of the Constitution
that Parliament is ‗Sovereign‘ which even can replace the
Constitution‘, or supremacy of the Executive vis-a-vis the Judiciary in
the context of a so-called ‗committed judiciary‘ during the days of

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Golak Nath case controversy. However, it was in Maneka together

with Kesavananda Bharati that the Supreme Court expounded a
new jurisprudence—some fundamental and higher principles of law
which may endure and adapted to varying social and political
situations in India. It is through judicial fiat or review that the judiciary
has created both a philosophy of law and theory of politics
inextricably based on values like reason, nature, morality, liberty,
justice and restraint consistent with the spirit of the Constitution and
traditions of the people. In Kesavandanda,22 the Court rejects the
positivistic instance that sovereign power lay with Parliament.
Denying such claims the Court postulated what it described ‗the
basic features, doctrine as an impenetrable bulwork against every
assumption of despotic or unconstitutional exercise of power by the
legislature and the executive. This indeed is a far-reaching
development in the annals of Indian jurisprudence for meeting the
challenges of troubling times and issues,23 confronting our
democratic and secular Republic.
The Maneka Gandhi,24 is another landmark decision from the point
of human rights and remedial jurisprudence in which Justice
Bhagwati has beamed the ‗Lead Kindly light message‘ admits the
encircling gloom of State repression by emitting New Freedoms for
making human rights a living reality for those denied or unable to
exercise and enjoy such rights on account of poverty or ignorance.
Through Maneka people now realise what State is if it is devoid of
justice or denies liberty, human dignity, equality etc. to ordinary
citizens under the garb of populist democracy, capsuled socialism
and controlled freedoms. Deprecating absolutism of the Executive
and its interference with individual freedom Justice Bhagwati
declared:25

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‗We must reiterate here what was pointed out by the majority in E.P.
Royappa v. T.N. Namely, that ‗from the positivist point of view,
equality is antithetic to arbitrariness. In fact, equality and
arbitrariness are sworn enemies, one belongs to the rule of law in a
republic, while the other to the whims and caprice of an absolute
monarch. Where an act is arbitrary, it is implicit in it that is unequal
both according to political logic and constitutional law and, therefore,
violative of Article 14. Article 14 strikes at arbitrariness of State
action and ensures fairness and equality of treatment. The principle
of reasonableness, which legally as well as philosophically, is an
essential element of equality or non-arbitrariness pervades Article 14
like a brooding omnipresence and the procedure contemplated by
Article 21 must answer the test of reasonableness in order to be in
conformity with Article 14. It must be ‗right and just and fair‘ and not
arbitrary, fanciful or oppressive, otherwise it would be no procedure
at all and the requirement of Article 21 would not be satisfied‘.
In Chandrima Das,26 the Supreme Court has broadened and greatly
widened the meaning of the word ‗LIFE‘ as adopted in International
Covenants on Civil and Political Rights, the Covenants of Economic,
Social and Cultural Rights including Universal Declaration of Human
Rights 1948. On this principles even those who are not citizens of
this country and come here as merely as tourists in this
country........will be entitled to the protection of their lives in
accordance with the constitutional provisions. They also have a right
to ‗Life‘ in this country. Thus, they also have the right to live, so long
as they are here, with human dignity, just as the State is under an
obligation to protect the life of every citizen in this country, so also
the State is under an obligation to protect the life of the persons who
are not citizens.‘
Judicial Process—blending new values
In the post-Emergency era under the dynamic leadership of judges
like V.R. Krishna Iyer, Y.V. Chandrachud, P.N. Bhagwati, D.A.

Page 99
Desai, O. Chinnappa Reddy and Kuldeep Singh like their

counterparts Justices Holmes, Cardozo, Brandeis, Frankfurter in
USA, have made their mark overwhelmingly upon great issues of
human liberty, social justice and human rights,27 as enshrined in the
Constitution even by antagonising the Parliament and the
Government of the day. These judges through their scintillating
judgments made a bold departure from the traditional judicial role
and sharply focused the debilitating effects of executive and
legislative tyranny on individual autonomy and freedoms as was
evident in Gopalan and Shivkant Shtikla.28 They found a sanctuary
in the Preamble, Parts III and IV of the Constitution for destroying
barriers and fetters on individual liberty and henceforth assumed the
role of philosopher, law-maker and defender of basic rights and
needs of the little Indians. In a similar setting Justice O. Chinnappa
Reddy declared,29 that equal pay for equal work is not a ‗mere
demagogic slogan‘ but a constitutional goal which can be achieved
through enforcement of fundamental rights. He specially hailed ‗the
rising social and political consciousness and the expectations as a
consequence among the under-privileged who are now asking
Court‘s intervention to protect and promote their rights.....the judges
of the Court have a duty to redeem their constitutional oath and do
justice no less to the pavement dweller than to the guest of the Five
Star Hotel.‘
Accordingly the Apex Court has been adopting organic, functional
and sociological method of interpretation over the traditional
mechanical method in the enforcement of the provision of the
Constitution. By providing flesh and blood to political, social and
economic rights instead of living in ivory tower the Court has become
activist by compelling the executive and the political leadership not
to turn volte-face in redeeming their pledges towards the hapless
Indians in the true Gandhian spirit. Under the spell of new economic

Page 100
liberalization and privatisation it is the judges who have been

standing for the poor in their quest for justice and dignity. In this
context, Justice V.R. Krishan Iyer exhorted30 the judges:
‗Where doubts arise the Gandhian talisman becomes a toll of
interpretation : whenever you are in doubt.......apply the following
test. Recall the face of the poorest and the weakest whom you may
have seen, and ask yourself, if the step you contemplate is going to
be of any use to him.‘
Such is the constitutional promise and goal in favour of ‗We, the
People of India‘ that the Apex Court has been assiduously evolving
in the post-Emergency era under the niche of Article 21 of the
Constitution. Thus, Article 21 in conjunction with Articles 14, 19, 39
etc. have proved gold mine forvi Court in achieving the two
objectives, namely, providing a shield on moral, humanitarian and
constitutional grounds to the poor as a guarantee against executive
action and of making new law for governing the life of citizens and
regulating the functioning of the State in accordance with law of the
land. A brief resume of judicial decisions in the realm of individual
liberty, freedom, social justice and other human rights under Article
21 are capsuled to demonstrate the extent of judicial creativity in
contemporary Indian jurisprudence.
4.7 SUMMARY
Adjudication is the legal process by which an arbiter or judge

reviews evidence and argumentation including legal reasoning set
forth by opposing parties or litigants to come to a decision which
determines rights and obligations between the parties involved.
Three types of disputes are resolved through adjudication:
Disputes between private parties, such as individuals or
corporations.
Disputes between private parties and public officials.

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Disputes between public officials or public bodies.

In this unit we have discussed about the definition, concept and
notions of judicial review. We have also discussed its role in
constitutional adjudication and various theories of judicial role in
India.
1. Corrado, Michael Louis (2005). Comparative Constitutional

Law: Cases and Materials. ISBN 0-89089-710-7. (Country by
country case studies)
2. N. Jayapalan (1999). Modern Governments. Atlantic
Publishers and Distributors. ISBN 978-81-7156-837-6. (A
comparison of modern constitutions)
3. Beatty, David M (1994). Human rights and judicial review.
Martinus Nijhoff Publishers. ISBN 978-0-7923-2968-8. (A
comparison of national judicial review doctrines)
4. Wolfe, Christopher (1994). The American doctrine of judicial
supremacy. Rowman & Littlefield. ISBN 978-0-8226-3026-5.
(This book traces the doctrine's history in an
international/comparative fashion)
5. Vanberg, Georg (2005). "Constitutional Review in
Comparative Perspective". The politics of constitutional review
in Germany. Cambridge University Press. ISBN 978-0-521-
83647-0.(The effects of politics in law in Germany)
6. Lecture by Sir Christopher Greenwood entitled International
Law in the Age of Adjudication in the Lecture Series of the
United Nations Audiovisual Library of International Law
7. Lecture by Stephen M. Schwebel entitled The Merits (and
Demerits) of International Adjudication and Arbitration in the
Lecture Series of the United Nations Audiovisual Library of
International Law
8. Further reading [edit]

Page 102
9. Darren Noble, Users' Guide to Adjudication in Victoria (Anstat

2009)[9]\
10. Alexander Bickel, The Least Dangerous Branch: The
Supreme Court at the Bar of Politics, 2nd ed. (Yale University
Press, 1986).
11. Gad Barzilai, Communities and Law: Politics and
Cultures of Legal Identities (Ann Arbor: University of Michigan
Press, 2003).
12. Erwin Chemerinsky, Constitutional Law: Principles and
Policies (Aspen Publishers, 2006).
13. Ronald Dworkin, Taking Rights Seriously (Harvard
University Press, 2005, originally 1977).
14. Conor Gearty, Principles of Human Rights Adjudication
(Oxford University Press, 2005).
15. Michael J. Gorr and Sterling Harwood, eds.,
Controversies in Criminal Law: Philosophical Essays on
Responsibility and Procedure (Westview Press, 1992).
16. Michael J. Gorr and Sterling Harwood, eds., Crime and
Punishment: Philosophic Explorations (Wadsworth Publishing
Co., 2000; originally Jones and Bartlett Publishers, 1996).
17. H.L.A. Hart, The Concept of Law (Oxford University
Press, 1961).
18. Sterling Harwood, Judicial Activism: A Restrained
Defense (Austin & Winfield Publishers, 1993).
19. Allan C. Hutchinson, It's All in the Game: A
Nonfoundationalist Account of Law and Adjudication (Duke
University Press, 2000).
20. David Lyons, Ethics and the Rule of Law (Cambridge
21. David Lyons, Moral Aspects of Legal Theory
(Cambridge University Press, 1993).
22. John T. Noonan and Kenneth I. Winston, eds., The
23. Responsible Judge: Readings in Judicial Ethics
(Praeger Publishers, 1993).
Page 103
24. Kathleen M. Sullivan and Gerald Gunther, Constitutional

Law, 15th ed. (Foundation Press, 2004).
25. Harry H. Wellington, Interpreting the Constitution: The
Supreme Court and the Process of Adjudication (Yale
26. References [edit]
27. Official text of the Housing Grants, Construction and
Regeneration Act 1996, (1996 Chapter 53) as in force today
(including any amendments) within the United Kingdom, from
the UK Statute Law Database
28. A.K. Gopalan v. State of Madras, A.I.R. 1950 S.C. 27.
29. A.D.M. Jabalpur v. Shivakant Shukla, A.I.R. 1976 S.C.
1207; A.K. Roy v. Union of India, A..I.R. 1982 S.C. 710.
30. Golak Nath v. State of Punjab, A.I.R. 1967 S.C. 1643 at
1656.
31. Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597.
32. Ibid.
1. What do you understand by the concept of judicial review?

2. Describe the role of judicial review in constitutional
adjudication?
3. Discuss the various theories of judicial role in India.

Page 104
LL.M. Part-2
Block-II-Special Dimensions of Judicial Process in

Unit-5-Tools and techniques in policy-making and creativity in
constitutional adjudication
STRUCTURE
5.1 INTRODUCTION
5.2 OBJECTIVES
5.3 Precedent as a tools and technique of creativity and
policy making
5.4. Role of Precedent in Constitutional Adjudication
5.5 Position in India
5.6 GLOSSARY

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5.1 INTRODUCTION
In the previous unit you have read about the concept and notions of
judicial review. You have also read its role in constitutional
adjudication and various theories of judicial role in India.
while molding the law, he may use the methods of philosophy, of
law.In this unit we will discuss about the Tools and techniques in
policy-making and creativity in constitutional adjudication.
5.2 OBJECTIVES
 Describe the role of precedents as tools and techniques in

policy-making.
 Discuss the role of precedents in judicial creativity and in
constitutional adjudication.
5.3 Precedent as a tools and technique of creativity and policy

making
Page 106

law.The judge who moulds the law by the method of philosophy may
be satisfying an intellectual craving for symmetry of form and
substance. But he is doing something more. He is keeping the law
true in its response to a deep seated and imperious sentiment. By
the method of philosophy, the judge makes use of his own reasoning
and standards of public good. Under this method, the judge makes
use of his own inner sub conscious element and gives to the society
his own notion of right and wrong, of just and unjust, of equality,
fairness and justice.By the method of history, it is meant that the
judge makes use of the past decisions. He follows the doctrine of
precedent. He compares the case he has in hand with the past
decisions and makes use of the one which most closely resemble
with the one he has to decide. The doctrine of precedent is based on
the principle that like should be treated alike and that there is
stability and certainity in law. However, while dealing with the
precedents, the judge has to distinguish between those which are
liberal and beneficial for the future and those which are oppressive
to the society. The judge has to choose those precedents which best
serve the purpose of the society.
According to Cardozo, the method of sociology demands that within
the narrow range of choice, the judge shall search for social justice.
The judge has to see that his work leads to the attainment of social
order. He has to provide for the welfare of the society. The judge has
keep the welfare of the society as the ultimate aim of his work. He
cannot attempt an action which would not be beneficial for the
society at large.By the method of analogy, it means that the judge
makes use of the alien jurisprudences. It is a case where the judge
borrows from other jurisprudences. While borrowing from other
jurisprudences, the judge has to make use of the similarity in laws
and prevailing social conditions of the region from where he borrows
the provisions. The judge compares the case with similar problems

Page 107
in other regions. In the case of Bijoe Emmanuel v. State of Kerala[1],

the Supreme Court of India made use of the law prevailing in other
countries to decide the issue. In this case, the Supreme Court made
reference of the similar cases decided by the courts in Australia and
U.S.A. to deal with the special case of a particular sect.
For a judge, law is never static. It is dynamic and keeps changing.
The judge has to mould it in accordance with the needs of the
society. The judge plays a very dynamic role in shaping the law so
as to best serve the society.The judge has to take care that the law
is progressive and protects the interests of the society and is not
oppressive and suffocating. The aim of judicial process is the
attainment of social good. The judge has to see that the law helps
the society at large and does not infringe the goals of justice and
liberty.
Social order: the purpose of law
There have been different approaches to law. According to Austin,
law is the command of the sovereign. Bentham proposed his
utilitarian calculus, according to which the aim of law is to bring
about maximum good of the largest number. Bentham‘s hedonistic
calculus was based on the concept of social utility. According to
Roscoe Pound, the purpose of law is social engineering. Law aims
to achieve social good. The welfare of the society is the paramount
consideration of law. Law aspires to end all social evils and to bring
about social order.
Cardozo has stated that the final cause of law is the welfare of
society. When judges are called upon to say how far existing rules
are to be extended or restricted, they must let the welfare of society
fix the path, its direction and its distance.
Law and society are interdependent and neither can be separated
from the other. The good of the society is its greatest requirement.
Law serves the role of protector of the social order. Law aims to
attain the good and order in the society.

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Social order is what the law aims to achieve. It is the ultimate object
of all laws. Law has to provide social order in order to protect the
society from disintegrating.
Role of judges in bringing about social order
The ultimate aim of all law is to bring about social order. The judge is
an important member of the legal institution. He plays an important
role in shaping the law to serve the social interest. For a judge, law
is never static.A judge is empowered to review the various
provisions of law. He is an independent and impartial authority which
can verify the reasonableness of a law. Being independent from the
influence of the executive and the legislative machinery, a judge can
form an unbiased opinion on any question of law.
A social problem requires a solution and judges have the role of
resolving disputes. While settling a dispute, the judge is also
required to take into consideration the various social requirements.
Amongst the various options being available before him, a judge has
to choose the one which best serves the interests of the society.
The welfare of the society must be the guiding force for a judge
when he sits to perform his duty. His obligation towards the society
is to fulfill the various social requirements of justice, order and
security. He has to give the welfare of the society a paramount place
while dealing with any issue. Being the interpreter of the society of
its sense of law and justice, the judge has to be careful in his work
as his decisions determine the rights and obligations of various
members of the society and effect the people at large.
The judge provides for social order during his job as an interpreter.
The various ways in which he can provide for social order are by the
methods of interpretation, supplying of omissions, suggesting and
recommending changes and new regulations and also through
mediation process. These are the techniques by which a judge
brings about social order.
(a) Interpretation

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The judge is the interpreter of the community of its sense of law and
order and therefore, he must supply omissions, correct uncertainities
and harmonise results with justice through a method of free decision.
While dealing with a case, the judge is required to apply law on the
facts. While applying law he may be faced with a question of law
which requires him to interpret the various legal provisions placed
before him.While interpreting a statute, a judge can take either a
literal approach or a liberal one.
In literal interpretation, the judge sticks to the letter of the word and
there is not much creativity in his job.Sometimes when a literal
approach does not give a satisfactory result, that the judge goes for
the liberal interpretation of the statute. In liberal interpretation, the
judge makes use of his knowledge of various laws, the customs and
his own creativity.
One of the most important rules of interpretation is the mischief rule,
in which the judge has to determine the mischief which the law had
sought to make good. Using the mischief rule, the judge has to
imagine and understand the problems in the society which required
that a particular law be made.
Another important principle in interpretation is that there a
presumption of constitutionality of the statute. The judge has to
presume that the statute is constitutional and the legislator had not
intended to infringe the fundamental rights.
Further, there is the rule of harmonious interpretation, which states
that all the provisions are to be interpreted harmoniously so as to
give meaning to all the provisions. The rule of harmonious
interpretation underlines the principle that all the provisions of a
statute are complementary to each other and are not mutually
destructive. While interpreting a statute, the judge has to take care
that he gives such an interpretation to the provision that when the
statute is read in its entirety, there is no conflict between the
provisions.

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The role of a judge as an interpreter requires great skill from his

side. He is required to give such an interpretation to the legal
provisions which best serve the interest of the society.
While interpreting the legal provisions, the judge has to think what
purpose, what end of the society his interpretation would serve. He
has to take the interest of the society as the paramount issue. The
statutes affecting the society at large require the most careful
interpretation as the interests of a large number of individuals may
be lying at stake.Thus, when a judge interprets a written
Constitution, he has to take utmost care while expressing his view
on the problem. The written Constitutions are generally given a very
wide and liberal interpretation because they are the supreme laws of
the land and all the other statutes owe their authority to the
Constitution.Using liberal interpretation, in the case of Maneka
Gandhi v. Union of India[2], the Supreme Court enlarged the scope
of right to life to mean a dignified life and not just mere animal
existence. While interpreting a law, the judge has to interpret it in a
manner that it benefits the society at large.
(b) Filling up of blanks
Sometimes a judge has to do something more than just simply
interpret a statute. He may be required to correct all errors in it. He
may further be required to fill in the missing blanks in a statute. It is
not possible for the legislator to imagine each and every
circumstance which could arise in the future. While interpreting a
statute, a judge may be required to imagine what the legislator
would have provided for that particular circumstance. When a judge
starts to imagine what the legislator would have intended, he takes
the place of the legislator. He has to act for the legislator, giving
sense to the statute as a whole and making up what had been left
behind. A judge cannot legislate infinitely. According to Cardozo, ―He
legislates only between gaps. He fills the open spaces in the law.‖
While interpreting any statute, the judge has to keep within the
restraints laid down by the legislator. The role of the judge is not of
legislating but of interpreting and applying the law. It is during his
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job as an interpreter that a judge maybe required to fill in the missing

blanks in the statute. However, while filling up the blanks, a judge
has to take precaution that what he supplies to the law protects the
spirit of the law and does not destroy it.
A judge has to take care that he maintains the harmony between the
various provisions of a statute. While supplying omissions, the judge
has to protect and preserve the spirit of the law.
According to Cardozo[3], ―when the question is one of supplying the
gaps in the law, it is not of logical deductions, it is rather of social
needs, that we ask the solution.‖
Thus, in order to fulfill the needs of the society, the judge supplies
the gaps in the statutes. However, the law making work of a judge is
restrained as ―He is not a knight errant roaming at will in pursuit of
his own ideals of beauty or of goodness. He is to draw his inspiration
from consecrated principles.‖[4]
(c) Recommendations
Often a judge may be required to give his recommendations or
suggestions to enact the particular law which would serve the social
need.A judge plays a very important part in social ordering when he
lays down suggestions or recommendations regarding any social
problem.Where the law is silent, the judge may be required to cross
his bounds and take up the role of legislators. He may be required to
give suggestions in order to resolve certain social problems. These
suggestions play a very vital role in satisfying the various
requirements of the society.The public interest litigations play a very
important role in protecting the interests of the society. By means of
public interest litigations, the lawyers and judges attempt to
eradicate certain social problems. Public interest litigations play a
very useful role when the legislature and the executive fails to find
out a solution for the existing problems. Public interest litigations are
a recent creation of the courts by which they aim to provide the cure
for the ills prevalent in the society. The judges are very instrumental
in eradicating the social problems.

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The judiciary took a very active role while laying down the procedural
requirements required while making an arrest in the case of D.K.
Basu v. State of West Bengal[5]. In this case the Apex Court laid
down various guidelines which are to be followed by the policemen
while making any arrest. The reason behind laying down such
provisions was that there were complaints of police atrocities in the
police lock ups.Similarly, in the case of Vishakha v. State of
Rajasthan[6], the Supreme Court again laid down guidelines for the
safety of working women. In this case, the instances of sexual
harassment of working women at their workplace were an issue. The
Supreme Court laid down various guidelines to be implemented by
the employer for the protection of the working women. In this case,
the court even declared that the sexual harassment of the female
employees amounted to the violation of the right to work and is
discriminatory against them.
In the case of Sarla Mudgal v. Union of India[7], while dealing with
the problem of anomalies in different personal laws and people
making use of these differences to defeat the end of justice, the
Supreme Court had expressed a view that the uniform civil code
should be implemented. In this
case also the judiciary tried to provide for the social requirement for
a uniform civil code which would take care of all the problems
relating to the differences in the personal laws.The Supreme Court
has also laid down certain rules to be followed when the adoption of
an Indian child is made by any foreigner. The reason behind such
recommendations was the presence of the menace of the use of
young children in beggar and slavery. These rules help in protecting
the child from economic, social, physical and sexual exploitation.
Further, in the case of Association for Democratic Reforms v. Union
of India[8], the Delhi High court and on appeal the Supreme Court
has given guidelines for cleansing of the electoral process from the
impact of criminals and wealth and bringing about electoral reform in
India.

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Similarly, the courts have taken active parts in issues related to

illegal constructions, anomalies in school admissions, ragging at
university level( Lingdow committee report) and so on. The court had
taken these steps in order to ensure social justice.
The judiciary may be required to take up the role of legislators when
the legislative fails to provide sufficiently for the social requirement.
This act of judiciary is known as judicial activism. The judiciary has
acquired its activist power from its review power. The judicial
activism has played an important role in attaining social order as it
satisfies the various requirements of the society.
(d) Mediation proceedings
The social institution requires certain relationships to be protected
and sanctified. In order to prevent minor problems developing into
irresolvable issues, the judges take the role of mediators. The role of
a judge as a mediator is a very recent one. Till date, judges used to
solve the disputes. Now they try to prevent the disputes from arising.
In cases of minor discords, the judges help in solving the issues
before they take the form of major disputes.
The judges suggest out of court settlement of disputes in order to
prevent certain relationships from breaking down.
In the present day society, judges suggest the use of mediation
proceedings specially when the need is to protect an institution as
sacred as the institution of marriage. Judges serve as the mediator
in various cases to prevent a relationship from breaking down.The
law mandates mediation and the courts encourage and endorse it. It
is a cheaper, simpler and more productive manner of dispute
resolution. It helps to restore the broken relationships and focuses
on improving the future and not on dissecting the past.The benefit of
mediation is that it is a voluntary process and both the parties are
able to assess their case and come up to an amicable solution. The
judges play an active role in encouraging and endorsing mediation
proceedings.
Conclusion

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A judge is the interpreter of the society. He makes visible the various

laws.While interpreting a law, the judge also corrects the errors
present in the law, he supplies the omissions in the law. The main
object of law is to bring about social order and the judges play an
important part in attaining that objective.The judiciary has taken an
active role in attaining social order and justice. To serve the purpose
of the social utility, the judge had to play the part of the legislator as
well. A role, which has been much criticized but is very important for
fulfilling the needs of the society.A democracy needs a forum, other
than the legislature and the executive, for redressing the legitimate
grievances of the minorities- racial, religious, political or others. In
India, at the present time, the Supreme Court is laying great
emphasis on vindication of the rights of the poor and deprived
people. The court has acknowledged this fact. Thus, in Punjab
Rickshaw pullers‘ case[9], the Supreme Court had stated that
―Judicial activism gets its highest bonus when its order wipes some
tears from some eyes.‖Thus, it can be concluded that judicial
process has a very active and positive role in social ordering.
5.4. Role of Precedent in Constitutional Adjudication
The need of the judicial interpretation has ever existed and persisted
in every legal system of the world. Initially the judges in their
eagerness to avoid the blasphemy of judicial legislation bounded
themselves with the rule of literal interpretation which led to a
number of absurd and inequitable results. Subsequently, in relation
to the constitutional adjudication, the role of judges enlarged from
literal interpretation to intent based interpretation and finally to
declaration in cases of vacant spaces. However it was the Supreme
Court of the United States of America, one of the oldest
constitutional courts of the world, which bestowed upon itself the
power of judicial review ; it was this power which made courts the
gatekeepers of fundamental rights and provided for the power of a
court to hold unconstitutional and hence unenforceable any law,

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official action based on a law, or any other action by a public official,

that it deems to be in conflict with the basic law, that is, the
Constitution.
In exercising the task of determining whether a violation is in fact
justified the courts have evolved, educed and applied various rules
of interpretation. The courts in such constitutional adjudication where
the fundamental rights infringement were involved provided that
these issues deserve an intense review. Several new tests evolved
as an outcome of such need of intense review. One of the tests
evoked and utilized by the court in such constitutional adjudication is
in form of ‗Strict Scrutiny‘ Test.
This work emphasizes upon the meaning and genesis of ‗strict
scrutiny‘ test, elements of ‗strict scrutiny‘ test, application of ‗strict
scrutiny‘ test in USA, applicability of test in Indian Constitutional
interpretation and approaches of the courts in this regard lastly it
testifies the need of the test in Indian Constitutional framework.
II. ‗Strict Scrutiny‘ Test: Its Intendment, Provenance And
Elements―We seek not just freedom but opportunity—not just legal
equity but human ability—not just equality as a right and a theory,
but equality as a fact and as a result.‖
(A)Intendment
When a government actor makes a decision that confers benefits or
burdens based on a person‘s status or membership in a particular
group or class, e.g., race, gender, or age, and that decision is
challenged, the legality of the decision must be analyzed under one
of three levels of judicial scrutiny—strict, intermediate, or weak.
Strict scrutiny test in its ingenuous form can be said to be a standard
of judicial review for a challenged policy in which the court presumes
the policy to be invalid unless the government can demonstrate a
compelling interest to justify the policy. Strict scrutiny test is one of
the tests amongst the three tests utilized by the US courts, the other
two as-
(a) the rational basis test, which is the lowest form of judicial scrutiny
used in cases where a plaintiff alleges that the legislature has made
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an arbitrary or irrational decision.

(b) the heightened scrutiny test, which is used in cases involving
matters of discrimination based on sex.
According to Richard Fallon strict scrutiny test is a judicially crafted
formula for implementing constitutional values which ranks among
the most important doctrinal elements in constitutional law.
Strict scrutiny test which evolved from the ‗preferred freedom‘ test,
which itself was a revitalized version of ‗clear and present danger‘
test provided for a tripartite test as follows-
1.Where legislation or other statement of policy abridges a preferred

freedom on its face, the usual presumption of constitutionality is
reversed; that is, the statute or other enactment is assumed to be
unconstitutional, and that presumption can be overcome only when
the government has successfully discharged its burden of proof.
2.The government must show that the exercise of the fundamental

right in question constitutes ‗a clear and present danger‘ or that the
legislation relating that liberty advances ‗a compelling interest.‘
3.The legislation must be drawn in such a way as to present a

precisely tailored response to the problem and not burden basic
liberty by its over breadth; that is, the policy adopted by the
government must constitute the least restrictive alternative.
According to Prof. John Ely, courts should strictly scrutinize statutes
of the kind‘s most likely to trigger suspect-content tests. He points
out that given the Constitution‘s central commitment to political
democracy, the crucial role of the courts is not to second-guess the
substantive decisions of the political branches but to ensure the
integrity of the democratic process.
In applying the strict scrutiny to legislation containing suspect
classification, the judges have used the above standards to judge
laws infringing a preferred freedom. A statute that explicitly
discriminates on the basis of race, for example, is presumed to be
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unconstitutional. Government bears the burden of demonstrating

that it has compelling interest for distinguishing among citizen on
that basis. It must also show that no other basis for categorization in
the law could serve that compelling interest as effectively.
Thus the term ―strict scrutiny‖ refers to a test under which statutes
will be pronounced unconstitutional unless they are ―necessary‖ or
―narrowly drawn‖ or ―closely tailored‖ to serve a ―compelling
governmentalinterest‖.
(B)Provenance
According to Fallon the modern strict scrutiny test developed during
the 1960s as an innovation of Warren Courts. Before the 1960s, the
idea had emerged that some constitutional rights deserved more
protection than others, or appropriately triggered heightened judicial
scrutiny, but no workable formula had emerged to implement this
general idea, it was this need of workable formula that the strict
scrutiny test was evolved. Fallon writes that strict judicial scrutiny---
which is a generic constitutional doctrine, capable of broad
application---rose to prominence as the solution to a generic problem
confronting the Warren Court. That problem involved the judicial
enforcement of a regime of ―preferred‖ or fundamental rights that
were too important to be balanced away on an ad hoc basis or
protected only by a rational basis test, on the one hand, but that the
Court thought it impractical to define as wholly categorical or
unyielding, on the other. The modern strict scrutiny test arose as a
device to implement, or as the constitutional complement to, a
closely related phenomenon of more primary significance: the
Supreme Court‘s solidifying commitment to a jurisprudential
distinction between ordinary rights and liberties, which the
government could regulate upon the showing of any rational
justification, and more fundamental or ―preferred‖ liberties entitled to
more stringent judicial protection. The evolution and development of
the strict scrutiny test will be emphasized more while dealing with the
USAperspective.
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(C)Elements
According to Siegel Strict scrutiny varies from ordinary scrutiny by
imposing three hurdles on the government. It shifts the ―burden of
proof‖ to the government; it requires the government to pursue a
―compelling state interest;‖ and it demands that the regulation
promoting the compelling interest be ―narrowly tailored.‖ Thus,
broadly there exist three elements of fulfillment in relation to strict
scrutiny test which are discussed herewith.
(i) Burden of Proof: - Shifting the burden of proof is an expression of
strict scrutiny‘s assumption that in certain situations the judiciary
should not accord the normal presumption of constitutionality to
government action. The burden shifting aspect of strict scrutiny
traces to the Supreme Court‘s decision, in the late 1930s, to accord
governmental action that burdened First Amendment liberties a
reduced presumption of constitutionality.
(ii) Narrow Tailoring: - Narrow tailoring is the oldest branch of strict

scrutiny. Tracing back to Gilded Age Commerce Clause
adjudication, and frequently used in Lochner-era police power
cases, the ―narrow tailoring‖ doctrine gave meaningful protection to
constitutional norms well before the development of either bifurcated
review or modern strict scrutiny. By 1940, the New Deal Court had
made narrow tailoring analysis a prominent part of First Amendment
jurisprudence. The Warren Court made it a part of equal protection
analysis in 1964.Strict scrutiny‘s ―narrow tailoring‖ requirement
provides a means to examine the government‘s ―precision of
regulation,‖ allowing the Court to uphold government action ―only if
... it is necessary to achieve ... [the] compelling interest‖ that the
government has asserted as the purpose of its action. Narrow
tailoring demands that the fit between the government‘s action and
its asserted purpose be ―as perfect as practicable.‖Strict scrutiny‘s
narrow tailoring requirement means that in pursuing its goals,
government action can be neither over- nor under-inclusive.

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(iii) Compelling State Interest: - Siegel emphasizes that a compelling

state interest is one of the central tenets of modern constitutional
law. It comes into play, whenever government employs a suspect
classification, burdens a fundamental interest, or adopts a content-
based regulation of speech. According to him the compelling state
interest standard was a comparatively late development in the
evolution of bifurcated review. Further he says that the compelling
state interest test has roots that reach into the 1940s; it first
appeared in First Amendment litigation in the late-1950s and early
1960s. Its birthing process was not complete until 1963 at which time
it coalesced with other doctrines to form modern strict scrutiny
analysis. Initially confined to the First Amendment, it took another six
years for all the component parts of strict scrutiny to migrate to the
Equal Protection Clause. The compelling state interest standard was
the last component to make the move. When it did, strict scrutiny
rapidly blossomed into one of the late-twentieth century‘s most
fundamental constitutional doctrines.
III.Progression Of Strict Scrutiny Test In United States Of

America
―there may be narrower scope for operation of the presumption of
constitutionality when legislation appears on its face to be within a
specific prohibition of the Constitution..‖
The words ―strict scrutiny‖ appear nowhere in the US Constitution.
However a passing reference to ―strict scrutiny‖ can be found in
Skinner v. Oklahoma but the Supreme Court did not again use the
term until the 1960s, meanwhile, the Court had spoken of applying
―the most rigid scrutiny‖ to race-based classifications in Korematsu v.
United States. The origin of this test can be traced to the decision in
United States v Carolene Products in which Justice Harlan Stone
noted that there may be narrower scope for operation of the
presumption of constitutionality when legislation appears on its face
to be within a specific prohibition of the Constitution.
Siegel on the roots of strict scrutiny opines that strict scrutiny‘s roots
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back to First Amendment cases in the 1940s and 1950s, it

establishes strict scrutiny as part of a constitutional paradigm in
which, even for high protectionist Justices, no constitutional right
was ―beyond limitation,‖ and none could prevail over an appropriate
subordinating governmental interest. According to him when Justice
Brennan quoted Rutledge‘s remark in Sherbert v. Verner , he
announced the birth of modern strict scrutiny.
According to Fallon the modern strict scrutiny test developed during
1960s. According to him it was need of a doctrinal structure which
could impose discipline or at least the appearance of discipline on
judicial decision making that paved way for strict scrutiny test.
Subsequently the Supreme Court employed the test in various
provisions of the Constitution. The Court applied it in cases of race-
based classifications under the Equal Protection Clause , in Free
Speech Cases , in Freedom of Association Cases , and Strict
Scrutiny under the Due Process Clause.
Articulation of strict scrutiny test in affirmative action was first seen in
Regents of the University of California at Davis v. Bakke in which
Justice Powell observed that a race-conscious program survives
strict scrutiny test if it is ―precisely tailored‖ to serve a ―compelling
governmental interest‖. The Bakke case considered whether the
affirmative action admissions program at the University of California
at Davis violated the Equal Protection Clause by granting
preferential treatment in its admissions decisions to applicants of
color.
However Elizabeth Anderson argues that the courts struck down
race-based affirmative action programs on the basis of alleged
failures to meet strict scrutiny of racial classifications, without having
a clear grasp of the point of strict scrutiny and hence of how to apply
it. According to her the arguments for affirmative action have actually
helped perpetuate a confused conception of strict scrutiny and its
purposes. She further emphasizes that the integrative rationales for
affirmative action in higher education also could easily pass equal
protection analysis, if only the point of strict scrutiny of racial
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classifications were understood. She argues that there is no

constitutional or moral basis for prohibiting state uses of racial
means to remedy private-sector discrimination. Integrative
affirmative action programs in educational contexts, which aim to
remedy private-sector discrimination, can therefore meet the
requirements of strict scrutiny, properly interpreted.
Subsequently in Grutter v. Bollinger , the U.S. Supreme Court held
that broadly defined student body diversity is a compelling interest
that can justify the use of race in university admissions when the
institution determines that such diversity is necessary to achieve its
educational mission. However in Gratz v. Bollinger , the Court held
that the University of Michigan‘s undergraduate admissions policy of
automatically distributing twenty points to students from
underrepresented minority groups was not narrowly tailored because
it assumes that each member of a racial minority group makes the
same contribution to the university based solely on race and
forecloses the exercise of academic judgment on the potential
contributions of an applicant based on all of his or her attributes.
Thus the Supreme Court‘s approach in affirmative action was that
the program should survive a strict scrutiny analysis if it were to
continue.
5.5 Position in India
IV.Strict Scrutiny Test: The Indian Experience

―The purpose of the Fundamental Rights is to create an egalitarian
society, to free all citizens from coercion or restriction by society and
to make liberty available for all.‖
(A)Indian Constitution: A Backdrop

India, a Union of States, is a sovereign, socialist, secular,
democratic, republic with a parliamentary system of government.
The Constitution offers all citizens, individually and collectively, some
basic freedoms in the shape of fundamental rights that are

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justiciable. These include freedom of conscience and freedom to

profess, practice, and propagate religion; the right of any section of
citizens to conserve their culture, language, or script; and the right of
minorities to establish and administer educational institutions of their
choice. However the absolute concept of liberty and equality are
very difficult to achieve in modern welfare society. The form in which
such rights have been provided is in the form of restrictions which
the government is expected to follow in the governance of the
country. Unlike the US Constitution the Constitution of India
formulates the fundamental rights with inherent restrictions which
permit the State to directly impose the limitations on the fundamental
rights.Under the Indian Constitution, the fundamental rights have
been provided in different forms. In some cases there is an express
declaration of rights while in others they are declared as prohibitions
without any reference to any person or body to enforce them. Some
of these rights take specific forms of restrictions on State action
while some require sate action. Some of them are also given in the
form of positive declaration and simultaneously provide for restriction
on them. Though the declaration of fundamental right has not been
in a uniform pattern yet they seek to protect rights of individuals or
groups of individual against the infringement of these rights within
specific limits, express or implied with each right having different
dimensions of facts.
(B) Affirmative Action & India

The Constitution of India seems to be the first to have expressly
provided for affirmative action. It is one major country in the world
that has a longer history – a much longer history -- than the U.S. of
designing and evaluating affirmative action programs. Since the
adoption of its Constitution in 1950, India has afforded an extensive
program of affirmative action to a set of caste groups known as
Scheduled Castes and a set of tribal groups known as Scheduled
Tribes, which together constitute about twenty-two percent of the
total population. In addition, India has provided more selective
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affirmative action measures to a number of groups within Indian

society, defined by the constitution as ―socially and educationally
backward classes,‖ which have suffered from a history of economic
exploitation and social segregation comparable in some measure to
that suffered by the untouchables.
The constitution makers were aware of the fact that mere grant of
freedom from restraints and liberty would not be sufficient enough to
promote these disadvantaged group of the society, therefore they
imposed obligations on the State to take positive steps to lift these
sections to a level from where they can take advantage of their
freedom and liberty on reasonably equal footing. In several
decisions the Apex Court has emphasized that equality is a positive
right and requires the State to minimize the existing inequalities and
to treat unequals or unprivileged with special care as envisaged in
the Constitution.
(C) Conspicuous Cases Involving Issue Of ‗Strict Scrutiny‘ &

Courts Observation
Our constitution confers on the courts the power to scrutinize a law
made by a legislature and to declare it to be void if it is found to be
inconsistent with the provisions of the Constitution. The courts over
the years have resorted to the Principle of Reasonableness to testify
the State action. The approach of the courts was clear in which they
testified the actions on the basis of test for valid classification
consisting primarily of intelligible differentia and the rational relation
to the objective to be sort out. Indian constitutional adjudication
contrary to the U.S.A. didn‘t deal with the application of strict scrutiny
in constitutional adjudication; however there are some of the cases
where the urge for application of the test is conspicuously made and
subsequently relied upon. It would be imperative to know what the
courts observed in these cases.
At the outset it is to be noted that these cases are not exhaustive,

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apart from it, there are cases where the courts have used the term
strict scrutiny and proportionality inter alia. The precise content of
‗strict scrutiny‘ and ‗proportionality review‘ is deeply controversial in
their respective jurisdictions. It is noteworthy that administrative
action in India affecting fundamental freedoms has been tested on
the anvil of 'proportionality' and therefore these cases do not fall
within the ambit of present study.
In Saurabh Chaudhary & Ors v. Union of India the constitutional

validity of reservation based on domicile or institution in the matter of
admission into post graduate courses in government run medical
colleges was questioned. In the case the appellants raised two
contentions in support of the writ petition. It was submitted that in
view of the equality clause contained in Articles 14 and 15(1) of the
Constitution of India, reservation whether based on domicile or
institutional preference would be unconstitutional. Further it was
contended that any reservation that would fall within the purview of
'suspected classification' must pass the 'strict scrutiny test' or
'intermediate scrutiny test'. While respondent, in contrast, submitted
that the Apex Court has laid down the law that the constitutionality of
a statute must be presumed and onus to prove that the statute is
unconstitutional is upon the person who asserts the same. Only two
tests, namely, as to whether the classification is reasonable and
based on an intelligible differentia stood the test of time and there is
no reason to deviate there from. The CJI V. N. Khare observed-
―The strict scrutiny test or the intermediate scrutiny test applicable in

the United States of America as argued by Shri Salve cannot be
applied in this case. Such a test is not applied in Indian Courts. In
any event, such a test may be applied in a case where a legislation
ex facie is found to be unreasonable. Such a test may also be
applied in a case where by reason of a statute the life and liberty of
a citizen is put in jeopardy. This Court since its inception apart from
a few cases where the legislation was found to be ex facie wholly
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unreasonable proceeded on the doctrine that constitutionality of a

statute is to be presumed and the burden to prove contra is on him
who asserts the same.‖
Justice Sinha in concurrence opined that while considering the
reasonableness of the institutional reservation, the Apex Court has
taken into consideration the effect of equality clause contained in
Article 14 and 15 of the Constitution of India. However in his opinion
even applying strict scrutiny test, the institutional reservation should
not be done away with having regard to the present day scenario.
In Anuj Garg & Ors v. Hotel Association of India & Ors the
constitutional validity of Section 30 of the Punjab Excise Act, 1914
prohibiting employment of "any man under the age of 25 years" or
"any woman" in any part of such premises in which liquor or
intoxicating drug is consumed by the was challenged. Justice Sinha
in this case observed:-
―Personal freedom is a fundamental tenet which cannot be
compromised in the name of expediency until unless there is a
compelling state purpose. Heightened level of scrutiny is the
normative threshold for judicial review in such cases.‖
Further, ―It is to be borne in mind those legislations with pronounced
"protective discrimination" aims, such as this one, potentially serve
as double edged swords. Strict scrutiny test should be employed
while assessing the implications of this variety of legislations.
Legislation should not be only assessed on its proposed aims but
rather on the implications and the effects.‖
In Ashok Kumar Thakur v. Union of India & Ors . the Apex Court
through CJI observed that the decisions of the United States of
Supreme Court were not applied in the Indian context as it was felt
that the structure of the provisions under the two Constitutions and
the social conditions as well as other factors are widely different in
both the countries, there exists structural differences in the
Constitution of India and the Constitution of the United States of
America.Further in India, Articles 14 and 18 are differently structured
and contain express provisions for special provision for the
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advancement of SEBCs, STs and SCs. Moreover, in our Constitution

there is a specific provision under the Directive Principles of State
Policy in Part IV of the Constitution requiring the State to strive for
justice social, economic and political and to minimize the inequalities
of income and endeavour to eliminate inequalities in status, facilities
and opportunities (Article 38). Earlier, there was a view that Articles
16(4) and 15(5) are exceptions to Article 16(1) and 15(1)
respectively.
It was observed that the strict scrutiny test as applied by the
Supreme Court of the United States of America cannot be applied
directly to India as the gamut of affirmative action in India is fully
supported by constitutional provisions and in India there is no
application of the principles of "suspect legislation" and it has been
followed that every legislation passed by the Parliament is presumed
to be constitutionally valid unless otherwise proved.
In Naz Foundation v. Government of NCT of Delhi , the High
Court of Delhi attempted to harmonise the above two judgments of
the Apex Court and observed that the Supreme Court must be
interpreted to have laid down that the principle of 'strict scrutiny'
would not apply to affirmative action under Article 15(5) but a
measure that disadvantages a vulnerable group defined on the basis
of a characteristic that relates to personal autonomy must be subject
to strict scrutiny.
In Subhash Chandra v. Delhi Subordinate Services Selection
Board , Sinha J. observed that since the facts of the Ashok Kumar
Thakur case did not bear out an ex facie unreasonableness the
court did not employ the strict scrutiny test.It was further observed
that Ashok Kumar Thakur solely relies upon Saurabh Chaudri to
clarify the applicability of strict scrutiny and does not make an
independent sweeping observation in that regard.
Further the court pointed out several cases where the said test may
beapplied:-
1. Where a statute or an action is patently unreasonable or arbitrary.
2. Where a statute is contrary to the constitutional scheme.
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3. Where the general presumption as regards the constitutionality of

the statute or action cannot be invoked.
4. Where a statute or execution action causes reverse
discrimination.
5. Where a statute has been enacted restricting the rights of a citizen
under Article 14 or Article 19 as for example clauses (1) to (6) of
Article 19 of the Constitution of India as in those cases, it would be
for the State to justify the reasonableness thereof.
6. Where a statute seeks to take away a person's life and liberty
which is protected under Article 21 of the Constitution of India or
otherwise infringes the core human right.
7. Where a statute is `Expropriatory' or `Confiscatory' in nature.
8. Where a statute prima facie seeks to interfere with sovereignty
and integrity of India.
Further putting a note of caution it was said that, by no means, the
list is exhaustive or may be held to be applicable in all situations.
In T Muralidhar Rao and others v. State of Andhra Pradesh a seven
judge bench of the High Court at Andhra Pradesh by a majority of
5:2 struck down the A.P. Reservation in Favor of Socially
Educationally Backward Classes of Muslims Act, 2007 (―the Act‖) as
unconstitutional describing the Act as ―unsustainable‖ and ―religion
specific‖.It was observed that by reading Ashoka Kumar Thakur it is
clear that though the learned Judges of the Supreme Court have
observed that the law on strict scrutiny applied by the U.S. Supreme
Court is inapplicable in our country, the judgments delivered by the
U.S. Supreme Court on affirmative action have great persuasive
value and may offer broad guidelines as to how we should tackle our
prevailing condition. The court observed that on a careful
consideration of the Ashok Kumar Thakur and Saurabh Chaudhary it
could be said that when an affirmative action of the State providing
reservations to backward classes was under challenge in the context
of Article 14, the Hon'ble Supreme Court had gone into the details of
the basis for making the classification and gave its findings.
However, it did not prescribe the level of scrutiny to be applied and
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providing reservation on such affirmative action was tested on the

standards of ‗deeper scrutiny‘, ‗in-depth scrutiny‘ or ‗extreme care
and caution‘, and in some cases the doctrine of ‗strict scrutiny‘ was
applied. All the judgments touching upon reservations consistently
applied exacting scrutiny or rigorous scrutiny.
Further the court observed that on analyses of the Ashok Kumar
Thakur, Saurabh Chaudhari & Shubash Chandra case it can be said
that when affirmative action of the State is challenged as offending
the equality injunctions of the Constitution, particularly in the matter
of reservations to SCs, STs and BCs, though there is a presumption
as to the constitutionality of the statute, the Courts have examined
such statutes rigorously, with great care and caution. Therefore, the
contention advanced on behalf of the State that the standard of
scrutiny actually applied in Archana Reddy does not suit the Indian
conditions or is inconsistent with the law laid down in Ashoka Kumar
Thakur,has to be rejected.
(D) Scrutinizing The ‗Strict Scrutiny‘ Test
No doubt the Constitution of India through its framework consecrates
for the advancement of the disadvantaged, yet such objective could
never be achieved without the coordinative, integrative and
pragmatic working of the three wings of the State. The State action
subject to the judicial review should lead a pathway for such
development & upliftment of the disadvantaged; however judicial
review of a legislative act is also necessary in order to preserve
individual liberties against the rule of the majority and to protect
individuals and groups against invidious attacks by the public
authorities or the departments of the Government. The courts in
India while such judicial review seems to be in dilemma on the
applicability of the strict scrutiny test. Here are some of the key
issues which could aggravate such dilemma, and which require a
provocative thought on applicability or inapplicability of the test.
i. Is there a concept of ―Preferred‖ & ―Non Preferred‖ Rights under
Indian Constitution?
The strict scrutiny test which evolved from ―Preferred Freedom‖ test
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presupposes in the US context the notion of ―preferred‖ and ―non

preferred‖ rights within the fundamental rights itself. However in
Indian context, all fundamental rights are to be read together and
there exist no such hierarchy or classification within the fundamental
rights. Whether it would be appropriate to apply the test without
fulfillment of its groundnorm is a question yet to be addressed by the
court. Subsequently one must ponder over the argument that some
of the rights are of more importance and are more fundamental over
other, thus there exists a classification of ―special rights‖ within the
fundamental rights. As argued by Khaitan that a violation of the
fundamental rights guaranteed by article 15(1), article 19(1)(a) and
the negative rights under article 21, in the very least, deserve an
intense review because these are very special rights, will it be
appropriate to apply strict scrutiny test in the matter of violation of
these special rights is a question which requires a sincere answer
from the judicial fraternity.
ii. Does the court usurp the function of the executive and enter into
the fields of policy and resource allocation while applying the test?
While application of strict scrutiny test, the courts empower
themselves to adjudicate whether a particular policy is narrowly
tailored to serve the compelling interest, the court has the selectivity
option with regards to various policies, at this instance, it may be
said that the Court at this juncture pursues its own political agenda,
in breach of the separation of powers and of the express intention of
the Constitution. The question arises whether the courts usurp the
function of the executive and enter into the fields of policy and
resource allocation.
iii. Is there a need to give up the principle of reasonableness and to
embrace the strict scrutiny test?
Decades back in State of Madras v. V. G. Rao , Patanjali Shastri,
observed:
"It is important in this context to bear in mind that the test of
reasonableness wherever prescribed should be applied to each
individual Statute impugned and no abstract standard or general
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pattern of reasonableness can be laid down as applicable to all

cases. The nature of the right al1eged to have been infringed, the
underlying purpose of the restrictions imposed, the extent and
urgency of the evil sought to be remedied thereby, disproportion of
the imposition, the prevailing conditions of the time should all enter
into judicial verdict."
The Supreme Court after that elucidated the scope of permissible
classification and applied the standards differently in various cases.
For few decades the court has started incorporating higher
standards of scrutiny by applying proportionality test and other
constitutional borrowing . In Anuj Garg, Sinha J emphasized upon
the need of heightened level of scrutiny as a normative threshold for
judicial review in cases of protective discrimination. Again in Naz
Foundation it was observed that a measure that disadvantages a
vulnerable group defined on the basis of a characteristic that relates
to personal autonomy must be subjected to strict scrutiny. In Subash
Chandra Sinha J. urged that the strict scrutiny paves the way for a
more searching judicial scrutiny to guard against invidious
discriminations which could have made by the State against group of
people in violation of the constitutional guaranty of just and equal
laws.Keeping into these lines of argument, whether it would be
proper to embrace the concept of strict scrutiny test or to pursue with
‗deeper scrutiny‘, ‗in-depth scrutiny‘ or ‗extreme care and caution‘ is
a key question. There is also a noteworthy suggestion of application
of ―rigorous standard of review‖ which should be look forth for its
propriety and applicability.
Conclusion
Constitutional interpretation across the globe is taking on an
increasingly cosmopolitan character , no doubt the Apex court
seems to be bewildered by this cosmopolitan character in recent
year. It would be proper to say that the courts in India are perplexed
in application of the test, it might be due to the comparative
jurisprudence, differences in constitutional framework or it could be
the pre-existing binding approaches of the court itself. It would be
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advertent enough that the scrutiny should depend upon the subject
matter of legislation and its impact upon legal or fundamental rights
of one class of the society. When a law is enacted to help the
disadvantaged class at the cost of another class of persons the court
should enquire into whether the legitimate goal matches the means
chosen, if there is an illegitimate means chosen by the state, such
means should be struck down. Further it should be seen whether the
purpose for which such an Act was enacted was, in fact, served and
whether the conclusions on the basis of which the Act was enacted
were correctly arrived at. If the reason for which a particular class
was considered a disadvantaged class was not rightly arrived at, the
enactment made to favour such a class at the cost of the general
community would not be just, proper or valid.
The strict scrutiny test acts as a device to ―smoke out‖ illicit
governmental motive. Justice O‘Connor points out that the purpose
of strict scrutiny is to "smoke out" illegitimate uses of race by
assuring that the legislative body is pursuing a goal important
enough to warrant use of a highly suspect tool. The test also
ensures that the means chosen "fit" this compelling goal so closely
that there is little or no possibility that the motive for the classification
was illegitimate racial prejudice or stereotype. Keeping in view the
above substantial & majestic purpose it would not be improper to say
that such test has vital importance.
J. Sinha, a bird of different feather from the plover , has constantly
argued for appropriate standard of review in constitutional cases, no
doubt the Apex court in upcoming time, guided by this need of
appropriate standard of review either comes up with new form of
review or clings to the strict scrutiny test, the orderly progress
towards the goal of sovereign democratic republic and secure
justice, liberty, equality and fraternity to all citizens be ensured by
such form of review.
5.8 SUMMARY

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When a law is enacted to help the disadvantaged class at the cost of

another class of persons the court should enquire into whether the
legitimate goal matches the means chosen, if there is an illegitimate
means chosen by the state, such means should be struck down.
Further it should be seen whether the purpose for which such an Act
was enacted was, in fact, served and whether the conclusions on
the basis of which the Act was enacted were correctly arrived at. If
the reason for which a particular class was considered a
disadvantaged class was not rightly arrived at, the enactment made
to favour such a class at the cost of the general community would
not be just, proper or valid. In this unit we have discussed about the
role of precedents as tools and techniques in policy-making and
creativity in constitutional adjudication.
# Cardozo points out that no system of jus scriptum has been able to
escape the need of interpretation. B. N. Cardozo., The Nature of
Judicial Process 16 (Universal Law Publishing Co. Pvt. Ltd., 7th Ed,
2008).
# A.M. Ahmadi, ―Judicial Process: Social Legitimacy and Institutional
Viability.‖, (1996) 4 SCC (Jour) 1.
# Supra note 1at 17.
# Chief Justice Marshall‘s decision in Marbury v. Madison, 5 U.S. (1
Cranch) 137, 163-180 (1803).
# The test of reasonableness, the proportionality test, the
heightened scrutiny test, the strict scrutiny test etc.
# President Lyndon B. Johnson, To fulfill These Rights, Speech at
Howard University (June4, 1965) reprinted in Kranz Rachael,
Affirmative Action 16 (Facts On File, Inc., New York, 2002).
# Affirmative Action - A Legal Primer, Standing Our Ground: A
Guidebook for STEM Educators in the Post-Michigan Era, at p. 15,
available at:
http://www.aaas.org/standingourground/PDFs/4_Legal_Primer.pdf

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(Visited on October 29, 2010).

# Richard H, Fallon "Strict Judicial Scrutiny,", 54 UCLA Law Review
1267 (2007).
# Merriam Webster‘s Law Dictionary defines strict scrutiny as the
standard used to determine whether a classification of a group of
persons (such as a racial group) or a fundamental right (such as the
right to vote) violates due process and equal protection rights under
the United States Constitution. Strict scrutiny is used to establish
whether there is a compelling need that justifies the law being
enacted, Merriam Webster‘s New World Law Dictionary, Wiley
Publishing,2006.
# J. Rutledge in Thomson v. Collins who toughened ‗clear and
present danger‘ test by reversing customary burden of proof as to
constitutionality and by requiring that legislation regulating freedom
of speech be precisely tailored to the evil at hand thus revitalizing
‗clear and present‘ danger test as ‗preferred freedom‘ test, Ducat
Craig R., Constitutional Interpretation, Rights of the Individual, (II)
842 (Wadsworth # Publication, 7th Ed., 2000).
the presumption of constitutionality when legislation appears on its
face to be within a specific prohibition of the Constitution, such as
those of the first ten Amendments, which are deemed equally
specific when held to be embraced within the Fourteenth, See (304
1. Describe the role of precedents as tools and techniques in

policy-making.
2. Discuss the role of precedents in judicial creativity and in
constitutional adjudication.

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LL.M. Part-2
Block-II-Special Dimensions of Judicial Process in

Unit-6- Problems of accountability and judicial law-making
STRUCTURE
6.1 INTRODUCTION
6.2 OBJECTIVES
6.3 WHAT IS Judicial Accountability?
6.4. Judicial Law-making process
6.5 Different opinions of various Realistic Jurists
6.6 SUMMARY

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6.1 INTRODUCTION
In the previous unit you have read about the role of precedents as
tools and techniques in policy-making and creativity in constitutional
adjudication.In the case of the judiciary safeguards are needed to
ensure that Judges are free to make their judicial decisions without
fear or favour and thus to preserve their independence. For
example, if a politician or senior judge felt able to sack a particular
judge, or remove him or her from a case, simply because they did
not like the decision reached, the principle of judicial independence
would be greatly undermined and there could be no possibility of a
fair trial. It could also lead judges to make decisions they felt might
be more acceptable to whoever had the right to decide whether they
should continue serving as judges or be promoted. If, for instance,
the permanent or continued appointment of a part-time temporary
judge was in some way determined by one of the parties to the case,
there would be a real risk that independent and impartial judicial
decision-making could be subverted by self-interest.
In this unit we will discuss about the definition concept and benefits
of plant patenting. We will also discuss the sui generis protection of
plant varieties in India.
6.2 OBJECTIVES

 What is Judicial Accountability?
 Understand the Problems of judicial accountability.
 Discuss the Role of judicial accountability in judicial law-
making,
6.3 WHAT IS Judicial Accountability?
We must first ask what it means to say someone is accountable for

their actions. In many areas accountability means that, just like

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football managers, an individual who fails to perform satisfactorily in

their job should be sacked or should resign. Some people have
called this form of accountability, ‗sacrificial accountability‘, meaning
that the only solution is for the individual concerned to no longer
continue in their role.In the case of the judiciary, however,
safeguards are needed to ensure that Judges are free to make their
judicial decisions without fear or favour and thus to preserve their
independence. For example, if a politician or senior judge felt able to
sack a particular judge, or remove him or her from a case, simply
because they did not like the decision reached, the principle of
judicial independence would be greatly undermined and there could
be no possibility of a fair trial. It could also lead judges to make
decisions they felt might be more acceptable to whoever had the
right to decide whether they should continue serving as judges or be
promoted. If, for instance, the permanent or continued appointment
of a part-time temporary judge was in some way determined by one
of the parties to the case, there would be a real risk that independent
and impartial judicial decision-making could be subverted by self-
interest. Prior to 2000 this was the position in Scotland in respect of
temporary criminal court judges, or sheriffs, who were appointed for
a fixed period of twelve months and the renewal of their appointment
was effectively at the discretion of the Lord Advocate, a government
minister who is the head of the prosecuting authority In other words
there might well be a risk that such judges could improperly favour
the prosecuting authority with an eye to securing a permanent
appointment. The Scottish Courts recognised this in 1999 in Starrs v
Ruxton [2000] SCCR 136. This risk is perhaps best demonstrated –
albeit as an extreme example – in dictatorships where judges are
often appointed specifically because of their loyalty to the regime,
and will almost always make decisions in favour of it, regardless of
the interests of the individual, the facts and the law. The
independence and transparency of the appointments process in
England and Wales rebuts any suggestion that such factors could be
relevant to the appointment of judicial office holders in this
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jurisdiction. We have stated that judges who commit a criminal

offence may be subject to an investigation by the Office for Judicial
Complaints and may be subject to a disciplinary sanction in
accordance with the relevant statutory provisions. Apart from this,
however, it is clear that judges are not subject to this ‗sacrificial
accountability‘. However, they are subject to a different form of
accountability, which has been referred to as ‗explanatory
accountability‘. Put simply this form of accountability means that
individuals can be asked to give an account as to why they have
behaved in a particular way. The judiciary is subject to this form of
accountability in a multitude of ways. Taken together, these ensure a
considerable degree of accountability.The following pages set out
briefly some elements of this form of accountability. A more detailed
overview is contained in the Judicial Executive Board‘s paper, The
Accountability of Judiciary.
The emergence of Realism in jurisprudence—the study of law as it

works and functions, contributed to the growth of skeptism towards
law and its administration and accordingly subjected law to realities
of social life. The trial of such realism was blazed by Holmes, Gray,
Cardozo, Pound—the ‗mental fathers,31 of Realist Movement‘—who
highlighted on the functional and realistic study of law not as it
contained in legislative statute or enactment but as finally interpreted
and laid down by the Courts in a judicial decision while adjudicating
disputes. Gray in his The Nature and Sources of Law raises 32 a
question mark against legislation and remarks : ―The law of a great
nation means the opinions of a half-a-dozen old gentlemen‘, for ‗if
those half-a-dozen old gentlemen from the highest judicial tribunal of
a country then no rule or principle which they refuse to follow is law
in that country‘. While Gray had prepared the ground of a more
skeptical approach towards statute law i.e., legislation it is Holmes
who is truly described as spiritual father of modern legal realism. It is

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Holmes who openly raised the banner of revolt and doubt against
the existing belief of legal certainty and conceptualism. Thus modern
realists draw their support and inspiration from Holmes who in his
work, The path of Law expounded,33 the skeptical definition of law as
: ‗Take the fundamental question, what constitutes law? You will find
some text writers telling you that is something different from what is
decided by the courts of Massachusetts or England, that it is a
system of reason, that it is a deduction from principles of either or
admitted axioms or what not, which may or may not coincide with the
decisions. But if we take the view of our friend the bad man we shall
find that he does not care two straws for the axioms or deductions,
but that he does not want to know what the Massachusetts or
English Courts are to do in fact. I am much of his and. The
prophecies of what the Courts will do in fact, and nothing more
pretentious, are what I mean by the law‘.It may be noted that the
modern realists deny the title ‗realist‘ to Cardozo, Pound, Gray and
Ihering but accept Holmes as their patron saint from whom they
have derived the gospel of realise At best Cardozo, Pound, and
others can be the trend setters who studied in law in terms of
existing social situations. That is why the modern realistic
jurisprudence can be described as the left wing of the sociological
jurisprudence.
6.4. Judicial Law-making process
It is an interesting development in juristic thought during 1930s with

a group of legal scholars styling themselves as ‗realists‘. No myths
and preconceived notions are accepted by them and seek fidelity to
stern realities. In the words,34 of Professor Pound, ‗By realism they
mean fidelity to nature, accurate recording of things as they are, as
contrasted with things as they are imagined to ―or wished to be, or
as one feels they ought to be‘. The ‗realism‘ is anti-thesis of

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‗idealism‘ and accordingly the realist jurists desire to be realistic at all

costs while it is not possible to classify them as a ‗school‘ at best it is
said to represent,35 a movement, an attach wider than the number of
its adherents‘. Indeed they do not agree in calling each other
‗realists‘ or call their craft as ‗realism Bingham, Douglas, Frank,
Radin etc. speak of ‗realists‘. Cc prefers to speak ‗scientific approach
to law‘, Judge Clark sp ―fact research‖. Professor Corbin talks about,
‗What Courts Oliphant describes ‗Objective method‘, and John
Dickinson speaks of ‗the skeptical movement‘. The realists do not
claim membership to any ‗school‘. However, the fundamental thesis
the realists on which all emphasise equally is what judges do is
different from what they say. They attack upon the formalist;
demonstrate that judicial law is judge-made and not judge
discovered. They neglect the legislative law and look upon law as
genuine only if it is judge-made. They tell us that order coherence in
the legal system are a said illusion. Certainty of, is a ‗basic myth‘, a
childish dream. ‗No certainty in the law what the often repeated word
of Jerome Frank and Llewellyn plainly seem to mean. ‗For any
particular lay person‘ says36 Frankm ―the law, with respect to any
particular set of facts, is a decision of a Court with respect to those
facts so far as that decision affects that particular person. Until a
Court has passed on those facts on law on that subject is yet in
existence. Prior to such a decision, the only law available is opinion
of lawyers as to the law relating to that person and to those facts.
Such opinion is not actually only a guess as to what a Court will
decide‖. A similar view is expressed,37 by Professor Llewellyn in his
interesting work The Bramble Bush. ―This doing of something about
disputes, this doing of. it reasonably, is the business of law. And the
people who have the doing in charge, whether they be judges or

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sheriffs or clerks or jailors or lawyers, are officials of the law. What

these officials do about disputes is, to my mind, the law itself‖.38
The Importance of Precedent

To understand how to make legal arguments, it is important to have
an understanding of our court system. This section focuses on the
Federal Court system. Every state has its own state court system,
which is separate from the federal system.
The Federal Court System
The federal court system is not separated by state, but rather by
―districts‖ and ―circuits.‖ A federal suit begins in a United States
District Court. The District Court is the trial court of the federal
system. In total there are 94 U.S. District Courts. Some states, such
as Alaska, only have one district. Others have several. New York, for
example, is composed of four districts: the Northern, Western,
Eastern, and Southern Districts. District Courts all have the name of
a state in them, like the ―Eastern District of New York.‖
Someone who loses in the District Court has a legal right to appeal
to the United States Circuit Court of Appeals. The Court of Appeals
is divided into regions called ―circuits.‖ There are 11 circuits in the
United States that have number names. Washington, D.C. is just
known as the ―D.C. Circuit‖ and does not have a number. Each
Circuit Court contains a number of district courts. For instance, the
―First Circuit‖ includes all the districts in Maine, New Hampshire,
Massachusetts, Rhode Island, and Puerto Rico.
Someone who loses in the Court of Appeals can ask for review by
the United States Supreme Court. This is called ―petitioning for
certiorari.‖ Generally, the Supreme Court can decide which decisions
it wishes to review, called ―granting cert.‖ and can refuse to review
the others, called ―denying cert.‖
2. How Judges Interpret Laws on the Basis of Precedent
Most of the claims we have talked about in this book are based on
one of the Constitutional Amendments, which are reprinted in

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Appendix E at the back of this book. Amendments are very short and
they are written in very broad and general terms. Courts decide what
these general terms mean when they hear specific lawsuits or
―cases.‖ For instance, you probably already know that the Eighth
Amendment prohibits ―cruel and unusual punishment.‖ However,
there is no way to know from those four words exactly which kinds of
punishments are allowed and which aren‘t. For instance, you may
think to yourself that that execution is very ―cruel and unusual.‖ But,
execution is legal in the United States. To understand how judges
interpret ―cruel and unusual punishment‖ you need to read cases in
which other people, in the past, argued that one type of punishment
or another was ―cruel and unusual‖ and see how they turned out.
Each court decision is supposed to be based on an earlier decision,
which is called ―precedent.‖ To show that your constitutional rights
have been violated, you point to good court decisions in earlier
cases and describe how the facts in those cases are similar to the
facts in your case. You should also show how the general principles
of constitutional law presented in the earlier decisions apply to your
situation. Besides arguing from favorable precedent, you need to
explain why bad court decisions which might appear to apply to your
situation should not determine the decision in your case. Show how
the facts in your case are different from the facts in the bad case.
This is called ―distinguishing‖ a case.
The most important precedent is a decision by the U.S. Supreme
Court. Every court is supposed to follow this precedent. The next
best precedent is a decision of the appeals court for the circuit in
which your district court is located. This is called ―binding
precedent‖ because it must be followed. The third-best precedent is
an earlier decision by the district court which is considering your suit.
This may be by the judge who is in charge of your suit or by a
different judge from the same court.
Some questions in your case may never have been decided by the
Supreme Court, the Circuit Court, or your District Court. If this is the
case, then you can point to decisions by U.S. Appeals Courts from
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other circuits or by other U.S. District Courts. Although a district

court is not required to follow these kinds of precedents, it should
consider them seriously. This is called ―persuasive authority.‖
One complication is that you should only cite cases which remain
―good law.‖ Good law means that a case has not been reversed on
appeal, or overruled by a later case. For example, in Chapter Three
we wrote at length about Overton v. Bazzeta, 539 U.S. 126 (2003), a
Supreme Court case about prisoners‘ rights to visits. Before the
Supreme Court heard the case, the Sixth Circuit Court of Appeals
heard the prison officials‘ appeal from a district court decision finding
that Michigan‘s prison visit policy violated prisoners‘ constitutional
rights. The Sixth Circuit decision is reported at Overton v. Bazzeta,
286 F.3d 311 (6th Cir. 2002). The Sixth Circuit agreed with the
district court that the plaintiffs‘ constitutional rights were being
violated, and wrote a wonderful decision. However, because the
Supreme Court later granted cert and came to a different conclusion,
you cannot rely on any of the parts of the (good) Sixth Circuit opinion
that the Supreme Court reversed.
6.5 Different opinions of various Realistic Jurists
Features—Realistic Jurisprudence
Professor Goodhart has enumerated the basic features of realistic

jurisprudence in the following way •.:—
1. The realist school depends for its importance, not upon any
definition of law but upon the emphasis it places on certain
features of law and its administration. The most striking
feature of this school is the stress they place upon uncertainty
of law as a series of single decision. Frank rightly remarks, 39
‗The physicists, indeed have just announced the principle of
Uncertainty or Indeterminancy (where a high degree of

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quantitative exactness is possible). If there can be nothing like

complete definiteness in natural sciences, it is surely absurd
to except to realise even approximate certainty and
predictability in law, dealing as it does with the vagaries of
complicated human adjustments‘.
2. The second feature of the realist school is its attack on the

use of formal logic in law, which they term ‗medieval
scholasticism‘. According to them the judge in deciding a case
reaches his decision on ‗emotive‘ rather than on logical
grounds.
3. The third feature of the realist school is the great weight they
place on modern psychology with strong leaning towards
behaviourism.
4. The fourth feature of the realist school is the attack they have
made on the value of legal terminology, for according to them,
these terms are a convenient method of hiding uncertainty of
our law. Professor Green ‗Protests‘,40 against the part which
sacred words, taboo words, continue to play in our law‘.
5. Finally, the realists stress,41 ‗an evaluation of any part of law

in terms of its effects, and an insistence on the worth-
whileness of trying to find these effects‘.
Karl Llewellyn (1893-1962)
Professor Karl Llewellyn has been a Professor of Jurisprudence at

Columbia. He is an important thinker of realist movement and admits
that he speaks of ‗the realists‘ as a group, there is no ‗school‘ of
realists. He says, ‗realists‘ comprise a movement inter-stimulated but
independent. According to him there are basic common points,42 on

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which all realists seem to agree. He says a juristic inquiry must

proceed on the basis of:
1. that law is inconstant state of flux,
2. that it is a means to a social end,
3. that society to whose ends law is a means, is in a state of]

even faster flux than the law,
4. that for the purpose of these inquiries the jurists should look
merely at what courts and officials and citizens do without
reference to what they ought to do. There should be a
temporary divorce of the ‗is‘ and the ‗ought‘ for purposes of
study,
5. the juristic inquiry must regard with suspicion the assumption

that legal rules as they are formally enunciated or inscribed in
books represent what the courts and people are actually
doing,
6. that the realist must regard with equal suspicion the

assumption that rules of law formally enunciated actually do
produce the decisions which purports to based on them, and
7. finally, every part of law is to be valued in terms of its actual

effects rather than in terms of the symmetry of its traditional
rules.
In short Llewellyn philosophy of law is based on the realistic

institutional view and he says jurisprudence must expand its ken
beyond the rules of law proper to consider the techniques, the
ideology and the unspoken ideals. ‗The theory,43 that rules decided
cases seems for a century to have fooled, not only library ridden
recluses, but judges‘. He, therefore, suggested that focal point of

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legal research should be shifted from the study of rules the

observance of the real behaviour of law officials, particularly the
judges. More attention, therefore, has to be given to judicial tradition
on which court decisions rest.
Jerome N. Frank (1889-1957)
Jerome Frank was a practising lawyer since 1912 who served in

many Government posts during 1935-1941. In 1941 he became a
Judge in United States Circuit Court. He also taught in a number of
universities and was visiting Professor at Yale Law School. Among
his important works include Law and the Modern Mind, (1930), //
Men Were Angels (1942), and Courts on Trial (1949).
However, it is Law and the Modern Mind first published in 1930 that
contains Frank‘s jurisprudential thought on realism. It is in this work
that Frank makes an attempt to demolish what he calls the ‗basic
myths‘ about law. The idea that law is continuous, uniform, certain
and invariable is ‗basic myth‘. According to him, the illusion of
certainty of law is a ‗basic myth‘ to conceal the unwelcome fact of
uncertainty of law. Thus, ―basic myth‘ assumes that law is certain as
a perfect body of rules and principles and the task of the judge is
merely to discover the appropriate principle and its application to the
facts. Frank questions the ‗basic myth‘ that Judges do not make law
they only discover it. He is certain in no uncertain terms that Judges
do make law and attacks the ‗basic legal myth‘ that law is completely
settled and defined from which originates the myth that judges never
make law. On the other hand, for Frank law consists of decisions. To
most people legal norms direct the judgment whereas to frank not
the legal norm but judgment itself, is the law. The individual decision,
then, is the law par excellence. Like Judge Hutcheson, Jerome
Frank believes that a judge may start with conclusions and work
back to suitable premises and in this way Judge feels or ‗hunches‘
out his decision. It is a myth that rules are impersonal unaffected by
human emotions and behaviour. However, Frank asserts emotions

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and behaviour are key factors in understanding The judicial process.

Frank observes,44 that a Judge‘s decisions are the outcome of his
entire life history. His friends, his family, vocations, schools, religion-
all these factors are influential and all are buried or unknown to
everyone save the judge himself. As a matter of fact judge is
unaware of his prejudices. It is the personal likes, dislikes, intuition,
temperament, experiences and other personal characteristics, which
are all important and accepted as ‗hunching‘ and mechanistic law,
illusory precedents‖ and sundry myths are left to gather rust. Frank
wants us to study the law in action. The court-room, not the library
should be our laboratory.
After Frank became the Judge to the Bench of a Federal Appellate

Court, he concentrated his attention from the rule aspect of the law
to the scrutiny of the fact-finding process in the trial courts. Thus,
from a rule-skeptic Frank turned to be fact-skeptic. Trial Court fact
finding, Frank declared, constituted the key factor in the
administration of justice. With unrelenting zest, he probed into
innumerable sources of error which may enter into a determination
of the facts by a trial court. ‗There may be perjured witnesses,
coached witnesses, biased witnesses, witnesses mistaken in their
observation of the facts to which they testify.... missing dead
witnesses, missing destroyed documents, crooked lawyers, stupid
lawyers, stupid jurors, trial judges who are stupid or biogated or
biased‘. Among other factors, the unique personality of the judge,
make every law suit a highly subjective and thus there is always a
good deal of element of irrationality, chance and guess work
involved in judicial fact-finding making predictability of the outcome
of law suits well-nigh impossible.Thus, with lower-court fact-finding
as the centre of his legal universe—Frank admitted that legal rules
and precedents have considerable value.45 He recognised the
necessity of legal rules as guide-posts for making decisions and

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maintained that the rules embody important policies and moral

ideals. But maintained that the objective legal norms and in many
instances frustrated by the ‗secret, unconscious, private,
idiosyncratic norm‘s,46 applied in the fact-finding process by trial
judges or jurors. Thurman Wesley Arnold (1891) is a prasticing
lawyer in Washington D.C. He was successively Dean of the Law
College, West Virginia University, Professor of Law at Yale,
Assistant Attorney-General of the United States in charge of Anti-
trust Division of the Department of Justice and Associate Justice of
the United States Court of Appeals for the District of Columbia. His
works include The Symbols of Government (1935), Cases on Trials,
Judgment and Appeals (1936), The Folklore of Capitalism (1937).
The Bottlenecks of Business (1940), and Democracy and Free
Enterprise (1942).
Thurman Wesley Arnold is devoted to dissecting economics, politics

and the field of social science as well as law and study them as
social institutions based on habits and acceptance of common
values. Every social institution including law, according to Arnold, is
based upon common elements of : (1) creed, (2) a set of attitudes
which makes the creed effective, (3) a set of institutional habits, (4)
and mythological or historical tradition. So Government and the
Constitution is a creed about which have grown up certain fixed
attitudes and habits which give it its influence over the people. To
law, Arnold gives no greater credence than to any other institution.
His jurisprudence is ‗vast metaphysical literature‘ of law defining
law‘s principles in terms sufficiently broad to comprehend all the
contradictory ideals a ‗logical heaven behind the courts‘. The rule of
law is best preserved, in his opinion, by the co-existence of various
and conflicting symbolism and ideologies. The ideal legal system
loses in prestige and influence when ever great, popular and single
minded sweep a people of its feet. Arnold feels only value skepticism

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and value pluralism can prevent, the rise of intolerant and totalitarian
political regimes.
Scandinavian Legal Realism
The Scandinavian Realist Movement has focussed jurisprudential

inquiry on the facts of legal life while eliminating all metaphysical
notions from law. According to Professor Alien,47 ‗If American
realism is rule skeptic‘, Scandinavian realism may be described as
‗metaphysical skeptical‘. It insists vehemently on dissociating all
legal phenomena from ‗metaphysics‘ which Ross following
Hagerstrom considers to be largely derived from primitive ‗magic‘
and on regarding them as social facts, ascertained by empirical
science. Again and again this principle is asserted. According to
Ross,48 ‗Legal notions must be interpreted as conceptions of social
reality, the behaviour of man in society and as nothing else‘. All
positive law is thus a social technique. Every method of reasoning
which is not purely empirical is valueless and illusory, being based
on a priori, preconceptions for which there is no ‗scientific basis‘. For
Olivecrona ‗Law is nothing but a set of social facts‘. In short, the
Scandinavian realists insist on banishing from law a priori notions of
natural law, abstract justice and all such ideologies as being
metaphysical and therefore, empty. The essence of the
Scandinavian realism is summed up in Ross‘s dictum that ‗all
metaphysics are, a chimera and there is no cognition other than
empirical‘. Law in all its form is a social reality eschewed of doctrinal
jurisprudential conceptions like morality, natural law, idealism and
metaphysical notions of ‗right‘, ‗duty‘, ‗command‘, ‗sovereignty‘ which
are the pillars of analytical jurisprudence. Bodenheimer, however,
brings out marked difference between Scandinavian and American
realism in two ways49 : first, it is more speculative in its approach to
jurisprudential problems, and second, it devotes less attention to

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peculiarly judicial behaviour and psychology unlike their counterpart

the American realists. It shares with American legal realism a
radically empiricist attitude towards law and life. The chief exponents
of the Scandinavian realism are Axel Hagerstorm, Vilhelm Lundsted,
Karl Olivecrona, and Alf Ross.
Axel Hagerstorm (1896-1939)
Hagerstorm is the father of Scandinavian realist movement in

Sweden and was the Professor of Philosophy in the University of
Upsala who greatly influenced the philosophy of Lundsted,
Olivecrona and Ross. Hagerstorm sets out to destroy the notion that
right-duty relations and legal obligations have any objective
existence. It was no more than a feeling which could be explained
psychologically. Similarly, he denied the existence of such things as
‗goodness‘ and ‗badness‘ and remarked that they represent simply
emotional attitudes of approval or disapproval respectively towards
certain facts and situations. Further he denies the possibility of any
science of the ‗ought‘ and says all questions of justice, aims,
purposes of law are matters of personal evaluation not susceptible
to any scientific process of examination. He pleads for an
examination of the actual use of legal concepts and analysis of the
mental attitude involved in the conception of law in the present
times.
V. Lundsted (1882-1955)
Lundsted is the most extreme of the three Nordic jurists and is

extremely intolerant towards metaphysical ideas. According to him
nothing exists which cannot be proved as fact. He ridiculed at most
of the English theories of law and rejected the idea of law as a
means of securing justice which is chimerical. It is not founded on
justice, but on social needs and pressures. Instead Lundsted says,
law at any time and place in any society is guided and determined
by ‗social welfare‘ which is the ‗guiding motive for legal activities‘.

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These are, namely, the encouragement in the best possible way of

that, which people in general actually strive to attain. Judges should
think in terms of social aims not rights. According to Lundsted the
area of ‗social welfare‘ postulates general sense of security which
leads him to expound the doctrine of strict liability in tort, contract
and criminal law to prevent social disruption.
K. Olivecrona (1897-)
Professor Olivecrona is the more acceptable among the

Scandinavian realists who stressed that law must be studied as a
social fact. As already observed Olivecrona remarks, ‗Law is nothing
but a set of social facts‘. The rules of law are in no sense the will of
the State in the sense of commands but are ‗independent
imperatives‘ issued from time to time by various constitutional
agencies and their sole effect is that they ‗operate on the mind of the
judge‘ and lead to certain applications of law which are the facts of
the legal system.
Alf Ross (1899)
Alf Ross is the Danish realist jurist who like Olivecrona also insists
that laws need to be interpreted in the light of social facts by
excluding all metaphysical ideals from it. ‗Legal notions‘ says Ross
‗must be interpreted as conceptions of social reality, the behaviour of
man in society and as nothing else‘. Ross, however, dismisses
Lundsted theory of ‗social welfare‘ as being metaphysical. Like the
American realists Ross tends to highlight the position of courts. ‗A
norm‘, says Ross, ‗is a directive which stands in relation of
correspondence to social facts‘. To say,50 that norm exists means,
that a certain social fact exists and this in turn means that the
directive is followed in the majority of cases by the people who feel
bound to do so. The principal feature of legal norms is that they are
directives addressed to the courts. A norm may derive from past

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decision, but it follows from this view that all norms including those of
legislation should be viewed as directives to Courts. Norms of law
may be further divided into ‗norms of conduct‘ which deal with
behaviour and ‗norms of competence or procedure‘ which direct that
norms brought into existence according to a declared mode of
procedure shall be regarded as norms of conduct. Thus, norms of
competence are indirectly expressed forms of conduct. It is Ross
who has stressed on the problem of the validity of law. He takes the
assumption that law provides the norms for the behaviour of Courts,
and not private individuals. Ross reaches the conclusion that a norm
of law is ‗valid‘ if the prediction can be made that a Court will apply it
in future. In making this prediction, Ross declares, not only the past
actual behaviour of the judge but also the set of normative ideas by
which he is governed and motivated must be taken into account.
As to the impact of Scandinavian realist movement Friedmann

writes,51 ‗Its main contribution has been to pursue the detection of
open or hidden legal ideologies beyond the usual criticism of natural
law doctrines into positivists concepts of command, sovereignty,
rights and duties. By implication, rather than as a matter of articulate
philosophy, the Scandinavian ‗realists‘ have demonstrated that any
legal order must be conditioned upon a certain scale of values,
which can be assessed not in absolute terms but with regard to the
social needs changing with times, notions and circumstances.
Whether law is described as a ‗fact‘, as a ‗machinery in action‘ or ‗in
any other manner, it is directed to certain ends.‘
6.6 SUMMARY
The emergence of Realism in jurisprudence—the study of law as it

works and functions, contributed to the growth of skeptism towards
law and its administration and accordingly subjected law to realities
of social life. The trial of such realism was blazed by Holmes, Gray,

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Cardozo, Pound—the ‗mental fathers,52 of Realist Movement‘—who

highlighted on the functional and realistic study of law not as it
contained in legislative statute or enactment but as finally interpreted
and laid down by the Courts in a judicial decision while adjudicating
disputes.The modern realists deny the title ‗realist‘ to Cardozo,
Pound, Gray and Ihering but accept Holmes as their patron saint
from whom they have derived the gospel of realise At best Cardozo,
Pound, and others can be the trend setters who studied in law in
terms of existing social situations. That is why the modern realistic
jurisprudence can be described as the left wing of the sociological
jurisprudence.In this unit we have discussed about the concept of
Judicial Accountability and we learned about different problems of
judicial accountability. We also discussed the role of judicial
accountability in judicial law-making.
1. Friedmann, Legal Theory, p. 293 (1967, 5th edn.).

2. Ibid, p. 82.
3.The Path of Law, p. 457 at pp. 459-461 (1897).
4.Pound, ‗The Call for a Realist Jurisprudence‘, 44 H.L. Rev. 697
(1931).
5.Llewellyn, Some Realism about Realism—Responding to Dear
Pound, 44 H.I 1222,1234,1256 (1931).
6.Law and the Modem Mind. D. 46 (1930).
7.Columbia University School of Law. 1930, p. 3.
8.Some American Interpretations of Law, Modern Theories of Law,
pp. 10-20 (1963); see also. Stone, Province and Function of
Jurisprudence, p. 415-416 (1946).
9.Law and the Modem Mind, p. 7.
10.Professor Leon Green, The Duty Problem in Negligence Cases
(1928), 28 Col. L. Rev. P-104 at p. 1016.

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11.K.N. Llewellyn, Some Realism about Realism, (1931) 44 H.L.

Rev. 1222.
12.Stone, Julius, Province and Function of Law, pp. 415-416 (1946).
13.The Constitution as an Institution, 34 Col. L. Rev. 1 at 7 (1934).
14.Ibid., Chap. XII.
15.Quoted by Bodenheimer, E., Jurisprudence, (1961) p. 199.
16.Ibid.
17.Alien, law in the Making, (1964) pp. 48-49.
18.Ibid.
19.
Bodenheimer, Jurisprudence, (1962) p. 120.
20.See Dias, p. 648 (1976).
21.Friedmann, Legal Theory, p. 311 (1967, 5th edn.).
1. What is Judicial Accountability?

2. What do you understand by the Problems of judicial
accountability?
3. Discuss the Role of judicial accountability in judicial law-
making,

Page 154
LL.M. Part-2
Block-III- The Concepts of Justice

Unit-7- The concept of justice or Dharma in Indian thought; Dharma
as the foundation of legal ordering in Indian thought and sources.
STRUCTURE
7.1 INTRODUCTION
7.2 OBJECTIVES
7.3 WHAT IS Concept of Justice?
7.4. Justice or Dharma in Indian thought
7.5 Dharma as the foundation of legal ordering in Indian
thought and sources
7.6 SUMMARY

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7.1 INTRODUCTION
In the previous unit you have read about the concept of Judicial
Accountability and learned about different problems of judicial
accountability. You also learned about the role of judicial
accountability in judicial law-making.In India justice has been
extolled as the very embodiment of God itself whose sole mission is
also to uphold justice, truth and righteousness. In Ramayana the
sage Valmiki says: ‗In this universe truth alone is God. Dlwrma lies in
truth. Truth is root of all virtues. There is nothing greater than truth‘.
Likewise Lord Krishna says, ‗Whenever there is decacy of
righteousness and there is exaltation of unrighteousness, then I
myself come forth, for the protection of good, for the destruction of
evil doers, for the sake of firmly establishing righteousness, I am
born from age to age.‘Indeed the immortal epics Ramayana and
Mahabharata record and reflect the spirit and those of Hindu thought
and life in the tales of Rama versus Ravana and Pandavas versus
Kauravas which magnificently portray the moral supremacy and
victory of good over evil, or justice over injustice and of dharma over
adharma. These epics along with Vedas demonstrate the deep
commitment and faith of our sages towards justice. In this unit we
will discuss about the concept of justice or Dharma in Indian thought
and Dharma as the foundation of legal ordering in Indian thought
and sources.
7.2 OBJECTIVES

 Understand the concept of justice or Dharma in Indian
thought.
 Explain the meaning of Dharma and its foundation of legal
ordering in Indian thought and sources.

Page 156
7.3 WHAT IS 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, even-
mindedness, moral virtue, true happiness, equality, equilibrium, duty,
etc.
Justice — Vedic Perception
In India justice has been extolled as the very embodiment of God

itself whose sole mission is also to uphold justice, truth and
righteousness. In Ramayana the sage Valmiki says:‗In this universe
truth alone is God. Dlwrma lies in truth. Truth is root of all virtues.
There is nothing greater than truth‘. Likewise Lord Krishna says,
‗Whenever there is decacy of righteousness and there is exaltation
of unrighteousness, then I myself come forth, for the protection of
good, for the destruction of evil doers, for the sake of firmly
establishing righteousness, I am born from age to age.‘Indeed the
immortal epics Ramayana and Mahabharata record and reflect the
spirit and those of Hindu thought and life in the tales of Rama versus
Ravana and Pandavas versus Kauravas which magnificently portray

Page 157
the moral supremacy and victory of good over evil, or justice over
injustice and of dharma over adharma. These epics alongwith Vedas
demonstrate the deep commitment and faith of our sages towards
justice. In the whole eighteen Puranas the great sage Vyasa has
said but two things : ‗Doing good to another is right, causing injury to
another is wrong. ‗ Similarly, all the four Vedas insist on equality and
respect for human dignity as is evident from Yajurveda — ‗Yon are
Ours and we are Yours —
Buddhistic Notion of Justice
However, in the intervening period when there was transgression

and deviation from Vedic philosophy it was Lord Buddha who once
again re-adopted the philosophy of middle path — the madhyama
marga as a way out to seek justice for the humanity. He declared to
us the Eight-fold path of Morality — as a necessary basis for a good
life and a just society. It consisted of : Right Views, Right aspiration,
Right speech, Right conduct. Right livelihood. Right effort, Right
mindfulness and Right contemplation. The Middle Path exhorted the
people not to deny due desire of body but shun activities of the
wrong type life excessively selfish desires which cause pain and
suffering to society. Lord Buddha‘s message of Cease to do evil,
Learn to do good, and Cleanse your own heart — had been given a
practical shape by the great King Ashoka who promulgated
Buddhistic morality in the administration of justice. Ashoka‘s mission
for equal and impartial justice is evidently clear from his directives to
his governors in Kalinga Edict 7 which reads : ‗All men are my
children. Just as I seek the welfare and happiness of my own
children in this world and the next, I seek the same things for all men
Sometimes, in the administration of justice a person will suffer
imprisonment or torture, When this happens, he sometimes dies
accidentally and many other people will suffer because of this. In
such circumstances you must try to follow the middle path (that is
justice or moderation). Envy, anger, cruelty, impatience, laziness,

Page 158
fatigue interfere with attainment of this middle path. Therefore, each

of you should try to be sure that you are not possessed by those
passions.‘ It was Buddha and Ashoka who really preached and
practised equality amongst all classes, men or women and
prohibited cruelty to animals. In fact, Buddhism was a revolt against
the old Brahaminical faith which had degraded women and
shudras—especially for the latter once-born the old Hindu law books
prescribed no justice. They could not own property and serving the
twice-born was their main dharma or duty. Therefore, Buddhism
rejected discrimination on grounds of caste, sex, religion or
profession and espoused the doctrine of equality as the sheet
anchor of religious-cum-temporal philosophy.
Post-Vedic Concept of Justice
It is the various law-givers like Manu, Gautama, Yajnavalkya, Narda,

Brahaspati, Katyayana and others who shed adequate light on the
nature and quality of justice of the ancient Hindus. The Hindu society
basically being what it was marked for its unequal and class
character which had one set of laws for the twice-born and the other
for the once-born, and one set of laws for men and other for women,
one set of laws for sons and other for the daughters and so on. Thus
quintessence of justice—equality and non-discrimination, respect for
human dignity and person, non-exploitation of poor by strong were
unknown to ancient Hindu social system. The parameters of justice
of course were based on strict conformity to observance of caste
rules and their strict enforcement within the prescribed norms was
justice and their violation or disregard attracted punishment.
(a) Code of Manu—And Justice
The Code of Manu—Manusmriti—is considered the authoritative

work of law of the Hindus. It is the work of Manu which introduced a
distinct legal theory to shield Hindu society from the onslaughts of
Buddhistic and other religious cults. This he did by carving a socio-

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legal framework which appears to be anachronistic and

undemocratic and non-egalitarian in form and content. Hence the
quality of justice conditioned by his stricter law in particular was anti-
women and anti-s/n<dras. However, Manu set for each caste a
standard of good conduct Varna dharma which the judge was
supposed to enforce and the king to execute faithfully and
impartially. The quality of just and justice was not what it ought to be
from general point of view but what was just in the view of Brahmins
and the priests and in accordance with the interest and happiness of
their Varna or Caste. Manu says, ‗A king who knows the sacred law,
must inquire into the law of the caste (jati) of districts, of guilds and
of families and thus, settle the particular law of each‘.53 This is
summed up as justice and was given a high place in Hindu social
system. He declares, ‗Justice being violated, destroys; justice being
preserved, preserves, therefore, justice must not be violated, lest
violated justice destroys us.‘54 Another equal rival of Manu was
Chanakya known also as Kautilya who was contemporary of Plato
and Aristotle and a practical statesman who engineered a coup
d‘etat that overthrew the Magadh Empire in 321 B.C. and
established Mauryan dynasty which ruled India for more than three
centuries. In his Arthashastra the women and shudras are given
equal treatment alongwith men. It does not suffer from infirmities
with which our Smritis suffer. Of course, Kautilya also emphasised
on the need of promotion dharma with king as its ultimate defender
and preserver. According to him when all dharmas perish, the King
becomes the promulgator of dharma for the establishment of the
four-fold Varna system and the protection of morality. The dominant
purposes and functions which moved the king of ancient India were
the attainment of dharma, artha and kama i.e., maintenance of
justice, use of property and enjoyment of family life.
Doctrine of Matsyanyaya:
53
Institute of Manu, Chapter VIII, 41.
54
Ibid., Chapter VIII, 15.
Page 160
Pre-political order in Hindu texts of styled as Matsyanyaya. It is

analogous to ‗state of nature‘ of Hobbes. Literally it means the fish
rule that is the system of life in the aquatic regions where bigger fish
devour the small. The earliest traces of the idea of the concept,55 of
Matsyanyaya is found in Santiparva of Mahabharata on the subject
of Rajdharma or duties of the king or government. Yudhisthra—the
chief of Pandava asks Bhishma the grand old man of their race,
‗How is it that King who is one is obeyed by the subjects who are
many?‘ This question became the starting point of an enquiry into
the nature of state authority, its rationale and justification. Bhishman
points out that without State there would be Matsyanayaya, the rule
of big fish swallowing the smaller fish. In other words, State was
symbolic of certain moral values i.e. righteousness, happiness,
tolerance and harmony. According in the ancient Hindu legal system
kingship was created as inevitable institution to protect one and all
and maintain dharma. Law, State and Justice were inter-twined as
the Vedic precept declared a just law was true protector and
preserver of order and happiness in society. ―The law,56 alone is the
Governor that maintains order among the people. The Law alone is
their protector. The Law keeps awake whilst all the people are fast
asleep; the wise, therefore, look upon law as Dharma or Right.
When rightly administered, the Law makes all men happy, but when
administered wrongly, that is, without due consideration as to the
requirements of justice, it ruins the King—all order would come to an
end and there would be nothing but chaos and corruption if Laws are
not properly enforced—Where the Law striking fear into the hearts of
people, preventing them from committing crimes, rules supreme,
there the people never go astray and consequently live in
happiness, if it be administered, by just and learned men...‘
56
Quoted by Pulparampil, John K., Indian Political System, pp. 17-18 (1976).
Page 161
Whether it is Mahabharata,57 or Arthasashtra,58 or Mann‘s Institute,59

or Narada,60 there is great emphasis on the institution kingship and
Rajdharma in order to escape from political disorder, social chaos
and injustice. Of course, support to kingship is not absolute but
conditional provided king conforms to dharma or justice and least
deviation from it permitted people to revolt and rebel against an
unjust king. In fact, Mahabharata‘s Santiparvam is a glorious
testimony of the maturity and democratic nature of kingship, guided
and regulated by the consideration of Righteousness (justice) called
dharma which is the sole source of happiness on earth and of
salvation in the heaven. Hence, promotion of justice was the sole
and substance of kingship unlike the British Austinians and the so-
called progressive jurists who prided in dubbing ancient Indian legal
system as ephemeral, primitive and phantom of imagination. On the
contrary, Austinians were only moving from substance to shadow,
from content to form leading to tyranny of despotism and
irresponsible kingship which ancient Indian jurists deftly designed to
escape and avoid by denouncing it as Matsyanyaya. It is surprising
that the British positivists hailed the law and State devoid of moral
values and justice as a mark of progressive society thereby
permitting Matsyanyaya—the rule of might over right.
Justice—Muslim Era
During the Muslim rule in India—especially in the pre-Moghul

period—there were a series of cultural, social and political stresses
and strains on the style and way of life of the Hindus. The Muslim
rulers in India were fundamentalists and despotic who forced upon
the Hindus their own laws, customs and religious practices. Hindus
were not treated in law at part with Muslims—the latter being the
conquerors and the former the Kafirs the non-believers. Special
57
Santiparvam, 89,33.
58
Kautilya’s Arthsltashtra, IV, XI, 229.
59
Manusmriti, Chapter VII, 19.
60
Narada Smriti, XVIII, 20-21.
Page 162
disabilities like Jezia—poll tax, were imposed on Hindus. It was only

such conquered Hindus who paid Jezia and revenue legally
acquired legal rights over land. Both in theory and practice there was
discrimination against Hindus vis-a-vis Muslims. Muslim rule in India
was not founded on the basic principles of human dignity, equality
and justice and was essentially autocratic, theocratic and
irresponsible devoid of the iota of rule of law, morality, justice,
tolerance and social harmony. Such was the essence of justice—
called Kazi Justice—wholly arbitrary inconsistent with principles of
minimum morality and elementary justice.The Moghul rulers—
especially Akbar the great—brought about the basic change in the
style of Moghul administration. He adopted a tactical policy of
tolerance and non-discrimination towards Hindus and saw mat no
injustice is committed in his realm. However, the Moghul rule too
depended mainly on the personal character of the ruler, his military
power lacked sanction of popular support and strength.
Justice—British period
The early British rulers in India adopted a policy of status quo with
little or least change in the administration or laws of the Hindus and
Muslims. They were more governed by economic-drain theory than
acceleration of political change and social justice. Particularly, after
the Mutiny in 1857 the British rulers adopted the stance to oppose all
new reforms or changes. This attitude was summed up in a Calcutta
newspaper in 1873 in these words : ‗Avoid change, by removing
obstruction rather than by supplying new stimulants, slowly develop,
but do not violently upheave native society, leave the rich and poor
to themselves and their natural relations within the limits that prevent
oppression‘. Such was the unmistakable official policy of the British
Indian Government for the remaining ninety years of its rule in India.
However, the impact of the British heritage on Indian political life and
legal system was of far reaching significance. The development of
modern democratic institutions, the notion of representative

Page 163
assemblies and responsible government, the secularisation of

administration with independence of judiciary, the inception of the
doctrine of the rule of law, of equality before law, substitution of new
medium of instruction of English glavanised the forces and
processes of social and political change which finally culminated in
the Independence of the country in 1947. During this long colonial
domination Indians had come to realise that there can be no justice
without liberty and liberty without justice. It was the Britishers who
had grafted in India lock, stock and barrel the elaborate machinery of
English law and justice—both substantive and procedural which they
had evolved and nourished in the interest of administration of justice.
Hence the idea of rule of law, freedom of person, civil liberties,
natural justice, equality before law in modern India are essentially of
British origin both in form and spirit which find a pride place in the
Constitution of free India. It were these principles the back¬bone of
British notion of justice for which Gandhi and others fought to secure
for Indians as well. It may be pointed out that rejection of British rule
was not a rejection of aforesaid English legal values and ideals
concerning human liberty, equality and justice.
Constitution of India and Penumbras of Justice
Justice is a generic term which includes both procedural and

substantive justice—the former embodying the basic procedure and
spirit what is generally known as natural justice and the latter
containing provisions concerning social aid, assistance, benefits,
facilities concessions, extra privileges and rights for the welfare of
those who need or deserve such help described by the omnibus
term social justice. The Constitution of India abounds with natural
and social justice as is evident from the Preamble and Parts III and
IV of the Constitution. Indeed the Constitution has been repeatedly
amended for the protection of liberties and promotion of social
justice to remove the scars of injustice and inequality. The courts
have given a powerful support to these rights by invoking the power

Page 164
of judicial review. These are rooted in our democratic egalitarinan

social and political order and are basic and fundamental in the
governance of the country as expounded in Kesavananda Bharati—
‘the Indian Constitution of the future‘.
Natural Justice—Indian Legal Theory
Natural justice occupies a key place in Indian legal theory and in

constitutional philosophy. However its ethico-legal ethos is rooted on
the foundation of Anglo-American jurisprudence and shares in great
measures the broad and vague parameters of higher law so that
majestic principles of natural justice may remain eternally a bulwork
and a powerful counter against tyranny, injustice and arbitrary
power. Such penumbras of natural justice are its raison d‘etre to
meet the perilous situation of changing times and places. The ends
of natural justice are to render every one his due or delaying of
justice means denial of justice, or let no one be judge in his own
cause or treat like cases alike and different cases differently etc.
These are the principles of natural justice which are deeply
embedded in modern human rights,61 jurisprudence also. Modern
administrative law too has evolved great safeguard that power can
be exercised,62 only in conformity with principles of natural justice.
The two main rules of natural justice which have been evolved
through judicial process are : (1) no one shall be judge in his own
cause (Nemo debet esse judex in propria sua causa) and (ii) no one
is to be condemned unheard without his being made aware in good
time of the case he has to meet (Audi Alteram Partem). The
Donoughe Committee on Ministers‘ Powers 1932 added a third
principle that a party is entitled to know the reason for the decision
on which it is based. These rules are applicable not only in a court of
justice but also before an administrative tribunal or authority. Just as
the principle of due process of law in USA guarantees to a citizen
61
Maneka Gandhi, AIR 1978 SC 597.
62
Sangram Singh v. Election Tribunal, AIR 1955 SC 425.
Page 165
protection against arbitrary action by executive and administrative

action, the rules of natural justice in India provide legal foundation on
which administrative procedure rest. The Supreme Court has held,63
that even administrative orders must precede by notice and hearing
if the proceedings will have adverse civil consequences upon a
person. The Court remarked64:―The aim of the rules of natural justice
is to secure justice or put it negatively to prevent miscarriage of
justice. These rules can operate only in areas not covered by law
validly made. In other words, they do not supplant the law of the land
but supplement it. The concept of natural justice had undergone a
great deal of change in recent years.......An unjust decision in an
administrative enquiry may have more far reaching effect than a
decision in a quasi-judicial enquiry.....the rules of natural justice are
not embodied rules. What particular rule of natural justice should
apply to a given case must depend to a great extent on the facts and
circumstances of that case, the frame-work of the law under which
enquiry is held and the constitution of the tribunal or body of persons
appointed for that purpose.‘However, after the Maneka there has
been a sea-change,65 in the spirit and form of natural justice which
cannot be put in a strait-jacket or defined like a pigeon-hole theory.
The rigid view that principles of natural justice applied to judicial and
quasi-judicial acts and not to administrative acts no longer holds the
field. Justice Bhagwati views natural justice as a ‗great humanising
principle intended to invest law with fairness and to secure justice
and over the years it has grown into a widely pervasive rule..... The
soul of natural justice is ‗fair play in action, and that is why it has
received widest recognition throughout the Democratic World....‘
After this epoch making decision the judiciary has expounded the
63
A.K. Kraipak v. Union of India, AIR 1970 SC 150.
64
Ibid., para 20; see also Union of India v. Indo Afghan Agencies, AIR 1968 SC 718.
65
Maneka Gandhi v. Union of India, 1978 SC 597 at 616, Mohinder Singh v. Chief Election
Commissioner, AIR 1978 SC 851; Delhi Transport Corp. v. D.T.C. Mnzdoor Union, AIR 1991 SC
101; Supreme Court Legal Aid Committee v. Union of India, AIR 1994 SCW 5115.
Page 166
rule liberally whereby natural justice has now become an effective

tool of justice to those who had been denied their liberty or freedom.
Natural Justice—Jurisprudence Paradigms
Together with Kraipak (1970) Kesavananda Bharati, (1973) and

Maneka Gandhi (1978) became an essay for Indian jurists and
judges in defence of human liberty, freedom and natural justice.
Since then the ideals of human rights and natural justice have been
vigorously pursued reminding and educating Indians the underlying
purposes and goals of the Preamble and the Bill of Rights under the
Constitution. The Supreme Court has declared in these judgments
that the Constitution to do not envisage a sovereign government but
a government under law with constitutional limitation and ‗We the
People of India1 being the Sovereign Power. As, Constitution is the
supreme law of the land, laws of the Union and the States must be
in pursuance of the Constitution wherein judiciary is the protector
and guarantor of the Fundamental Rights of the citizens. The
Supreme Court is empowered to issue appropriate writs in the
nature of Habeas Corpus, Mandamus, Prohibition, Certiorari and
Quo Waranto for the enforcement of fundamental rights and any
person can move the Court for appropriate remedy whenever there
is a violation of such rights by legislative or executive body66.Article
226 empowers the High Courts to issue writs for the enforcement of
fundamental rights. In the interest of justice the courts have relaxed
the rule of locus standi in favour of those who for want of poverty,
ignorance, illiteracy, deprivation and exploitation are unable to
approach the Court for appropriate relief. While expanding the scope
of access to justice the Indian judiciary has initiated a veritable
revolution in our political and social system by achieving its grand
purpose—the protection of the poor and exploited individuals or
contracts upon their liberty protected by procedure,67 established by
66
S.P. Gupta v. Union of India, AIR 1982 SC 149.
67
Maneka Gandhi v. Union of India, 1978 SC 597.
Page 167
law or due process theory. It is for this reason that natural justice is a
brooding omnipresence although of varying form and facet.
According to Justice Krishna Iyer,68‗Indeed natural justice is a
pervasive facet of secular law where a spiritual touch enlivens
legislation, administration and adjudication to make fairness a creed
of life. It has many colours and shades, many forms and shapes and
save where valid law excludes, it applies when people are affected
by valid authority..... Indeed from the legendary days of Adam—and
of Kautilya‘s Arthasastra—the rule of law has had the stamp of
natural justice which makes it social justice......that the roots of
natural justice and its foliage are noble and not new-fangled.....Our
jurisprudence has sanctioned its prevalence even like the Anglo-
American system.‘Justice Iyer explaining further the nuances of
natural justice observed,69:Today in our jurisprudence, the advances
made by natural justice far exceed old frontiers and if judicial
creativity belights penumbral areas it is only for improving the quality
of government by injecting fair play into its wheels.......Law cannot be
divorced from life and so it is that the life of law is not logic but
experience.....Law lives not in a world of abstractions but in a
cosmos of concreteness and to give up something good must be
limited to extreme cases. If to condemn unheard is wrong it is wrong
except where it is overborne by dire social necessity. Such is the
sensible perspective we should adopt if ad hoc or haphazard
solutions should be eschewed.‘
Justice Iyer summing up the ethos of natural justice concluded:70
‗.that the content of natural justice is dependent variable not an easy

casualty.‘In short, since the rejection71 of Austinian and Diceyian
concept of law and rule of law in Maneka,72 Articles 14 and 21 have
68
Mohinder Singh v. Chief Election Cominr., AIR 1978 SC 851 at 870.
69
Ibid., at 873.
70
Ibid., 876.
71
A.K. Gopalan v. State of Madras, AIR 1950 SC 27.
72
AIR 1978 SC 659.
Page 168
assumed new dimensions especially after the introduction of due

process in Indian constitutional jurisprudence by making the doctrine
of natural justice an effective sword and shield both against
executive actions and legislative inroads against life and liberty of a
person. The new interpretation given to these provisions is a far
reaching development in India‘s constitutional and criminal
jurisprudence for providing easy access to justice to the under-
privileged under the vast and panoramic canopy of natural justice. 73
It is around the principles of natural justice that the Supreme Court of
India has evolved new Indian jurisprudence with new legal ideology
and techniques which links judicial process with social change.
Since Maneka and Mohinder Singh it is the judiciary which has been
the harbinger of social revolution in bringing about a new social
order in which justice—social, economic and political—informs all
the institutions of contemporary Indian society.
Social Justice—Indian Context
In India, social justice is the new dream of liberals, Gandhians,

socialists, marxists and others who are inspired and aspire for an
egalitarian politico-social order where no one is exploited, where
every one is liberated and where every one is equal and free from
hunger and poverty. In such a social order liberty is not made a
casualty over security or vice-versa and balance is maintained
73
R.D. Shetty v. International Airport Authority, AIR 1987 SC 1628; Kasturi Lal v. State of] & K,
AIR 1987 SC 1992; R.S. Dass v. Union of India, AIR 1987 SC 850 at 858; Ashok Kuinar Yadav
v. State of Haryana, AIR 1987 SC 454 at 468; Sheonandan Paswan v. State of Biliar, AIR 1987
SC 877; Vaidyanatli Malmpatra v. State of Orissa, AIR 1989 SC 2218; Neelima Mishtra v.
Harinder Knur, AIR 1990, SC 1402; Delhi Transport Corpn. v. D.T.C. Mazdoor (Congress), AIR
1991 SC 101; D.V. Bakshi v. Union of India, (1993) 3 SCC 663; O.K. Yadav v. f.M.A. Industries,
(1993) 3 SCC 258; Union of India v. W.N. Chadlm, AIR 1993 SC 1843; Union of India v. V.P.
Setlii, AIR 1994 SC 1261; Premium Granites v. State of Tamil Nadu, AIR 1994 SC 1233; Khedat
Mazdoor Cltetna Sangh v. State ofMP, AIR 1995 SC 31; M.f. Sivani v. State of Karnataka, AIR
1995 SC’l770; Lawyers Initiative Through RS Bains v. State of Punjab, AIR 1996 P & H 1;
Kammalapati Bralunmarao v. State of Karnataka, AIR 1996 Kar 37; Wariyam Singh v. State
ofU.P., AIR 1996 SC 305; }.N. Banavalikar v. Municipal Corpn. Delhi, AIR 1996 SC 326; Union
of India v. M/s. Jesus Sales Corprn. AIR 1996 SC 1508; Baburao Vishwananth Mathpati v. State,
AIR 1996 Bom 228; State Bank of Pntinhi v. S.K. Sltarma, AIR 1996 SC 1669.
Page 169
without curtailing the rights of the individual with supremacy of the

Constitution as expounded in the basic structure theory which
contain the cardinal principles of democracy, human rights and
social justice. The Constitution74 being more a social document
rather than political makes the legislature, the executive and the
judiciary for the advancement of liberties and welfare of the people
and the courts are to harmonise conflicts consistent with social
philosophy of the Constitution. Such a strand is echoed by Justice
Krishna Iyer when he remarked75 : ‗Our thesis is that dialectics of
social justice should not be missed if the synthesis of Part III and
Part IV is to influence State action and Court pronouncements.‘ The
Court has abandoned the initial hesitation when it failed to
recognise,76 the compatibility between Part III and Part IV by making
the former transcendental beyond the reach of the Parliament.
However since the days of Kesavananda Bharati it has been
consistently adopting the approach,77 that Fundamental Rights and
Directive Principles are supplementary and complimentary to each
other and that the provisions of Part III should be interpreted having
regard to the Preamble and the Directive Principles of State Policy.
The basic law of the country has adopted and accepted democracy
and liberty with social justice as the way of life. The judgments of the
Court only reflect and respect of collective judgement of the We the
People of India and their commitment to social, economic and
political democracy so that social justice and human rights are
effectively realised peacefully without violence through democratic
process. The architects of the Constitution, the Father of the Nation
74
Ragliunathrao Ganpatrao v. Union of India, AIR 1993 SC 1267 at 1305; R.C. Poudyal v. Union
of India, AIR 1993 SC 1804, R.K. Jain v. Union of India, AIR 1993 SC 1769.
75
State of Karnataka v. Ranganath Reddy, AIR 1978 SC 215 at 234.
76
Golak Nath v. State of Punjab, AIR 1967 SC 1643.
77
Maneka Gandhi v. Union of India, AIR 1978 SC 597; D.S. Nakara v. Union of India, AIR 1983
SC 130; Bandtma Mukti Morcha v. Union of India, AIR 1984 SC 802; Vincent v. Union of India,
AIR 1987 SC 990; A.R. Antulay v. R.S. Naik, AIR 1992 SC 1872, Unni Krislman v. State of A.P.,
AIR 1993 SC 2178; State of Maharashtra v. Manubliai P. Vashi, AIR 1996 SC 1.
Page 170
and makers of modern India had kept in mind the words of Mr Atlee,
the former Prime Minister of Britain when he remarked:
‗If a free society cannot help the many who are poor, it cannot save
the few who are rich.‘ Gandhian Talisman and Social Justice—Initial
Judicial Hurdles Of course, the Constitution fully reflects the
Gandhian ethos in its Preamble and Parts III and IV towards creation
of just and democratic society in India. By such a society Gandhiji
meant78 ‗...the levelling down of the few rich in whom is concentrated
the bulk of the nation‘s wealth, on the one hand, and levelling up the
semi-naked millions, on the other. A non-violent system of
government is clearly an impossibility so long as the wealth gulf
between the rich and the hungry million persists. The contrast
between the places of New Delhi and the miserable hovels of the
poor labouring class nearby cannot last a day in a free India in which
the poor will enjoy the same power of the riches in the land.‘ For the
alleviation of yawning gap between the rich and poor Gandhiji
suggested definite and humane policy indicators. As he put‘ 79 it: ‗I
will give you a talisman. Whenever you are in doubt or when the self
becomes too much with you, apply the following test. Recall the face
of the poorest and the weakest man whom you may have seen, and
ask yourself, if the step you contemplate is going to be of any use to
him. Will he gain anything by it? Will it restore him to control over his
own life and destiny. In other words, will it lead to Sivaraj for the
hungry and spiritually starving millions?
Then you will find your doubt and yourself melting away.‘
The Swaraj of Gandhiji‘s conception is truly enshrined in the

Preamble and parts III & IV of the Constitution. Such has been the
thrust of welfare legislation for socio-economic reforms in India since
1950 which led to several constitutional amendments for the
78
International Conference on Interpreting South African Bill of Rights, AIR Journal, Section 145
at 146, Oct. 1993.
79
Kashyap Sublmsli C. Human Rights and Parliament 94 Metropolitan Book Co New Delhi 1978.
Page 171
implementation of land reform measures which had been held up

because of fundamental right to property and equality. The
judgments,80 of the courts hindered agrarian reforms, nationalisation
of big industries and banking business and abolition of privy purses.
A conflict ensued between vested interests supported by the Courts
and the Government of India—the architect of social change and
social justice. The charge that the Supreme Court was insensitive to
the cause of common welfare and social justice programme came no
less than from the Prime Minister Jawaharlal Nehru himself as
agrarian statutes were struck down unconstitutional. So was the fate
of State Monopoly Bills and Nationalisation schemes which fell at the
altar of fundamental rights. As several schemes or legislative
measures—fiscal, agrarian, social and educational—invariably went
to the Court and no one could predict what this ‗third house‘ might
do. Accordingly Nehru exhorted the judges to come down from the
‗ivory tower‘ and sympathise with the legislatures which had to do a
thousand things urgently needed by an awakened but deprived
people. Like the criticism of U.S. Supreme Court as ‗nine-old men‘
by President Franklin Roosevelt Nehru echoed similar dig at the
Apex judiciary when he remarked81:
‗No Supreme Court and no judiciary can stand in the judgment over
sovereign will of Parliament representing the will of the entire
community. If we go wrong here and there, it can point out, but in the
ultimate analysis where the future of the community is concerned, no
judiciary can come in the way. And if it comes in the way, ultimately
the whole Constitution is a creature of the Parliament. ...it is obvious
that no system of judiciary can function in the nature of a third
house, as a kind of third house of correction.‘
80
Knmeshwnr v. State of Bihar, AIR 1951 Pat 91; State of West Bengal v. Subodli Capal, AIR
1954 SC 92, Dwarkadas v. Sliolapur Spinning & Weaving Co, AIR 1954 SC 119; Saghir Ahmed
v. State of U,P, , AIR 1954 SC 728, State of West Bengal v. Beta Banerjee, AIR 1954 SC 170;
State of Gujarat v. Slwnti Lal, AIR 1965 SC 1017; R.C. Cooper v. Union of India, AIR 1970 SC
564.
81
Krishna Iyer VR, Law and the People 172-173 Peoples Publishing House 1972 see also Iyer,
Krishna V.R. Some Half Hidden Aspects of Indian Social Justice 80-81 Eastern Book Co. 1979.
Page 172
However, the judiciary did not adopt a more modern liberal and
progressive outlook and declared,82 property as a sacrosanct
fundamental right resulting in making fundamental rights immutable,
transcendental and beyond the reach of Parliament. Subba Rao C.J.
declared83:‗We declare that Parliament will have no power from the
date of this decision to amend any provision of Part III of the
Constitution so as to take away or abridge the fundamental rights
enshrined therein‘. Since the amendments in the Constitution were
necessary to give effect to the purpose enshrined in the Preamble
and Directives of the Constitution but the Apex Court being
conservative came in the way of removal of poverty and in the
establishment of social justice. It appeared as if the Court was trying
to protect vested interests and becoming an obstacle in creation of
more humane and just social order as was evident in the Bank
Nationalisation84 case and Privy Purses,85 case. The main problem
before the Supreme Court during the 1950-71 was that it failed to
uphold, promote and establish social justice with democracy as
envisaged in the Constitution.
Supreme Court and Social Justice—A Copernican Change.
Hitherto the Supreme Court had been strucking down all the laws
and legislation meant for the amelioration of condition of rural and
urban poor. It appeared as if judiciary had failed in ensuring
distributive justice. A new generation of progressive judges came on
the scene who castigated Oxford-oriented judges who declared law.
illegal without regard to the social and economic consequences of
their decisions. Consequently hereafter laws enacted in furtherance
of the Directive Principles of State Policy contained in Article 39 (b)
and (c) were upheld against all attacks notwithstanding the basic
structure theory of Kesavananda Bharati. This period witnessed the
82
Golak Nath v. State of Punjab, AIR 1967 SC 1643.
83
Ibid., para 53.
84
R.C. Cooper v. Union of India, AIR 1970 SC 564.
85
Madhav Rao Scindia v. Union of India, AIR 1971 SC 530.
Page 173
emergence of new Indian jurisprudence with more socialist content

including the addition of the word ‗socialist‘ in the Preamble of the
Constitution in 1976 coupled with some progressive judges fully alive
to the cause of social justice and ever responsive to the social
philosophy of the Constitution. The founding fathers of Indian
Constitution too had envisaged,86 the Supreme Court ‗to be an arm
of social revolution‘ and the national goals enshrined therein were
addressed,87 as much to be judiciary as to the legislature and the
executive. As Krishna Iyer J. observed,88 ‗Our Constitution is a tryst
with destiny, preambled with luscent solemnity in the words ‗Justice-
social economic and political.‘ The three great branches of
Government, as creatures of the Constitution, must remember this
promise in their functional role and forget it at their peril, for to do so
will be a betrayal of those high values and goals which this nation
set for itself in its Objective Resolution and whose elaborate
summation is in Part IV of the paramount parchment...... While
contemplating the meaning of the Articles of the Organic Law, the
Supreme Court shall not disown social justice.‘ Consequently after
1976,89 there was a solemn commitment on the part of Supreme
Court to promote social change for bringing about a new egalitarian
order in furtherance of the Directive Principles of State policy. The
Supreme Court in Minerva Mills remarked90 :The significance of the
perception that Parts III and IV together constitute the core of
commitment to social revolution and they together, are the
conscience of the Constitution is to be traced to a deep
understanding of the scheme of the Indian Constitution...... They are
like a twin formula for achieving the social revolution.... The Indian
Constitution is founded on the
86
Austin, Granville, the Indian Constitution Cornerstone of a Nation, 164 1st Indian ed. 1972.
87
Per Hidayatullah J. (as then he was) in Colak Nath.
88
D.G. Mahajan v. State of Maharashtra, AIR 1977 SC 915 at 934.
89
State of Kerala v. N.M. Thomas, AIR 1976 SC 690.
90
Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789 at 1806-7.
Page 174
bedrock of the balance between Parts III and IV. To give absolute
primacy to one over the other is to disturb harmony of the
Constitution. This harmony and balance between Fundamental
Rights and Directive Principles is an essential feature of the basic
structure of the Constitution. Those rights are not an end in
themselves but are the means to an end. The end is specified in
Part IV.‘ Accordingly the Apex Court has been fully alive to the cause
of social justice and has been responsible to the claims to social
justice of the poor and disadvantaged persons.91 The sensitivity of
the contemporary, Indian judicial process to the social justice claims
of poors because of their exploitation at the hands of State,92 or
powerful sections,93 of the community the Supreme Court has been
successful in counteracting social injustice despite the criticism that
it has usurped the powers which rightly pertain to Executive and
Legislature. In the face of Himalayan poverty the Apex Court has not
waivered or looked back in advancing and promoting social justice to
the poor, the miserable and the weaker. In 1976 the Supreme Court
of India observed94. ‗Social Justice is the conscience of our
Constitution, the State is the promoter of economic justice, the
foundation faith which sustains the Constitution and the country.....
The Public Sector is a model employer with a social conscience not
an artificial person without a soul. Law and Justice must be on
talking terms and what matter under our constitutional scheme is not
merciless Law but Human legality. The true strength and stability of
our policy is in Social justice.‘
91
Municipal Council Ratlam v. Vardiclwnd, AIR 1980 SC 1622; ABSK v. Union of India, AIR
1981 SC 298; U.S. Nakara v. Union of India, AIR 1983 SC 130; K.C. Vasanth Kumar v. State of
Karnataka, AIR 1985 SC 1495; Olga Tellis v. Bombay Municipal Coloration, AIR 1986 SC 567;
Unni Krislman J.P. v. State of A.P., AIR 1993 SC 2178; State of Karnataka v. Appa Bull ‘nynle,
AIR 1993 SC 1126; Consumer Edu., Research Centre v. Union of India. AIH-1J95 SC 922.
92
State of Haryana v. Darshana Devi AIR 1979 SC 855; Women’s Resource Centre v.
Commissioner of Police, AIR 1990 SC 513.
93
Bishan Devi v. Sirbakash Singh, AIR 1979 SC 1862; State of Karnataka v. Appa Balu Ingale,
AIR 1993 SC.
94
State of Kerala v. Tliomas. AIR 1976 SC 490.
Page 175
Likewise in the same strain but with greater concern and vigour the
Supreme Court (K. Ramaswamy J.) expounds the new fabric of
social justice in the current social milieu of 1995. It declares95 : ―The
Preamble and Article 38 of the Constitution of India—the supreme
law envisions social justice as its arch to ensure life to be meaningful
and liveable with human dignity..... The Constitution commands
justice, liberty, equality and fraternity as supreme values to usher in
egalitarian social, economic and political democracy......Social
justice is a dynamic device to mitigate the sufferings of the poor,
weaks, Scheduled Castes (Dalits), Tribals and deprived sections of
society and to elevate them to the level of equality to live a life with
dignity of a person. Social justice is not a simple or single ideal of a
society but is an essential part of complex of social change to relieve
the poor etc. from handicaps, penury to ward off distress, and to
make their life liable, for greater good of society at large..... The
Constitution, therefore, mandates the State to accord justice to all
members of the society in all facets of human activity. The concepts
of social justice imbeds equality to flavour and enliven practical
content of ‗life‘. Social justice and equality are complimentary to
each other so that both should maintain their vitality. Rule of law,
therefore, is a potent instrument of social justice to bring about
equality in results.‘
7.8 SUMMARY

95
Consumer Education & Research Centre v. Union of India, AIR 1995 SC 923 at 938.
Page 176

social justice.
In this unit we have discussed about the concept of Dharma and the
concept of justice or Dharma in Indian thought. We have also
learned about the the meaning of Dharma and its foundation of legal
1. R.C. Cooper v. Union of India, AIR 1970 SC 564.

1
Madhav Rao Scindia v. Union of India, AIR 1971 SC 530.
1
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
1
Austin, Granville, the Indian Constitution Cornerstone of a Nation,
164 1st Indian ed. 1972.
1
Per Hidayatullah J. (as then he was) in Colak Nath.
1
D.G. Mahajan v. State of Maharashtra, AIR 1977 SC 915 at 934.
1
1
Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789 at 1806-7.
1
Municipal Council Ratlam v. Vardiclwnd, AIR 1980 SC 1622; ABSK
v. Union of India, AIR 1981 SC 298; U.S. Nakara v. Union of India,
AIR 1983 SC 130; K.C. Vasanth Kumar v. State of Karnataka, AIR
1985 SC 1495; Olga Tellis v. Bombay Municipal Coloration, AIR
1986 SC 567; Unni Krislman J.P. v. State of A.P., AIR 1993 SC
2178; State of Karnataka v. Appa Bull ‗nynle, AIR 1993 SC 1126;
Consumer Edu., Research Centre v. Union of India. AIH-1J95 SC
922.
1
State of Haryana v. Darshana Devi AIR 1979 SC 855; Women‘s
Resource Centre v. Commissioner of Police, AIR 1990 SC 513.
1
Bishan Devi v. Sirbakash Singh, AIR 1979 SC 1862; State of
Karnataka v. Appa Balu Ingale, AIR 1993 SC.
1
State of Kerala v. Tliomas. AIR 1976 SC 490.
1
Consumer Education & Research Centre v. Union of India, AIR
1995 SC 923 at 938.

Page 177
1
Articles 14,15,16,17,38,39,39A, 41,43A, 46,332 and 340.
1
AIR 1951 SC 226.
1
Balaji v. State of Mysore, AIR 1963 SC 469.
1
Devadasan v. Union of India, AIR 1964 SC 179.
1
1
ABSK(Sangh) Raihoay v. Union of India, AIR 1981 SC 298.
1
ABSK (Sangh) Railway v. Union of India, AIR 1981 SC 298.
1
Ibid.
1
K.C. Vasanth Kumar v. State of Karnataka, AIR 1985 SC, 1495.
1
K.C. Vasanth Kumar v. State ofKarnataka, AIR 1985 S.C. 1495 at
1529.
1
Ibid.
1
Indra Sawlmey v. Union of India, AIR 1993 SC 447.
1
Indra Snwlmey v. Union cf India, AIR 1993 SC 447 at 514.
1
Infra Sawhney v. Union of India, AIR 1993 SC 447 at 575.
1
Ibid., 577-78.
1
Ibid., 573.
1
e.g. Ashoka Kumar Thakur v. State of Bihar, (1995) 2 SCC 403
The Supreme Court quashing economic criteria laid down by Bihar
and U.P. Govt. for identifying ‗Creamy layers‘ amongst OBCs.
1
Indra Sawhney v. Union of India, AIR 1993 SC 477 at 593.
1. What is Dharma?
2. What do you understand by the concept of justice or Dharma
in Indian thought?
3. Explain the meaning of Dharma and its foundation of legal

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LL.M. Part-2

Unit-8- The concept and various theories of justice in the western
thought.
STRUCTURE
8.1 INTRODUCTION
8.2 OBJECTIVES
8.3 What is Western Concept of Justice?
8.4.Various western theories of justice
8.5 SUMMARY

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8.1 INTRODUCTION
In the previous unit you have read about the meaning and concept
of Dharma and the concept of justice or Dharma in Indian thought.
You have also learned about the Dharma and its foundation of legal
The notion of justice varies with time and place. What is just at a
particular given time has not been generally considered at another.
What should be good or right or just at a particular epoch is
conditioned by social milieu and moral ethos of each community.
Hence, search for justice is an eternal quest and no attempt to
delineate its contour can succeed. Nevertheless this concept
continues to be of abiding interest of thinkers and philosophers, jurist
and judges. At every interval of human history we find competing
formulations and enunciations of theories of justice. Philosophers
have been measuring in terms of distribution according to merit,
capacity or need or in conformity to custom or equal opportunity for
self development, utility or morality or as balancing of interest or felt-
necessities of the people etc. There is no unanimity among thinkers
as to what ‗justice is?
In this unit we will discuss about the concept and various theories of
justice in the western thought.
8.2 OBJECTIVES
 Understand the concept of justice.

 Describe various theories of justice in the western thought.

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8.3 What is Western Concept of Justice?
Justice 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,‖ offering the word ―fair‖ as a synonym. But
philosophers want to get beyond etymology and dictionary
definitions to consider, for example, the nature of justice as both a
moral virtue of character and a desirable quality of political society,
as well as how it applies to ethical and social decision-making. This
article will focus on Western philosophical conceptions of justice.
These will be the greatest theories of ancient Greece (those of Plato
and Aristotle) and of medieval Christianity (Augustine and Aquinas),
two early modern ones (Hobbes and Hume), two from more recent
modern times (Kant and Mill), and some contemporary ones (Rawls
and several successors). Typically the article considers not only
their theories of justice but also how philosophers apply their own
theories to controversial social issues—for example, to civil
disobedience, punishment, equal opportunity for women, slavery,
war, property rights, and international relations.
For Plato, justice is a virtue establishing rational order, with each
part performing its appropriate role and not interfering with the
proper functioning of other parts. Aristotle says justice consists in
what is lawful and fair, with fairness involving equitable distributions
and the correction of what is inequitable. For Augustine, the cardinal
virtue of justice requires that we try to give all people their due; for
Aquinas, justice is that rational mean between opposite sorts of
injustice, involving proportional distributions and reciprocal
transactions. Hobbes believed justice is an artificial virtue,
necessary for civil society, a function of the voluntary agreements of
the social contract; for Hume, justice essentially serves public utility
by protecting property (broadly understood). For Kant, it is a virtue
whereby we respect others‘ freedom, autonomy, and dignity by not
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interfering with their voluntary actions, so long as those do not

violate others‘ rights; Mill said justice is a collective name for the
most important social utilities, which are conducive to fostering and
protecting human liberty. Rawls analyzed justice in terms of
maximum equal liberty regarding basic rights and duties for all
members of society, with socio-economic inequalities requiring moral
justification in terms of equal opportunity and beneficial results for
all; and various post-Rawlsian philosophers develop alternative
conceptions.Western philosophers generally regard justice as the
most fundamental of all virtues for ordering interpersonal relations
and establishing and maintaining a stable political society. By
tracking the historical interplay of these theories, what will be
advocated is a developing understanding of justice in terms of
respecting persons as free, rational agents. One may disagree
about the nature, basis, and legitimate application of justice, but this
is its core.
Justice—relative and varying ideal
The notion of justice varies with time and place. What is just at a
particular given time has not been generally considered at another.
What should be good or right or just at a particular epoch is
conditioned by social milieu and moral ethos of each community.
Hence, search for justice is an eternal quest and no attempt to
delineate its contour can succeed. Nevertheless this concept
continues to be of abiding interest of thinkers and philosophers, jurist
and judges. At every interval of human history we find competing
formulations and enunciations of theories of justice. Philosophers
have been measuring in terms of distribution according to merit,
capacity or need or in conformity to custom or equal opportunity for
self development, utility or morality or as balancing of interest or felt-
necessities of the people etc. There is no unanimity among thinkers
as to what ‗justice is? Lord Wright asserts that justice is what

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appears just to a reasonable man. In this regard he declares,96 ‗I am

not afraid of being accused of sloppiness of thought when I say that
the guiding principle of a judge in deciding cases is to do justice; that
is justice according to law, but still justice. I have not found any
satisfactory definition of justice... What is just in any particular case
appears to be just to the just man, in the same way as what is
reasonable is what appears to be reasonable to the reasonable
man.‘ Hans Kelsen similarly pin-points the difficulty in defining the
eternal question: what justice is? He says97:
‗No other question has been discussed so passionately, no other

question has caused so much precious blood and so many bitter
tears to be shed, no other question has been the object of so much
intensive thinking by the most illustrious from Plato to Kant, and yet
this question is today as unanswered as it ever was. It seems that it
is one of those questions to which the resigned wisdom applies that
man cannot find a definite answer, but only try to improve the
question.‘ The ancient Indians, Greeks and Romans had postulated
justice as an ideal standard derived from God or based on Dharnia,
truth equality, righteousness and similar higher moral values of
lasting validity. It is an eternal moral obligation to render everyone
his due—the noblest ideal of all human laws. In the narrow or
practical sense justice signify a cluster of ideals and principles for
common good and welfare without the least hope or opportunity of
injustice, inequality an discrimination. For instance, Magna Carta—
the great Charter of human liberty is the first example which people
of England wrested from John the King of England on June 15, 1215
who was threatening their liberty, rights and other freedoms. The
King promised: ―To no one will we sell, or to no one will we deny or
delay right or justice.‘ During Renaissance and Reformation to
control power oriented sovereigns varying social contract theories
were propounded as the basis of new social order founded on

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justice and natural rights of man. French philosopher Pascal insisted

that justice and power must be brought together, so that whatever is
just way be powerful and whatever powerful may be just.‘ Sydney
Smith likewise highlighting the importance of justice observed; ―The
only way to make mass of mankind see the beauty of justice is by
showing them, in pretty plain terms the consequences of injustice.
During eighteenth and nineteenth centuries a series of thinkers like
David Hume, Mills, Spencer, Bentham and Kropotkin have been
expounding the concept of justice in terms of desirable purposes,
interests or values. Similarly, the great statemen and national
leaders and thinkers from Abraham Lincoln to Jawaharlal Nehru,
Marx to Mao and Mahahna to Rev. Martin Luther King Jr. have been
blazing the trail of justice, equality and liberty for, the ‗lowliest,
poorest and the lost‘. During the latter half of the twentieth century
under the aegis of U.N. Declaration of Human Rights 1948 and
under the provisions of the Constitutions which were enacted in the
post World War II period the basic fundamental human rights and
the claims to justice, equality, human dignity, non-discrimination etc.
have assumed national and international recognition and
enforcement. Indeed the expanding horizon and explosion of claims
to justice—social, political and economic cover the whole spectrum
of humane development. It is now fully realised that the lasting
peace can be established only if it is based upon social justice and
poverty anywhere constitutes a danger to prosperity everywhere.
Accordingly through the plank of human rights philosophy and
jurisprudence there is a concerted attempt to build bridges of
understanding between men and among nations based upon justice
and equal rights. The Tehran Conference on Human Rights 1966
candidly admitted when it declared.98 ‗In our day, political rights
without social rights, justice under law without social justice, and
political democracy without economic democracy no longer have any
meaning.‘

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When the world community is on the threshold of the twenty first

century determined to build a new world order based on justice and
human rights it is obligatory and binding to incorporate and
implement it ‗through legal and political process in order to avoid and
escape human catastrophy and national and global holocaust. All
people and societies must reflect on the problem of realisation of
justice and heed the prophetic warning sounded by Robert Ingersol
when he observed.99 ‗A government founded on anything except
liberty and justice cannot stand. All the wrecks of great cities and all
the nations that have passed away—all are a warning that no nation
founded upon injustice can stand. From the sand enshrouded Egypt,
and from every fallen or crumbling stone of the once mighty Rome,
comes a wail as it wail, the cry that no nation founded on injustice
can permanently stand.‘ Similarly, Gandhiji had underscored the
need of establishing a just society where there would be no rich and
no poor, no high, none low in India. Such a Ramrajya or Swarajya of
his conception was necessary ideal for India‘s survival as an
independent and vibrant nation. Thus declared Gandhiji:100 ‗I shall
work for an India in which the poorest shall feel that it is their country
in whose making they have an effective voice, an India in which
there shall be no high class and low class of people; an India in
which all communities shall live in perfect harmony....... There can
be no room in such India or the curse of untouchability or the curse
of intoxicating drinks and drugs...... Women will enjoy the same
rights as men...... This is the India of my dream.‘ Jawaharlal Nehru
too highlighted the paramount need of social justice which must be
Mantra for resolving India‘s chronic poverty. He told the Constituent
Assembly:101 ―The service of India means the service of the millions
who suffer. It means the ending of poverty and ignorance and
disease and inequality of opportunity. The ambition of the greatest
man of our generation has been to wipe every tear from every eye.

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That may be beyond us, but as long as there are tears and suffering
so long our work will not be over.‘
Justice—Legal meaning
The notion of Justice is comparatively more ancient than that of law.

The Latin form of the term justice is Justus or justia and it is from
these terms that the word jus is derived having varying meanings
such as truth, morality, righteousness, equality, fairness, mercy,
impartiality, Tightness, law etc. This expression is again cognate
with justum—meaning what is ordered. In Roman law it means right,
justice or law. In ancient Indian law and Dharma (justice) were not
distinct concepts. In Dharmasastras, Smritis and Arthasastra the
concept of justice, law and religion were not distinguished and
invariably justice,102 was equated to Dharma and vice-versa.
Likewise in Mosaic law of Israel,103 the idea of justice and law are
inextricably interwoven. The classical legal definition of justice mean
rendering every one his own-sumumcuique tribuere. But what is
rightly any body‘s own is precisely the problem of law which it should
determine according to some principle of equality or equality before
law. That has to be administered justly, fairly and faithfully without
bias or partiality. It also means that delay of justice but equality is the
core norm which sustains and upholds justice. It is also the legal
criterion for judging a law as good or just law otherwise it would be
jungle law or mastsyanyana. Prof. Hart too considers justice as ‗a
distinct segment of morality‘ to which the law must conform. He
quotes St. Augustine : ‗What are States without justice but rubber-
bands enlarged? However, justice according to Jethrow Brown
means a mere conformity to law. To Rudolf Von Ihering,104 and Kant
law is a scheme to realise justice as something inherent in the very
constitution and structure of law. Stammler too maintains that ‗all
positive law is an attempt to the just law.‘

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The concept of justice is of imponderable import and has been the

watchword of all major social and political reform movements since
time immemorial. All social thinkers from Plato to Gandhiji and
others have been making supreme endless efforts in quest of justice
in order to abolish injustice, tyranny and exploitation. All their
energies whether material, mental or moral have been devoted to
the sole cause of justice ..... States whether ancient or modern,
capitalists or socialists, democratic or authoritarian have been self-
proclaiming to be guided and governed by the yard scales of justice
and take pride in being styled as a just state with just law and just
social order. However, what is ‗justice‘ is an imponderable problem.
Justice is generally equated with truthfulness, righteousness,
goodness, equality, mercy, charity etc. and all these expressions
being relative and vague have been eulogised universally as worthy
of emulation and application in the ordering of human relations.
However, what constitutes ‗justice‘ at a particular time and place is
not definite. The standard of reasonableness, truth, and justice has
to be measured necessarily on the basis of such shared values
which are common to mankind. Therefore, justice is that makes man
to live honestly, not to injure any one and to give every one his due.
As such justice is not a mere fantasy but a necessary and desirable
goal of law and society. For, Bible says ‗Husband justice so that you
may garner peace‘. ‗Blessed‘ it says : ‗are they that hunger and thirst
after justice.‘ It repeats ―Justice, Justice, shalt thou pursue.‘
Moreover, the need for providing justice to poor and rich, weak and
powerful alike, is not a modern problem alone.105 People of all ages
and places have never ceased to hope and survive for it. It
exhorts106 : ‗Ye shall do no unrighteousness in judgement : thou
shalt not respect the person of the poor, nor honour the person of
the mighty : but in righteousness shalt thou judge thy neighbour.‘

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Justice is both an objective reality as well as an abstract quality

outside and within the realm of law involving values and reality,
ethics and morality, equality and liberty, individual freedom and
social control conditioned by the need of individual good and
community interest. It is Janus,107 like concept looking both to past
and future conserving and reforming. It is the credo of all societies
ancient or modern, capitalists or socialists for both of them the moral
issues revolve round justice or injustice—‘ that is freedom versus
bread, liberty versus equality and right versus duty. Of course justice
cannot be defined as the interest of the stronger as defined by a
Greek thinker Thrasymachu,108 nor it is a device to eliminate the
chasm between ‗is‘ and ‗ought‘ nor it can be a completely senseless
idea as described by Lundstedt,109 or an irrational idea as
observed110 by Hans Kelsen.
8.4. Various western theories of justice
a. Plato
Plato‘s masterful Republic (to which we have already referred) is

most obviously a careful analysis of justice, although the book is far
more wide-ranging than that would suggest. Socrates, Plato‘s
teacher and primary spokesman in the dialogue, gets critically
involved in a discussion of that very issue with three interlocutors
early on. Socrates provokes Cephalus to say something which he
spins into the view that justice simply boils down to always telling the
truth and repaying one‘s debts. Socrates easily demolishes this
simplistic view with the effective logical technique of a counter-
example: if a friend lends you weapons, when he is sane, but then
wants them back to do great harm with them, because he has
become insane, surely you should not return them at that time and

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should even lie to him, if necessary to prevent great harm.

Secondly, Polemarchus, the son of Cephalus, jumps into the
discussion, espousing the familiar, traditional view that justice is all
about giving people what is their due. But the problem with this
bromide is that of determining who deserves what. Polemarchus
may reflect the cultural influence of the Sophists, in specifying that it
depends on whether people are our friends, deserving good from us,
or foes, deserving harm. It takes more effort for Socrates to destroy
this conventional theory, but he proceeds in stages: (1) we are all
fallible regarding who are true friends, as opposed to true enemies,
so that appearance versus reality makes it difficult to say how we
should treat people; (2) it seems at least as significant whether
people are good or bad as whether they are our friends or our foes;
and (3) it is not at all clear that justice should excuse, let alone
require, our deliberately harming anyone (Republic, pp. 5-11; 331b-
335e). If the first inadequate theory of justice was too simplistic, this
second one was downright dangerous. The third, and final,
inadequate account presented here is that of the Sophist
Thrasymachus. He roars into the discussion, expressing his
contempt for all the poppycock produced thus far and boldly
asserting that justice is relative to whatever is advantageous to the
stronger people (what we sometimes call the ―might makes right‖
theory). But who are the ―stronger‖ people? Thrasymachus cannot
mean physically stronger, for then inferior humans would be superior
to finer folks like them. He clarifies his idea that he is referring to
politically powerful people in leadership positions. But, next, even
the strongest leaders are sometimes mistaken about what is to their
own advantage, raising the question of whether people ought to do
what leaders suppose is to their own advantage or only what
actually is so. (Had Thrasymachus phrased this in terms of what
serves the interest of society itself, the same appearance versus
reality distinction would apply.) But, beyond this, Socrates rejects
the exploitation model of leadership, which sees political superiors
as properly exploiting inferiors (Thrasymachus uses the example of
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a shepherd fattening up and protecting his flock of sheep for his own
selfish gain), substituting a service model in its place (his example is
of the good medical doctor, who practices his craft primarily for the
welfare of patients). So, now, if anything like this is to be accepted
as our model for interpersonal relations, then Thrasymachus
embraces the ―injustice‖ of self-interest as better than serving the
interests of others in the name of ―justice.‖ Well, then, how are we to
interpret whether the life of justice or that of injustice is better?
Socrates suggests three criteria for judgment: which is the smarter,
which is the more secure, and which is the happier way of life; he
argues that the just life is better on all three counts. Thus, by the
end of the first book, it looks as if Socrates has trounced all three of
these inadequate views of justice, although he himself claims to be
dissatisfied because we have only shown what justice is not, with no
persuasive account of its actual nature (ibid., pp. 14-21, 25-31;
338c-345b, 349c-354c). Likewise, in Gorgias, Plato has Callicles
espouse the view that, whatever conventions might seem to dictate,
natural justice dictates that superior people should rule over and
derive greater benefits than inferior people, that society artificially
levels people because of a bias in favor of equality. Socrates is then
made to criticize this theory by analyzing what sort of superiority
would be relevant and then arguing that Callicles is erroneously
advocating injustice, a false value, rather than the genuine one of
true justice (Gorgias, pp. 52-66; 482d-493c; see, also, Laws, pp.
100-101, 172; 663, 714 for another articulation of something like
Thrasymachus‘ position). In the second book of Plato‘s Republic, his
brothers, Glaucon and Adeimantus, take over the role of primary
interlocutors. They quickly make it clear that they are not satisfied
with Socrates‘ defense of justice. Glaucon reminds us that there are
three different sorts of goods—intrinsic ones, such as joy, merely
instrumental ones, such as money-making, and ones that are both
instrumentally and intrinsically valuable, such as health—in order to
ask which type of good is justice. Socrates responds that justice
belongs in the third category, rendering it the richest sort of good. In
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that case, Glaucon protests, Socrates has failed to prove his point.
If his debate with Thrasymachus accomplished anything at all, it
nevertheless did not establish any intrinsic value in justice. So
Glaucon will play devil‘s advocate and resurrect the Sophist position,
in order to challenge Socrates to refute it in its strongest form. He
proposes to do this in three steps: first, he will argue that justice is
merely a conventional compromise (between harming others with
impunity and being their helpless victims), agreed to by people for
their own selfish good and socially enforced (this is a crude version
of what will later become the social contract theory of justice in
Hobbes); second, he illustrates our allegedly natural selfish
preference for being unjust if we can get away with it by the haunting
story of the ring of Gyges, which provides its wearer with the power
to become invisible at will and, thus, to get away with the most
wicked of injustices—to which temptation everyone would, sooner or
later, rationally succumb; and, third, he tries to show that it is better
to live unjustly than justly if one can by contrasting the unjust person
whom everyone thinks just with the just person who is thought to be
unjust, claiming that, of course, it would be better to be the former
than the latter. Almost as soon as Glaucon finishes, his brother
Adeimantus jumps in to add two more points to the case against
justice: first, parents instruct their children to behave justly not
because it is good in itself but merely because it tends to pay off for
them; and, secondly, religious teachings are ineffective in
encouraging us to avoid injustice because the gods will punish it and
to pursue justice because the gods will reward it, since the gods may
not even exist or, if they do, they may well not care about us or, if
they are concerned about human behavior, they can be flattered
with prayers and bribed with sacrifices to let us get away with
wrongdoing (Republic, pp. 33-42; 357b-366e). So the challenge for
Socrates posed by Plato‘s brothers is to show the true nature of
justice and that it is intrinsically valuable rather than only desirable
for its contingent consequences.

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In defending justice against this Sophist critique, Plato has Socrates

construct his own positive theory. This is set up by means of an
analogy comparing justice, on the large scale, as it applies to
society, and on a smaller scale, as it applies to an individual soul.
Thus justice is seen as an essential virtue of both a good political
state and a good personal character. The strategy hinges on the
idea that the state is like the individual writ large—each comprising
three main parts such that it is crucial how they are interrelated—and
that analyzing justice on the large scale will facilitate our doing so on
the smaller one. In Book IV, after cobbling together his blueprint of
the ideal republic, Socrates asks Glaucon where justice is to be
found, but they agree they will have to search for it together. They
agree that, if they have succeeded in establishing the foundations of
a ―completely good‖ society, it would have to comprise four pivotal
virtues: wisdom, courage, temperance, and justice. If they can
properly identify the other three of those four, whatever remains that
is essential to a completely good society must be justice. Wisdom is
held to be prudent judgment among leaders; courage is the quality in
defenders or protectors whereby they remain steadfast in their
convictions and commitments in the face of fear; and temperance (or
moderation) is the virtue to be found in all three classes of citizens,
but especially in the producers, allowing them all to agree
harmoniously that the leaders should lead and everyone else follow.
So now, by this process-of-elimination analysis, whatever is left that
is essential to a ―completely good‖ society will allegedly be justice. It
then turns out that ―justice is doing one‘s own work and not meddling
with what isn‘t one‘s own.‖ So the positive side of socio-political
justice is each person doing the tasks assigned to him or her; the
negative side is not interfering with others doing their appointed
tasks. Now we move from this macro-level of political society to the
psychological micro-level of an individual soul, pressing the analogy
mentioned above. Plato has Socrates present an argument
designed to show that reason in the soul, corresponding to the
leaders or ―guardians‖ of the state, is different from both the
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appetites, corresponding to the productive class, and the spirited

part of the soul, corresponding to the state‘s defenders or
―auxiliaries‖ and that the appetites are different from spirit. Having
established the parallel between the three classes of the state and
the three parts of the soul, the analogy suggests that a ―completely
good‖ soul would also have to have the same four pivotal virtues. A
good soul is wise, in having good judgment whereby reason rules; it
is courageous in that its spirited part is ready, willing, and able to
fight for its convictions in the face of fear; and it is temperate or
moderate, harmoniously integrated because all of its parts,
especially its dangerous appetitive desires, agree that it should be
always under the command of reason. And, again, what is left that
is essential is justice, whereby each part of the soul does the work
intended by nature, none of them interfering with the functioning of
any other parts. We are also told in passing that, corresponding to
these four pivotal virtues of the moral life, there are four pivotal
vices, foolishness, cowardice, self-indulgence, and injustice. One
crucial question remains unanswered: can we show that justice,
thus understood, is better than injustice in itself and not merely for its
likely consequences? The answer is that, of course, we can
because justice is the health of the soul. Just as health is
intrinsically and not just instrumentally good, so is justice; injustice is
a disease—bad and to be avoided even if it isn‘t yet having any
undesirable consequences, even if nobody is aware of it (ibid., pp.
43, 102-121; 368d, 427d-445b; it can readily be inferred that this
conception of justice is non-egalitarian; but, to see this point made
explicitly, see Laws, pp. 229-230; 756-757). Now let us quickly see
how Plato applies this theory of justice to a particular social issue,
before briefly considering the theory critically. In a remarkably
progressive passage in Book V of his Republic, Plato argues for
equal opportunity for women. He holds that, even though women
tend to be physically weaker than men, this should not prove an
insuperable barrier to their being educated for the same socio-
political functions as men, including those of the top echelons of
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leadership responsibility. While the body has a gender, it is the soul

that is virtuous or vicious. Despite their different roles in procreation,
child-bearing, giving birth, and nursing babies, there is no reason, in
principle, why a woman should not be as intelligent and virtuous—
including as just—as men, if properly trained. As much as possible,
men and women should share the workload in common (Republic,
pp. 125-131; 451d-457d). We should note, however, that the
rationale is the common good of the community rather than any
appeal to what we might consider women‘s rights. Nevertheless,
many of us today are sympathetic to this application of justice in
support of a view that would not become popular for another two
millennia. What of Plato‘s theory of justice itself? The negative part
of it—his critique of inadequate views of justice—is a masterful
series of arguments against attempts to reduce justice to a couple of
simplistic rules (Cephalus), to treating people merely in accord with
how we feel about them (Polemarchus), and to the power-politics
mentality of exploiting them for our own selfish purposes
(Thrasymachus). All of these views of a just person or society
introduce the sort of relativism and/or subjectivism we have identified
with the Sophists. Thus, in refuting them, Plato, in effect, is refuting
the Sophists. However, after the big buildup, the positive part—what
he himself maintains justice is—turns out to be a letdown. His
conception of justice reduces it to order. While some objective
sense of order is relevant to justice, this does not adequately
capture the idea of respecting all persons, individually and
collectively, as free rational agents. The analogy between the state
and the soul is far too fragile to support the claim that they must
agree in each having three ―parts.‖ The process-of-elimination
approach to determining the nature of justice only works if those four
virtues exhaust the list of what is essential here. But do they?
What, for example, of the Christian virtue of love or the secular virtue
of benevolence? Finally, the argument from analogy, showing that
justice must be intrinsically, and not merely instrumentally, valuable
(because it is like the combination good of health) proves, on critical
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consideration, to fail. Plato‘s theory is far more impressive than the

impressionistic view of the Sophists; and it would prove extremely
influential in advocating justice as an objective, disinterested value.
Nevertheless, one cannot help hoping that a more cogent theory
might yet be developed.
b. Aristotle
After working with Plato at his Academy for a couple of decades,

Aristotle was understandably most influenced by his teacher, also
adopting, for example, a virtue theory of ethics. Yet part of
Aristotle‘s greatness stems from his capacity for critical
appropriation, and he became arguably Plato‘s most able critic as
well as his most famous follower in wanting to develop a credible
alternative to Sophism. Book V of his great Nicomachean Ethics
deals in considerable depth with the moral and political virtue of
justice. It begins vacuously enough with the circular claim that it is
the condition that renders us just agents inclined to desire and
practice justice. But his analysis soon becomes more illuminating
when he specifies it in terms of what is lawful and fair. What is in
accordance with the law of a state is thought to be conducive to the
common good and/or to that of its rulers. In general, citizens should
obey such law in order to be just. The problem is that civil law can
itself be unjust in the sense of being unfair to some, so that we need
to consider special justice as a function of fairness. He analyzes this
into two sorts: distributive justice involves dividing benefits and
burdens fairly among members of a community, while corrective
justice requires us, in some circumstances, to try to restore a fair
balance in interpersonal relations where it has been lost. If a
member of a community has been unfairly benefited or burdened
with more or less than is deserved in the way of social distributions,
then corrective justice can be required, as, for example, by a court of
law. Notice that Aristotle is no more an egalitarian than Plato was—
while a sort of social reciprocity may be needed, it must be of a

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proportional sort rather than equal. Like all moral virtues, for
Aristotle, justice is a rational mean between bad extremes.
Proportional equality or equity involves the ―intermediate‖ position
between someone‘s unfairly getting ―less‖ than is deserved and
unfairly getting ―more‖ at another‘s expense. The ―mean‖ of justice
lies between the vices of getting too much and getting too little,
relative to what one deserves, these being two opposite types of
injustice, one of ―disproportionate excess,‖ the other of
disproportionate ―deficiency‖ (Nicomachean, pp. 67-74, 76; 1129a-
1132b, 1134a). Political justice, of both the lawful and the fair sort, is
held to apply only to those who are citizens of a political community
(a polis) by virtue of being ―free and either proportionately or
numerically equal,‖ those whose interpersonal relations are
governed by the rule of law, for law is a prerequisite of political
justice and injustice. But, since individuals tend to be selfishly
biased, the law should be a product of reason rather than of
particular rulers. Aristotle is prepared to distinguish between what is
naturally just and unjust, on the one hand, such as whom one may
legitimately kill, and what is merely conventionally just or unjust, on
the other, such as a particular system of taxation for some particular
society. But the Sophists are wrong to suggest that all political
justice is the artificial result of legal convention and to discount all
universal natural justice (ibid., pp. 77-78; 1134a-1135a; cf. Rhetoric,
pp. 105-106; 1374a-b). What is allegedly at stake here is our
developing a moral virtue that is essential to the well-being of
society, as well as to the flourishing of any human being. Another
valuable dimension of Aristotle‘s discussion here is his treatment of
the relationship between justice and decency, for sometimes
following the letter of the law would violate fairness or reasonable
equity. A decent person might selfishly benefit from being a stickler
regarding following the law exactly but decide to take less or give
more for the sake of the common good. In this way, decency can
correct the limitations of the law and represents a higher form of
justice (Nicomachean, pp. 83-84; 1137a-1138a).
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In his Politics, Aristotle further considers political justice and its

relation to equality. We can admit that the former involves the latter
but must carefully specify by maintaining that justice involves
equality ―not for everyone, only for equals.‖ He agrees with Plato
that political democracy is intrinsically unjust because, by its very
nature, it tries to treat unequals as if they were equals. Justice
rather requires inequality for people who are unequal. But, then,
oligarchy is also intrinsically unjust insofar as it involves treating
equals as unequal because of some contingent disparity, of birth,
wealth, etc. Rather, those in a just political society who contribute
the most to the common good will receive a larger share, because
they thus exhibit more political virtue, than those who are inferior in
that respect; it would be simply wrong, from the perspective of
political justice, for them to receive equal shares. Thus political
justice must be viewed as a function of the common good of a
community. It is the attempt to specify the equality or inequality
among people, he admits, that constitutes a key ―problem‖ of
―political philosophy.‖ He thinks we can all readily agree that political
justice requires ―proportional‖ rather than numerical equality. But
inferiors have a vested interest in thinking that those who are equal
in some respect should be equal in all respects, while superiors are
biased, in the opposite direction, to imagine that those who are
unequal in some way should be unequal in all ways. Thus, for
instance, those who are equally citizens are not necessarily equal in
political virtue, and those who are financially richer are not
necessarily morally or mentally superior. What is relevant here is
―equality is according to merit,‖ though Aristotle cannot precisely
specify what, exactly, counts as merit, for how much it must count,
who is to measure it, and by what standard. All he can suggest, for
example in some of his comments on the desirable aristocratic
government, is that it must involve moral and intellectual virtue
(Politics, pp. 79, 81, 86, 134, 136, 151, 153; 1280a, 1281a, 1282b,
1301a-1302a, 1307a, 1308a).

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Let us now consider how Aristotle applies his own theory of justice to
the social problem of alleged superiors and inferiors, before
attempting a brief critique of that theory. While Plato accepted
slavery as a legitimate social institution but argued for equal
opportunity for women, in his Politics, Aristotle accepts sexual
inequality while actively defending slavery. Anyone who is inferior
intellectually and morally is properly socio-politically inferior in a well-
ordered polis. A human being can be naturally autonomous or not,
―a natural slave‖ being defective in rationality and morality, and thus
naturally fit to belong to a superior; such a human can rightly be
regarded as ―a piece of property,‖ or another person‘s ―tool for
action.‖ Given natural human inequality, it is allegedly inappropriate
that all should rule or share in ruling. Aristotle holds that some are
marked as superior and fit to rule from birth, while others are inferior
and marked from birth to be ruled by others. This supposedly
applies not only to ethnic groups, but also to the genders, and he
unequivocally asserts that males are ―naturally superior‖ and
females ―naturally inferior,‖ the former being fit to rule and the latter
to be ruled. The claim is that it is naturally better for women
themselves that they be ruled by men, as it is better for ―natural
slaves‖ that they should be ruled by those who are ―naturally free.‖
Now Aristotle does argue only for natural slavery. It was the custom
(notice the distinction, used here, between custom and nature) in
antiquity to make slaves of conquered enemies who become
prisoners of war. But Aristotle (like Plato) believes that Greeks are
born for free and rational self-rule, unlike non-Greeks (―barbarians‖),
who are naturally inferior and incapable of it. So the fact that a
human being is defeated or captured is no assurance that he is fit for
slavery, as an unjust war may have been imposed on a nobler
society by a more primitive one. While granting that Greeks and
non-Greeks, as well as men and women, are all truly human,
Aristotle justifies the alleged inequality among them based on what
he calls the ―deliberative‖ capacity of their rational souls. The natural
slave‘s rational soul supposedly lacks this, a woman has it but it
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lacks the authority for her to be autonomous, a (free male) child has
it in some developmental stage, and a naturally superior free male
has it developed and available for governance (ibid., pp. 7-11, 23;
1254a-1255a, 1260a).This application creates a helpful path to a
critique of Aristotle‘s theory of justice. If we feel that it is unjust to
discriminate against people merely on account of their gender and/or
ethnic origin, as philosophers, we try to identify the rational root of
the problem. If our moral intuitions are correct against Aristotle (and
some would even call his views here sexist and racist), he may be
mistaken about a matter of fact or about a value judgment or both.
Surely he is wrong about all women and non-Greeks, as such, being
essentially inferior to Greek males in relevant ways, for cultural
history has demonstrated that, when given opportunities, women
and non-Greeks have shown themselves to be significantly equal.
But it appears that Aristotle may also have been wrong in leaping
from the factual claim of inequality to the value judgment that it is
therefore right that inferiors ought to be socially, legally, politically,
and economically subordinate—like Plato and others of his culture
(for which he is an apologist here), Aristotle seems to have no
conception of human rights as such. Like Plato, he is arguing for an
objective theory of personal and social justice as a preferable
alternative to the relativistic one of the Sophists. Even though there
is something attractive about Aristotle‘s empirical (as opposed to
Plato‘s idealistic) approach to justice, it condemns him to the
dubious position of needing to derive claims about how things ought
to be from factual claims about the way things actually are. It also
leaves Aristotle with little viable means of establishing a universal
perspective that will respect the equal dignity of all humans, as
such. Thus his theory, like Plato‘s, fails adequately to respect all
persons as free, rational agents. They were so focused on the ways
in which people are unequal, that they could not appreciate any
fundamental moral equality that might provide a platform for natural
human rights.

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Stammler‘s Principles of Justice
Stammler classifies the principles of justice into two categories,

namely, the principles of respect and the principles of participation.
The first category has to do with respect for human person, while the
second has to do with means of existence.
The principles of respect are :
1. The will of one person must not be made subject to the

arbitrary will of another.
2. Every legal demand can only be maintained in so far as the

person obligated can still remain his own neighbour.
The principles of participation are:
1. No member of a legal community shall be arbitrarily excluded

from it.
2. Every power of disposing can be exclusive only to the extent

that the person excluded can still remain his own neighbour.
To remain one‘s own neighbour means in the first context, to

maintain one‘s human dignity, and, in the second context, to be able
to maintain his existence as a human being. As justice involves
manifold ideals and principles its forms are also chaotic such as,
legal justice, natural justice, moral justice social justice, political
justice, democratic justice, totalitarian justice, racial justice,
distributive justice, cumulative justice, personal justice and public
justice. These divisions are not exhaustive but merely illustrative and
are mentioned only to emphasise the problem in understanding the
nature and content of justice. Similarly, various theories have been
propounded to explain the genesis or nature of justice. For instance,
J.S. Mill remarks :

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‗Justice implies something which is not only right to do, and wrong
not to do, but which some individual person can claim from us as his
moral right. No one has a moral right to our generosity or
beneficence because we are not morally bound to practise those
virtues towards any given individual.‘
Thus, utilitarian philosophers like Hume and Bentham consider

utility—the greatest good of the greatest number—as the sole origin
of justice. However, the utilitarian thinkers overlook the interest of
the individual who should also receive his due as his interests are
not accommodated by the theory of utility. Hence, John Rawls
contractual theory comes in recognition to the claims of individual
with his right to dignity and inviolability of person founded on justice
which even the welfare state cannot over-ride.
The Contractual Theory of Justice—John Rawls
As already stressed John Rawls contractual theory of justice merged

to remedy to deficiencies of utilitarianism. He sums up his
dissatisfaction with utilitarianism as he observes:111
‗If then we believe that as a matter of principle each member of the

society, has an inviolability founded on justice which even the
welfare of every one else cannot override, and that a loss of freedom
for some is not made right by a greater sum of satisfactions enjoyed
by many we shall have to look for another account of principles of
justice.‘ Indeed John Rawls contractual theory of justice is a
recognition that utilitarianism cannot accommodate the firm
conviction that ‗each person possesses an inviolability founded on
justice that even the welfare of society as whole cannot override.‘ To
replace utilitarian concept Rawls proposes the general conception of
justice112:

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‗All social primary goods—liberty and opportunity, income and

wealth, and the bases of self respect—are to be distributed equally
unless an unequal distribution of any or all of these goods is to the
advantage of the least favoured.To be more precise, Rawls‘ concept
of justice is expressed in the following two principles113:
1. Each person is to have an equal right to the most

extensive basic liberty for others.
2. Social and economic inequalities are to be arranged so

that they are both—
i. to the greatest benefit of the least advantaged,

and
ii. attached to the offences and positions open to all

under condition of fair equality of opportunity.
Hans Kelsen—Justice irrational ideal
Like John Austin and other positivists Hans Kelsen too wanted to
free law from social sciences which had widened the boundaries of
jurisprudence. To him a theory of law must be free from ethics,
politics, sociology, history etc., it must be in other words ‗pure‘ (rein).
He, therefore, attempted to insulate the positive law from every kind
of natural law, justice and ideology. Pure theory of law is a theory of
positive law which endeavours to answer the question, what is the
law? But not the question, what ought to be law? Justice connotes
an absolute value. Its content cannot be ascertained by Pure Theory
of Law. However, to Kelsen most questions of justice pertain to the
domain of ethics and religion which are unanalysable. Hence, he
observes114:

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To determine whether this or that order is ‗just‘ is not possible.

Justice is an irrational ideal. It is not viable by reason? But Kelsen
would not deny the weighing of factors as a worthwhile moral
exercise. He remarks,115 ―The view that moral principles constitute
only relative values does not mean that they constitute no value at
all, it means that there is no moral system, but that there are several
different ones, and that, consequently, a choice must be made
among them. Thus relativism imposes upon the individual the
difficult task of deciding for himself what is right or what is wrong.
Thus, of course, implies a very serious responsibility, the most
serious moral responsibility a man can assume. If men were too
weak to bear this responsibility, they shift it to an authority above
them, and in the last instance to God.‘
Hart‘s Positivism—Theory of Justice
Professor Hart too has rejected the traditional imperative theory of

law like a gunman backed by threats being inadequate and unjust.
Instead he defines law as a union of primary and secondary rules
thereby making morality or justice as a necessary component of law
via rule of recognition. Hart is aware that sometimes cases arise that
are not fully covered by any law. This is due in large measure to
what he calls the ‗open texture of law‘ the ‗penumberal‘ areas in
every rule of law where it is not clear what the rule requires or
whether it applies at all in borderline cases. In such situations or
cases Hart says judges have limited discretion or freedom to decide
to look outside the law for standards to guide them in supplementing
old legal rules or creating new ones according to their own individual
or community‘s ideal of morality or justice. In short, justice is a
complex and dynamic concept which was well-known to Plato and
Aristotle and evidently remains the goal of contemporary and even
of future communities—a ‗just man‘ a ‗just law‘ and a ‗just
government‘. It would be unwise to structure social ordering backed

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by coercive legal action and that would be unfair, arbitrary and

unjust. However, therefore, is the quality of justice which can be
achieved by reason and wisdom by giving equal access to all to
seek justice as of right without delay or denial in conformity to the
laws. Krishna Iyer J. rightly observes116: ‗Law is a means to an end
and justice is that end. Law and justice are distant neighbours,
sometimes even strange hostiles. If law shoots justice the people
shoot down law and lawlessness paralyses development, disrupt
order and retards progress.‖
Perception of Justice—Major strands
Justice is the ideal which has been the undying craze of Kings and
commoners, philosophers and poets, saints and statesmen social
reformers and thinker‘s, judges and jurists for establishing a humane
society founded on liberty and equality, universal harmony and
peace. The pursuit of justice is a fascinating exercise which directly
or indirectly contain within it the whole plethora of jurisprudence and
the panoramic insights of world‘s philosophy and religions. Like the
modern Constitutions the codes of ancient people vividly reflect their
commitment of justice. The great King of Babylon Hammurabi (2124-
2083 B.C.) proclaimed ‗to establish justice in the world to destroy the
bad and the evil, to stop the strong exploiting the weak, to develop
knowledge and welfare of the people.‘ The Code of Manu
constructed between 200 B.C. and A.D. 200 the first legal code of
Hindus enshrines both philosophy of life and of law with special
stress on morality, danda (punishment) and justice. With regard to
justice Manu declares: ‗Justice being violated, destroys; justice being
preserved, preserves; therefore, justice must not be violated lest
violated justice destroys us.
Gautama Siddhartha (563-483 B.C.) propounds his Eight-fold

path,117 to lay down the foundations of a just society.The Chinese

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sage Confucius also envisaged certain moral virtues to be followed

by the king and his subject in order to established good government
necessary for justice.The Western philosophers like Plato, Aristotle,
Ulpian etc. expounded with great distinction the meaning, concept
and philosophy of justice and have analysed the close relation
between law and justice. The modern thinkers, jurists and
philosophers too have speculated on the idea of justice, the ends of
law and the means to secure justice. To sum up like the story of God
the story of justice is a continuous and a never ending exercise for it
being the foundation of moral-cum-legal and social ordering. For
what is law but the enforcement of justice amongst men. Therefore,
an attempt is made herein to unveil some of the major strands of
justice as conceived by different philosophers and thinkers in
different periods, cultures and civilisations.
8.8 SUMMARY
Justice is the ideal which has been the undying craze of Kings and
commoners, philosophers and poets, saints and statesmen social
reformers and thinker‘s, judges and jurists for establishing a humane
society founded on liberty and equality, universal harmony and
peace. The pursuit of justice is a fascinating exercise which directly
or indirectly contains within it the whole plethora of jurisprudence
and the panoramic insights of world‘s philosophy and religions.
In this unit we have discussed about the concept of justice in the
western thought.

1
Future of Common Law
1
Quoted by Iyer VR Krishna, of Law and Life 79 Vikas Publishing
House, 1979.
1
Pratap, Subhas, International Workshop on Human Rights AIR
Journal 113 at 114 August 1992.

Page 205
1
Quoted by Ranganath Mishra C.J. in All India Judges Association
v. Union of India, AIR 1992 SC 165 at 177.
1
Deshpande, M.S. Light of India—Message of Maliatma, 172 Wilco
Pub. House 1950.
1
Iyer, VR Krishna, Human Rights and the Law, Vedpal Law House,
1994.
1
Sen-Gupta, NC, Evolution of Ancient Indian Law, 336 Calcutta,
1954.
1
Julius Stone, Human Law and Human Justice, 22.
1
Hart, HLA, The Concept of Law, 152-53 :1972.
1
Wu, John CH, Cases and Materials on Jurisprudence, 482, West
Publishing Co. 1958.
1
Ibid.
1
It is a mythological God of the Greeks having two opposite faces so
that he could look in opposite directions at the same time.
1
Bodenheimer, Edgar, Jurisprudence, 178,1951.
1
50 Law. Q. Rev. 474; W. Bishin & CD Stone, Law, Language and
Ethics 39 New York 1952.
1
Quoted from Miller, David, Social Justice, 40,1976.
1
Ibid., 40-41.
1
Rawls, John, A Theory of Justice, 303 Oxford 1972.
1
Pure Theory of Law, 50 L.Q.R. 474 at 482.
1
What is Justice? 22 (1971).
1
All India Judges‘ Association v. Union of India, AIR 1992 SC 165 at
176.
1
e.g. Right views; Right aspirations; Right speech; Right conduct,
Right livelihood. Right effort, Right mindfulness and Right
contemplation.
1. What do you understand by the concept of justice?

2. Describe various theories of justice in the western thought?

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LL.M. Part-2

Unit-9-Various theoretical bases of justice: the liberal contractual
tradition, the liberal; utilitarian tradition and the liberal moral tradition
STRUCTURE
9.1 INTRODUCTION
9.2 OBJECTIVES
9.3 Various theoretical basis of Justice
9.4. The liberal Contractual tradition
9.5 The liberal Utilitarian tradition
9.6 Liberal Moral tradition
9.7 SUMMARY

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9.1 INTRODUCTION
In the previous unit you have read about the concept of justice in the
western thought. The Roman concept of justice is at variance with
Greek—the former being legalistic than philosophical. Romans
identified law and justice and viewed justice as the goal or law and
society. The Roman notion of justice as set-forth in Justinian‘s
Corpus Juris is based on Ulpian‘s definition who in turn derived the
meaning of justice from Cicero. According to Ulpain ‗Justice is the
constant and perpetual will, to render every one his due‘. That is,
justice is giving to each man what is proper to him. In fact, ‗what is
due‘ to each person (sum cuique) was not laid down in fixed terms
and being relative was to change from time to time according to
requirements of differents states.In this unit we will discuss about
various theoretical bases of justice: the liberal contractual tradition,
the liberal; utilitarian tradition and the liberal moral tradition.
9.2 OBJECTIVES
 Understand Various theoretical bases of justice

 Understand the liberal contractual tradition, the liberal;
utilitarian tradition and the liberal moral tradition
9.3 Various theoretical basis of Justice
GREEK AND INDIAN VIEW OF JUSTICE
Plato‘s philosopher king as guardian of citizens‘ liberty freedom and

moral order is an exercise in justice. In fact Plato Republic is
generally believed to be a discussion on justice. H rejects the
legalistic view that ‗justice is the giving to each man what is proper to
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him‘. To Plato, justice is harmony of man‘s in life or with body politic.

Harmony, according to Plato, is the quality of justice and it is to be
achieved by reason and wisdom presiding over desires and keeping
them in place wit indispensable aid of temperance and courage.
Problem of Justice—Aristotle
A more realistic analysis and interpretation of justice is found in

Aristotle which has been subsequently followed by St. Thomas
Aquinas and Del Vecchio in his work on Justice. For Aristotle in his
Nicomachean Ethics, justice,118 is ‗a moral state‘ : ‗...that in virtue of
which the just man is said to be a doer, by choice, of that which is
just‘. Or again,119 a ‗state of character which makes people dispose
to do what is just and makes them act justly and wish for what just‘.
In functional legal sense justice according to him consists in ‗some
sort of equality‘. It consists in establishing proportionate equality
both on need and Merit basis. It is not merely a particular virtue but
an imperative requisite for welfare of the State. He enunciated the
doctrine of justice as giving equal share to equal persons and
unequal share to unequal persons. What he meant by this is that
benefits and responsibilities should be proportionate to worth and
ability of those who receive them. As Aristotle puts it ‗if flutes are to
be disturbed, they should go only to those who have a capacity for
flute playing and similarly a share in ruling should be given only to
those who are capable of rule‘. It follows geometrical proportion i.e.
sharing of benefits and profits on the basis of comparative merit or
worth.
Distributive and Corrective Justice
Aristotle in his Nicomachean Ethics divides justice according to law

into two kinds—distributive and corrective. In modern legal language
they are respectively understood as social justice and penal or
118
The Words of Aristotle by W.D. Ross (1954) Vol. IX, p. 1134.
119
Ibid., p. 106.
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criminal justice. Distributive justice deals with distribution of honour

or money or other things and corrective justice is that which deals
with maintenance of status quo by protecting the things wrongfully
taken and restoring the goods to individual so wronged. Thus what
he calls distributive justice is ‗equal things should be given to equal
persons and unequal things to unequal persons‘. Distributive justice
as such is based on worth, merit or ability. The other type of justice
in Aristotelian sense is corrective justice (or remedial or cumulative
justice) which requires the restoration of things of one person owes
to another, the reparation of loss caused to another and restitution in
cases of unjust enrichment. It follows arithmetical proportion i.e.
sharing of profits or losses or injury on equal basis. Thus,
arithmetical equality gives equal share to all alike irrespective of
worth. In the language of Aristotle it gives equal shares both to
equals and unequals or to echo Jeremy Bentham, it says that ‗every
body is to count for one, nobody for more than one‘. Aristotle
regards this as mistaken principle which he would replace to
geometrical proportionate equality by treating equals alike and not
discriminating between them on any ground as they are placed on
the same footing.
Roman Concept of Justice
The Roman concept of justice is at variance with Greek—the former

being legalistic than philosophical. Romans identified law and justice
and viewed justice as the goal or law and society. The Roman notion
of justice as set-forth in Justinian‘s Corpus Juris is based on Ulpian‘s
definition who in turn derived the meaning of justice from Cicero.
According to Ulpain ‗Justice is the constant and perpetual will, to
render every one his due‘. That is, justice is giving to each man what
is proper to him. In fact, ‗what is due‘ to each person (sum cuique)
was not laid down in fixed terms and being relative was to change
from time to time according to requirements of differents states.
Christian Era : Notion of Justice

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Ulpain‘s definition of justice was followed in the Christian era during

the middle ages. Justice was regarded at all times as a quality of will
and purpose. But it was not until the rise of the Church fathers that
justice became to be identified with the will of God. Sfe Augustine
thought that there can be no justice if it is not based upon Christian
law of God as well as the law of nature. It was this absolute standard
which St. Augustine provided for measuring justice or injustice.
However, it was St. Thomas Aquinas who modified the medieval
concept of justice and once again founded justice both an
Aristotelian and Ciceroian principles by emphasising that law is an
expression of human reason for the purpose of achieving justice. All
human laws which are contrary to reason are unjust and have no
force. Therefore, according to St. Thomas, the judge in seeking to do
justice many times has to look beyond the written law to equity which
the legislator desired to attain. St. Thomas had departed from the
Churchmen who had identified law as an expression of justice based
on Christian God. He, thereby, secularised law and justice which he
founded upon reason.
Utilitarian Concept of Justice
According to Utilitarian thinkers like Hume, Bentham and James Mill

the problem of common good and general interest is also an
important aspect of justice. Justice is defined by them with reference
to the principle of ‗the greatest good of greatest number.‘ Public
utility as such is the sole origin, justification and criteria of justice.
The above Hedonistic Calculus became the major standard during
the nineteenth and twentieth centuries and even in the twenty-first
century for determining the contours of justice including egalitarian
or social justice. The notion of ‗purpose1 or ‗end‘ of justice the arch-
point of utility is similar to Plato‘s idea of justice to promote
goodness, virtues, pleasures and to avoid sin, evil, pain and
unhappiness. Such a view of utility is morally good which ought to be
pursued as the supreme end of life and law.

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Justice—Gandhian Theory
Gandhi‘s life is a saga of fighting injustice, tyranny and inequality in

order to establish a new socio-economic order based on truth,
equality and non-exploitation. He fought racialism in South Africa
and imperial British rulers in India because both of these evils were
contrary to the principles of human liberty, dignity and equality. His
crusade for the liberation of oppressed classes in India is the
testimony of his commitment to equality and social justice. In short,
he was against all kinds of unjust social, economic and political
order. He believed in the supremacy of ethical values and
Sarvodaya (the good of all) which inculcates the virtues of truth, love
and justice towards all human beings. The roots of justice and truth
originate from the Yajurveda which says:
‗Isavasyamidam Sarva Yat Kimchit jagatyam jagat
Tena tyaktena bhunjitha, ma gradha Kasyasvid dhanam?
‗It means God pervades this moving world and all the changing
phenomena. So enjoy it by renouncing it and covet not anybody‘s
wealth.‘Adhering to such philosophy of human equality and justice
for all, Gandhi spiritualised politics, economic and social philosophy
and advocated socialism by wise renunciation of wealth. He
subscribed to the Marxian formula ‗to each according to his needs,‘
to be translated by love and not violence, by persuasion and not by
coercion. He would not allow coercion or sanction to make people
good. His theory of ^ l^ffft TflT: (or goods of all beings) is opposed to
Marxian theory of class-struggle, Benthamite theory of greatest good
of the greatest number. Like Plato‘s Republic Gandhi believed in
Ramrajya—or the Kingdom of Righteousness on earth. Hence, non-
co-operation with evil and passive resistance to injustice and unjust
social and political order is the cardinal feature of Gandhian justice.
Non-Co-operation and passive-resistance are the means in

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Gandhian scheme for establishing liberty and justice for the

exploited oppressed mankind.
To Gandhi the ancient Hindu law giver Manu was great sinner
whose legal philosophy polluted the Hindu mind in regard to position
of women and Harijans ignoring the basic tenets of Hindu social
thoughts of equality and human dignity. The just cause of women
and Harijans was very dear to him and he fought for their mukti
(emancipation). According to Gandhi,120: ‗Untouchability, as it is
practised in Hinduism today is, in my opinion, a sin against God and
man and is, therefore, like poison slowly eating into the very vitals of
Hinduism. In my opinion, it has no sanction whatsoever in Hindu
Shastras taken as a whole‘. In short, Gandhi‘s mission in life was a
mission for justice— to seek justice for all the weak, the poor and the
oppressed — be it labour, women, or untouchables. His crusade
against cowslaughter, prohibition, child marriage etc. has been
solely guided to secure justice, equality and dignity to millions of
Indians who had been denied justice for centuries. He rightly
remarks he is one who is experimenting the use of soul force for
battling with the wrong and misery in this world. ‗My soul refuses to
be satisfied‘, says Gandhi,121 ‗so long as it is a helpless witness of a
single wrong. I know that I shall never know God if I do not wrestle
with and against evil, even at the cost of life itself. My mission,
therefore, is to teach by example and precept the use of matchless
weapon of Satyagraha. We may use this weapon in any sphere of
life and to get redress of any grievance. The weapon purifies one
who uses it, as against whom it is used.‘
9.4. The liberal Contractual tradition
Contractual Theory of Justice

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In the fifteenth and sixteenth centuries because of religious wars and

political uncertainty led to resurgence of Reformation and
Renaissance culminating in the natural rights and freedoms of
individuals as well as of States. This new political philosophy was
ushered by Jean Bodin and Thomas Hobbes who in their search for
justice enunciated the doctrine that Justice is the keeping of
covenants‘. Law during this period became an expression of
people‘s agreement or contract or will and had their approbation in
the form of varying social contracts entered into to achieve justice.
Rousseau declared that justice could be found only in the State in
which political authority rests upon the force of opinion which is
really public and general. The theories of social contract and their
modus operandi are made to seek justice and to maintain order and
peace in society.
Human Liberty—An aspect of Justice
Herbert Spencer and Immanuel Kant linked the ideal of justice with
human freedom and liberty. Spencer described the essence of
justice in his celebrated doctrine ‗every man is free to do that which
he wills provide he infringes not the equal freedom of any other
man‘. To him expansion of individual liberty and sanctity of contract
were necessary concomitants of justice. Kant also preferred liberty in
place of equality for determining the matrix of justice. He interpreted
justice in terms conformity with Categorical Imperative—i.e. Act in
such a way that the maxim of your action can be made the maxim of
an universal law general action.‘ Rudolf Stammler carried further the
Kantian idea of justice which according to him is possible within a
community of free willing individuals conditioned by place and time.
Hence, ideal of justice varies with timer and place. Stammler
classifies the principles of justice into two categories—the principles
of respect and the principles of participation. The first category has
to do with respect for human person, while the second has to do with
means of existence. It is in this spirit that the framers of the

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Constitution of U.S.A. understood the concept of justice. The authors

of Federalist declared ‗Justice is the end of government and it is the
end of civil society‘. The realisation of justice involves the ceaseless
task of subordinating the selfish interest of each part of the people to
the common and permanent interests of the whole society. While
initially the framers of the Constitution thought that the core problem
of achieving justice is the preservation of human liberty it is only in
the subsequent period that maintenance of equality and preservation
of liberty have become indispensable requirements for achieving
true justice.
9.5 The liberal Utilitarian tradition
(1) Utilitarianism
A society, according to Utilitarianism, is just to the extent that its laws

and institutions are such as to promote the greatest overall or
average happiness of its members. How do we determine the
aggregate, or overall, happiness of the members of a society? This
would seem to present a real problem. For happiness is not, like
temperature or weight, directly measurable by any means that we
have available. So utilitarians must approach the matter indirectly.
They will have to rely on indirect measures, in other words. What
would these be, and how can they be identified? The traditional idea
at this point is to rely upon (a) a theory of the human good (i.e., of
what is good for human beings, of what is required for them to
flourish) and (b) an account of the social conditions and forms of
organization essential to the realization of that good. People, of
course, do not agree on what kind of life would be the most
desirable. Intellectuals, artists, ministers, politicians, corporate
bureaucrats, financiers, soldiers, athletes, salespersons, workers: all
these different types of people, and more besides, will certainly not
agree completely on what is a happy, satisfying, or desirable life.
Very likely they will disagree on some quite important points.

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All is not lost, however. For there may yet be substantial agreement-
-enough, anyway, for the purposes of a theory of justice --about the
general conditions requisite to human flourishing in all these
otherwise disparate kinds of life. First of all there are at minimum
certain basic needs that must be satisfied in any desirable kind of
life. Basic needs, says James Sterba, are those needs "that must be
satisfied in order not to seriously endanger a person's mental or
physical well-being." Basic needs, if not satisfied, lead to lacks and
deficiencies with respect to a standard of mental and physical well-
being. A person's needs for food, shelter, medical care, protection,
companionship, and self-development are, at least in part, needs of
this sort. [Sterba, Contemporary Social and Political Philosophy
(Belmont, CA: Wadsworth Publishing Co., 1995). A basic-needs
minimum, then, is the minimum wherewithal required for a person to
meet his or her basic needs. Such needs are universal. People will
be alike in having such needs, however much they diverge in regard
to the other needs, desires, or ends that they may have. We may
develop this common ground further by resorting to some of
Aristotle's ideas on this question of the nature of a happy and
satisfying life. Aristotle holds that humans are rational beings and
that a human life is essentially rational activity, by which he means
that human beings live their lives by making choices on the basis of
reasons and then acting on those choices. All reasoning about what
to do proceeds from premises relating to the agent's beliefs and
desires. Desire is the motive for action and the practical syllogism
(Aristotle's label for the reasoning by which people decide what to
do) is its translation into choice. Your choices are dictated by your
beliefs and desires--provided you are rational. Such choices, the
reasoning that leads to them, and the actions that result from them
are what Aristotle chiefly means by the sort of rational activity that
makes up a human life. We may fairly sum up this point of view by
saying that people are "rational end-choosers."

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If Aristotle is at all on the right track, then it is clear that a basic-

needs minimum is a prerequisite to any desirable kind of life, and
further that to live a desirable kind of life a person must be free to
determine his or her own ends and have the wherewithal--the
means, the opportunities--to have a realistic chance of achieving
those ends. (Some of these Aristotelian points are perhaps implicitly
included in Sterba's list of basic needs, under the head of self-
development.) So what does all this do for Utilitarianism? Quite a lot.
We have filled in some of item (a) above: the theory of the human
good, the general conditions essential to a happy or desirable life.
The Utilitarian may plausibly claim to be trying to promote the overall
happiness of people in his society, therefore, when he tries to
improve such things as rate of employment, per capita income,
distribution of wealth and opportunity, the amount of leisure, general
availability and level of education, poverty rates, social mobility, and
the like. The justification for thinking these things relevant should be
pretty plain. They are measures of the amount and the distribution of
the means and opportunities by which people can realize their
various conception of a desirable life. With these things clearly in
mind the Utilitarian is in a position to argue about item (b), the sorts
of social arrangements that will deliver the means and opportunities
for people to achieve their conception of a desirable life. John Stuart
Mill, one of the three most important 19th century Utilitarians (the
other two were Jeremy Bentham and Henry Sidgwick), argued that
freedom or liberty, both political and economic, were indispensable
requisites for happiness. Basing his view upon much the same
interpretation of human beings and human life as Aristotle, Mill
argued that democracy and the basic political liberties--freedom of
speech (and the press), of assembly, of worship--were essential to
the happiness of rational end-choosers; for without them they would
be prevented from effectively pursuing their own conception of a
good and satisfying life. Similarly he argued that some degree of
economic prosperity--wealth--was indispensable to having a realistic
chance of living such a life, of realizing one's ends.
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So, according to Utilitarianism, the just society should be so

organized in its institutions--its government, its laws, and its
economy--that as many people as possible shall have the means
and opportunity to achieve their chosen conception of a desirable
life. To reform the institutions of one's society toward this goal, in the
utilitarian view, is to pursue greater justice. Some of the institutions
that utilitarians have championed over the years are:
(1) A public education system open to all and funded by public
money, i.e., taxes.
(2) A competitive, "free" market economy. In the 19th century

utilitarians often argued for a laissez faire capitalist economy. More
recently some of them have argued for a "mixed" economy, i.e., a
state regulated market system. Mill, interestingly, argued at the
beginning of the 19th century for an unregulated capitalist economy,
but at the end argued for a socialist economy (which is not the same
thing as a "mixed economy").
(3) The protection of the sorts of liberties that were guaranteed in the
United States by the Bill of Rights in our Constitution.
(4) Democratic forms of government generally.
The utilitarian rationale for each of these institutional arrangements
should be fairly obvious, but it would probably contribute significantly
to our understanding of utilitarianism to review, in more detail, some
utilitarian arguments for (2) "free" market capitalism. This we shall do
later, in the next section. What do you think a Utilitarian would say
about universal medical care? Would he or she be for it or against it?
What about affirmative action programs, anti-hate crime legislation,
welfare, a graduated income tax, anti-trust laws? For or against?
What would decide the issue for a utilitarian?
(2) Utilitarianism and Competitive Capitalism The key claim about
market capitalism for the utilitarian is that free, unregulated markets
efficiently allocate resources--chiefly labor and capital--in the
production of goods.

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By a market is meant only any pattern of economic activity in which

buyers do business with sellers. In the classical system of
economics competition is presupposed among producers or sellers.
Toward the end of the nineteenth century writers began to make
explicit...that competition required that there be a considerable
number of sellers in any trade or industry in informed communication
with each other. In more recent times this has been crystallized into
the notion of many sellers doing business with many buyers. Each is
well informed as to the prices at which others are selling and buying-
-there is a going price of which everyone is aware. Most important of
all, no buyer or seller is large enough to control or exercise an
appreciable influence on the common price.The notion of efficiency
as applied to an economic system is many-sided. It can be viewed
merely as a matter of getting the most for the least....There is also
the problem of getting the particular things that are wanted by the
community in the particular amounts in which they are wanted. In
addition, if an economy is to be efficient some reasonably full use
must be made of the available, or at least the willing, labor supply.
There must be some satisfactory allocation of resources between
present and future production--between what is produced for
consumption and what is invested in new plant and processes to
enlarge future consumption. There must also be appropriate
incentive to change; the adoption of new and more efficient methods
of production must be encouraged. Finally--a somewhat different
requirement and one that went long unrecognized--there must be
adequate provision for the research and technological development
which brings new methods and new products into existence. All this
makes a large bill of requirements.
The peculiar fascination of the competitive model was that, given its
particular form of competition--that of many sellers, none of whom
was large enough to influence the price--all the requirements for
efficiency, with the exception of the very last, were met. No
producer...could gain additional revenue for himself by raising or
otherwise manipulating his price. This opportunity was denied to him
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by the kind of competition which was assumed, the competition of

producers no one of whom was large enough in relation to all to
influence the common price. He could gain an advantage only by
reducing costs. Were there even a few ambitious men in the
business he would have to do so to survive, for if he neglected his
opportunities others would seize them. If there are already many in a
business it can be assumed that there is no serious bar to others
entering it. Given an opportunity for improving efficiency of
production, those who seized it, and the imitators they would attract
from within and without [the industry in question], would expand
production and lower prices. The rest, to survive at the these lower
prices, would have to conform to the best and most efficient
practices. In such a manner a Darwinian struggle for business
survival concentrated all energies on the reduction of costs and
prices. In this model, producer effort and consumer wants were also
effectively related by the price that no producer and no consumer
controlled or influenced. The price that would just compensate some
producer for added labor, or justify some other cost, was also the
one which it was just worth the while of some consumer to pay for
the product in question. Any diminution in consumer desire for the
item would be impersonally communicated through lower price to
producers. By no longer paying for marginal labor or other
productive resources the consumer would free these resources for
other employment on more wanted products. Thus energies were
also efficiently concentrated on producing what was most desired.
When the taste of the consumer waned for one product it waxed for
another; the higher price for the second product communicated to
the producers in that industry the information that they could
profitably expand their production and employment. They took in the
slack that had been created in the first industry. [John Kenneth
Galbraith, in American Capitalism, Revised Edition (Cambridge, MA:
Houghton-Mifflin Company, 1956), pp. 14, 17, 18, 19]

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I have quoted this at length because of the clarity, compactness, and

absence of technicalities in its explanation of the role of competition
in classical economic theory. For purposes of argument I shall now
extract some of the salient points from these passages.
The kind of competition in question here, "pure competition," exists
in a market if and only if it meets the following conditions:
(1) There are sufficient numbers of buyers and sellers so that no
single firm by itself can affect the prices it pays suppliers or the
prices it charges its buyers, regardless of how much or little it
produces.
(2) There are no entry or exit barriers to the market, i.e., the market
is one into which new firms can move with ease and out of which
unsuccessful firms can easily exit.
(3) The outputs or products of the firms competing in the market are
undifferentiated.
When pure competition exists in a market, when, that is, the market
meets conditions (1)-(3), then the following important consequences
will follow:
(4) Resources--chiefly capital and labor--will be efficiently employed:
they will be used to produce goods at the lowest possible prices, and
there will be adequate incentive for producers to do this and to seek
more efficient (cheaper) methods of production.
(5) Resources will be efficiently allocated: the "particular things that
are wanted by the community" will be provided "in the particular
amounts in which they are wanted." For, again, producers have
adequate incentives to accommodate to consumer demand.
(6) Reasonably full employment for all willing workers will be
maintained.
It should be clear why an economy of pure competition would
recommend itself to utilitarians. Such a form of economic
organization would provide the goods that consumers wanted, at the
prices at which consumers were willing to pay for them, and in the
quantities in which they were wanted; and in doing so it would create
the needed employment for all willing workers. It would do so
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because it provided adequate pecuniary incentives to producers to

accommodate consumer preferences. The competition among
producers for greater profit would--"as if by an invisible hand," Adam
Smith said--bring about a situation that was good for the society in
general, and not just for the individual producers.
(3) Objections to the Utilitarian Argument for Unregulated
Competition
It should be noted that the conditions (1)-(3) for pure competition are
an idealization. They have rarely been jointly met in fact. But where
they are not all realized, it cannot be argued that the operation of the
market is guaranteed to yield the beneficent consequences (4)-(6).
Writing in the mid-nineteen fifties, Galbraith noted that "in the
production of motor vehicles, agricultural machinery, rubber tires,
cigarettes, aluminum, liquor, meat products, copper, tin containers
and office machinery the largest three firms in 1947 did two thirds or
more of all business" (ibid., p. 39). For other products, "steel, glass
industrial chemicals, and dairy products, the largest six accounted
for two thirds" (ibid.). The situation has changed somewhat over the
intervening half century; you would not find the same list of firms at
the top of these industries now as then. There have been mergers
and buyouts, and international competition has increased. But the
basic fact of a few large firms dominating the market has not
changed in these industries.
When there is great consolidation within an industry, condition (1) is
obviously violated: there will no longer be sufficiently many sellers
doing business with sufficiently many sellers. But condition (2)
typically is no longer satisfied either. Very large firms in an industry
will have been able to take advantage of economies of scale;
production, to be competitive, will have to proceed on a comparable
scale. Thus there will be very high start-up costs--a considerable
barrier to the entry of new firms into the industry. The few giants that
dominate the industry will have some control over the quantity of
production and hence over prices.

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All this is easy to see in the extreme case: the case of monopoly, of
one firm in the industry. The monopolist has no competitors, a
condition that could not last for long if there were not significant
barriers to the entry of new firms. Without competition the monopolist
will have considerable control over the quantity of production and
hence over his prices. Indeed he can be expected, so far as he is
able, to decide on the quantity of production by determining at what
quantity he can achieve the maximum profit. This is quite different
from the case of pure competition in which no producer has control
over his prices. For in that case the market sets them, by the laws of
supply and demand. If the firms currently in the industry cannot meet
demand or cannot meet it fast enough, prices will sharply rise. This
will attract new firms to the market; supply will thus increase and
prices decrease. Prices will eventually stabilize when, roughly, the
costs of expanding production are no longer covered by the going
price. A word should be said about condition (3): product
differentiation, or rather the lack thereof. In one of the standard
textbook examples the product is corn, the producers the corn
growers. The product is undifferentiated; that is, the identity of the
producer, the grower, is not discernible or identifiable from the
product itself. It is therefore not a determinant of consumer
preference or therefore price (though modern salesmanship,
specifically advertising, has striven to make at least some of the
characteristics of the producer relevant to price even for agricultural
products). At the opposite extreme, where it has been for some time,
is the market for automobiles. Product differentiation is very
advanced in this case. Different makes and models of automobiles
have long been important to consumer behavior. For some luxury
cars the identity of the producing firm (e.g., Rolls Royce) has, all by
itself, an appeal--a snob appeal--that significantly affects consumer
preference. Something similar holds for clothing. In its effects on the
economists' efforts to create a general theory of price product
differentiation is a tremendous complication; it brings in a host of
further motives, besides price, for consumer demand. To my
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knowledge there is no sound general theory of price determination

for products that are differentiated. It remains an open area of
research. The significance of product differentiation for the utilitarian
argument in favor of competitive markets is that with product
differentiation there is no guarantee that competition in such markets
will drive down prices or lead to technical improvements in
production. Competition is more apt to drive producers to diversify or
develop their line of products. And here we reach the threshold of
another problem for the utilitarian argument; namely, that firms in
such markets cannot always be plausibly regarded as producing in
response to prior, or independently existing, consumer demand.
Rather they sometimes are more plausibly regarded as attempting,
through advertising and salesmanship, to create consumer demand.
For the utilitarian, if not for the ordinary economist, this raises
questions about the urgency or importance of the consumer demand
that firms seek to satisfy. For it is no longer a demand that exists
independently of the process of production itself. Firms would
appear, in the relevant cases, to be endeavoring to satisfy demands
that they themselves have to some extent created and that would
not exist independently of their efforts. Now a new question can
arise as to the desirability of that demand. If the demand is no longer
a given, we may wonder whether it might not be better if there were
no such demand. Perhaps it would be better if, instead of trying to
stimulate demand for the products, we devoted our resources to
other ends. These objections merely touch on much larger issues
about the nature of the modern economy, which in its main parts
does not fit the classical picture.
(4) Problems for Utilitarianism
The objections, just reviewed, to the Utilitarian Argument in favor of
competitive markets are not objections to Utilitarianism itself. They
reveal no fault in Utilitarianism but only with a certain argument that
presupposes Utilitarianism. The fault revealed is in the argument's
assumption that the modern economy consists of markets in which
there is pure competition. I want now to consider an objection to
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Utilitarianism itself as a theory of justice. Utilitarians look at the

means or opportunities available to people to achieve the kinds of
lives they find desirable. Let us introduce the term "utility" for all of
the things--such as income--that people might desire for the pursuit
of their happiness. What the utilitarian aims at directly, then, is an
overall increase of utility or utilities. The utilitarian looks to increase
the average utility, i.e., the aggregate amount of utility created in the
society, divided by the number of people in the society. The
utilitarian thinks a just society should seek to maximize average
utility in order to promote the happiness of its members or at least to
enable its members, with increasing success, to achieve their own
happiness.
But this way of evaluating forms of social organization is arguably
defective because it may lead to unjust institutional arrangements.
John Rawls famously stated the objection in his A Theory of Justice
(Cambridge, MA: Harvard University Press, 1971), pp. 23-4, as
follows: there is...a way of thinking of society which makes it very
easy to suppose that the most rational conception of justice is
utilitarian. For consider: each man in realizing his own interests is
certainly free to balance his own losses against his own gains. We
may impose a sacrifice on ourselves now for the sake of a greater
advantage later. A person quite properly acts, at least when others
are not affected, to achieve his own greatest good, to advance his
rational ends as far as possible. Now why should not a society act
on precisely the same principle applied to the group and therefore
regard that [decision-making procedure] which is rational for one
man as right for an association of men? Just as the well-being of a
person is constructed from the series of satisfactions that are
experienced at different moments in the course of his life, so in very
much the same way the well-being of society is to be constructed
from the fulfillment of the systems of desires of the many individuals
who belong to it. Since the principle for an individual is to advance
as far as possible his own welfare, his own system of desires, the
principle for society is to advance as far as possible the welfare of
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the group, to realize to the greatest extent the comprehensive

system of desire arrived at from the desires of its members. Just as
an individual balances present and future gains against present and
future losses, so a society may balance satisfactions and
dissatisfactions between different individuals. And so by these
reflections one reaches the principle of utility in a natural way: a
society is properly arranged when its institutions maximize the net
balance of satisfaction. Notice the critical difference, pointed out by
Rawls, between the cases of an individual and of a social group
attempting to maximize their welfare. In the case of an individual it
will always be the same person who experiences both the losses
and the gains. In the case of the social group it may not be the same
people who experience both the losses and the gains. Some may
experience the losses and others the gains, or the losses may fall
disproportionately on some and the gains go disproportionately to
others. Thus, Rawls argues, questions of fairness or justice arise in
the case of the social group that do not arise in the case of the
single individual, and utilitarianism is unprepared to address these.
The problem, as Rawls puts it, is that Utilitarianism does not properly
recognize "the separateness of persons"--the fact that the losses
and gains may be experienced by separate--and hence different--
persons. The striking feature of the utilitarian view of justice is that it
does not matter, except indirectly, how this sum of satisfactions is
distributed among individuals any more than it matters, except
indirectly, how one man distributes his satisfactions over time. The
correct distribution in either case is that which yields the maximum
fulfillment. Society must allocate its means of satisfaction whatever
these are, rights and duties, opportunities and privileges, and
various forms of wealth, so as to achieve this maximum if it
can....Thus there is no reason in principle why the greater gains of
some should not compensate for the lesser losses of others or more
importantly, why the violation of the liberty of a few might not be
made right by the greater good shared by many....For just as it is
rational for one man to maximize the fulfillment of his system of
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desires, it is right for a society to maximize the net balance of

satisfaction taken over all its members. [Ibid., p. 26.] It should be
becoming clearer what the problem here is. There are two aspects to
the problem. First, Utilitarianism, in the light of Rawls's objection,
may appear to permit or, in some circumstances, even require that a
society adopt unfair, exploitative forms of organization to promote its
overall welfare, the average utility. If the welfare or happiness can be
maximized by a form of social organization in which some few are
exploited--if no other form of social organization can produce greater
overall welfare or happiness--then adoption of the exploitative form
of organization would be justified according to Utilitarianism.
To this most utilitarians respond that "under most conditions, at least
in a reasonably advanced stage of civilization, the greatest sum of
advantages is not attained in this way," i.e., by exploitation. This may
or may not be so. The second aspect of the problem raised by Rawls
has to do with the inappropriateness of the kinds of arguments by
which Utilitarians reject various discriminatory or exploitative forms
of social organization. The utilitarians reject such forms of
organization, as we have just seen, on the ground that they don't in
fact succeed in maximizing the happiness or welfare of the social
group. But what if they did succeed in maximizing the happiness or
welfare of the social group? Would that show that they really were
just? Rawls argues that it clearly would not. Consider the institution
of slavery, which is as clearly unjust as an institution can be. It is
never an excuse or justification for slavery, Rawls says, "that it is
sufficiently advantageous to the slaveholder to outweigh the
disadvantages to the slave and to society. A person who argues in
this way is not perhaps making a wildly irrelevant remark; but he is
guilty of a moral fallacy" (Rawls, "Justice as Reciprocity," reprinted in
Great Traditions in Ethics, Ninth Edition, edited by Theodore C.
Denise et. al. (Belmont, CA: Wadsworth Publishing Co., 1999), p.
342). But Utilitarianism, Rawls points out, "permits one to argue that
slavery is unjust on the grounds that the advantages to the
slaveholder as slaveholder do not counterbalance the disadvantages
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to the slave and to society at large, burdened by a comparatively

inefficient system of labor." And in fact this is the only way that the
Utilitarian may argue that slavery is unjust. For the utilitarian
conception of justice "implies that judging the justice of a practice is
always, in principle at least, a matter of weighing up advantages and
disadvantages....[So] utilitarianism cannot account for...the fact that
it would be recognized as irrelevant in defeating the accusation of
[slavery's] injustice for [the slaveholder] to say to [the slave]...that
nevertheless [slavery] allowed of the greatest [general, overall]
satisfaction of desire. The charge of injustice cannot be rebutted in
this way." (Ibid., pp. 340, 341. Rebutting the charge of injustice in
this way is what Rawls earlier characterized as a moral fallacy.)
Let's attempt to summarize the arguments against Utilitarianism. The
first argument goes as follows. (1) Utilitarianism implies that a
society is just if it is so organized that the overall or average
happiness or well-being of its members is maximized. (2) A society
so organized can nevertheless be unjust or unfair. Therefore (3)
Utilitarianism is incorrect as a theory of social justice. This is the
main line of argument against Utilitarianism as a theory of social
justice. Much of our discussion of Rawls was in support of premise
(2). We saw that Utilitarianism, with its aggregative conception of the
welfare of the social group, would permit the average happiness or
well-being of the social group to be increased by (what
independently seemed to be) unfair trade-offs between the interests
of its members. There is another argument against Utilitarianism that
emerged from our discussion of Rawls. This is as follows. (1*)
Utilitarianism implies that the justice of a form of social organization
is a function of the efficiency with which the overall or average
happiness of the social group is promoted by that form of
organization. But (2*) the justice of a form of organization is not a
function solely of the efficiency with which that form of organization
promotes the well-being of the social group; other considerations,
left out by Utilitarianism, are relevant. Therefore (3*) Utilitarianism
provides an incorrect account of the nature of social justice.
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Again much of our discussion was in support of the second premise.

We saw that exploitative forms of social organization cannot be
shown to be just by being shown to maximize the average well-being
of the members of the social group that has adopted them.
These are important criticisms of Utilitarianism as a theory of social
justice. They show that it is seriously flawed.
(5) A Final Note about Utilitarians and a Suggested Revision
Historically Utilitarians were no friends or supporters of slavery and
were often strenuous advocates for greater democracy in the
organization of society. Jeremy Bentham, in particular, actively
opposed the institution of slavery in England and also advocated
prison reforms. Mill was a notable defender of freedom of speech.
He also supported the expansion of suffrage and late in his life
became, like Henry Sidgwick (another Utilitarian), an advocate of
Women's rights. And these are only some of the pro-democratic
positions taken by Utilitarians.
The objections to Utilitarianism are not, then, objections to the
Utilitarians themselves or to the positions they adopted on particular
issues. The objections aim rather to show inadequacies in the
underlying Utilitarian conception of justice as a function of efficiency
in promoting overall happiness.
Convinced of the inadequacy of the Utilitarian conception of justice,
one might still feel some attraction to Utilitarianism and wonder
whether some sort of revision of the position might not save it from
the criticisms we have made of it. I now consider one revision, as
follows: A society is just to the extent that "all social values--liberty
and opportunity, income and wealth...--are distributed equally except
where an unequal distribution of any, or all, of these values works to
everyone's advantage." ((Quoted material is from Rawls, A Theory of
Justice, p. 62.) What are here spoken of as social values are the
very things that earlier we called the means and opportunities--the
shares of utility--required for a desirable kind of life. So what this
revision says is that, while a society should aim to promote the
overall happiness of its members by increasing its stock of "social
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values," it cannot do so by means of trade-offs that improve the lot of

some people at the expense of others. As the principle clearly says,
inequalities in the distribution of social values are permissible only
when everyone somehow benefits from the unequal distribution. As
a society acts to increase the shares of utility available to its
members, it is allowable that some should possess larger shares of
utility than others, but this will be allowable only if everyone is made
better off by the arrangement permitting the inequalities than they
would be under the arrangement that did not permit them. Thus the
objectionable sorts of trade-offs allowed by our original formulation
of Utilitarianism would be blocked. So far all this has been at a rather
lofty level, and you might be wishing for an example of a form of
social organization which permits inequalities that work to
everyone's advantage. Again capitalism has had its supporter as a
form of economic organization that, to provide adequate incentives
to producers, must allow substantial income inequalities in the form
of higher profits to successful entrepreneurs. The profit motive, it is
argued, is essential to the working of the capitalist system. Without it
the system would not yield the beneficial consequences (4)-(6)
mentioned in section (2) above, but with the profit motive operative
in the system the general level of material prosperity would be
increased well above where it would be in a system that did not
permit such inequalities. Some would do much better than others
under such an economic system--there would be inequality in
wealth--but all would do better than they would if the economic
inequalities required as incentives to producers were not operative.
The notion of fairness that recommends the revised formulation of
Utilitarianism over its initial formulation is yet without adequate
support or motivation from anything within Utilitarianism itself. Indeed
it seems a quite alien addition to Utilitarianism, which, as we saw,
takes justice to be a function solely of a kind of efficiency. This fact
forces a question: Though it may be a superior position, does the
revised formulation amount to an abandonment of Utilitarianism itself
in favor of some hybrid position?
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9.6 Liberal Moral tradition
Egalitarian Justice—Sociological Aspect

The Kantian and Utilitarian concept of justice had cumulative impact
on Dean Pound and other American contemporary legal thinkers
who also propounded the theory of distributive justice within the
framework of law, legal ideals and values. They did not see any
confrontation or contradiction between law and justice and
envisaged that distributive or egalitarian justice can also be realised
on the principle of community‘s or public interest through the
instrumentality of law and due process of law. It is the ideal of
distributive justice which sustains law in its application to social
ordering or human engineering. Human freedom, individual liberty,
dignity and social equality are synthesized through law with an over-
emphasis on law to secure the interests of personality, possession
and transactions by balancing the individual interests with those of
community interests from the point of the community rather than that
of individual. It is in this respect that Justice Holmes observed that
law must be interpreted in terms of ‗felt necessities of people‘ in
order to achieve justice. Other realists focus on the importance of
functional approach of law to realise social justice. Of course, justice
is not a matter of a slot machine. It is the duty of the judges to
rationalise justice in such a manner that individual remains a free full
man without being exploited or exploiting and justice whether legal
or distributive is readily available to every one so that people are not
forced to seek justice in the streets and not in the courts.
Another aspect of egalitarian justice is procedural justice which

consists in employing correct methods to develop rules of conduct to
ascertain facts into final dispositive judgment. A body of well
established rules of procedural justice called by other name as
natural justice consists of rules to justify the confidence of the
general public in what is called justice not only done but seem to be
done. The doctrine of bias is wide enough to ensure unbiased justice

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leaving little or no chance at all to interested or arbitrary or high

handed justice. In fact, reform in these as well as reforms in judicial
mechanism has gone a long way in democratic countries to assume
fair play, impartiality and equality to the individuals vis-a-vis groups,
associations, government and State. It is the dependability on such
rules, of general public interest which is the only guarantee in the
realisation of both procedural and substantive justice. The spirit of
procedural justice is embodied in two principles of audi alteram
partem (hear the other side) and suum cuiqui tribuere (give every
man his due). In short, procedural justice forms the integral part of
substantive justice—the latter being the concept and former the form
constitute the core of the concept of justice in all democratic and
egalitarian societies committed to both rule of law and social justice.
Communist Justice
The basic proposition of communist theory is that economic forces

determine the character of law and that it is not the result of free
activity of legislators, judges and jurists. The material conditions of
production determine the social conditions which find expression in
laws, religion, justice, metaphysics, etc. of the people. Hence, the
conception of justice in the communist society is conditioned by
forces which bring about equality ‗from each according to his ability,
to each according to his needs‘. The communist theory combines
two principles in explaining the idea of justice, namely, ‗to each
according to his ability‘, and ‗to each according to his needs‘. Thus,
‗merit‘ and ‗needs‘ principles do not contradict each other but strive
in establishing a practical equality which does not ignore merit yet
satisfies the needs irrespective of capacity or work. In other words,
individual‘s merit or desert gets recognition yet his needs are also
taken care. Hence, ‗every man according to his needs‘ can be
summed up as justice in the communist sense. Marx and Engels,
therefore, allowed no place to ‗justice‘ which is solely based on
‗rights‘ or ‗natural law‘ which according to them is a mere mark of

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capitalist exploitation and hypocrisy. According to them main defects

of capitalist system of justice are that capitalist system itself being
‗unjust‘ it cannot abolish or reduce inequalities or maldistribution of
goods and it further diverts the exploited forces—the workers from
the path of revolution. So both Marx and Engels ridiculed the idea of
‗justice‘ in their examination and analysis of economic rules. At best
for both of them there can be no idea of justice without equality i.e.
economic equality without which justice would be a myth. The Soviet
jurists do not employ the term ‗justice‘ as a concept of juristic value
and instead use the phrase ‗socialist legality‘. The term ‗socialist
legality‘ connotes the establishment of a classless society based on
the principles of real equality, non-exploitation, ownership of the
means of production in the hands of the State, etc. The function of
law and courts in the communist society is to defend and further the
interest of the working class and promote the progress of the
socialist society what is described as ‗social legality‘ is anti-thesis of
capitalist justice which aims at reconciling interests- of the rich and
poor, strong and weak on false legal equality in so far as
economically and socially weak sections of society are concerned
and treats the rich and the poor by the same scale. In short, Soviet
concept of justice is a historical concept which relates to the idea
about morality or immorality, the good and the bad, the just and the
unjust judges on the matrix of economic determinism and not
deduced from the so-called eternal principles of reason or human
nature.
9.8 SUMMARY
A society, according to Utilitarianism, is just to the extent that its laws

and institutions are such as to promote the greatest overall or
average happiness of its members. How do we determine the
aggregate, or overall, happiness of the members of a society? This
would seem to present a real problem. For happiness is not, like
temperature or weight, directly measurable by any means that we

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have available. So utilitarian‘s must approach the matter indirectly.

They will have to rely on indirect measures, in other words. What
would these be, and how can they be identified? In this unit we have
discussed about various theoretical bases of justice: the liberal
contractual tradition, the liberal; utilitarian tradition and the liberal
moral tradition.

1
The Words of Aristotle by W.D. Ross (1954) Vol. IX, p. 1134.
1
Ibid., p. 106.
1
In Search of the Supreme, p. 149 (Vol. III Navjivan Publication,
1962).
1
Deshpande, M.S., Light of India—Message of the Mahatma, p. 34
(1950)
1. What do you understand by theoretical bases of justice?

2. Discuss various theoretical bases of justice?
3. Describe the liberal contractual tradition, the liberal; utilitarian
tradition and the liberal moral traditionn?

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LL.M. Part-2
Block-IV-Relation between Law and Justice

Unit-10- Equivalence Theories - Justice as nothing more than the
positive law of the stronger class
STRUCTURE
10.1 INTRODUCTION
1.02 OBJECTIVES
10.3 What is the Relation between law and Justice?
10.4. Equivalence theories of law and justice
10.5 Justice as positive law of stronger class
10.6 SUMMARY

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10.1 INTRODUCTION
In the previous unit you have read about various theoretical bases of
justice: the liberal contractual tradition, the liberal; utilitarian tradition
and the liberal moral tradition. Justice is the concept of moral
rightness based on ethics, rationality, law, natural law, fairness,
religion and/or equity. Justice is the result of the fair and proper
administration of law. It is the quality of being just; in conformity to
truth and reality in expressing opinions and in conduct; honesty;
fidelity; impartiality or just treatment; fair representation of facts
respecting merit or demerit. In this unit we will discuss about the
Equivalence Theories - Justice as nothing more than the positive law
of the stronger class.
10.2 OBJECTIVES
 Discuss what is the Relation between law and Justice?

 Understand the concept of Equivalence Theories of law and
justice.
 Describe Justice as positive law of the stronger class.
10.3 What is the Relation between law and Justice?
The system of law is a set of rules of conduct of any organized

society that are enforced by threat of punishment if they are violated.
Justice is the concept of moral rightness based on ethics,
rationality, law, natural law, fairness, religion and/or equity. Justice is
the result of the fair and proper administration of law. It is the quality
of being just; in conformity to truth and reality in expressing opinions
and in conduct; honesty; fidelity; impartiality or just treatment; fair
representation of facts respecting merit or demerit.

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Distributive justice
Thomas Aquinas said that a just law was one that served the
common good, distributed burdens fairly, promoted religion, and was
within the lawmaker's authority. However, what are ―the common
good‖ and a "fair distribution of burdens‖ and what is the position of
religious values in a secular legal system? Later philosophers have
developed the concept of Distributive Justice has produced other
theories of justice.
Utilitarianism
Utilitarianism as a theory of justice is based on a principle of utility,
approving every action that increases human happiness (by
increasing pleasure and/or decreasing pain, those being the two
"sovereign masters" of man) and disapproving every action that
diminishes it. A utilitarian view is that justice should seek to create
the greatest happiness of the greatest number. A law is just if it
results in a net gain in happiness, even at the expense of minorities.
The problem here is that minorities may not form part of the "greater
number". This is a particular problem in a pluralist society.
Utilitarianism still plays a major part in the democratic decision-
making process; it is a secular theory requiring no reference to any
natural rights or other abstract religious principles defensible only by
faith. The idea of maximising the total happiness of the community
is often applied on a national political level and in ordinary dealings
among friends.In marginal cases; the theory breaks down and
produces results far removed from those that most people would
consider right. In an Economic Theory of Justice, there is conflict
between the views of the individual and the collective view,
sometimes referred to as the, social contract. Such conflict can be
seen by asking how a doctor with £100,000 to spend should chose
between 100 patients with a minor condition; he can treat all of
them, or 1 very sick person who would take all his resources. There
is no legal requirement that the National Health Service distributes
its assets evenly. This can produce results that anger the majority,
who respond emotionally; the case of Child B produced national
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anger, fuelled by newspaper reports. Jaymee Bowen (Child B) has

come to epitomise the dilemmas involved in making tragic choices in
health care. When 11 year-old Jaymee needed life-saving cancer
treatment for the third time, the hospital refused funding in R v
Cambridge Heath Authority ex parte B [1995] CA the Court of
Appeal upheld the hospital‘s decision. Medical advice that Jaymee
had only a 2.5 per cent chance of survival was basically that the
£75,000 it would cost to carry on her treatment would be wasted and
could be put to better use for others. An anonymous benefactor
stepped in and paid for Jaymee to receive the treatment privately,
she died 16 months later. T S Eliot famously remarked, ―Human
kind cannot take very much reality".
Harm principle
Jeremy Bentham and John Stuart Mill believed that the law should
not interfere with private actions unless they caused harm to others.
JS Mill writing in ―On Liberty‖ said that private acts of immorality
increase the pleasure of those who indulge in them and cause little
pain to others. Their net effect is to increase the sum of human
happiness and laws prohibiting them would be unjust.
The idea that wealth should be distributed evenly denies the
possibility that individuals will be stimulated to improve their own
income and thereby increasing the wealth available to all. The
theory that we all live in a society from which we draw benefits and
to which we contribute is called the ―social contract‖. Bentham said
that the ―social contract‖ and its claim to natural rights is "nonsense
on stilts" that inhibits desirable social changes.Bentham might argue
that compelling people to have their babies vaccinated using the
MMR vaccine, would be morally preferable than leaving such a
decision to the discretion of parents because it would drastically
reduce the incidence of measles, mumps and rubella (and their
horrible consequences) within the population at large.
Liberal-Natural Rights theories

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The Liberal-Natural rights view of justice is measured according to

the extent minorities and the most vulnerable are protected. It uses
a notion of natural rights, the minimum rights to which all are entitled.
What are these ‗basic rights‘?
Rawls' hypothesis of the ‗original position‘ (see below) gives some
guidance on what these basic rights are. It can be argued that this
simply returns us to the statement that what is just, is what is fair‘?
Libertarian-market theories
The libertarian-market view holds that any interference in market
distribution of benefits and burdens is an unjust restriction on
individual freedom, and that justice should only allow limited
intervention to prevent unjust enrichment, by which they mean
basically theft and fraud and exploitation. ‗What is justice?‘ is as
much a political question as a legal or philosophical one.
Marx, Perelman, Nozick, Hart and compensation
In ―The Concept of Law‖, Hart linked the idea of justice with that of
morality. Like cases, he said, should be treated alike. This is a
common theme in all theories of justice, which has its origins with
Aristotle. Aristotle believed that like should be treated alike and
unlike treated accordingly. In this case, Aristotle was referring to
people of similar class and status, free men should be treated alike,
but not treated the same as slaves. A slave was entitled to be
treated like any other slave. In less structured societies, it raises the
question "what makes cases alike or different?" In terms of
sentencing and defences such as insanity, it raises other questions
dealt with under ―Corrective Justice‖, below.
―To each according to…‖
In the Bible (Romans 2), there is reference to ―to each according to
his works‖. Marx believed that a communal society would operate
under the slogan: "From each according to his ability, to each
according to his need." Other Marxists, such as Perelman have
developed this idea. To each according to his
works/needs/merit/rank/entitlement/means/ etc.

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Most people would agree that most of the system of distribution

supported by law in the UK is just and leads to just results most of
the time. Marxists would disagree; the Marxist perspective is that
distributive justice favours capital and therefore works against the
interests of the working classes (the proletariat).
Rawls and the original position
American jurist John Rawls in "A Theory of Justice" (1971) analysed
law on the basis that a rational person will pay for those things
wanted badly enough. His theory rejects utilitarianism, which was
based on maximising happiness and constructs a social contract
aimed at establishing principles of justice. Free and rational persons
concerned to further their own interests adopt principles of justice,
which define the basis of their association.His analysis is purely
hypothetical. It holds that the concept of the rational choice as one
that could help our understanding of what justice might require. In
practice, all human beings are born into a particular society with no
option.
"Veil of ignorance" the original position
In making the hypothetical choice, Rawls insisted that the individual
should operate behind a "veil of ignorance" where they do not know
their sex, class, religion or social position or whether they are strong,
clever or stupid, the state or period in history in which they exist.
Rawls then predicted that any such society would exhibit two
essential features. First, people in the original position would agree
that each person should have an equal right to certain basic
liberties, such as freedom of person, freedom of speech and
thought, freedom to participate in government, and freedom to
possess property, to the greatest extent compatible with the
enjoyment of the same basic liberties by others.
Second, social and economic inequalities, and differences of
treatment, would be acceptable only insofar as they were available
in principle to anyone, and were for the benefit of the least well off
members of the society.

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Thus, for example people would agree that doctors should be paid
higher than average incomes, because this would encourage able
people to qualify as doctors and so benefit everyone in the long run.
On ‗lifting the veil‘, anyone could be at the bottom of the social
hierarchy. Rawls considers that there are two principles of justice
namely; liberty and equality, and they would select liberty over
equality. Liberty (ensures an equal right to basic liberties). Equality
(economic and social inequalities arranged for the benefit of the
least advantaged, and equality of opportunity).
Rawls is criticised for not explaining why liberty would be selected
before equality or why natural talents to be treated as collective
assets.
Nozick and historical entitlement
To Robert Nozick in "Anarchy State and Utopia" (1974) Justice is
based on rights. One of these rights is the right to retain our own
property, even against the state. He would claim that we have no
obligation to help those worse off unless we had obtained our wealth
from them improperly. There could therefore be no question of
redistribution of wealth for social purposes. This philosophy heavily
influenced the thinking of Margaret Thatcher, who was determined to
―Roll back the State‖. Therefore, Rawls‘ theory of distributive justice
involved interference with the inherent rights of individuals.
Justice – does it have boundaries?
Justice is, perhaps giving people what they are due. In this context,
one can ask, ―To whom (or what) is justice owed?‖ Historically, full
political equality has expanded slowly for example, recognition of
white property owning males, recognition of white females,
immigrants, members of minority and ethnic groups, gays and
lesbians. What then is the scope of justice? Justice is not only
about what courts and legal systems do there are some fundamental
philosophical questions that need to be addressed. Are foetuses
―persons‖? What rights do children have? Can claims of justice be
made on behalf of the dead or even on behalf of generations of
people as yet unborn (concerning, for example, claims to the
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preservation of natural resources)? What is the moral standing of

nonhuman animals, whether as whole species or even as individual
living creatures?
A further set of problems concerns the significance of geographical
boundaries, state boundaries. As UK subjects, we are increasingly
challenged to think of ourselves as citizens of Europe and perhaps
citizens of the world and not just as subjects of the UK. If we
consider, and act on, what others are due, the question of what
human beings in other counties are due becomes increasingly
important. Are there basic human rights? If so, do such rights
require supranational legal institutions to see that they are
recognized?Should we be considering these questions in the same
legal and philosophical way as we view domestic theories of
distributive justice? In particular, in a utilitarian sense, based on
Rawls entitlement should justice be concerned with larger
community issues, perhaps globally?
10.4. Equivalence theories of law and justice
This chapter provides a summary review of the theories influencing

the work for social justice. It is a reflection on the theories and
people who have actively worked for social justice, reform,
transformation, emancipation and revolution in and out of the
academy. There are three important commonalities shared by social
justice activists in the social sciences and education: (1) education
and research are not neutral; (2) society can be transformed by the
engagement of politically conscious persons; and (3) praxis
connects liberatory education with social transformation.Social
Justice Theoreticians generally focus their research and pedagogical
efforts toward the ways in which class, race, gender, sexual
orientations and systems of power influence our conceptions of
knowledge, the knowing subject, and practices of inquiry and
justification. One common aim of engaged inquiry identifies ways in
which dominant conceptions and practices of knowledge

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systematically disadvantage subordinated groups. Claims of

objectivity consistently benefit specific power holder interests.
Engaged educators strive to reform these conceptions and practices
so that they serve the interests of social justice and social equality.
Dominant knowledge practices disadvantage subordinate groups by
(1) excluding them from inquiry,
(2) denying them epistemic authority,
(3) denigrating their cognitive styles and modes of knowledge,
(4) producing theories that represent them as inferior, deviant, or
significant only in the ways they serve elite interests,
(5) producing theories of social phenomena that render their
activities and interests, or power relations, invisible, and
(6) producing knowledge (science and technology) that is damaging
at worst and not useful at best for people in subordinate positions,
thus reinforcing subjugation, exploitation and other social
hierarchies.One of the basic problems that social justice
theoreticians pose and expose is the manner in which the academy
in the USA is a foundational site for the maintenance of social and
economic inequalities. That universities were developed historically
excluding women, the indigenous, Africans, and the poor is historical
fact. In, Notes Toward an Understanding of Revolutionary Politics
Today, James Petras says that intellectuals, including academics,
are sharply divided across generations between those who have in
many ways embraced, however critically, ‗neo-liberalism" or have
prostrated themselves before "the most successful ideology in world
history" and its "coherent and systematic vision" and those who have
been actively writing, struggling and building alternatives (Petras
2001).Gramsci offered a theoretical paradigm combining the social
world and the economic world. He stressed the complexity of social
formations as a plurality of conflicts. Politics was assigned a
constitutive role in direct relation to ideology as a key prerequisite for
political action in so far as it served to ‗cement and unify' a "social
bloc'. Without this consciousness, there was no action (Martin 2002).

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One of the most important and the most complex concepts that
Gramsci analyzed, is "hegemony". The concept of hegemony is
crucial to Gramsci's theories and to understanding the critique in this
study. By ‗ideological hegemony' Gramsci means the process
whereby a dominant class contrives to retain political power by
manipulating public opinion, creating what Gramsci refers to as the
‗popular consensus' (Boyce 2003). Through its exploitation of
religion, education and elements of popular national culture a ruling
class can impose its world-view and have it come to be accepted as
common sense (Boyce 2003). So total is the ‗hegemony' established
by bourgeois society over mind and spirit that it is almost never
perceived as such at all. It strikes the mind as ‗normality' (reification)
(Boyce 2003). To counter this Gramsci proposes an ideological
struggle as a vital element in political struggles. In such hegemonic
struggles for the minds and hearts of the people, intellectuals clearly
have a vital role (Boyce 2003). Gramsci taught that the key index for
analyzing a social formation was the interaction of economic
relations with cultural, political and ideological practices or the
‗historical bloc'. As such, the interconnections between state and
economy and society were viewed processionally, as a mutually
determined whole (Martin 2002). By emphasizing the configuration
of the social formation Gramsci was able to dwell on the points at
which the elements of the social were linked. For example Gramsci
showed how intellectuals in Italy were engaged in the enterprise of
legitimizing the bourgeoisie state's power to the agrarian elite, in
other words at the service of or as agents of the bourgeoisie state
(Martin 2002). In the same manner that a historical bloc could serve
elite interests Gramsci posited that a historical bloc could counter an
historical bloc. Revolution was conceived as the gradual formation of
the collective will, an intellectual and moral framework that would
unite a diverse range of groups and classes through an organic
relation between leaders and the praxis of subjects. This was a
conception of revolution as issuing from the immanent will of the

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people wherein praxis constituted the very process of history itself

(Martin 2002).
Gramsci's theory posed that domination by an economic class grows
as they successfully embed economic activity (e.g., profit before
people) as a universal principle (Martin 2002). He identified how
domination was accomplished in conjunction with what he called
‗organic crisis' in which the various points of contact between the
dominant economic class intersected with other classes, specifically
with the help of intellectuals in institutions of education that link the
classes in a common identity (e.g., a nation) (Martin 2002). Gramsci
believed this same program could be countered using similar
methods within the non-dominant classes and groups. Thus a
popular identity could be fostered by using organic crisis to link
groups with the help of organic intellectuals guiding and guided by
vanguard intelligentsia creating a community with a popular identity
such as "the party". Using this model would mean building a
universalizing identity drawn from the praxis of the proletariat, by
which to supplant the bourgeoisie (Martin 2002).
Theoretically and practically, the terms and phrases such as
"organic intellectual," and "historical bloc" are Gramscian. Gramsci's
organic intellectual is someone whose knowledge is derived through
firsthand experience, and whose life-learning is complemented by
self education and other alternative forms of learning. The organic
intellectual emerges from a social class to speak against the
established order in a manner directly connected to the goals of a
political movement and a community (Martin 2002).
Gramsci identified how the various cultural and economic structures
force and reinforce people's consent to subjugation.
Methodologically, Gramsci proposed education as a process of
dialogue that would bring the working classes together in projects
and organizations politically and would develop a base of worker
intellectuals who would inform the intelligentsia of the Vanguard
Party.Gramsci advocated reflexivity as a mode for
counterhegemonic discourse and identified its importance as
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foundational for cultural revolution (Gramsci 1971). One of Gramsci's

insights was about cultural dialogue:Consciousness of a self which is
opposed to others, which is differentiated and, once having set itself
a goal, can judge facts and events other than in themselves or for
themselves but also in so far as they tend to drive history forward or
backward. To know oneself means to be oneself, to be master of
oneself, to distinguish oneself, to free oneself from a state of chaos,
to exist as an element of order-but of one's own order and one's own
discipline in striving for an ideal. And we cannot be successful in this
unless we also know others, their history, the successive efforts they
have made to be what they are, to create the civilization they have
created and which we seek to replace with our own . . . And we must
learn all this without losing sight of the ultimate aim: to know oneself
better through others and to know others better through oneself.
(Gramsci 1971)Gramsci held that each individual was the synthesis
of an "ensemble of relations" and also a history of these relations . . .
the constitution of the subject, then, is the result of a compex
interplay of "individuals" and larger-scale social forces (Hartsock
1998). The process by which the observations that we make are
dependent upon our prior understandings of the subject of our
observations-that they ‗refer back' to past experiences based on
class, culture, etc. are of central importance in praxisThe Gramscian
leitmotif of reflexivity served as a counterhegemonic method
fostering liberatory alliance among oppressed and exploited people.
The intent of the reflexive meth ds of revolutionaries and radicals
was to give voice to the lived experiences of exploitation and to
expose and incite action against oppressors (Fanon 1963). Reflexive
methodologies were intended to focus on the experiences and
interpretations of the oppressed toward the aims of increased
understanding of peoples relationships to power structures as they
play themselves out in social relations. Historically the ruling class
and appointed privileged class intelligentsia have defined and
constructed meanings and interpreted the world for the poor, the
labor class and middle class. In its literal sense, the term reflection
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derives from the Latin verb reflectere, which literally means "to bend
back." Reflexive emancipatory methods require that people claim the
positions they already occupy, and account for what working from
and for such positions means-in particular, in terms of what ends
these positions advance and what interests these positions serve
(Campbell 2001).
10.6 Justice as positive law of stronger class
The increasing disparity between rich and poor along with increasing
global control through overt and covert wars in Latin America led to
dialogues in the Catholic church about faith, transformation and
liberation. The Second Vatican Council produced a theological
atmosphere characterized by creativity influenced by the times
(decolonization, independence struggles, and a proliferation of
socialist ideologies, Marxism and revolutionary and liberation
theorists post WWII) (Boff and Clodovis 2001).This creative
theological atmosphere could be seen at work among both Catholic
and Protestant thinkers with the emergence of the group Church and
Society in Latin America (ISAL) taking a prominent role. There were
frequent meetings between Catholic theologians such as Gustavo
Gutiérrez, Segundo Galilea, Juan Luis Segundo, Lucio Gera, to
name a few. This movement led to intensified reflections on the
relationship between faith and poverty and the gospel and social
justice. In Brazil, between 1959 and 1964, the Catholic Left
produced a series of basic texts on the need for a Christian ideal of
history, linked to popular action, with a methodology that
foreshadowed that of liberation theology. They urged personal
engagement in the world, backed up by studies of social and liberal
sciences, and illustrated by the universal principles of Christianity.
(Boff and Clodovis 2001)
The foundational work defining a liberation theology praxis came

from Gustavo Gutiérrez who described theology as critical reflection

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on praxis. Liberation theology begins with the premise that all

theology is biased-that is, particular theologies reflect the economic
and social classes of those who developed them. Accordingly, the
traditional theology predominant in North America and Europe is
said to "perpetuate the interests of white, North American/European,
capitalist males." This theology allegedly "supports and legitimates a
political and economic system-democratic capitalism-which is
responsible for exploiting and impoverishing the Third World"
(Gutierrez 1971). Liberation theologians say theology must start with
a "view from below"-that is, with the sufferings of the oppressed.
Within this broad framework, different liberation theologians have
developed distinctive methodologies for "doing" theology (Boff and
Clodovis 2001).Gutierrez rejects the idea that theology is a
systematic collection of timeless and culture-transcending truths that
remains static for all generations. He views theology as a fluid
process, a dynamic and ongoing movement of human beings
providing insights into knowledge, humanity, and history.
Emphasizing that theology is not just to be learned, it is to be done
he says that "praxis" is the starting point for theology. Praxis involves
revolutionary action on behalf of the poor and oppressed-and out of
this, theological perceptions will continually emerge. The theologian
must therefore be immersed in the struggle for transforming society
and proclaim the message from that point. In the theological
process, then, praxis must always be the first stage; theology is the
second stage. Theologians are not to be mere theoreticians, but
practitioners who participate in the ongoing struggle to liberate the
oppressed (Gutierrez 1971). In this context, all social justice praxis
must be immersed in the struggle for transforming society as
revolutionary action on behalf of the poor and oppressed.
Using methodologies such as Gutierrez's and Baro's, liberationists

interpret sin not primarily from an individual, private perspective, but
from a social and economic perspective. Gutierrez explains that "sin
is not considered an individual, private, or merely interior reality. Sin
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is regarded as a social, historical fact, the absence of brotherhood

and love in relationships among men" (Gutierrez 1996).
Liberationists view present-day capitalism as sinful specifically
because it has embedded systems of oppression and exploitation
encompassing the majority of the world's people. Capitalists have
become prosperous at the expense of impoverishing people. This is
often referred to as "dependency theory"-that is, the development of
the rich depends on the underdevelopment of the poor (Gutierrez
1996).There is another side to sin in liberation theology. Those who
are oppressed can and do sin by acquiescing to their bondage. To
go along passively with oppression rather than resisting and
attempting to overthrow it-by violent means if necessary-is sin
(Gutierrez 1996). To go along passively takes many forms but
certainly the most consistent form is by participating in the
production of knowledge that benefits the production of both material
and psychological weapons of mass destruction. However, another
form of destructive knowledge production is the contribution to mass
media and educational propaganda which "dumbs down" the
people's development as critical thinkers and critical knowers.
The use of violence has been one of the most controversial aspects
of the liberation theology and liberation psychology of the 1960s
through the 1980s. Using violence to free oneself from oppression
was not considered sinful or psychologically damaging if it is used
for resisting oppression. Indeed, certain liberation theologians will in
some cases regard a particular action as sin if an oppressor commits
it, but not if it is committed by the oppressed in the struggle to
remove inequities (Gutierrez 1996). The removal of inequities is
believed to result in the removal of the occasion of sin as well"
(Gutierrez 1996). This praxis too has seen some shifts in the past
two decades from radical to pacifistic approaches.
Jose Ignacio Martin Baro was strongly influenced by Gutierrez, and
lived and worked in El Salvador. He developed a praxis model
described in his book, Writings for a Liberation Psychology. He used
the term "de-alienating social consciousness" as a core focus for
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dialogue. There are three aspects to this process in the theoretical

paradigm of Liberation Psychology: (1) Dialogue-human beings are
transformed through changing their reality. This is a dialectical
process that only happens through dialogue, conversation about our
thoughts and feelings in relationship to our world and our history. (2)
Decoding-through the gradual decoding of their world, people grasp
the mechanisms of oppression and dehumanization. This crumbles
the consciousness that posits a situation of oppression as natural,
and opens up the horizon to new possibilities for action (Baro 1994).
The individual's critical consciousness of others and the surrounding
reality brings with it the possibility of a new praxis, which at the same
time makes possible new forms of consciousness (Baro 1994), and,
(3) Social Identity-people's knowledge of their surrounding reality
carries them to a new understanding of themselves and, most
important, of their social identity (Baro 1994). They begin to discover
themselves in their action that transforms the problematic and in
their active role in relation to others. Thus, the recovery of their
historical memory offers a base for a more autonomous
determination of their future (Baro 1994).Baro says that liberation
theory asks us to respond to oppression on the social level in three
specific ways: (1) by promoting a critical consciousness of the
objective and subjective roots of social alienation (like the
socioeconomic mechanisms that cement the structures of injustice)
and the fatalistic thought processes and accompanying behaviors
that give ideological sustenance to the alienation of the popular
majorities such as women, children, elderly, the impoverished and
colonized peoples of the world (Baro 1994). (2) By breaking down
the machinery of the relationships of dominance and submission
through dialogue and relationship. The dialectical process that
fosters individual self-knowledge and self-acceptance presupposes
a radical change in social relations, to a condition where there would
be neither oppressors nor oppressed, and this change applies
whether we are talking about formal schooling, production in a
factory, or everyday work in a service institution (Baro 1994), and (3)
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by reclaiming our past, by experiencing the present and by

projecting that into a personal and national plan we cast ourselves in
our social and national context, thereby setting forth the problem of
one's authenticity as a member of a group, part of a culture, a citizen
of a country (Baro 1994).
Education and Liberation
Brazilian educator Paulo Freire also understood poverty from first
hand experience and was influenced by Liberationist methodologies
in Latin America. His life and work as an educator was full of hope in
spite of poverty, imprisonment, and exile. He was a world leader in
the struggle for the liberation of the poor and a great teacher to
many who are teaching using the model he developed. Paulo Freire
worked to instill the strengths and skills necessary for men and
women living in poverty to overcome their sense of powerlessness to
act in their own behalf.Freire believed that freedom through critical
literacy necessitates carefully conceived ethnographic research of a
given community, and this means, again, becoming one with the
people. That is, the ethnographer must learn to "respect the reality"
of the people in order to minimize the distance between the people
and him or herself so as to be positioned to effectively work in their
reality. He gave practical instructions for educational praxis with his
insistence that dialogue involves respect (Olson 1992).Freire
observed and experienced intense repression and oppression in
Latin America (Brazil, Chile, and Nicaragua). He developed and
practiced a radical approach to education that, as Gramsci had also
identified as necessary, must be linked to social movements.Paulo,
starting from a psychology of oppression influenced by the works of
psychotherapists such as Freud, Jung, Adler, Fanon and Fromm,
developed a "Pedagogy of the Oppressed." He believed that
education could improve the human condition, counteracting the
effects of a psychology of oppression, and ultimately contributing to
what he considered the ontological vocation of humankind:
humanization. In the introduction to his widely-acclaimed Pedagogy
of the Oppressed, he argued that: "From these pages I hope at least
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the following will endure: my trust in the people, and my faith in men
and women and in the creation of a world in which it will be easier to
love." Pedagogy of the Oppressed, which has been influenced by a
myriad of philosophical currents including Phenomenology,
Existentialism, Christian Personalism, Marxism and Hegelianism,
calls for dialogue and ultimately conscientization as a way to
overcome domination and oppression among and between human
beings. Interestingly enough, one of the last books that Paulo wrote,
Pedagogy of Hope, offers an appraisal of the conditions of
implementation of his Pedagogy of the Oppressed in our days.
(Godotti 1997).Freire also was concerned with praxis. He thought
that dialogue isn't just about deepening understanding-but is part of
making a difference in the world. Dialogue in itself is a co-operative
activity involving respect that has the potential to foster a community
of people who work together for community well being. Freire's
attention to naming the world has been of great significance to those
educators who have traditionally worked with those who do not have
a voice and who are oppressed (Smith 2001). The idea of
building‖pedagogy of the oppressed" or a "pedagogy of hope" and
how this may be carried forward has formed a significant impetus to
those of us seeking ways to develop a consciousness that is
understood to have the power to transform reality. Freire's insistence
on situating all educational activity in the lived experience of people
has opened up a series of possibilities for the way activists and
educators can approach practices in research and pedagogy (Smith
2001). Several generations of educators, anthropologists, social
scientists and political scientists, and professionals in the sciences
and business, felt Freire's influence and helped to construct
pedagogy based in liberation. What he wrote became a part of the
lives of an entire generation that learned to dream about a world of
equality and justice that fought and continues to fight for this world
today. Many will continue his work, even though he did not leave
behind ‗disciples.' In fact, there could be nothing less Freirean than
the idea of a disciple, a follower of ideas. He always challenged us
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to ‗reinvent' the world, pursue the truth, and refrain from copying
ideas. Paulo Freire leaves us with roots, wings, and dreams.
(Godotti 1997) For Freire, naming one's experience and placing that
voiced experience in context is the essence of dialogue (Freire
1970). Freire distinguished discussion from dialogue which is
characterized as a kind of speech that is humble, open, and focused
on collaborative learning. It is communication that can awaken
consciousness and prepares people for collective action. A
generative theme is one that emerges from the lives of learners as
they engage a course of study. It presents a point of entry for
learning that has meaning and relevance to a particular group of
learners at a particular time.
There are four aspects of Paulo Freire's work that were used in the
early praxis of the primary case study program and are practiced in
the writing of this study. Freire had seen the effects of vanguardism
and elitism in the academy and even community organizing and felt
very strongly that dialogue was about people working with each
other (Smith 2001). Second, Freire was concerned with praxis-action
that is informed (and linked to certain values). Dialogue wasn't just
about deepening understanding-but was part of making a difference
in the world. Dialogue in itself is a co-operative activity involving
respect. The process is important and can be seen as enhancing
community and building social capital, and to leading us to act in
ways that make for justice and human flourishing (Smith 2001).
Third, Freire's attention to naming the world has been of great
significance to those educators who have traditionally worked with
those who do not have a voice, and who are oppressed. The idea of
building a ‗pedagogy of the oppressed' or a ‗pedagogy of hope' and
how this may be carried forward has formed a significant impetus to
those seeking ways to develop consciousness, the consciousness
that is understood to have the power to transform reality (Smith
2001). Fourth, Freire's insistence on situating educational activity in
the lived experience of people has opened up a series of
possibilities for the way activist educators can approach practice
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(Smith 2001).Thick description is an ethnographic research method

developed by anthropologists. In her analysis of culture and
morality entitled, "Fieldwork in Familiar Places," Michelle Moody-
Adams posits that thick description means going beneath the
surface, showing the complexity behind social "facts" (or fictions)
and social actions. Thick description is commentary on more than
just the facts themselves. Thick description involves interpreting
intentions and expectations, and especially the intricate public
structures of meaning within which it is possible to form intentions
and actions on complex expectations. Thick description is thus
interpretation of those structures that constitute the complex
contexts within which meaningful action become possible (Moody-
Adams 1997). Thus, the questions must be called: What ideologies
and theories informed our practice? What are our expectations?
What do we actually do? What do we actually accomplish? Who
sponsors and benefits? There are multiple interpretations and
ideological frameworks from which these questions may be
answered. Geertz says that the principle tasks of ethnography
should be defined by reference to just such interpretive efforts to
identify intentions and expectations. Ethnography in his view is
interpretive science "in search of meaning" (Geertz 1973).
Critical Theory
Critical theorists claim that Gramsci's notion of hegemony is
fundamental for critical research (Kincheloe and McLaren 2000).
Gramsci understood that dominant power is exercised by physical
force and through social psychological attempts to win people's
consent through cultural institutions like schools (Kincheloe and
McLaren 2000). Criticalists claim that the formation of hegemony
cannot be separate from the production of ideology, a highly
articulated world view, master narrative, discursive regime, or
organizing scheme for collective symbolic production (Kincheloe and
McLaren 2000).Criticalists claim that hegemony's subordinates,
employed as gatekeepers, developed a set of tacit rules about what
can and cannot be said, who can and cannot speak and who must
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listen, whose social constructions are valid and whose are erroneous
and unimportant (Kincheloe and McLaren 2000). Academic
institutional gatekeepers become "agents of the state" given the
power to provide academic sandboxes in which activist educators
and researchers are allowed to play. This provides an illusion of
academic free inquiry while maintaining the status quo. Kincheloe
and McLaren state that the key to successful counter-hegemonic
cultural research involves (a) the ability to link the production of
representation, images and signs of hypereality to power in the
political economy; and, (b) the capacity, once this linkage is exposed
and described to delineate highly complex effects of the reception of
these images and signs on individuals located at various race, class,
gender, and sexual coordinates in the web of reality (Kincheloe and
McLaren 2000).One of my teachers said regularly, "We are the
people we serve" and I would add, "We are the people we study."
Those committed to social justice praxis would thus intervene in
whatever areas of influence they find open to them. They would
accept whatever opportunities arise to encourage social justice.
The injustice fostered by those attempting to dominate and own the
world produces rage and distress while destroying peoples lives
around the globe. We weep and keen for those incested in their own
homes; beaten in the home next door; starved on the streets;
despised in their poverty one neighborhood over; in training to
torture in the programs of local academies and the military base in
the next town; testing weapons in the labs of campuses;
manufacturing weapons in the regions of home states; imprisoned
in rural areas making Starbucks cups and Victoria's Secret "teddies";
shipping weapons of mass destruction from our borders; and
sending poor and working class boys and girls to invade and
terrorize people in their own homes and lands in Iraq, Afghanistan,
Palestine, and a hundred other countries.Getting a glimpse of our
own impotence, we consent to be diverted and distracted by the
consumerism, narcissism and egoism consistently promoted and
sold to us. Distress and distractions with how to pay the rent or
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mortgage, the food, the water, the utilities, the upgrades to the cell
phones, the lap tops, cars, the list is endless, dominates lifes in the
USA.The oppressor-invader requires distress and impotence and the
isolating behaviors with which we can and do distract ourselves in a
virtual world. The more we know and practice how to have
humanizing relationships creating concrete ties of solidarity we resist
distress, disease, despair and destruction. Breaking the isolation of
the academic department, the classroom, the lab, the field, the
practice and creating solidarity among the "haves" and "have nots"
requires a commitment towards an activism that no longer operates
"against" life but rather "for" life-- a liberation praxis.Liberation praxis
encourages multiple resistance methodologies and millions of
practices creating the networks that will take us out of isolation.
Resistance methodologies identify the manner in which we
recognize where we are at in our particular level of commitment:
knowing, on the one hand, what degree of commitment one has,
and, on the other, what side of the struggle one is committed to.
Engendering resistance methodologies against oppression and
exploitation revolves us to the core of liberation and self-
determination.According to Hans Georg Gadamer, our past
influences "everything we want, hope for, and fear in the future" and
only as we are "possessed" by our past are we "opened to the new,
the different and the true" (1976) Yet university-based research has
been slow to acknowledge the legitimacy and importance of
personal history as a way of understanding the world. This section
provides you with a summary review of the theories influencing my
teaching, research and activism. It is a reflection on the theories and
people who have actively worked for social justice, reform,
transformation, emancipation and revolution in and out of the
academy.My understanding of praxis methodologies shows that
reformers, liberationists, radicals, feminists and criticalists in the
USA have at least three basic assumptions in common about
methodologies in the social sciences and education: (1) education
and research are not neutral; (2) society can be transformed by the
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engagement of politically conscious persons; and (3) praxis

connects liberatory education with social transformation.
Traditionally qualitative research attempts to describe and interpret
discourse, symbols, behaviors, culture, environment and
relationships of participants or subjects under observation. The
qualitative interpretive process is described as inductive as the
researcher theorizes from specific examples observed to general
examples observed attempting to make the strange familiar or the
familiar strange (Renner 2001).Using a mixed methods research
strategy is a common choice for many contemporary activist
researchers. It offers us some creativity in responding to required
qualitative research designs and leads to multilayered themes
because topics are investigated from a multiplicity of different
approaches. One common aim of engaged methodologies
(emancipatory, liberationist, critical, radical, social justice, action
oriented, activist, and feminist) identifies ways in which dominant
conceptions and practices of knowledge attribution, acquisition, and
justification systematically disadvantage subordinated groups.
Conceptions of objectivity criticized by activist researchers identify
objectivity with a single point of view that dismisses all other points
of view as false or biased. These claims of objectivity consistently
benefit specific power holder interests. Engaged educators strive to
reform these conceptions and practices so that they serve the
interests of social justice and social equality.Various practitioners in
academic engaged fields of study argue that dominant knowledge
practices target certain groups based on color, class, gender and
creed by (1) excluding them from inquiry, (2) denying them epistemic
authority, (3) denigrating their cognitive styles and modes of
knowledge, (4) producing theories that represent them as inferior,
deviant, or significant only in the ways they serve elite interests, (5)
producing theories of social phenomena that render their activities
and interests, or power relations, invisible, and (6) producing
knowledge (science and technology) that is damaging at worst and
not useful at best for people in subordinate positions, thus
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reinforcing subjugation, exploitation and other social

hierarchies.Some engaged researchers trace these failures to
flawed conceptions of knowledge, knower's, objectivity, and scientific
methodology. They offer diverse accounts of how to overcome these
failures. They also aim to (1) explain why the entry of alternative
epistemic scholars (scholars of color, working class scholars,
organic intellectuals, and women) into all academic disciplines,
especially in biology and the social sciences, has generated new
questions, theories, and methods, (2) claim that inclusion of diverse
scholars across class, race, and sex has and will play a causal role
in the transformation of academic disciplinary approaches, and (3)
defend these changes as fundamentally cognitive, not just social,
advances.Using theoretical principles of liberation theology and
psychology, ethnography, thick description, reflexivity, and critical
hermeneutics, my intent for our class is on theory building in praxis
to advance the goals of engaged methodologies rather than theory
testing. One of the basic problems that engaged theoreticians in
educational and social science research pose and expose is the
manner in which the academy in the USA is a foundational site for
the maintenance of social and economic inequalities. Inequality is an
inescapable outcome and an essential condition of the successful
economic functioning of capitalism (Panitch and Gindin 2004).
In, Notes Toward an Understanding of Revolutionary Politics Today,
James Petras says that intellectuals, including academics, are
sharply divided across generations between those who have in
many ways embraced, however critically, ‗neo-liberalism" or have
prostrated themselves before "the most successful ideology in world
history" and its "coherent and systematic vision" and those who have
been actively writing, struggling and building alternatives (Petras
2001).The active struggle to resist oppression and build alternatives
occurs when a person reflects upon theory in the light of praxis or
practical judgment; the form of knowledge that results is personal or
tacit knowledge. This tacit knowledge can be acquired through the
process of reflection (Grundy 1982).In fact, many activist
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researchers and educators using engaged methodologies found in

emancipatory, liberationist, critical and feminist theories identify the
writings of Gramsci as foundational guides for praxis. Although
Gramsci is not well known or studied much in the USA it is fair to say
that he greatly influenced social justice movements and activist
educators in the West whether or not they are aware that their ideas
historically originate from his writings. Refusing to separate culture
from systemic relations of power, or politics from the production of
knowledge and identities, Gramsci redefined how politics bore upon
everyday life through the force of its pedagogical (teaching and
research) practices, relations, and discourses (Giroux 1999).
Perhaps it was Gramsci who first posited that the "personal is
political," a slogan much used by feminist academics in the USA.
Gramsci offered a theoretical model combining the social world and
the economic world. He stressed the complexity of social formations
such as class and race as a plurality of conflicts. Politics was
assigned a constitutive role in direct relation to ideology as a key
prerequisite for political action in so far as it served to ‗cement and
unify' a "social bloc'. Without this consciousness, there was no
action (Martin 2002).
In such hegemonic struggles for the minds and hearts of the people,
intellectuals clearly have a vital role (Boyce 2003). Gramsci taught
that the key index for analyzing a social formation was the
interaction of economic relations with cultural, political and
ideological practices or the ‗historical bloc'. In the case of our study,
you the students are an historical bloc. As such, the
interconnections between state and economy and society were
viewed processionally, as a mutually determined whole (Martin
2002). By emphasizing the configuration of the social formation
Gramsci was able to dwell on the points at which the elements of the
social were linked. For example Gramsci showed how intellectuals in
Italy were engaged in the enterprise of legitimizing the state's power
to the agrarian elite (rich land-owners), in other words the scholars
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were serving the state to change things to benefit the rich (Martin
2002). In the same manner that a historical bloc (such as students
and teachers) could serve elite interests Gramsci posited that a
historical bloc could counter the elite (also an historical bloc).
Revolution was conceived as the gradual formation of the collective
will, an intellectual and moral framework that would unite a diverse
range of groups and classes through an organic relation between
leaders and the praxis of subjects. This was a conception of
revolution as issuing from the immanent will of the people wherein
praxis constituted the very process of history itself (Martin 2002).
For example, when teachers have an organic intellectual relationship
with students and their theories and action combine to shift power for
social justice this constitutes a process of social change historically.
Using Gramsci's innovation to abolish the liberal distinction between
public and private that he applied to the praxis of factory production
through workplace solidarity is a concept extended by some activist
researchers applying it as counter hegemonic work in educational
and social science studies such as justice studies.Where Gramsci
posited a worker's "higher consciousness" as integral parts of an
organic whole I posit a student's consciousness raising process that
would unite them as a bloc. Gramsci's theory posed that domination
by an economic class grows as they successfully embed economic
activity (e.g., profit before people) as a universal principle (Martin
2002). He identified how domination was accomplished in
conjunction with what he called ‗organic crisis' in which the various
points of contact between the dominant economic class intersected
with other classes, specifically with the help of intellectuals in
institutions of education that link the classes in a common identity
(e.g., a nation) (Martin 2002). Gramsci believed this same program
could be countered using similar methods within the non-dominant
classes and groups. Thus a popular identity among students could
be fostered by using organic crisis (such as the present terror wars)
to link groups with the help of organic intellectuals (you, the student)
guiding and guided by vanguard intelligentsia (the teacher) creating
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a community with a popular identity such as "the movement" as

Gramsci hoped to maintain and "the brotherhood".Using this model
would mean building a universalizing identity drawn from the praxis
of the students, by which to supplant the ruling class (Martin 2002).
For the purpose of our study, both theoretically and practically, the
terms and phrases such as "organic intellectual," and "historical
bloc" are Gramscian. Gramsci's organic intellectual is someone
whose knowledge is derived through firsthand experience, and
whose life-learning is complemented by self education and other
alternative forms of learning. The organic intellectual emerges from a
social class to speak against the established order in a manner
directly connected to the goals of a political movement and a
community (Martin 2002). For example, I as activist researcher am
an organic intellectual emerged from the working class to speak
against the established order in a manner directly connected to anti-
capitalist movements.Gramsci identified how the various cultural and
economic structures force and reinforce people's consent to
subjugation. This point goes to the heart of our research. How and
why do students, after gaining access to the academy in the USA
concede to taking the paths that are counter to the aims of social
justice? Methodologically, Gramsci proposed education as a
process of dialogue that would bring the working classes together in
projects and organizations politically and would develop a base of
worker intellectuals who would inform the intelligentsia of the
Vanguard Party (those who know and practice theories of social
justice). Will the practices identified in our research bring students
together or develop a base of student intellectuals informing praxis?
Gramsci advocated reflexivity as a mode for counter hegemonic
discourse and identified its importance as foundational for Cultural
Revolution (Gramsci 1971). Gramsci summarizes this important
concept:Consciousness of a self which is opposed to others, which
is differentiated and, once having set itself a goal, can judge facts
and events other than in themselves or for themselves but also in so
far as they tend to drive history forward or backward. To know
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oneself means to be oneself, to be master of oneself, to distinguish

oneself, to free oneself from a state of chaos, to exist as an element
of order-but of one's own order and one's own discipline in striving
for an ideal. And we cannot be successful in this unless we also
know others, their history, the successive efforts they have made to
be what they are, to create the civilization they have created and
which we seek to replace with our own . . . And we must learn all this
without losing sight of the ultimate aim: to know oneself better
through others and to know others better through oneself. (Gramsci
1971) Reflexivity is said to be as relevant to the macro-contexts of
knowledge production as it is to the micro-context of research
design. As such, we must acknowledge the double hermeneutic (the
development and study of theories of the interpretation and
understanding of texts) nature of social science. When we learn
about people and about social events, the process is complex (Siraj-
Blatchford 1997).The Gramscian leitmotif of reflexivity served as a
counter hegemonic method fostering liberatory alliance among
oppressed and exploited people. Reflexive methodologies are
intended to focus on the experiences and interpretations of the
oppressed toward the aims of increased understanding of peoples
relationships to power structures as they play themselves out in
social relations.Historically the ruling class and appointed privileged
class intelligentsia have defined and constructed meanings and
interpreted the world for the poor, the labor class and middle class.
In its literal sense, the term reflection derives from the Latin verb
reflectere, which literally means "to bend back." Reflexive
emancipatory methods require that people in the roles of researcher
and subject ( such as students) claim the positions they already
occupy, and account for what working from and for such positions
means-in particular, in terms of what ends these positions advance
and what interests these positions serve (Campbell 2002). In other
words, who benefits if you learn research methods wherein you
study yourselves and your peers as a historical bloc for social
justice?Researchers represent positions, ends, and interests as is
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evidenced in their individual articulations and actions in and out of

the field. Engaged methods such as reflexive ones are intended to
produce conscious participation in praxis advancing aims as
effectively as possible for direct, immediate and relevant ways that
end oppression and exploitation. Emancipatory reflexivity is a
methodology wherein people take up the complexities of place and
biography; deconstruct the dualities of power and antipower,
hegemony and resistance, and insider and outsider constructs
revealing the variety of experiences and interpretations across class,
race, and gender. Reflexive methodological trends have described
and ascribed representations of the worlds of the exploited. When
confronting the problems and issues of social and economic justice
praxis in education, reflexive methodology invites us to explore and
analyze while hearing the voices and understanding the thinking of
the marginalized, exploited, and oppressed. An engaged analysis
requires our thinking as researcher and educator to be challenged-to
be made problematic so that we can locate that which in material
relations gives rise to various interpretations and points of view. In
this mode we are called to assess relations in the context of whether
they are liberating or dehumanizing.
10.8 SUMMARY
Utilitarianism as a theory of justice is based on a principle of utility,

approving every action that increases human happiness (by
increasing pleasure and/or decreasing pain, those being the two
"sovereign masters" of man) and disapproving every action that
diminishes it. A utilitarian view is that justice should seek to create
the greatest happiness of the greatest number. A law is just if it
results in a net gain in happiness, even at the expense of minorities.
The problem here is that minorities may not form part of the "greater
number". This is a particular problem in a pluralist society.

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In this unit we have discussed about the concept of Equivalence

Theories and Justice as nothing more than the positive law of the
stronger class.
http://juneterpstra.com/rich_text.html
Theories of Justice by June C. Terpstra, Ph.D.
SOURCE LIST AND WORKS CITED
Baro, Ignacio-Martin. 1994. Writings for a liberation psychology.

Cambridge: Harvard University Press.
Baym, Nina. 1995. The emperor redressed: Critiquing critical theory.

Tuscaloosa: University of Alabama Press.
Boff, Leonardo and Clodovis Boff. 2001. A concise history of

liberation theology. Maryknoll, New York: Orbis Books.
Boyce, Mary. 2003 Teaching critically as an act of praxis and

resistance.
http://www.mngt.waikato.ac.nz/Research/ejrot/Vol_3/Vol2articles/boy
ce.asp.
Brookfield, Stephen. 1995. Becoming a critically reflective teacher.

New York: Jossey-Bass.
Fine, Michelle. 1994. Working the hyphens: Reinventing self and

other in qualitative research. In Handbook of Qualitative Research,
Norman K. Denzin and Yvonna S. Lincoln. Thousand Oaks, CA:
Sage.
Fraser, Nancy. 1997. Justice interruptus: Critical reflections on the

"post-socialist" condition. New York. Routledge Press.

Page 264
Freire, Paulo. 1970. Pedagogy of the oppressed. New York:

Continuum Press.
Freire, Paulo and Antonio Faundez. 1989. Learning to question: A

Pedagogy of liberation. New York: Continuum Press.
Gadamer, Hans Georg. 1975. Truth and method. New York:

Continuum Press.
Gadotti, Moacir. 1997. Homage to Paulo Freire. Speech delivered at

the Latin American Center, UCLA.
http://jac.gsu.edu/jac/12.1/Articles/1.htm/
Geertz, Clifford. 1973. Thick description: Toward an interpretive
theory of culture. In The interpretation of culture, ed. Clifford Geertz.
New York: Basic Books.
Giroux, Henry. 1991. Border crossings: Cultural workers and the
politics of education. New York: Routledge.
1999. Rethinking cultural politics and radical pedagogy. In The work
of Antonio Gramsci. New York: Routledge.
Gramsci, Antonio. 1971. Selections from the prison notebooks.

Edited and translated by Q. Hoare & G. N. Smith. New York:
International Publishers.
1971. Selections from the prison notebooks. London: Lawrence and

Wishart.
Grundy, S. 1982. 3d ed. Three Modes of Action Research. In The

Action Research Reader. Geelong: Deakin University Press.

Page 265
Grundy, Shirley. 1987. Curriculum: Product or praxis. London: The

Falmer Press.
Gutiérrez, Gustavo. 1993. Las casas: In search of the poor of Jesus

Christ. Maryknoll, NY: Orbis Books.
1996. Gustavo Gutierrez Essential Writings. Maryknoll, New York:

Orbis Books.
1973. Teología de la liberación, perspectivas (A Theology of

Liberation: History, Politics, & Salvation). Maryknoll NY: Orbis Bo
Harding, Sandra. 1991. Whose science? Whose knowledge? Ithaca,

New York: Cornell University Press.
Hoffman, John. 1975. Marxism and the theory of praxis. London:

Lawrence & Wishart.
Holter, I.M. and D. Schwartz-Barcott. 1993. Action research: What is

it? How has it been used and how can it be used in nursing? In
Journal of Advanced Nursing, 1993:128; 298-304.
Humphries, Beth. 1997. From critical thought to emancipatory action:

Contradictory research goals? Sociological Research Online 2, no.
1: PAGES. http://www.socresonline.org.uk/socresonline/2/1/3.html
Kincheloe, Joe and Peter McLaren. 2000. Rethinking critical theory

and qualitative research. In Handbook of Qualitative Research.
Thousand Oaks, CA: Sage Publications.
Jameson, Fredric. 1988. History and class consciousness as an

`unfinished project'." In Rethinking marxism. Spring 1988, 1(1): 49-
72.
Page 266
Lather, Patti and Smithies, Chris. 1997. Troubling the angels:

Women living with HIV/AIDs. Boulder: Westview Press.
Lather, Patti. 1986a. Issues of Validity in Openly Ideological

Research: Between a Rock and a Soft Place. Interchange 17, no. 4:
PAGES.
. 1986b. Research as praxis. In Harvard Educational Review 56, no.

3: 257-277.
Macbeth, Douglas. 2001. On reflexivity in qualitative research: Two

readings, and a third. Qualitative Inquiry 7, no. 1.
Martin, James. 2002. Poststructuralism and radical politics. In

Poststructuralism and politics: An introduction, ed. Jeremy Valentine
and Alan Finlayson. Edinburgh: Edinurgh University Press.
McLaren, Peter. 2000. Che Guevara, Paulo Freire, and the

pedagogy of revolution. Lanham, Maryland: Rowman & Littlefield.
. 1995. Critical pedagogy and predatory culture: Oppositional politics

in a postmodern era. New York & London: Routledge.
. 1998. 3d ed. Life in schools: An Introduction to critical pedagogy in

the foundations of education. New York: Longman.
. 1997. Revolutionary multiculturalism: Pedagogies of dissent for the

new millennium. Boulder, Colorado: Westview Press.
McLaren, and Ramin Farahmandpur. 2000. Reconsidering marx in

post-marxist times: a requiem for postmodernism? In Educational
Researcher. Vol. 29 (3):25-33.

Page 267
Moody-Adams, Michelle. 1997. Fieldwork in familiar places: Morality,

culture, and philosophy. Cambridge: Harvard University Press.
Nowlan, Bob. 1993. Radical political praxis within the late capitalist
academy. The Alternative Orange 3, no. 1.
Olson, Gary. 1992. Introduction to Freire and his work in the light
of his contemporary critics. http://jac.gsu.edu/jac/12.1/Articles/1.htm.
Panitch, Leo & Sam Gindin. 2004. Global capitalism and American
empire. In The new imperial challenge, ed. Leo Panitch and Colin
Leys. New York: Socialist Register.
Petras, James. 2001. Notes Toward an Understanding of

Revolutionary Politics Today. No 19, Links. New York: New Course
Publications.
Renner, Peter. 2002. Vulnerable to possibilities: A journey of self-

knowing through personal narrative. Ann Arbor: University of
Michigan Press.
Schwandt, Thomas A. 1997. Qualitative inquiry: A dictionary of

terms. Thousand Oaks, CA: Sage Publications.
Siraj-Blatchford, Iram. 1997. Reflexivity, social justice and

educational research. Cambridge Journal of Education 27: PAGES.
Steiner, Claude, ed. 1975. Readings in radical psychiatry. New York:

Grove Press.
Taylor, Charles. 2001. Two theories of modernity. In Alternative

modernities. Ed. Dilip Parameshwar Gaonkar, 172-96.
Page 268
Tripp, David. 1992. Critical theory and educational research. Issues

In Educational Research 2, no. 1: 13-23.
http://education.curtin.edu.au/iier/iier2/tripp.html
Weber, Max. 1963. The sociology of religion. Translated by Ephrain

Fischoff. Boston: Beacon Press.
Wyckoff, Hogie. 1976. Love, therapy and politics: Issues in radical

therapy. New York: Grove Press.
Young, Michael. 1971. Knowledge and control: New directions for

the sociology of education. London: Collier Macmillan.
1. Discuss what is the Relation between law and Justice?

2. What do you Understand the concept of Equivalence Theories
of law and justice.
3. Describe Justice as positive law of the stronger class.

Page 269
LL.M. Part-2

Unit-11- Dependency theories - For its realization justice depends
on law, but justice is not the same as law
STRUCTURE
11.1 INTRODUCTION
11.2 OBJECTIVES
11.3 WHAT are the Dependency theories of Justice?
11.4. Whether Justice depends on law? - Various opinions
11.5 SUMMARY

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11.1 INTRODUCTION
In the previous unit you have read about the concept of Equivalence
Theories and Justice as nothing more than the positive law of the
stronger class.
Law and justice depend on each other for their realization. This is
what is commonly known as the dependency theory of justice.
Different people give different views on justice. Yet, to understand
justice from the legal philosophy point of view, we must understand
the basic soul of justice. Justice is an act of imparting fair relief to the
disputing parties in order to achieve universal good to the humanity
on the whole. Justice is always taken to be the end and law as well
as legal processes work as means to that end. earlier, it was
believed that peace is the ultimate end for human good, and later it
was thought that security is the real ultimate end. But when we look
at the social structure and the end-means structure of goals that
lead us to a well organized balanced society, we find that justice
plays a very vital role.In this unit we will discuss about the
Dependency theories of law and justice and for its realization justice
depends on law, but justice is not the same as law.
11.2 OBJECTIVES
 Understand the concept of Dependency theories of law and

justice.
 Describe whether justice depends on law?
 Discuss justice is not the same as law.
11.3 WHAT are the Dependency theories of Justice?

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Dependency theory of justice

Law and justice depend on each other for their realization. This is
what is commonly known as the dependency theory of justice.
Different people give different views on justice. Yet, to understand
justice from the legal philosophy point of view, we must understand
the basic soul of justice. Justice is an act of imparting fair relief to the
disputing parties in order to achieve universal good to the humanity
on the whole.
Justice in the end-means context:
Justice is always taken to be the end and law as well as legal
processes work as means to that end. earlier, it was believed that
peace is the ultimate end for human good, and later it was thought
that security is the real ultimate end. But when we look at the social
structure and the end-means structure of goals that lead us to a well
organized balanced society, we find that justice plays a very vital
role.Justice depends on law and security of many in the society
depend on justice and peace depends on the sense of security in
people and the general well-being depends on the peace in society.
as a result, justice is an end that law seeks, but justice is not the
same as law.
Also, at times, justice happens or is done even in the absence of
law. Law is something that has to be executed while justice is
something that has to be achieved.
Dependency theory of Justice:
The theory that says that justice and law have a dependency relation
that exists for the well being and harmony of the society is known as
the dependency theory of justice.
This theory proposes that justice depends on law but is not the same
as law.Justice is imparted by judiciary of the state as per law,l but
this is not the only way in which justice is imparted.
At times, some events happen in accordance of the laws of nature
that are never unique to any one single state, and as a result of
those happenings, the parties do receive justice that may not be

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imparted by the judiciary, but that may have been a result of the
work of laws of nature.
Yet, even such a justice is seen to depend on the laws created by
nature.In short, justice that is a means to the final ends of security,
peace and general well being, is an end that law seeks by working to
be its means.
11.4. Whether Justice depends on law? - Various opinions
Legal positivism is the thesis that the existence and content of law
depends on social facts and not on its merits. The English jurist John
Austin (1790-1859) formulated it thus: ―The existence of law is one
thing; its merit and demerit another. Whether it be or be not is one
enquiry; whether it be or be not conformable to an assumed
standard, is a different enquiry.‖ (1832, p. 157) The positivist thesis
does not say that law's merits are unintelligible, unimportant, or
peripheral to the philosophy of law. It says that they do not
determine whether laws or legal systems exist. Whether a society
has a legal system depends on the presence of certain structures of
governance, not on the extent to which it satisfies ideals of justice,
democracy, or the rule of law. What laws are in force in that system
depends on what social standards its officials recognize as
authoritative; for example, legislative enactments, judicial decisions,
or social customs. The fact that a policy would be just, wise, efficient,
or prudent is never sufficient reason for thinking that it is actually the
law, and the fact that it is unjust, unwise, inefficient or imprudent is
never sufficient reason for doubting it. According to positivism, law is
a matter of what has been posited (ordered, decided, practiced,
tolerated, etc.); as we might say in a more modern idiom, positivism
is the view that law is a social construction. Austin thought the thesis
―simple and glaring.‖ While it is probably the dominant view among
analytically inclined philosophers of law, it is also the subject of
competing interpretations together with persistent criticisms and
misunderstandings.

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1. Development and Influence

Legal positivism has a long history and a broad influence. It has
antecedents in ancient political philosophy and is discussed, and the
term itself introduced, in mediaeval legal and political thought (see
Finnis 1996). The modern doctrine, however, owes little to these
forbears. Its most important roots lie in the conventionalist political
philosophies of Hobbes and Hume, and its first full elaboration is due
to Jeremy Bentham (1748-1832) whose account Austin adopted,
modified, and popularized. For much of the next century an
amalgam of their views, according to which law is the command of a
sovereign backed by force, dominated legal positivism and English
philosophical reflection about law. By the mid-twentieth century,
however, this account had lost its influence among working legal
philosophers. Its emphasis on legislative institutions was replaced by
a focus on law-applying institutions such as courts, and its insistence
of the role of coercive force gave way to theories emphasizing the
systematic and normative character of law. The most important
architects of this revised positivism are the Austrian jurist Hans
Kelsen (1881-1973) and the two dominating figures in the analytic
philosophy of law, H.L.A. Hart (1907-92) and Joseph Raz among
whom there are clear lines of influence, but also important contrasts.
Legal positivism's importance, however, is not confined to the
philosophy of law. It can be seen throughout social theory,
particularly in the works of Marx, Weber, and Durkheim, and also
(though here unwittingly) among many lawyers, including the
American ―legal realists‖ and most contemporary feminist scholars.
Although they disagree on many other points, these writers all
acknowledge that law is essentially a matter of social fact. Some of
them are, it is true, uncomfortable with the label ―legal positivism‖
and therefore hope to escape it. Their discomfort is sometimes the
product of confusion. Lawyers often use ―positivist‖ abusively, to
condemn a formalistic doctrine according to which law is always
clear and, however pointless or wrong, is to be rigorously applied by
officials and obeyed by subjects. It is doubtful that anyone ever held
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this view; but it is in any case false, it has nothing to do with legal
positivism, and it is expressly rejected by all leading positivists.
Among the philosophically literate another, more intelligible,
misunderstanding may interfere. Legal positivism is here sometimes
associated with the homonymic but independent doctrines of logical
positivism (the meaning of a sentence is its mode of verification) or
sociological positivism (social phenomena can be studied only
through the methods of natural science). While there are historical
connections, and also commonalities of temper, among these ideas,
they are essentially different. The view that the existence of law
depends on social facts does not rest on a particular semantic
thesis, and it is compatible with a range of theories about how one
investigates social facts, including non-naturalistic accounts. To say
that the existence of law depends on facts and not on its merits is a
thesis about the relation among laws, facts, and merits, and not
otherwise a thesis about the individual relata. Hence, most traditional
―natural law‖ moral doctrines--including the belief in a universal,
objective morality grounded in human nature--do not contradict legal
positivism. The only influential positivist moral theories are the views
that moral norms are valid only if they have a source in divine
commands or in social conventions. Such theists and relativists
apply to morality the constraints that legal positivists think hold for
law.
2. The Existence and Sources of Law
Every human society has some form of social order, some way of
marking and encouraging approved behavior, deterring disapproved
behavior, and resolving disputes. What then is distinctive of societies
with legal systems and, within those societies, of their law? Before
exploring some positivist answers, it bears emphasizing that these
are not the only questions worth asking. While an understanding of
the nature of law requires an account of what makes law distinctive,
it also requires an understanding of what it has in common with other
forms of social control. Some Marxists are positivists about the
nature of law while insisting that its distinguishing characteristics
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matter less than its role in replicating and facilitating other forms of
domination. (Though other Marxists disagree: see Pashukanis).
They think that the specific nature of law casts little light on their
primary concerns. But one can hardly know that in advance; it
depends on what the nature of law actually is.
According to Bentham and Austin, law is a phenomenon of large
societies with a sovereign: a determinate person or group who have
supreme and absolute de facto power -- they are obeyed by all or
most others but do not themselves similarly obey anyone else. The
laws in that society are a subset of the sovereign's commands:
general orders that apply to classes of actions and people and that
are backed up by threat of force or ―sanction.‖ This imperatival
theory is positivist, for it identifies the existence of legal systems with
patterns of command and obedience that can be ascertained without
considering whether the sovereign has a moral right to rule or
whether his commands are meritorious. It has two other distinctive
features. The theory is monistic: it represents all laws as having a
single form, imposing obligations on their subjects, though not on the
sovereign himself. The imperativalist acknowledges that ultimate
legislative power may be self-limiting, or limited externally by what
public opinion will tolerate, and also that legal systems contain
provisions that are not imperatives (for example, permissions,
definitions, and so on). But they regard these as part of the non-legal
material that is necessary for, and part of, every legal system.
(Austin is a bit more liberal on this point). The theory is also
reductivist, for it maintains that the normative language used in
describing and stating the law -- talk of authority, rights, obligations,
and so on -- can all be analyzed without remainder in non-normative
terms, ultimately as concatenations of statements about power and
obedience.Imperatival theories are now without influence in legal
philosophy (but see Ladenson and Morison). What survives of their
outlook is the idea that legal theory must ultimately be rooted in
some account of the political system, an insight that came to be
shared by all major positivists save Kelsen. Their particular
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conception of a society under a sovereign commander, however, is

friendless (except among Foucauldians, who strangely take this relic
as the ideal-type of what they call ―juridical‖ power). It is clear that in
complex societies there may be no one who has all the attributes of
sovereignty, for ultimate authority may be divided among organs and
may itself be limited by law. Moreover, even when ―sovereignty‖ is
not being used in its legal sense it is nonetheless a normative
concept. A legislator is one who has authority to make laws, and not
merely someone with great social power, and it is doubtful that
―habits of obedience‖ is a candidate reduction for explaining
authority. Obedience is a normative concept. To distinguish it from
coincidental compliance we need something like the idea of subjects
being oriented to, or guided by, the commands. Explicating this will
carry us far from the power-based notions with which classical
positivism hoped to work. The imperativalists' account of obligation
is also subject to decisive objections (Hart, 1994, pp. 26-78; and
Hacker). Treating all laws as commands conceals important
differences in their social functions, in the ways they operate in
practical reasoning, and in the sort of justifications to which they are
liable. For instance, laws conferring the power to marry command
nothing; they do not obligate people to marry, or even to marry
according to the prescribed formalities. Nor is reductivism any more
plausible here: we speak of legal obligations when there is no
probability of sanctions being applied and when there is no provision
for sanctions (as in the duty of the highest courts to apply the law).
Moreover, we take the existence of legal obligations to be a reason
for imposing sanctions, not merely a consequence of it.
Hans Kelsen retains the imperativalists' monism but abandons their
reductivism. On his view, law is characterized by a basic form and
basic norm. The form of every law is that of a conditional order,
directed at the courts, to apply sanctions if a certain behavior (the
―delict‖) is performed. On this view, law is an indirect system of
guidance: it does not tell subjects what to do; it tells officials what to
do to its subjects under certain conditions. Thus, what we ordinarily
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regard as the legal duty not to steal is for Kelsen merely a logical
correlate of the primary norm which stipulates a sanction for stealing
(1945, p. 61). The objections to imperatival monism apply also to this
more sophisticated version: the reduction misses important facts,
such as the point of having a prohibition on theft. (The courts are not
indifferent between, on the one hand, people not stealing and, on
the other, stealing and suffering the sanctions.) But in one respect
the conditional sanction theory is in worse shape than is
imperativalism, for it has no principled way to fix on the delict as the
duty-defining condition of the sanction -- that is but one of a large
number of relevant antecedent conditions, including the legal
capacity of the offender, the jurisdiction of the judge, the
constitutionality of the offense, and so forth. Which among all these
is the content of a legal duty?
Kelsen's most important contribution lies in his attack on reductivism
and his doctrine of the ―basic norm.‖ He maintains that law is
normative and must understood as such. Might does not make right -
- not even legal right -- so the philosophy of law must explain the fact
that law is taken to impose obligations on its subjects. Moreover, law
is a normative system: ―Law is not, as it is sometimes said, a rule. It
is a set of rules having the kind of unity we understand by a system‖
(1945, p. 3). For the imperativalists, the unity of a legal system
consists in the fact that all its laws are commanded by one
sovereign. For Kelsen, it consists in the fact that they are all links in
one chain of authority. For example, a by-law is legally valid because
it is created by a corporation lawfully exercising the powers
conferred on it by the legislature, which confers those powers in a
manner provided by the constitution, which was itself created in a
way provided by an earlier constitution. But what about the very first
constitution, historically speaking? Its authority, says Kelsen, is
―presupposed.‖ The condition for interpreting any legal norm as
binding is that the first constitution is validated by the following ―basic
norm:‖ ―the original constitution is to be obeyed.‖ Now, the basic
norm cannot be a legal norm -- we cannot fully explain the
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bindingness of law by reference to more law. Nor can it be a social

fact, for Kelsen maintains that the reason for the validity of a norm
must always be another norm -- no ought from is. It follows, then,
that a legal system must consist of norms all the way down. It
bottoms in a hypothetical, transcendental norm that is the condition
of the intelligibility of any (and all) other norms as binding. To
―presuppose‖ this basic norm is not to endorse it as good or just --
resupposition is a cognitive stance only -- but it is, Kelsen thinks, the
necessary precondition for a non-reductivist account of law as a
normative system.
There are many difficulties with this, not least of which is the fact that
if we are willing to tolerate the basic norm as a solution it is not clear
why we thought there was a problem in the first place. One cannot
say both that the basic norm is the norm presupposing which
validates all inferior norms and also that an inferior norm is part of
the legal system only if it is connected by a chain of validity to the
basic norm. We need a way into the circle. Moreover, it draws the
boundaries of legal systems incorrectly. The Canadian Constitution
of 1982 was lawfully created by an Act of the U.K. Parliament, and
on that basis Canadian law and English law should be parts of a
single legal system, rooted in one basic norm: ‗The (first) U.K.
constitution is to be obeyed.‘ Yet no English law is binding in
Canada, and a purported repeal of the Constitution Act by the U.K.
would be without legal effect in Canada.
If law cannot ultimately be grounded in force, or in law, or in a
presupposed norm, on what does its authority rest? The most
influential solution is now H.L.A. Hart's. His solution resembles
Kelsen's in its emphasis on the normative foundations of legal
systems, but Hart rejects Kelsen's transcendentalist, Kantian view of
authority in favour of an empirical, Weberian one. For Hart, the
authority of law is social. The ultimate criterion of validity in a legal
system is neither a legal norm nor a presupposed norm, but a social
rule that exists only because it is actually practiced. Law ultimately
rests on custom: customs about who shall have the authority to
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decide disputes, what they shall treat as binding reasons for

decision, i.e. as sources of law, and how customs may be changed.
Of these three ―secondary rules,‖ as Hart calls them, the source-
determining rule of recognition is most important, for it specifies the
ultimate criteria of validity in the legal system. It exists only because
it is practiced by officials, and it is not only the recognition rule (or
rules) that best explains their practice, it is rule to which they actually
appeal in arguments about what standards they are bound to apply.
Hart's account is therefore conventionalist (see Marmor, and
Coleman, 2001): ultimate legal rules are social norms, although they
are neither the product of express agreement nor even conventions
in the Schelling-Lewis sense (see Green 1999). Thus for Hart too the
legal system is norms all the way down, but at its root is a social
norm that has the kind of normative force that customs have. It is a
regularity of behavior towards which officials take ―the internal point
of view:‖ they use it as a standard for guiding and evaluating their
own and others' behavior, and this use is displayed in their conduct
and speech, including the resort to various forms of social pressure
to support the rule and the ready application of normative terms such
as ―duty‖ and ―obligation‖ when invoking it.
It is an important feature of Hart's account that the rule of recognition
is an official custom, and not a standard necessarily shared by the
broader community. If the imperativalists' picture of the political
system was pyramidal power, Hart's is more like Weber's rational
bureaucracy. Law is normally a technical enterprise, characterized
by a division of labour. Ordinary subjects' contribution to the
existence of law may therefore amount to no more than passive
compliance. Thus, Hart's necessary and sufficient conditions for the
existence of a legal system are that ―those rules of behavior which
are valid according to the system's ultimate criteria of validity must
be generally obeyed, and ... its rules of recognition specifying the
criteria of legal validity and its rules of change and adjudication must
be effectively accepted as common public standards of official
behavior by its officials‖ (1994, p. 116). And this division of labour is
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not a normatively neutral fact about law; it is politically charged, for it

sets up the possibility of law becoming remote from the life of a
society, a hazard to which Hart is acutely alert (1994, p. 117; cf.
Waldron).
Although Hart introduces the rule of recognition through a
speculative anthropology of how it might emerge in response to
certain deficiencies in a customary social order, he is not committed
to the view that law is a cultural achievement. To the contrary, the
idea that legal order is always a good thing, and that societies
without it are deficient, is a familiar element of many anti-positivist
views, beginning with Henry Maine's criticism of Austin on the
ground that his theory would not apply to certain Indian villages. The
objection embraces the error it seeks to avoid. It imperialistically
assumes that it is always a bad thing to lack law, and then makes a
dazzling inference from ought to is: if it is good to have law, then
each society must have it, and the concept of law must be adjusted
to show that it does. If one thinks that law is a many splendored
thing, one will be tempted by a very wide concept of law, for it would
seem improper to charge others with missing out. Positivism simply
releases the harness. Law is a distinctive form of political order, not
a moral achievement, and whether it is necessary or even useful
depends entirely on its content and context. Societies without law
may be perfectly adapted to their environments, missing nothing.
A positivist account of the existence and content of law, along any of
the above lines, offers a theory of the validity of law in one of the two
main senses of that term (see Harris, pp. 107-111). Kelsen says that
validity is the specific mode of existence of a norm. An invalid
marriage is not a special kind of marriage having the property of
invalidity; it is not a marriage at all. In this sense a valid law is one
that is systemically valid in the jurisdiction -- it is part of the legal
system. This is the question that positivists answer by reference to
social sources. It is distinct from the idea of validity as moral
propriety, i.e. a sound justification for respecting the norm. For the
positivist, this depends on its merits. One indication that these
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senses differ is that one may know that a society has a legal system,
and know what its laws are, without having any idea whether they
are morally justified. For example, one may know that the law of
ancient Athens included the punishment of ostracism without
knowing whether it was justified, because one does not know
enough about its effects, about the social context, and so forth.
No legal positivist argues that the systemic validity of law establishes
its moral validity, i.e. that it should be obeyed by subjects or applied
by judges. Even Hobbes, to whom this view is sometimes ascribed,
required that law actually be able to keep the peace, failing which we
owe it nothing. Bentham and Austin, as utilitarians, hold that such
questions always turn on the consequences and both acknowledge
that disobedience is therefore sometimes fully justified. Kelsen
insists that ―The science of law does not prescribe that one ought to
obey the commands of the creator of the constitution‖ (1967, p. 204).
Hart thinks that there is only a prima facie duty to obey, grounded in
and thus limited by fairness -- so there is no obligation to unfair or
pointless laws (Hart 1955). Raz goes further still, arguing that there
isn't even a prima facie duty to obey the law, not even in a just state
(Raz 1979, pp. 233-49). The peculiar accusation that positivists
believe the law is always to be obeyed is without foundation. Hart's
own view is that an overweening deference to law consorts more
easily with theories that imbue it with moral ideals, permitting ―an
enormous overvaluation of the importance of the bare fact that a rule
may be said to be a valid rule of law, as if this, once declared, was
conclusive of the final moral question: ‗Ought this law to be
obeyed?‖ (Hart 1958, p. 75).
3. Moral Principles and the Boundaries of Law
The most influential criticisms of legal positivism all flow, in one way
or another, from the suspicion that it fails to give morality its due. A
theory that insists on the facticity of law seems to contribute little to
our understanding that law has important functions in making human
life go well, that the rule of law is a prized ideal, and that the
language and practice of law is highly moralized. Accordingly,
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positivism's critics maintain that the most important features of law

are not to be found in its source-based character, but in law's
capacity to advance the common good, to secure human rights, or to
govern with integrity. (It is a curious fact about anti-positivist theories
that, while they all insist on the moral nature of law, without
exception they take its moral nature to be something good. The idea
that law might of its very nature be morally problematic does not
seem to have occurred to them.)
It is beyond doubt that moral and political considerations bear on
legal philosophy. As Finnis says, the reasons we have for
establishing, maintaining or reforming law include moral reasons,
and these reasons therefore shape our legal concepts (p. 204). But
which concepts? Once one concedes, as Finnis does, that the
existence and content of law can be identified without recourse to
moral argument, and that ―human law is artefact and artifice; and not
a conclusion from moral premises,‖ (p. 205) the Thomistic apparatus
he tries to resuscitate is largely irrelevant to the truth of legal
positivism. This vitiates also Lon Fuller's criticisms of Hart (Fuller,
1958 and 1969). Apart from some confused claims about
adjudication, Fuller has two main points. First, he thinks that it isn't
enough for a legal system to rest on customary social rules, since
law could not guide behavior without also being at least minimally
clear, consistent, public, prospective and so on -- that is, without
exhibiting to some degree those virtues collectively called ―the rule of
law.‖ It suffices to note that this is perfectly consistent with law being
source-based. Even if moral properties were identical with, or
supervened upon, these rule-of-law properties, they do so in virtue
of their rule-like character, and not their law-like character. Whatever
virtues inhere in or follow from clear, consistent, prospective, and
open practices can be found not only in law but in all other social
practices with those features, including custom and positive morality.
And these virtues are minor: there is little to be said in favour of a
clear, consistent, prospective, public and impartially administered
system of racial segregation, for example. Fuller's second worry is
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that if law is a matter of fact, then we are without an explanation of

the duty to obey. He gloatingly asks how ―an amoral datum called
law could have the peculiar quality of creating an obligation to obey
it‖ (Fuller, 1958). One possibility he neglects is that it doesn't. The
fact that law claims to obligate is, of course, a different matter and is
susceptible to other explanations (Green 2001). But even if Fuller is
right in his unargued assumption, the ―peculiar quality‖ whose
existence he doubts is a familiar feature of many moral practices.
Compare promises: whether a society has a practice of promising,
and what someone has promised to do, are matters of social fact.
Yet promising creates moral obligations of performance or
compensation. An ―amoral datum‖ may indeed figure, together with
other premises, in a sound argument to moral conclusions.
While Finnis and Fuller's views are thus compatible with the
positivist thesis, the same cannot be said of Ronald Dworkin's
important works (Dworkin 1978 and 1986). Positivism's most
significant critic rejects the theory on every conceivable level. He
denies that there can be any general theory of the existence and
content of law; he denies that local theories of particular legal
systems can identify law without recourse to its merits, and he
rejects the whole institutional focus of positivism. A theory of law is
for Dworkin a theory of how cases ought to be decided and it begins,
not with an account of political organization, but with an abstract
ideal regulating the conditions under which governments may use
coercive force over their subjects. Force must only be deployed, he
claims, in accordance with principles laid down in advance. A society
has a legal system only when, and to the extent that, it honors this
ideal, and its law is the set of all considerations that the courts of
such a society would be morally justified in applying, whether or not
those considerations are determined by any source. To identify the
law of a given society we must engage in moral and political
argument, for the law is whatever requirements are consistent with
an interpretation of its legal practices (subject to a threshold
condition of fit) that shows them to be best justified in light of the
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animating ideal. In addition to those philosophical considerations,

Dworkin invokes two features of the phenomenology of judging, as
he sees it. He finds deep controversy among lawyers and judges
about how important cases should be decided, and he finds diversity
in the considerations that they hold relevant to deciding them. The
controversy suggests to him that law cannot rest on an official
consensus, and the diversity suggests that there is no single social
rule that validates all relevant reasons, moral and non-moral, for
judicial decisions.
Dworkin's rich and complex arguments have attracted various lines
of reply from positivists. One response denies the relevance of the
phenomenological claims. Controversy is a matter of degree, and a
consensus-defeating amount of it is not proved by the existence of
adversarial argument in the high courts, or indeed in any courts. As
important is the broad range of settled law that gives rise to few
doubts and which guides social life outside the courtroom. As for the
diversity argument, so far from being a refutation of positivism, this is
an entailment of it. Positivism identifies law, not with all valid reasons
for decision, but only with the source-based subset of them. It is no
part of the positivist claim that the rule of recognition tells us how to
decide cases, or even tells us all the relevant reasons for decision.
Positivists accept that moral, political or economic considerations are
properly operative in some legal decisions, just as linguistic or logical
ones are. Modus ponens holds in court as much as outside, but not
because it was enacted by the legislature or decided by the judges,
and the fact that there is no social rule that validates both modus
ponens and also the Municipalities Act is true but irrelevant. The
authority of principles of logic (or morality) is not something to be
explained by legal philosophy; the authority of acts of Parliament
must be; and accounting for the difference is a central task of the
philosophy of law.
Other positivists respond differently to Dworkin's phenomenological
points, accepting their relevance but modifying the theory to
accommodate them. So-called ―inclusive positivists‖ (e.g., Waluchow
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(to whom the term is due), Coleman, Soper and Lyons) argue that
the merit-based considerations may indeed be part of the law, if they
are explicitly or implicitly made so by source-based considerations.
For example, Canada's constitution explicitly authorizes for breach
of Charter rights, ―such remedy as the court considers appropriate
and just in the circumstances.‖ In determining which remedies might
be legally valid, judges are thus expressly told to take into account
their morality. And judges may develop a settled practice of doing
this whether or not it is required by any enactment; it may become
customary practice in certain types of cases. Reference to moral
principles may also be implicit in the web of judge-made law, for
instance in the common law principle that no one should profit from
his own wrongdoing. Such moral considerations, inclusivists claim,
are part of the law because the sources make it so, and thus
Dworkin is right that the existence and content of law turns on its
merits, and wrong only in his explanation of this fact. Legal validity
depends on morality, not because of the interpretative
consequences of some ideal about how the government may use
force, but because that is one of the things that may be customarily
recognized as an ultimate determinant of legal validity. It is the
sources that make the merits relevant.
To understand and assess this response, some preliminary
clarifications are needed. First, it is not plausible to hold that the
merits are relevant to a judicial decision only when the sources make
it so. It would be odd to think that justice is a reason for decision only
because some source directs an official to decide justly. It is of the
nature of justice that it properly bears on certain controversies. In
legal decisions, especially important ones, moral and political
considerations are present of their own authority; they do not need
sources to propel them into action. On the contrary, we expect to
see a sourceÑa statute, a decision, or a conventionÑwhen judges
are constrained not to appeal directly to the merits. Second, the fact
that there is moral language in judicial decisions does not establish
the presence of moral tests for law, for sources come in various
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guises. What sounds like moral reasoning in the courts is sometimes

really source-based reasoning. For example, when the Supreme
Court of Canada says that a publication is criminally ―obscene‖ only
if it is harmful, it is not applying J.S. Mill's harm principle, for what
that court means by ―harmful‖ is that it is regarded by the community
as degrading or intolerable. Those are source-based matters, not
moral ones. This is just one of many appeals to positive morality, i.e.
to the moral customs actually practiced by a given society, and no
one denies that positive morality may be a source of law. Moreover,
it is important to remember that law is dynamic and that even a
decision that does apply morality itself becomes a source of law, in
the first instance for the parties and possibly for others as well. Over
time, by the doctrine of precedent where it exists or through the
gradual emergence of an interpretative convention where it does
not, this gives a factual edge to normative terms. Thus, if a court
decides that money damages are in some instances not a ―just
remedy‖ then this fact will join with others in fixing what ―justice‖
means for these purposes. This process may ultimately detach legal
concepts from their moral analogs (thus, legal ―murder‖ may require
no intention to kill, legal ―fault‖ no moral blameworthiness, an
―equitable‖ remedy may be manifestly unfair, etc.)
Bearing in mind these complications, however, there undeniably
remains a great deal of moral reasoning in adjudication. Courts are
often called on to decide what would reasonable, fair, just, cruel, etc.
by explicit or implicit requirement of statute or common law, or
because this is the only proper or intelligible way to decide. Hart
sees this as happening pre-eminently in hard cases in which, owing
to the indeterminacy of legal rules or conflicts among them, judges
are left with the discretion to make new law. ―Discretion,‖ however,
may be a potentially misleading term here. First, discretionary
judgments are not arbitrary: they are guided by merit-based
considerations, and they may also be guided by law even though not
fully determined by it -- judges may be empowered to make certain
decisions and yet under a legal duty to make them in a particular
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way, say, in conformity with the spirit of preexisting law or with

certain moral principles (Raz 1994, pp. 238-53). Second, Hart's
account might wrongly be taken to suggest that there are
fundamentally two kinds of cases, easy ones and hard ones,
distinguished by the sorts of reasoning appropriate to each. A more
perspicuous way of putting it would be to say that there are two
kinds of reasons that are operative in every case: source-based
reasons and non-source-based reasons. Law application and law
creation are continuous activities for, as Kelsen correctly argued,
every legal decision is partly determined by law and partly
underdetermined: ―The higher norm cannot bind in every direction
the act by which it is applied. There must always be more or less
room for discretion, so that the higher norm in relation to the lower
one can only have the character of a frame to be filled by this act‖
(1967, p. 349). This is a general truth about norms. There are
infinitely many ways of complying with a command to ―close the
door‖ (quickly or slowly, with one's right hand or left, etc.) Thus, even
an ―easy case‖ will contain discretionary elements. Sometimes such
residual discretion is of little importance; sometimes it is central; and
a shift from marginal to major can happen in a flash with changes in
social or technological circumstances. That is one of the reasons for
rejecting a strict doctrine of separation of powers -- Austin called it a
―childish fiction‖ -- according to which judges only apply and never
make the law, and with it any literal interpretation of Dworkin's ideal
that coercion be deployed only according to principles laid down in
advance.It has to be said, however, that Hart himself does not
consistently view legal references to morality as marking a zone of
discretion. In a passing remark in the first edition of The Concept of
Law, he writes, ―In some legal systems, as in the United States, the
ultimate criteria of legal validity explicitly incorporate principles of
justice or substantive moral values …‖ (1994, p. 204). This thought
sits uneasily with other doctrines of importance to his theory. For
Hart also says that when judges exercise moral judgment in the
penumbra of legal rules to suppose that their results were already
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part of existing law is ―in effect, an invitation to revise our concept of

what a legal rule is …‖ (1958, p. 72). The concept of a legal rule, that
is, does not include all correctly reasoned elaborations or
determinations of that rule. Later, however, Hart comes to see his
remark about the U.S. constitution as foreshadowing inclusive
positivism (―soft positivism,‖ as he calls it). Hart's reasons for this
shift are obscure (Green 1996). He remained clear about how we
should understand ordinary statutory interpretation, for instance,
where the legislature has directed that an applicant should have a
―reasonable time‖ or that a regulator may permit only a ―fair price:‖
these grant a bounded discretion to decide the cases on their merits.
Why then does Hart -- and even more insistently, Waluchow and
Coleman -- come to regard constitutional adjudication differently? Is
there any reason to think that a constitution permitting only a ―just
remedy‖ requires a different analysis than a statute permitting only a
―fair rate?‖
One might hazard the following guess. Some of these philosophers
think that constitutional law expresses the ultimate criteria of legal
validity: because unjust remedies are constitutionally invalid and void
ab initio, legally speaking they never existed (Waluchow). That being
so, morality sometimes determines the existence or content of law. If
this is the underlying intuition, it is misleading, for the rule of
recognition is not to be found in constitutions. The rule of recognition
is the ultimate criterion (or set of criteria) of legal validity. If one
knows what the constitution of a country is, one knows some of its
law; but one may know what the rule of recognition is without
knowing any of its laws. You may know that acts of the Bundestag
are a source of law in Germany but not be able to name or interpret
a single one of them. And constitutional law is itself subject to the
ultimate criteria of systemic validity. Whether a statute, decision or
convention is part of a country's constitution can only be determined
by applying the rule of recognition. The provisions of the 14th
Amendment to the U.S. constitution, for example, are not the rule of
recognition in the U.S., for there is an intra-systemic answer to the
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question why that Amendment is valid law. The U.S. constitution, like
that of all other countries, is law only because it was created in ways
provided by law (through amendment or court decision) or in ways
that came to be accepted as creating law (by constitutional
convention and custom). Constitutional cases thus raise no
philosophical issue not already present in ordinary statutory
interpretation, where inclusive positivists seem content with the
theory of judicial discretion. It is, of course, open to them to adopt a
unified view and treat every explicit or implicit legal reference to
morality -- in cases, statutes, constitutions, and customs -- as
establishing moral tests for the existence of law. (Although at that
point it is unclear how their view would differ from Dworkin's.) So we
should consider the wider question: why not regard as law
everything referred to by law?
Exclusive positivists offer three main arguments for stopping at
social sources. The first and most important is that it captures and
systematizes distinctions we regularly make and that we have good
reason to continue to make. We assign blame and responsibility
differently when we think that a bad decision was mandated by the
sources than we do when we think that it flowed from a judge's
exercise of moral or political judgement. When considering who
should be appointed to the judiciary, we are concerned not only with
their acumen as jurists, but also with their morality and politics--and
we take different things as evidence of these traits. These are
deeply entrenched distinctions, and there is no reason to abandon
them.The second reason for stopping at sources is that this is
demonstrably consistent with key features of law's role in practical
reasoning. The most important argument to this conclusion is due to
Raz (1994, pp. 210-37). For a related argument see Shapiro. For
criticism see Perry, Waluchow, Coleman 2001, and Himma.)
Although law does not necessarily have legitimate authority, it lays
claim to it, and can intelligibly do so only if it is the kind of thing that
could have legitimate authority. It may fail, therefore, in certain ways
only, for example, by being unjust, pointless, or ineffective. But law
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cannot fail to be a candidate authority, for it is constituted in that role

by our political practices. According to Raz, practical authorities
mediate between subjects and the ultimate reasons for which they
should act. Authorities' directives should be based on such reasons,
and they are justified only when compliance with the directives
makes it more likely that people will comply with the underlying
reasons that apply to them. But they can do that only if is possible to
know what the directives require independent of appeal to those
underlying reasons. Consider an example. Suppose we agree to
resolve a dispute by consensus, but that after much discussion find
ourselves in disagreement about whether some point is in fact part
of the consensus view. It will do nothing to say that we should adopt
it if it is indeed properly part of the consensus. On the other hand,
we could agree to adopt it if it were endorsed by a majority vote, for
we could determine the outcome of a vote without appeal to our
ideas about what the consensus should be. Social sources can play
this mediating role between persons and ultimate reasons, and
because the nature of law is partly determined by its role in giving
practical guidance, there is a theoretical reason for stopping at
source-based considerations.
The third argument challenges an underlying idea of inclusive
positivism, what we might call the Midas Principle. ―Just as
everything King Midas touched turned into gold, everything to which
law refers becomes law … ‖ (Kelsen 1967, p. 161). Kelsen thought
that it followed from this principle that ―It is … possible for the legal
order, by obliging the law-creating organs to respect or apply certain
moral norms or political principles or opinions of experts to transform
these norms, principles, or opinions into legal norms, and thus into
sources of law‖ (Kelsen 1945, p. 132). (Though he regarded this
transformation as effected by a sort of tacit legislation.) If sound, the
Midas Principle holds in general and not only with respect to
morality, as Kelsen makes clear. Suppose then that the Income Tax
Act penalizes overdue accounts at 8% per annum. In a relevant
case, an official can determine the content of a legal obligation only
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by calculating compound interest. Does this make mathematics part

of the law? A contrary indication is that it is not subject to the rules of
change in a legal system -- neither courts nor legislators can repeal
or amend the law of commutativity. The same holds of other social
norms, including the norms of foreign legal systems. A conflict-of-
laws rule may direct a Canadian judge to apply Mexican law in a
Canadian case. The conflicts rule is obviously part of the Canadian
legal system. But the rule of Mexican law is not, for although
Canadian officials can decide whether or not to apply it, they can
neither change it nor repeal it, and best explanation for its existence
and content makes no reference to Canadian society or its political
system. In like manner, moral standards, logic, mathematics,
principles of statistical inference, or English grammar, though all
properly applied in cases, are not themselves the law, for legal
organs have applicative but not creative power over them. The
inclusivist thesis is actually groping towards an important, but
different, truth. Law is an open normative system (Raz 1975, pp.
152-54): it adopts and enforces many other standards, including
moral norms and the rules of social groups. There is no warrant for
adopting the Midas Principle to explain how or why it does this.
4. Law and Its Merits
It may clarify the philosophical stakes in legal positivism by
comparing it to a number of other theses with which it is sometimes
wrongly identified, and not only by its opponents. (See also Hart,
1958, Fuesser, and Schauer.)
4.1 The Fallibility Thesis
Law does not necessarily satisfy the conditions by which it is
appropriately assessed (Lyons 1984, p. 63, Hart 1994, pp. 185-6).
Law should be just, but it may not be; it should promote the common
good, but sometimes it doesn't; it should protect moral rights, but it
may fail miserably. This we may call the moral fallibility thesis. The
thesis is correct, but it is not the exclusive property of positivism.
Aquinas accepts it, Fuller accepts it, Finnis accepts it, and Dworkin
accepts it. Only a crude misunderstanding of ideas like Aquinas's
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claim that ―an unjust law seems to be no law at all‖ might suggest
the contrary. Law may have an essentially moral character and yet
be morally deficient. Even if every law always does one kind of
justice (formal justice; justice according to law), this does not entail
that it does every kind of justice. Even if every law has a prima facie
claim to be applied or obeyed, it does not follow that it has such a
claim all things considered. The gap between these partial and
conclusive judgments is all a natural law theory needs to
accommodate the fallibility thesis. It is sometimes said that
positivism gives a more secure grasp on the fallibility of law, for once
we see that it is a social construction we will be less likely to accord
it inappropriate deference and better prepared to engage in a clear-
headed moral appraisal of the law. This claim has appealed to
several positivists, including Bentham and Hart. But while this might
follow from the truth of positivism, it cannot provide an argument for
it. If law has an essentially moral character then it is obfuscating, not
clarifying, to describe it as a source-based structure of governance.
4.2 The Separability Thesis
At one point, Hart identifies legal positivism with ―the simple
contention that it is no sense a necessary truth that laws reproduce
or satisfy certain demands of morality, though in fact they have often
done so‖ (1994, pp. 185-86). Many other philosophers, encouraged
also by the title of Hart's famous essay, ―Positivism and the
Separation of Law and Morals,‖ (1958) treat the theory as the denial
that there is a necessary connection between law and morality --
they must be in some sense ―separable‖ even if not in fact separate
(Coleman, 1982). The separability thesis is generally construed so
as to tolerate any contingent connection between morality and law,
provided only that it is conceivable that the connection might fail.
Thus, the separability thesis is consistent with all of the following: (i)
moral principles are part of the law; (ii) law is usually, or even always
in fact, valuable; (iii) the best explanation for the content of a
society's laws includes reference to the moral ideals current in that
society; and (iv) a legal system cannot survive unless it is seen to
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be, and thus in some measure actually is, just. All four claims are
counted by the separability thesis as contingent connections only;
they do not hold of all possible legal systems -- they probably don't
even hold of all historical legal systems. As merely contingent truths,
it is imagined that they do not affect the concept of law itself. (This is
a defective view of concept-formation, but we may ignore that for
these purposes.) If we think of the positivist thesis this way, we might
interpret the difference between exclusive and inclusive positivism in
terms of the scope of the modal operator:
(EP) It is necessarily the case that there is no connection between
law and morality.
(IP) It is not necessarily the case that there is a connection between
law and morality.
In reality, however, legal positivism is not to be identified with either
thesis and each of them is false. There are many necessary
―connections,‖ trivial and non-trivial, between law and morality. As
John Gardner notes, legal positivism takes a position only one of
them, it rejects any dependence of the existence of law on its merits
(Gardner 2001). And with respect to this dependency relation, legal
positivists are concerned with much more than the relationship
between law and morality, for in the only sense in which they insist
on a separation of law and morals they must insist also--and for the
same reasons--on a separation of law and economics.
To exclude this dependency relation, however, is to leave intact
many other interesting possibilities. For instance, it is possible that
moral value derives from the sheer existence of law (Raz 1990, 165-
70) If Hobbes is right, any order is better than chaos and in some
circumstances order may be achievable only through positive law.
Or perhaps in a Hegelian way every existing legal system expresses
deliberate governance in a world otherwise dominated by chance;
law is the spirit of the community come to self-consciousness. Notice
that these claims are consistent with the fallibility thesis, for they do
not deny that these supposedly good things might also bring evils,
such as too much order or the will to power. Perhaps such derivative
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connections between law and morality are thought innocuous on the

ground that they show more about human nature than they do about
the nature of law. The same cannot be said of the following
necessary connections between law and morality, each of which
goes right to the heart of our concept of law:
(1) Necessarily, law deals with moral matters.
Kelsen writes, ―Just as natural and positive law govern the same
subject-matter, and relate, therefore, to the same norm-object,
namely the mutual relationships of men -- so both also have in
common the universal form of this governance, namely obligation.‖
(Kelsen 1928, p. 34) This is a matter of the content of all legal
systems. Where there is law there is also morality, and they regulate
the same matters by analogous techniques. Of course to say that
law deals with morality's subject matter is not to say that it does so
well, and to say that all legal systems create obligations is not to
endorse the duties so created. This is broader than Hart's ―minimum
content‖ thesis according to which there are basic rules governing
violence, property, fidelity, and kinship that any legal system must
encompass if it aims at the survival of social creatures like ourselves
(Hart 1994, pp. 193-200). Hart regards this as a matter of ―natural
necessity‖ and in that measure is willing to qualify his endorsement
of the separability thesis. But even a society that prefers national
glory or the worship of gods to survival will charge its legal system
with the same tasks its morality pursues, so the necessary content of
law is not dependent, as Hart thinks it is, on assuming certain facts
about human nature and certain aims of social existence. He fails to
notice that if human nature and life were different, then morality
would be too and if law had any role in that society, it would
inevitably deal with morality's subject matter. Unlike the rules of a
health club, law has broad scope and reaches to the most important
things in any society, whatever they may be. Indeed, our most
urgent political worries about law and its claims flow from just this
capacity to regulate our most vital interests, and law's wide reach

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must figure in any argument about its legitimacy and its claim to
obedience.
(2) Necessarily, law makes moral claims on its subjects.
The law tells us what we must do, not merely what it would be
virtuous or advantageous to do, and it requires us to act without
regard to our individual self-interest but in the interests of other
individuals, or in the public interest more generally (except when law
itself permits otherwise). That is to say, law purports to obligate us.
But to make categorical demands that people should act in the
interests of others is to make moral demands on them. These
demands may be misguided or unjustified for law is fallible; they may
be made in a spirit that is cynical or half-hearted; but they must be
the kind of thing that can be offered as, and possibly taken as,
obligation-imposing requirements. For this reason neither a regime
of ―stark imperatives‖ (see Kramer, pp. 83-9) nor a price system
would be a system of law, for neither could even lay claim to obligate
its subjects. As with many other social institutions, what law, though
its officials, claims determines its character independent of the truth
or validity of those claims. Popes, for example, claim apostolic
succession from St. Peter. The fact that they claim this partly
determines what it is to be a Pope, even if it is a fiction, and even the
Pope himself doubts its truth. The nature of law is similarly shaped
by the self-image it adopts and projects to its subjects. To make
moral demands on their compliance is to stake out a certain territory,
to invite certain kinds of support and, possibly, opposition. It is
precisely because law makes these claims that doctrines of
legitimacy and political obligation take the shape and importance
that they do.
(3) Necessarily, law is justice-apt.
In view of the normative function of law in creating and enforcing
obligations and rights, it always makes sense to ask whether law is
just, and where it is found deficient to demand reform. Legal systems
are therefore the kind of thing that is apt for appraisal as just or
unjust. This is a very significant feature of law. Not all human
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practices are justice-apt. It makes no sense to ask whether a certain

fugue is just or to demand that it become so. The musical standards
of fugal excellence are preeminently internal -- a good fugue is a
good example of its genre; it should be melodic, interesting,
inventive etc. -- and the further we get from these internal standards
the less secure evaluative judgments about it become. While some
formalists flirt with similar ideas about law, this is in fact inconsistent
with law's place amongst human practices. Even if law has internal
standards of merit -- virtues uniquely its own that inhere in its law-
like character -- these cannot preclude or displace its assessment on
independent criteria of justice. A fugue may be at its best when it
has all the virtues of fugacity; but law is not best when it excels in
legality; law must also be just. A society may therefore suffer not
only from too little of the rule of law, but also from too much of it.
This does not presuppose that justice is the only, or even the first,
virtue of a legal system. It means that our concern for its justice as
one of its virtues cannot be sidelined by any claim of the sort that
law's purpose is to be law, to its most excellent degree. Law stands
continuously exposed to demands for justification, and that too
shapes its nature and role in our lives and culture.
These three theses establish connections between law and morality
that are both necessary and highly significant. Each of them is
consistent with the positivist thesis that the existence and content of
law depends on social facts, not on its merits. Each of them
contributes to an understanding of the nature of law. The familiar
idea that legal positivism insists on the separability of law and
morality is therefore significantly mistaken.
4.3 The Neutrality Thesis
The necessary content thesis and the justice-aptitude thesis
together establish that law is not value-neutral. Although some
lawyers regard this idea as a revelation (and others as provocation)
it is in fact banal. The thought that law could be value neutral does
not even rise to falsity -- it is simply incoherent. Law is a normative
system, promoting certain values and repressing others. Law is not
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neutral between victim and murderer or between owner and thief.

When people complain of the law's lack of neutrality, they are in fact
voicing very different aspirations, such as the demand that it be fair,
just, impartial, and so forth. A condition of law's achieving any of
these ideals is that it is not neutral in either its aims or its effects.
Positivism is however sometimes more credibly associated with the
idea that legal philosophy is or should be value-neutral. Kelsen, for
example, says, ―the function of the science of law is not the
evaluation of its subject, but its value-free description‖ (1967, p. 68)
and Hart at one point described his work as ―descriptive sociology‖
(1994, p. v). Since it is well known that there are convincing
arguments for the ineliminability of values in the social sciences,
those who have taken on board Quinian holisms, Kuhnian
paradigms, or Foucauldian espistemes, may suppose that positivism
should be rejected a priori, as promising something that no theory
can deliver.
There are complex questions here, but some advance may be made
by noticing that Kelsen's alternatives are a false dichotomy. Legal
positivism is indeed not an ―evaluation of its subject‖, i.e., an
evaluation of the law. And to say that the existence of law depends
on social facts does not commit one to thinking that it is a good thing
that this is so. (Nor does it preclude it: see MacCormick and
Campbell) Thus far Kelsen is on secure ground. But it does not
follow that legal philosophy therefore offers a ―value-free description‖
of its subject. There can be no such thing. Whatever the relation
between facts and values, there is no doubt about the relationship
between descriptions and values. Every description is value-laden. It
selects and systematizes only a subset of the infinite number of facts
about its subject. To describe law as resting on customary social
rules is to omit many other truths about it including, for example,
truths about its connection to the demand for paper or silk. Our
warrant for doing this must rest on the view that the former facts are
more important than the latter. In this way, all descriptions express
choices about what is salient or significant, and these in turn cannot
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be understood without reference to values. So legal philosophy,

even if not directly an evaluation of its subject is nonetheless
―indirectly evaluative‖ (Dickson, 2001). Moreover, ―law‖ itself is an
anthropocentric subject, dependent not merely on our sensory
embodiment but also, as its necessary connections to morality show,
on our moral sense and capacities. Legal kinds such as courts,
decisions, and rules will not appear in a purely physical description
of the universe and may not even appear in every social description.
(This may limit the prospects for a ―naturalized‖ jurisprudence;
though for a spirited defense of the contrary view, see Leiter)
It may seem, however, that legal positivism at least requires a stand
on the so-called ―fact-value‖ problem. There is no doubt that certain
positivists, especially Kelsen, believe this to be so. In reality,
positivism may cohabit with a range of views here -- value
statements may be entailed by factual statements; values may
supervene on facts; values may be kind of fact. Legal positivism
requires only that it be in virtue of its facticity rather than its
meritoriousness that something is law, and that we can describe that
facticity without assessing its merits. In this regard, it is important to
bear in mind that not every kind of evaluative statement would count
among the merits of a given rule; its merits are only those values
that could bear on its justification.
Evaluative argument is, of course, central to the philosophy of law
more generally. No legal philosopher can be only a legal positivist. A
complete theory of law requires also an account of what kinds of
things could possibly count as merits of law (must law be efficient or
elegant as well as just?); of what role law should play in adjudication
(should valid law always be applied?); of what claim law has on our
obedience (is there a duty to obey?); and also of the pivotal
questions of what laws we should have and whether we should have
law at all. Legal positivism does not aspire to answer these
questions, though its claim that the existence and content of law
depends only on social facts does give them shape.

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11.5 SUMMARY
The theory that says that justice and law have a dependency relation
that exists for the well being and harmony of the society is known as
the dependency theory of justice. This theory proposes that justice
depends on law but is not the same as law. Justice is imparted by
judiciary of the state as per law, but this is not the only way in which
justice is imparted.
In this unit we have discussed about the concept of Dependency
theories of law and justice and for its realization justice depends on
law, but justice is not the same as law.
 Austin, John (1832). The Province of Jurisprudence

Determined. Ed. W.E. Rumble, 1995. Cambridge: Cambridge
University Press.
 Bentham, Jeremy (1782). Of Laws in General. Ed. H.L.A. Hart,
1970. London: Athlone Press.
 Campbell, Tom (1996). The Legal Theory of Ethical
Positivism. Dartmouth: Aldershot.
 Coleman, Jules (1982) ―Negative and Positive Positivism,‖ 11
Journal of Legal Studies 139.
 Coleman, Jules (2001). The Practice of Principle.Oxford:
Clarendon Press.
 Dickson, Julie (2001). Evaluation and Legal Theory. Oxford:
Hart Publishing.
 Dworkin, Ronald (1978) Taking Rights Seriously. Cambridge
MA: Harvard University Press.
 Dworkin, Ronald (1986). Law's Empire. Cambridge MA:
Harvard University Press.
 Finnis, John (1996). ―The Truth in Legal Positivism,‖ in The
Autonomy of Law, ed. Robert P. George. Oxford: Clarendon
Press, pp. 195-214.

Page 300
 Fuesser, Klaus (1996), ―Farewell to ‗Legal Positivism‘: The

Separation Thesis Unravelling,‖ in The Autonomy of Law, ed.
Robert P. George. Oxford: Clarendon Press, pp.119-162.
 Fuller, Lon (1958). ―Positivism and Fidelity to Law: a Reply to
Professor Hart,‖ 71 Harvard Law Review 630.
 Fuller, Lon (1964). The Morality of Law, rev. ed. New Haven:
Yale University Press.
 Gardner, John (2001) ―Legal Positivism: 5 ½ Myths,‖ 46
American Journal of Jurisprudence 199.
 Green, Leslie (1996). ―The Concept of Law Revisited,‖ 94
Michigan Law Review 1687.
 Green, Leslie (1999). ―Positivism and Conventionalism,‖ 12
Canadian Journal of Law and Jurisprudence pp. 35-52.
 Green, Leslie (2001). ―Law and Obligations,‖ in Jules Coleman
and Scott Shapiro, eds. The Oxford Handbook of
Jurisprudence and Philosophy of Law. Oxford: Clarendon
Press.
 Hacker, P.M.S. (1973). ―Sanction Theories of Duty,‖ in A.W.B.
Simpson, ed. Oxford Essays in Jurisprudence: 2nd Ser.
Oxford: Clarendon Press.
 Harris, J.W.(1979) Law and Legal Science: An Inquiry into the
Concepts Legal Rule and Legal System. Oxford: Clarendon
Press.
 Hart, H.L.A.(1955) ―Are There Any Natural Rights?‖ 64
Philosophical Review, pp. 175-91.
 Hart, H.L.A (1958). ―Positivism and the Separation of Law and
Morals,‖ 71 Harvard Law Review 593 repr. in his Essays in
Jurisprudence and Philosophy (1983). Oxford: Clarendon
Press.
 Hart, H.L.A (1983). Essays on Jurisprudence and Philosophy.
Oxford: Clarendon Press.
 Hart, H.L.A (1994, first edition 1961). The Concept of Law, 2nd
ed. ed.P. Bulloch and J. Raz . Oxford: Clarendon Press.

Page 301
 Himma, Kenneth I. (2001). "The Instantiation Thesis and Raz's

Critique of Inclusive Positivism," 20 Law and Philosophy,
pp.61-79
 Kelsen, Hans (1928) ―The Idea of Natural Law,‖ in his Essays
in Legal and Moral Philosophy (1973) ed. O. Weinberger,
trans. P. Heath .Dordrecht: Reidel.
 Kelsen, Hans (1945). General Theory of Law and State, trans.
A. Wedberg, repr. 1961. New York: Russell and Russell.
 Kelsen, Hans ( 1967). Pure Theory of Law, trans. M. Knight.
Berkeley: University of California Press.
 Kramer, Matthew (1999). In Defense of Legal Positivism: Law
Without Trimmings. Oxford: Clarendon Press.
 Ladenson, Robert (1980). ―In Defense of a Hobbesian
Conception of Law,‖ 9 Philosophy and Public Affairs 134
 Leiter, Brian (1997). ―Rethinking Legal Realism: Toward a
Naturalized Jurisprudence,‖ 76 Texas Law Review 267.
 Lyons, David (1982). ―Moral Aspects of Legal Theory,‖ 7
Midwest Studies in Philosophy 223
 Lyons, David (1984). Ethics and the Rule of Law. Cambridge:
Cambridge University Press
 MacCormick, Neil (1985). ―A Moralistic Case for A-moralistic
Law,‖ 20 Valparaiso Law Review 1.
 Marmor, Andrei (1998). ―Legal Conventionalism,‖ 4 Legal
Theory 509.
 Morison, W. L. (1982) John Austin. Stanford: Stanford
University Press.
 Pashukanis, Evgeny (1983) Law and Marxism: A General
Theory. Trans. B. Einhorn. London: Pluto Press.
 Perry, Stephen (1989). ―Second Order Reasons, Uncertainty,
and Legal Theory,‖ 62 Southern California Law Review 913.
 Raz, Joseph (1979). The Authority of Law. Oxford: Clarendon
Press.
 Raz, Joseph (1986) The Morality of Freedom. Oxford:
Clarendon Press.
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 Raz, Joseph (1990). Practical Reason and Norms. Princeton:

Princeton University Press.
 Raz, Joseph (1995). Ethics in the Public Domain: Essays in
the Morality of Law and Politics. Oxford: Clarendon Press.
 Schauer, Fred (1996), ―Positivism as Pariah,‖ in R.P. George,
ed. The Autonomy of Law. Oxford: Clarendon Press.
 Shapiro, Scott (1998). ―On Hart's Way Out,‖ 4 Legal Theory
469.
 Soper, Philip (1977) ―Legal Theory and the Obligation of a
Judge: The Hart/Dworkin Dispute‖ 75 Michigan Law Review
473.
 Waldron, Jeremy (1999), ―All We Like Sheep,‖ 12 Canadian
Journal of Law and Jurisprudence 169.
 Waluchow, W.J. (1994). Inclusive Legal Positivism. Oxford:
Clarendon Press.
 http://wikibin.org/articles/dependency-theory-of-justice.html
1. What do you understand by the concept of the concept of

Dependency theories of law and justice?
2. Describe whether justice depends on law?
3. Discuss that justice is not the same as law.

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LL.M. Part-2

Unit-12-The independence of justice theories - means to end
relationship of law and justice; the relationship in the context of the
Indian constitutional ordering
STRUCTURE
12.1 INTRODUCTION
12.2 OBJECTIVES
12.3 WHAT are the Independence theories of justice?
12.4. Means to end relationship of law and justice
12.5 Indian Concept
12.6 SUMMARY

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12.1 INTRODUCTION
In the previous unit you have read about the concept of Dependency
theories of law and justice and for its realization justice depends on
law, but justice is not the same as law.Justice and its independence
constantly cause nourished and impassioned debates. Admittedly,
the subject is sensitive since it touches at the same time law and the
judiciary, politics and its users, society and its citizens. Curiously,
any approach on the independence of justice is invariably declined
towards two other subjects: the independence of the judicial power
and that of the judges.In this unit we will discuss about the
independence of justice theories - means to end relationship of law
and justice and their relationship in the context of the Indian
constitutional ordering.
12.2 OBJECTIVES

 Understand the concept of the independence of justice
theories.
 Explain the means to end relationship of law and justice.
 Describe the relationship between law and justice in the
context of the Indian constitutional ordering.
12.3 WHAT are the Independence theories of justice?
The Independence of Justice

Justice and its independence constantly cause nourished and
impassioned debates. Admittedly, the subject is sensitive since it
touches at the same time law and the judiciary, politics and its users,
society and its citizens.Curiously, any approach on the
independence of justice is invariably declined towards two other
subjects: the independence of the judicial power and that of the
judges.

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I - Independent Justice or Independence of the Judicial Power?

A) The Concept of Independent Justice and Independence of the
Judicial Power.The concept of independent justice and judicial
power is comprehended in a confused way by a public which has
difficulties to dissociate them. However the distinction is of
importance.To speak about justice is to apprehend the system as a
whole. Justice, in its traditional meaning, is a body of judges, but
also of auxiliaries and judicial officers. It is a whole material
organisation and it is an overall system at the service of the public!
Justice can be multiform. Thus it can have a scientific connotation:
civil, penal, military or international. Justice is not only that of the
judges and the lawyers. It can, indeed, be of a philosophical,
religious or clannish nature. Justice is also a common act of the
everyday life, such as repairing the injustice of having unevenly
shared the cake between children... the topic of the independence of
justice is very extendable. Consequently in this context, the logic
commands us to turn to the independence of the judicial power.
Since Locke and Montesquieu in the 17th and 18th centuries, the
concept of State takes as a starting point the theory of the
separation of powers between the legislature, the executive and the
judiciary. However, Locke (1690) made the distinction in the
variation of the powers, as to distinguish between the legislative
power, the executive power and the federative power or the capacity
to start a war and to sign treaties. Montesquieu (1748), however
considered as the inspirer of the three powers, stated in his ―Spirit of
the laws‖: ―There are in each State three kinds of powers: the
legislative power, the executive power of the things which depend on
the law of nations, and the executive power of those who depend on
the civil law‖. This hesitation to sanctify the judicial power and its
independence has lasted ever since. Thus, in France, the
Constitution of 1958 only instituted, next to an executive power and
a legislative power, a judicial ―authority‖.
Moreover, as it was pointed out recently by a high-ranking judge at
the time of an international conference, ―the independence of justice
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is always proclaimed but remains subjected, in many countries, to

the omnipotence of the sovereignty of the State‖.It will be noticed
that the terms of ―independence of the judicial authority‖ and of
―independence of justice‖ are indistinctly employed.This persistent
confusion does not influence the heart of the matter, i.e. the nature
of the relations between the executive and the judiciary.
B) The Independence of the Judicial Power
The mutual intrusion of the two powers - executive and judicial - in
their respective spheres of influence is often stigmatised. The
political State speaks about ―the power of the judges‖ while the
judges denounce ―the interventionism of the State‖. In fact, all
depends on the applicable mode and the concept which one adopts,
which postulates for two options:
one which founds a true judicial power where the president of the
Supreme Court is at the same time the chief of the highest
jurisdiction and the manager who governs the functioning of all the
legal body. He enjoys a great autonomy and occupies a hierarchical
row in the State, equal to that of the chief of the government.
the other which institutes a supreme jurisdiction: the Supreme Court
of appeal which function only consists in judging in law. At his side is
a minister of justice who has high capacities in the legal organisation
and in the appointment of the judges, particularly those of the public
prosecutor's department. A Council of judges decides of the career
of the judges and a Constitutional Council ensures the respect of the
constitutionality of laws.
This formula is far from giving satisfaction, because it unceasingly
calls into question the fine line between the political power and the
independence of the judges.
II-The independence of justice: a constitutional value shared
between the judge and the judicial officer
The independence of justice cannot be understood under the only
benefit of the independence of the judicial power, in other words the
capacity of the judges.

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A) The independence of the auxiliaries of justice and the members

of the legal profession: a necessary complement.In a conference
relating to the independence of justice, Mr Abderham Diouf,
prosecuting attorney at the Supreme court of appeal of Senegal,
declared: ―The independence of justice is about the independence of
the judges and its natural corollary: the lawyer‖.
In same time, Mr. Ancel, president of a chamber at the Court of
cassation of Paris stressed that the independence of justice was to
go beyond the judge to take into account two consubstantial
elements:
-the access to the judge,
-the specific enforcement of judgements.
It is understood that under the only angle of the judicial power, the
concept of independence of justice appears very reducing.And as a
matter of fact, the work of justice does not stop with the intervention
of the judge, nor even when the judgement is given, which makes
the professor Duple, of the University of Laval in Quebec, state that
―the concept of the Rule of Law rests on the principle whereby the
judge has as a function to judge, lawyer to represent the parties‖
and, would we add, judicial officer to carry out court decisions.This
last precision leads us to add the following remark. Too many times
it is considered that justice has fulfilled its role once the judgement is
given. The judges themselves do not mark but a minor interest in the
fate of their decision and rare are those who wonder about the
capacity of the parties to even understand or to interpret their
judgements. More seriously, enforcement only causes a very minor
interest. Fortunately, things are changing... Gradually the political
sector, the legal world, as well as the economic operators express
an increasing concern about enforcement of legal titles.Initially, it is
the European Union which put on orbit, since the Council of
Tampere in 1999, the area of freedom, security and justice and
published not less than seven European instruments concerning
enforcement and judicial procedures. Then, it was the turn of the
European Court of Human Rights which, by the means of article 6.1
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of the European Convention on Human Rights, posed the principle,

in the wake of the Hornsby v. Greece case of March 19, 1997, of a
right to an enforcement of judgements, which turned, due to the
evolution of jurisprudence, into a true autonomous right of
enforcement. Finally, the Council of Europe, under the terms of a
Recommendation of September 9, 2003 (Rec2003(17)), proposes
the implementation of common standards in the field of the trans-
national enforcement and which in addition delivers a catalogue of
normative measures intended to promote a harmonization of the
statute of the European judicial officer.
B) The liberal judicial officer: and independent actor essential
to an independent justice
The aim set by the Council of Europe is to support - it is a truism -
the creation of an occupation of judicial officer, if not uniform, at least
harmonised on the basis of common standard. This concept of the
judicial officer is to be compared to the doctrines of the UIHJ which
preaches the introduction of a statute of the liberal and independent
judicial officer. In this respect, let us recall that the whole of the
national chambers or orders of judicial officers of Africa of the
OHADA zone, which represents 16 Member States, filed in under
the aegis of the International Union a project of unified statute,
conceived according to the criteria of independence and freedom of
exercise such as mentioned.
As it was many times proved, the liberal and independent judicial
officer is a pledge of independence of justice. What would be a
justice which would be proclaimed independent if the judgements,
once given, were to pile up in the cupboards without being carried
out? The question is not an innocent one. The facts are actual and
known.A State which does not ensure the enforcement of its
judgements is a State which weakens its legal security and cultivates
the grounds for corruption and discourages economic operators. To
guaranty an effective and quality enforcement the liberal and
independent judicial officer becomes, consequently, an essential
element of the judicial chain. The judicial officer, like the judge, must
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be independent: i.e. independent from the power, and safe from all
sources of influence. An independent judicial officer is submitted to
no hierarchy. He must only yield with his authority of discipline and
act under the control of the Public Prosecutor's Department. The
judge should not interfere in the action of the judicial officer because
his prerogatives must be limited to judge litigations and to take
measures when seized.The procedure of execution must be left to
the free will of the parties. For a justice to be worthy of its
independence it is important to proscribe any interference between
the executive power and the judicial officer.It is intolerable that today
still, in a number of countries, the authorities of the State, with the
contempt of the principle of the separation of power intervene under
fallacious pretexts, to stop the course of enforcement or to modify its
range. It is inadmissible that members of government of a State,
which presents itself as a strong promoter of democracy, Rule of
Law, and Human Rights, can suspend or dismiss judicial officers
who refuse to yield to the pressure to draw up an illegal act.
It is necessary to condemn with the most extreme strength the
decisions of governments which unilaterally issue the extinction of all
the enforcement procedures, or which push the population to resist
the injunctions of the judicial officers. How many of our fellow-
members had to undergo vexations, sanctions, or even were
imprisoned for having resisted intimidating and unlawful
manoeuvres, whereas they were only concerned about fulfilling the
noble mission which fell to them: that to carry out a judgement for
the people or the Republic. Yes, the independence of justice passes
by the respect of the given decision and a full support for the judicial
officer who is the only agent in charge of the operations of
enforcement. To deny this would result in ignoring the decisions of
the European Court of Human Rights, proclaiming in a case of June
22, 2004, that the judicial officer ―is an essential element of the Rule
of Law‖.Lastly, and such will be my conclusion, where court
decisions remain dead letters for lack of a body of liberal and
independent judicial officers, there comes insecurity and there
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settles private justice, in other words the laws of the strong against
the weak and of the powerful against the impecunious. The un-
enforcement of decisions then becomes a true attack against
democracy.To reach a true independent justice, it is thus advisable
to have not only an independent judicial power but also an
independent and liberal body of judicial officers.
12.4. Means to end relationship of law and justice
The concept of natural law—higher moral law over and above the
positive law embodying certain values of universal validity like
dharma (righteousness) artha (wealth), kama (desires) and moksha
(salvation) were expounded by ancient Indian philosophers and
thinkers 5000 years ago with a view to establish a harmonious social
order by striking a balance between inner and outer, spiritual and
material aspects of life. The quest for equilibrium, harmony,
knowledge and truth inspired the Indian minds more than their
counterparts the Greeks and the Romans. The major goals of life
were to be attained, controlled and regulated according to the dictate
and direction of dharma. The immortal Veda Vyasa declared Artha
and Kama flow from dharma and so why not follow dharma? In other
words that is first follow dharma and dharma will also give artha and
Kama. Thus ethos of Indian way of life was characterized by an all
pervading law—dharma. It is this law of dharma—the Hindu‘s natural
law was neither a cult or creed nor a code in the Western sense but
the right law of life and true ideal of living and social ordering. It is
this law of dharma which is neither static nor rigid nor absolute but
relative, dynamic and evolving—always changing according to the
needs and development of society. Thus, philosophical ideals and
constructing scientific concepts and methods which have deeply
influenced the law and life of people. The spirit of intellectual inquiry
which possessed the Hindu mind led them to question experience,
to question the environing world, to question their gods and the
tenets and of their traditional faith. They were not hampered by the

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tyranny of religious dogmas or political authority or even pressure of

public opinion. They sought and elaborated the law of dharma and
truth with single-minded devotion rare in the history of spiritual
thoughts and theology. As Yajurveda declared i.e. son of immorality
all should listen the message of Truth. In the words122 of Max Muller
(Six Systems of Indian Philosophy).‗It is surely astounding that such
a system as the Vedanata should have been slowly elaborated by
the indefatigable and intrepid thinkers of India thousands of years
ago, as system that even now makes us feel giddy, as in mounting
the last steps of swaying spire of an ancient Gothic Cathedral. None
of our philosophers, not excepting Heraclitus, Plato, Kant or Hegel
has ventured to erect such a spire, never frightened by storms or
lightenings. Stone follows on stone after regular succession after
once the first step has been made, after once it has been clearly
seen that in the beginning there can have been but one, as there will
be but one in the end, whether, we call it At man or Brahman.
Personal Liberty
In the pre-Constitution era Gandhiji had blazed the trial of higher law
against State by expounding the doctrine of legitimacy of right
means to achieve right ends. He never hesitated to disobey unjust
laws, customs and traditions which were an affront to human liberty
and dignity. The concept of higher law in so far as human dignity,
liberty and equality is concerned is clearly epitomised in different
Articles of the Constitution. Articles 19, 21 and 22 especially
guarantee personal freedoms and civil liberties which are the very
soul of democracy and of a free society. However, curbs on civil
liberties and personal freedoms in free India are not uncommon. To
curb communists or naxalities or communalists civil liberties have
been curtailed and abrogated from time to time.

Page 312
The Bombay Public Security Act, 1947, the Bihar Maintenance of

Public Order Act, 1947, the West Bengal Security Act, 1948, The
Preventive Detention Act, 1950, the Maintenance of Internal Security
Act, 1971 (MISA), the National Security Act, 1980, etc. are such
statutory measures which have been upheld by the courts being
reasonable restrictions on Fundamental Rights guaranteeing civil
liberties and personal freedoms. In Gopalan,123 the constitutional
validity of the Preventive Detention Act came for consideration
wherein the Court was asked to pronounce upon true meaning of
Article 21 of the Constitution guaranteeing right to life and right to
personal freedom. The Court declared that the words ‗according to
procedure established by law‘ in Article 21 meant ‗according to the
substantive and procedural provisions of any enacted law.‘ If,
therefore, a person was deprived of his life or personal liberty by law
enacted by a legislature, however, drastic and unreasonable the law,
he would be rightly deprived of his life and liberty. There would be no
infringement of personal liberty or freedom in such a case. In effect
the Gopalan meant that in respect of civil liberties and personal
liberty no person in India had any remedy against legislative action.
In this connection Justice Mukherjee observed ‗My conclusion,
therefore, is that in Article 21 the word ‗law‘ has been used in the
sense of State-made law and not as an equivalent in the abstract or
general sense embodying the principles of natural justice.‘ It was
held the term ‗law‘ has been used in Article 21 in the sense of lex
(State made law). The Gopalan approach has been characterized as
the ‗high water mark of legal positivism.‘ The Supreme Court‘s
approach was liberal, rigid and strict too much coloured positive or
imperative (Austinian approach) theory of law. The similar attitude of
the Court is discernable in the Habeas Corpus,124 case wherein the
Court revolves around Austinian positivism.
124
A.D.M. Jabalpur v. Shivakant Shukla, A.I.R. 1976 S.C. 1207; A.K. Roy v. Union of India,
A..I.R. 1982 S.C. 710.
Page 313
It was Subba Rao, Chief Justice of India who introduced the concept
of natural law at its zenith in the Golak Nath, 125 during sixties. Its
influence, however, diminished especially during the Internal
Emergency of 1975. It has once again revived with greater vigour in
the post-Emergency era. The Supreme Court in the Maneka,126
corrected its error of the Gopalan case in which it had strictly
interpreted the word ‗law‘ and had not taken into consideration the
‗procedure‘ which ought to be just, fair and reasonable. Both
Bhagwati, J. and Krishna Iyer, J. are emphatic that the procedure in
Article 21 means fair and reasonable procedure. The Court
observed,127 ‗the ambit of personal liberty protected by Article 21 is
wide and comprehensive. It embraces both substantive rights to
personal liberty and procedure provided for their deprivation.‘ Thus
Maneka has over-ruled Gopalan. Maneka rejects the theory that
each fundamental right is a self-contained code itself. Bhagwati, J.
and Krishna Iyer, J. have highlighted the need to keep in view the
synthesis of these rights while interpreting each right according to
social milieu of changing times, place and situation.Thus, a number
of cases on personal liberty have enriched Indian jurisprudence on
human rights. As already observed Maneka has enriched and
enlarged personal liberty, Nandini128 saves the poor suspects from
terrorised and tortured into involuntary discrimination, Batra 129
rescues prisoners from solitary confinement and iron bars.
Hosfcof,130 gives the convict the fundamental right to file appeal and
the legal aid needed to file such an appeal. Charles Sobraj, 131 has
drawn the attention of the courts that imprisonment does not bid a
farewell to Fundamental Rights, and Bhantidas, 132 protects the
125
Golak Nath v. State of Punjab, A.I.R. 1967 S.C. 1643 at 1656.
126
Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597.
127
Ibid.
128
Nandini Satpathy v. P.L. Dani, A.I.R. 1978 S.C. 1025.
129
Sunil Batra v. Delhi Administration, A.I.R. 1978 S.C. 1675.
130
Hoskot v. Maharashtra, A.I.R. 1978 S.C. 1548.
131
Charles Sobraj v. Superintendent Central fail, A.I.R. 1978 S.C. 1514.
132
Union of India v. Bhanudas, A.I.R. 1978 S.C. 1027.
Page 314
dignity of convicts laying down that conviction does not degrade a

person into a non-person. Prem Shankar133 too protects prisoners
kept as undertrials from police brutalities and indignities. Moti
Ram,134 succeeds in expanding and liberalising age old concept of
bail so as to make in, more responsive to the needy and poor and in
Madhav,135 the Supreme Court clarifies the larger questions who
silently suffer behind the stone walls due to deprivation of liberty
caused by unreasonableness, arbitrariness and unfair procedures.
In Shivkumar,136 the High Court of Allahabad sets aside the
prosecution of the accused extolling naxalite activities and asking
people to boycott elections. Mantoo Maztimdar137 is an instance of
callous detention of the prisoner not 90 days but 1900 days or more
without bothering for the law of the land as the Supreme Court
observed, ‗If the salt hath lost its flavour wherewith shall it be salted?
It he law officers charged with the obligation to protect the liberty of
the persons are mindless of Constitutional mandate and Codes how
can freedom survive for ordinary citizens. Hussainam138 is another
example of Supreme Court concern for men, women, and children
who are behind prison bar for years waiting trials and the Supreme
Court says ‗speedy trial.....is an integral part of the fundamental right
to life and liberty enshrined in article 21‘. In Bachan Singh139 the
Court through judicial interpretation ingrafted the concept of
reasonableness in the entire fabric of the Constitution as it remarked
‗every facet of law which deprives a person of life or personal liberty
would, therefore, have to stand the test of reasonableness, fairness
and justice in order to be outside the inhabitation of Article 21‘ : The
Court thus laid down that death sentence can be inflicted only in the
133
Prem Shankar v. Delhi Administration, A.I.R. 1980 S.C. 1535, Raghubir Singh v. State of
Haryana, A.I.R. 1980 S.C. 1087.
134
Moti Ram v. State ofM.P. A.I.R. 1978 S.C. 1594.
135
Supra Note 35.
136
Shiv Kumar Mishra v. State of U.P.. 1978 Cri. L.J. 701.
137
Mintoo Mazumdar v. State ofBihar, A.I.R. 1980 S.C. 847.
138
Hussainara Khatoon v. Home Secy. State ofBihar, A.I.R. 1979 S.C. 1360,1819.
139
Bachan Singh v. State of Punjab, AIR 1980 SC 267, 898,1355.
Page 315
rare of the rarest cases when the ‗alternative option is

unquestionably foreclosed‘ or for ‗special reasons‘ to be recorded. Of
course ‗special reasons‘ justifying capital punishment, in the
absence of legislation or guiding principles are bound to vary from
judge to judge,140 depending upon his ‗attitude and approaches,
predilections and prejudices, habits of mind and thought and his
social value system.‘ Although the Apex Court has justified the
imposition of death sentence,141 when according to the judge the
nature of the crime is ‗brutal‘, ‗cold-blooded‘, ‗deliberate‘, ‗heinous‘,
‗violent‘ etc. But prolonged delay in the execution of sentence of
death is one such ground where it has been substituted by
imprisonment for life. The Court unanimously accepted,142 the view
that undue delay in the execution of death sentences not only leads
to inhuman suffering and dehumanising treatment but it is also
unjust, unfair and unreasonable deprivation of life and liberty of a
condemned prisoner and, therefore, infringes the mandate of Article
21 of the Constitution.
New Jurisprudence—New liberal setting
Prior to 1973 the Court with great difficulty had to acquiesce with the
prevailing view which existed since the adoption of the Constitution
that Parliament is ‗Sovereign‘ which even can replace the
Constitution‘, or supremacy of the Executive vis-a-vis the Judiciary in
the context of a so-called ‗committed judiciary‘ during the days of
Golak Nath case controversy. However, it was in Maneka together
with Kesavananda Bharati that the Supreme Court expounded a
new jurisprudence—some fundamental and higher principles of law
which may endure and adapted to varying social and political
140
Bachan at 1375-76 in Lachman Devi execution of death sentence by public hanging was
declared barbaric and violative of Article 21—Attorney Gen. of India v. Lachma Devi, AIR 1987
SC 487.
141
See also Blacksheild, AR Capital Punishment in India 21JILI139-174 (1979).
142
Javed Ammed v. State of Maharashtra, AIR 1985 SC 231; Madhu Mehta v. State of Gujarat,
AIR 1989 SC 1335; Triveni Ben v. State of Gujarat, AIR 1989 SC 142, Brij Mohan v. State
ofRajasthan, AIR 1994 SC 739.
Page 316
situations in India. It is through judicial fiat or review that the judiciary

has created both a philosophy of law and theory of politics
inextricably based on values like reason, nature, morality, liberty,
justice and restraint consistent with the spirit of the Constitution and
traditions of the people. In Kesavandanda,143 the Court rejects the
positivistic instance that sovereign power lay with Parliament.
Denying such claims the Court postulated what it described ‗the
basic features, doctrine as an impenetrable bulwork against every
assumption of despotic or unconstitutional exercise of power by the
legislature and the executive. This indeed is a far-reaching
development in the annals of Indian jurisprudence for meeting the
challenges of troubling times and issues,144 confronting our
democratic and secular Republic.The Maneka Gandhi,145 is another
landmark decision from the point of human rights and remedial
jurisprudence in which Justice Bhagwati has beamed the ‗Lead
Kindly light message‘ admits the encircling gloom of State repression
by emitting New Freedoms for making human rights a living reality
for those denied or unable to exercise and enjoy such rights on
account of poverty or ignorance. Through Maneka people now
realise what State is if it is devoid of justice or denies liberty, human
dignity, equality etc. to ordinary citizens under the garb of populist
democracy, capsuled socialism and controlled freedoms.
Deprecating absolutism of the Executive and its interference with
individual freedom Justice Bhagwati declared:146
‗We must reiterate here what was pointed out by the majority in E.P.
Royappa v. T.N. Namely, that ‗from the positivist point of view,
equality is antithetic to arbitrariness. In fact, equality and
arbitrariness are sworn enemies, one belongs to the rule of law in a
143
Kesavananda is not ‘merely a reported case......but it is the Indian Constitution of the future’
Baxi, U, (1967) 9 JILI, 323.
144
S.R. Bommai v. Union of India, AIR 1994 SC 1918; M. Ismail v. Union of India, AIR 1995
SC 605.
145
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
146
Ibid., 624.
Page 317
republic, while the other to the whims and caprice of an absolute

monarch. Where an act is arbitrary, it is implicit in it that is unequal
both according to political logic and constitutional law and, therefore,
violative of Article 14. Article 14 strikes at arbitrariness of State
action and ensures fairness and equality of treatment. The principle
of reasonableness, which legally as well as philosophically, is an
essential element of equality or non-arbitrariness pervades Article 14
like a brooding omnipresence and the procedure contemplated by
Article 21 must answer the test of reasonableness in order to be in
conformity with Article 14. It must be ‗right and just and fair‘ and not
arbitrary, fanciful or oppressive, otherwise it would be no procedure
at all and the requirement of Article 21 would not be satisfied‘.In
Chandrima Das,147 the Supreme Court has broadened and greatly
widened the meaning of the word ‗LIFE‘ as adopted in International
Covenants on Civil and Political Rights, the Covenants of Economic,
Social and Cultural Rights including Universal Declaration of Human
Rights 1948. On this principles even those who are not citizens of
this country and come here as merely as tourists in this
country........will be entitled to the protection of their lives in
accordance with the constitutional provisions. They also have a right
to ‗Life‘ in this country. Thus, they also have the right to live, so long
as they are here, with human dignity, just as the State is under an
obligation to protect the life of every citizen in this country, so also
the State is under an obligation to protect the life of the persons who
are not citizens.‘
Judicial Process—blending new values
In the post-Emergency era under the dynamic leadership of judges

like V.R. Krishna Iyer, Y.V. Chandrachud, P.N. Bhagwati, D.A.
Desai, O. Chinnappa Reddy and Kuldeep Singh like their
counterparts Justices Holmes, Cardozo, Brandeis, Frankfurter in
USA, have made their mark overwhelmingly upon great issues of

Page 318
human liberty, social justice and human rights,148 as enshrined in the

Constitution even by antagonising the Parliament and the
Government of the day. These judges through their scintillating
judgments made a bold departure from the traditional judicial role
and sharply focused the debilitating effects of executive and
legislative tyranny on individual autonomy and freedoms as was
evident in Gopalan and Shivkant Shtikla.149 They found a sanctuary
in the Preamble, Parts III and IV of the Constitution for destroying
barriers and fetters on individual liberty and henceforth assumed the
role of philosopher, law-maker and defender of basic rights and
needs of the little Indians. In a similar setting Justice O. Chinnappa
Reddy declared,150 that equal pay for equal work is not a ‗mere
demagogic slogan‘ but a constitutional goal which can be achieved
through enforcement of fundamental rights. He specially hailed ‗the
rising social and political consciousness and the expectations as a
consequence among the under-privileged who are now asking
Court‘s intervention to protect and promote their rights.....the judges
of the Court have a duty to redeem their constitutional oath and do
justice no less to the pavement dweller than to the guest of the Five
Star Hotel.‘Accordingly the Apex Court has been adopting organic,
functional and sociological method of interpretation over the
traditional mechanical method in the enforcement of the provision of
the Constitution. By providing flesh and blood to political, social and
economic rights instead of living in ivory tower the Court has become
activist by compelling the executive and the political leadership not
to turn volte-face in redeeming their pledges towards the hapless
Indians in the true Gandhian spirit. Under the spell of new economic
liberalization and privatisation it is the judges who have been
148
By ‘human rights’ means rights of individuals have or ought to have against the government
under the ‘fundamental’ constitutional law.
149
A.DM. Jubalpur v. Shivkant Shukla, AIR 1976 SC 1207.
150
Randhir Singh v. Union of India, AIR 1982 SC 879; GB Mutliamma v. Union of India, AIR
1979 SC 1868, Air India v. Nargesh Meerza, AIR 1981 SC 1829.
Page 319
standing for the poor in their quest for justice and dignity. In this
context, Justice V.R. Krishan Iyer exhorted151 the judges:
‗Where doubts arise the Gandhian talisman becomes a toll of

interpretation : whenever you are in doubt.......apply the following
test. Recall the face of the poorest and the weakest whom you may
be of any use to him.‘Such is the constitutional promise and goal in
favour of ‗We, the People of India‘ that the Apex Court has been
assiduously evolving in the post-Emergency era under the niche of
Article 21 of the Constitution. Thus, Article 21 in conjunction with
Articles 14, 19, 39 etc. have proved gold mine forvi Court in
achieving the two objectives, namely, providing a shield on moral,
humanitarian and constitutional grounds to the poor as a guarantee
against executive action and of making new law for governing the
life of citizens and regulating the functioning of the State in
accordance with law of the land. A brief resume of judicial decisions
in the realm of individual liberty, freedom, social justice and other
human rights under Article 21 are capsuled to demonstrate the
extent of judicial creativity in contemporary Indian jurisprudence.
12.5 Indian Concept
Much earlier to Greeks and Romans the early Rigvedic thinkers

were also deeply impressed by the forces and powers of nature.
They began to wonder at the natural forces like the sun, the moon,
the rains, the storms, lightening, etc. They felt they were surrounded
on all sides by the mysteries of the universe and that they were
naturally dependent on these natural phenomena. They began to put
themselves the original questions such as ‗where is the sun by
night?‘, ‗Where go the stars by day‘?, ‗Why does the sun not fall
down‘?, etc.‘ They thought that the forces of nature were all
represented by mysterious divine forces. They began to posit a God

Page 320
for each of these natural powers and forces of the universe e.g.
Mitra (agent of bright sky and day), Vanma (the agent of dark sky
and evening), Surya (agent of sun), etc. It is the God Vanma who
was very important and extolled by Vedic sages. He is considered in
the Vedas as the apostle of justice, virtue and righteousness in the
universe. He is the chief guardian of Rita in Vedas. Rita is cosmic
order, the ordered course of things in the universe as revealed
regular alteration of day and night, the pageantry of seasons and all
other disciplines as represented by laws of uniformity of nature and
universal causation. Rita also means moral order in the individuals in
society. It is the Truth, the truth of the world, in men and matter
included. The contrast of Rita is Anrita—i.e. lie, untruth falsehood.
Rita is Sati/a and dharma—-truth, justice and equity. The Vedic gods
are not only the maintainers of the Cosmic order but also the
upholders of Moral Law. They have the double responsibility of
maintaining both physical and moral orders. God Vanma is
considered the accredited trustee of this Rita. He has fixed the laws
of the physical universe. The sea does not flow back into rivers, nor
does the wind cease to blow. So also he is holding the reins of
righteousness in men. He is the guardian and champion of Rita.
However, Vedic seers were not polytheistic but they also moved to
monotheism and pantheism and still further to find out the source of
this entire universe, of all being and existence. Thus, the Vedas
represent at an early stage in the history of man, the worship of the
great powers of nature personified. The ideal of Rigvedic man is to
become like Gods not only through worship but also by way of life.
Virtue is obedience to the Law of God which includes love of man
also. Vice is disobedience to law. Rita furnishes the measure of
morals. It is Satya, Anrita is opposite of Rita, the opposite of truth. It
is disorder or disquietude. An ordered conduct is Vrata. Vanma is
the guardian of Rita and himself a person of unalterable ways. All
good habits like speaking the truth, self-restraint, benevolence to
neighbours, charity, kindness, etc. are considered virtues. All

Page 321
malpractices like adultery, seduction, sorcery, witchcraft, etc. are

considered as evils. Even gambling is denounced.
Dominant Trends—Indian way of life
In substance there are three predominant trends of Indian way of

life. First, the Indian social tendency from time immemorial has been
to subordinate the individual to the claims of society. Second, the
Indian religious and spiritual thought and traditions have always
been individualistic—the individual‘s claim to inquiry, to discover and
exercise his spiritual freedom and greatness and moral splendour—
the first great charter of the ideal of humanity promulgated by Vedic
seers. Third, it is in India that religion and J morality have always
been the sheet anchor of polity, economy and administration. At no
time in the history of India the ruler could be a dictator or despot
unmindful of traditions,; dharmashastras and majority public opinion
(lokmat). Thus natural law and ethics have always occupied the
central place in 1 law and politics. Efforts of so-called western jurist
like Austin and his tribe to separate morality from law and politics
have resulted in tyranny, intolerance, regimentation, exploitation,
discrimination and power hunger as is evident from the Second:
World War and other post-War developments in South Africa,
Vietnam War, Black Movement in U.S.A. and East-West
confrontation etc. In the ultimate reality it is the Indian tradition of
Dharma which alone is the path breaker to search and stipulate for
individual his righteous goals and rebel against such! Adharmik law
(unjust law) and to re-assert the natural law of his‘ Maker. At no time
of history of man is discovery and reinstatement of ancient Indian
natural law more urgent than it is today.
Government—Judiciary Conflict—and Natural Law
In the pre-Golak Nath era in a number of cases it had become amply

clear that a situation was developing, on account of Supreme
Court‘s nullifying the progressive legislation, which was irksome both

Page 322
to Parliament and the Executive? There were a series of cases

where the government lost and these were also the decisions which
where linked to enforcement of fundamental rights. The Supreme
Court in all such cases adopted ideal, moral or natural law approach
in order to invalidate the various legislative measures,152 under the
canopy of fundamental rights especially in post-Nehru period. In the
Golak Nath,153 the Court ruled that Parliament has no power to
amend the Constitution so as to take away or abridge the
fundamental rights. The majority held,154 that ‗the fundamental rights
enshrined in Part III were intended to be finally and immutably
settled and determined once for all and were beyond the reach of
any future Parliament‘. Similarly, the Supreme Court held the bank
nationalisation,155 law and Privy purses abolition,156 law
unconstitutional. These judgments led to a mid-term poll. The Fifth
Parliament passed the 25th Amendment of the Constitution in 1971
to establish supremacy of the Directive Principles contained in
clauses (b) and (c) of Article 39 over Fundamental Rights as
specified in Articles 14, 19 and 31. The validity of the 24th and 25th
Amendments was challenged before the Supreme Court in Hzs
Holiness Kesavananda Bharati v. State of Kerala,157 which was
heard by 13 Judges with 11 judgments. While the Court did not
specifically considered fundamental rights as a basic feature of the
Constitution it declared,158 that ‗every provision of the Constitution
can be amended provided in the result basic foundation and
structure of the Constitution remains the same.‘ The basic structure
or feature may be said to consist of the following features:
1. Supremacy of the Constitution;
152
Agrarian slum clearance, Town Planning, Labour Legislation, etc.
153
Golak Nath v. State of Punjab, A.I.R. 1967 S.C. 1643.
154
Ibid, at 1954.
155
R.C. Cooper v. Union of India, A.I.R. 1970 S.C. 564.
156
Madliav Rao Scindia v. Union of India, A.I.R. 1971 S.C. 530.
157
A.I.R. 1973 S.C. 1461.
158
Ibid., pp. 1462-63 per Sikri, C.J.
Page 323
2. Republican and Democratic form of Government;
3. Secular character of the Constitution;
4. Separation of powers between the legislature, executive

and judiciary, and
5. Federal character of the Constitution.
Thus, in Kesavananda Bharati the Supreme Court modified its

attitude towards fundamental rights which it now declared to be
relative and not absolute, changeable and not immutable or
transcendental. As Mathew, J. aptly remarked ‗In building a just
social order, it is sometimes imperative that the Fundamental Rights
should be subordinated to the Directive Principles.........................
The economic goals have a contestable claim for priority over
ideological ones on the ground that excellence comes only after
existence. It is only if men exist that there can be fundamental
rights.‘ Justice Mathew further observed,159 ‗The Fundamental
Rights themselves have no fixed content; most of them are mere
empty vessels into which each generation must pour its content in
the light of its experience. Restrictions, abridgment, curtailment, and
even abrogation of these rights in circumstances not visualised by
the Constitution-makers might become necessary; their claim to
supremacy or priority is liable to be over-borne at particular stages in
the history of the nation by the moral claims embodied in Part IV.
Whether at a particular moment in the history of the nation, a
particular Fundamental Rights should have priority over the moral
claim embodied in Part IV or must yield to them is a matter which
must be left to be decided by each generation in the light of its
experience and values.‘
159
His Highness Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1462-63.
Page 324
The validity of the Constitution (Forty-second Amendment) Act, 1976

was challenged in Minerva Mills case,160 in which the Supreme Court
reiterated the doctrine of basic structure which it had laid down in
Kesavananda Bharati case. However, the Court insisted on the need
of harmonious construction. Chief Justice Chandrachud rightly
remarked,161 ‗The Indian Constitution is founded on the bed-rock of
the balani 3 between Parts III and IV. To give absolute primacy to
one over the other is to disturb the harmony of the Constitution. This
harmony and balance between Fundamental Rights and Directive
Principles is an essential feature of the basic structure of the
Constitution. The goals set out in Part IV have to be achieved
without the abrogation of the means provided for by Part III. It is in
this sense that Parts III and IV together constitute the core of our
Constitution and combine to form its conscience. Anything that
destroys the balance between the two parts will ipso facto destroy an
essential element of the basic structure of our Constitution.‘ Such is
also the ratio decidendi of the Waman Rao,162 wherein the Supreme
Court reaffirmed the basic structure doctrine. Of course, basic
structure doctrine is no deterrent on the welfare policies and
postures of the executive or legislature. However, if the sensibilities
and sensitivities of the emergency period are to be healed along with
restoring of common man‘s faith in fairness and equity and
constitutional property the only symbol of higher law not only for
preserving the Constitution but also for protecting the ordinary man
against legislative tyranny and executive despotism is the basic
structure doctrine. Therefore, in India in the last quarter of the
twentieth century and in the early 21st century we find the
resurgence of new natural law in the garb of basic structure doctrine
for preserving and promoting democratic human values, human
rights and social justice. This doctrine has become a sheet anchor of
160
Minerva Mills Lied. v. Union of India, A.I.R. 1980 S.C. 1789.
161
Ibid., at pp. 1806,1807.

Page 325
individual liberty and social justice and has impelled us to revise our
old ideas and ideals in jurisprudence which had hitherto been
Austinian in form, spirit and content. Kesavananda has given a
Copernican turn to Indian jurisprudence and has postulated new
ideals and values which may feed back democratic ideals of free
society and further the constitutional goals and commitment of
ending poverty, exploitation and injustice.
12.8 SUMMARY
Justice can be multiform. Thus it can have a scientific connotation:

civil, penal, military or international. Justice is not only that of the
judges and the lawyers. It can, indeed, be of a philosophical,
religious or clannish nature. Justice is also a common act of the
everyday life, such as repairing the injustice of having unevenly
shared the cake between children... the topic of the independence of
justice is very extendable. Consequently in this context, the logic
commands us to turn to the independence of the judicial power.
In this unit we have discussed about the concept of the
constitutional ordering.
 Institute of Manu, Chapter VIII, 41.

 Ibid., Chapter VIII, 15.
 Goswami Tulsidas Ramayana also refers this concept in
Chapter II, 57.
 Quoted by Pulparampil, John K., Indian Political System, pp.
17-18 (1976).
 Santiparvam, 89,33.
 Kautilya‘s Arthsltashtra, IV, XI, 229.
 Manusmriti, Chapter VII, 19.
Page 326
 Narada Smriti, XVIII, 20-21.

 Maneka Gandhi, AIR 1978 SC 597.
 Sangram Singh v. Election Tribunal, AIR 1955 SC 425.
 A.K. Kraipak v. Union of India, AIR 1970 SC 150.
 Ibid., para 20; see also Union of India v. Indo Afghan
Agencies, AIR 1968 SC 718.
 Maneka Gandhi v. Union of India, 1978 SC 597 at 616,
Mohinder Singh v. Chief Election Commissioner, AIR 1978 SC
851; Delhi Transport Corp. v. D.T.C. Mnzdoor Union, AIR
1991 SC 101; Supreme Court Legal Aid Committee v. Union
of India, AIR 1994 SCW 5115.
 S.P. Gupta v. Union of India, AIR 1982 SC 149.
 Maneka Gandhi v. Union of India, 1978 SC 597.
 Mohinder Singh v. Chief Election Cominr., AIR 1978 SC 851
at 870.
 Ibid., at 873.
 Ibid., 876.
 A.K. Gopalan v. State of Madras, AIR 1950 SC 27.
 AIR 1978 SC 659.
 R.D. Shetty v. International Airport Authority, AIR 1987 SC
1628; Kasturi Lal v. State of] & K, AIR 1987 SC 1992; R.S.
Dass v. Union of India, AIR 1987 SC 850 at 858; Ashok Kuinar
Yadav v. State of Haryana, AIR 1987 SC 454 at 468;
Sheonandan Paswan v. State of Biliar, AIR 1987 SC 877;
Vaidyanatli Malmpatra v. State of Orissa, AIR 1989 SC 2218;
Neelima Mishtra v. Harinder Knur, AIR 1990, SC 1402; Delhi
Transport Corpn. v. D.T.C. Mazdoor (Congress), AIR 1991 SC
101; D.V. Bakshi v. Union of India, (1993) 3 SCC 663; O.K.
Yadav v. f.M.A. Industries, (1993) 3 SCC 258; Union of India
v. W.N. Chadlm, AIR 1993 SC 1843; Union of India v. V.P.
Setlii, AIR 1994 SC 1261; Premium Granites v. State of Tamil
Nadu, AIR 1994 SC 1233; Khedat Mazdoor Cltetna Sangh v.
State ofMP, AIR 1995 SC 31; M.f. Sivani v. State of

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Karnataka, AIR 1995 SC‘l770; Lawyers Initiative Through RS

Bains v. State of Punjab, AIR 1996 P & H 1; Kammalapati
Bralunmarao v. State of Karnataka, AIR 1996 Kar 37;
Wariyam Singh v. State ofU.P., AIR 1996 SC 305; }.N.
Banavalikar v. Municipal Corpn. Delhi, AIR 1996 SC 326;
Union of India v. M/s. Jesus Sales Corprn. AIR 1996 SC 1508;
Baburao Vishwananth Mathpati v. State, AIR 1996 Bom 228;
State Bank of Pntinhi v. S.K. Sltarma, AIR 1996 SC 1669.
1. What do you understand by the concept of the independence

of justice theories?
2. Explain the means to end relationship of law and justice?
3. Describe the relationship between law and justice in the
context of the Indian constitutional ordering?

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LL.M. Part-2

Unit-13- Analysis of selected cases of the Supreme Court where the
judicial process can be; seen as influenced by theories of justice
STRUCTURE
13.1 INTRODUCTION
13.2 OBJECTIVES
13.3 Role of Judicial process in Indian Judiciary as an
instrument of social ordering
13.4. Selected Cases of Supreme Court of India which are
influenced by theories of Justice
13.5 SUMMARY

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13.1 INTRODUCTION
In the previous unit you have read about the concept of the
constitutional ordering.In India, social justice is the new dream of
liberals, Gandhians, socialists, marxists and others who are inspired
and aspire for an egalitarian politico-social order where no one is
exploited, where every one is liberated and where every one is equal
and free from hunger and poverty. In such a social order liberty is
not made a casualty over security or vice-versa and balance is
maintained without curtailing the rights of the individual with
supremacy of the Constitution as expounded in the basic structure
theory which contain the cardinal principles of democracy, human
rights and social justice.In this unit we will discuss the role of judicial
process in Indian Judiciary as an instrument of social ordering. We
will also analyze selected cases of the Supreme Court where the
judicial process can be; seen as influenced by theories of justice.
13.2 OBJECTIVES

 Discuss the role of judicial process in Indian Judiciary as an
instrument of social ordering.
 Understand and analyze selected cases of the Supreme Court
where the judicial process can be; seen as influenced by
theories of justice.
13.3 Role of Judicial process in Indian Judiciary as an

instrument of social ordering
Jurisprudence Paradigms
Together with Kraipak (1970) Kesavananda Bharati, (1973) and

Maneka Gandhi (1978) became an essay for Indian jurists and
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judges in defence of human liberty, freedom and natural justice.

Since then the ideals of human rights and natural justice have been
vigorously pursued reminding and educating Indians the underlying
purposes and goals of the Preamble and the Bill of Rights under the
Constitution. The Supreme Court has declared in these judgments
that the Constitution to do not envisage a sovereign government but
a government under law with constitutional limitation and ‗We the
People of India1 being the Sovereign Power. As, Constitution is the
supreme law of the land, laws of the Union and the States must be
in pursuance of the Constitution wherein judiciary is the protector
and guarantor of the Fundamental Rights of the citizens. The
Supreme Court is empowered to issue appropriate writs in the
nature of Habeas Corpus, Mandamus, Prohibition, Certiorari and
Quo Waranto for the enforcement of fundamental rights and any
person can move the Court for appropriate remedy whenever there
is a violation of such rights by legislative or executive body163.Article
226 empowers the High Courts to issue writs for the enforcement of
fundamental rights. In the interest of justice the courts have relaxed
the rule of locus standi in favour of those who for want of poverty,
ignorance, illiteracy, deprivation and exploitation are unable to
approach the Court for appropriate relief. While expanding the scope
of access to justice the Indian judiciary has initiated a veritable
revolution in our political and social system by achieving its grand
purpose—the protection of the poor and exploited individuals or
contracts upon their liberty protected by procedure,164 established by
law or due process theory. It is for this reason that natural justice is a
brooding omnipresence although of varying form and facet.
According to Justice Krishna Iyer,165‗Indeed natural justice is a
pervasive facet of secular law where a spiritual touch enlivens
legislation, administration and adjudication to make fairness a creed
of life. It has many colours and shades, many forms and shapes and

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save where valid law excludes, it applies when people are affected
by valid authority..... Indeed from the legendary days of Adam—and
of
Kautilya‘s Arthasastra—the rule of law has had the stamp of natural

justice which makes it social justice......that the roots of natural
justice and its foliage are noble and not new-fangled.....Our
jurisprudence has sanctioned its prevalence even like the Anglo-
American system.‘Justice Iyer explaining further the nuances of
natural justice observed,166:Today in our jurisprudence, the
advances made by natural justice far exceed old frontiers and if
judicial creativity belights penumbral areas it is only for improving the
quality of government by injecting fair play into its wheels.......Law
cannot be divorced from life and so it is that the life of law is not logic
but experience.....Law lives not in a world of abstractions but in a
cosmos of concreteness and to give up something good must be
limited to extreme cases. If to condemn unheard is wrong it is wrong
except where it is overborne by dire social necessity. Such is the
sensible perspective we should adopt if ad hoc or haphazard
solutions should be eschewed.‘Justice Iyer summing up the ethos of
natural justice concluded:167‗.that the content of natural justice is
dependent variable not an easy casualty.‘
In short, since the rejection168 of Austinian and Diceyian concept of

law and rule of law in Maneka,169 Articles 14 and 21 have assumed
new dimensions especially after the introduction of due process in
Indian constitutional jurisprudence by making the doctrine of natural
justice an effective sword and shield both against executive actions
and legislative inroads against life and liberty of a person. The new
interpretation given to these provisions is a far reaching
development in India‘s constitutional and criminal jurisprudence for

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providing easy access to justice to the under-privileged under the

vast and panoramic canopy of natural justice.170 It is around the
principles of natural justice that the Supreme Court of India has
evolved new Indian jurisprudence with new legal ideology and
techniques which links judicial process with social change. Since
Maneka and Mohinder Singh it is the judiciary which has been the
harbinger of social revolution in bringing about a new social order in
which justice—social, economic and political—informs all the
institutions of contemporary Indian society.
Social Justice—Indian Context

social justice. The Constitution171 being more a social document
rather than political makes the legislature, the executive and the
judiciary for the advancement of liberties and welfare of the people
and the courts are to harmonise conflicts consistent with social
philosophy of the Constitution. Such a strand is echoed by Justice
Krishna Iyer when he remarked172 : ‗Our thesis is that dialectics of
social justice should not be missed if the synthesis of Part III and
Part IV is to influence State action and Court pronouncements.‘ The
Court has abandoned the initial hesitation when it failed to
recognise,173 the compatibility between Part III and Part IV by

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making the former transcendental beyond the reach of the

Parliament. However since the days of Kesavananda Bharati it has
been consistently adopting the approach,174 that Fundamental
Rights and Directive Principles are supplementary and
complimentary to each other and that the provisions of Part III
should be interpreted having regard to the Preamble and the
Directive Principles of State Policy. The basic law of the country has
adopted and accepted democracy and liberty with social justice as
the way of life. The judgments of the Court only reflect and respect
of collective judgement of the We the People of India and their
commitment to social, economic and political democracy so that
social justice and human rights are effectively realised peacefully
without violence through democratic process. The architects of the
Constitution, the Father of the Nation and makers of modern India
had kept in mind the words of Mr Atlee, the former Prime Minister of
Britain when he remarked:‗If a free society cannot help the many
who are poor, it cannot save the few who are rich.‘ Gandhian
Talisman and Social Justice—Initial Judicial Hurdles Of course, the
Constitution fully reflects the Gandhian ethos in its Preamble and
Parts III and IV towards creation of just and democratic society in
India. By such a society Gandhiji meant175 ‗...the levelling down of
the few rich in whom is concentrated the bulk of the nation‘s wealth,
on the one hand, and levelling up the semi-naked millions, on the
other. A non-violent system of government is clearly an impossibility
so long as the wealth gulf between the rich and the hungry million
persists. The contrast between the places of New Delhi and the
miserable hovels of the poor labouring class nearby cannot last a
day in a free India in which the poor will enjoy the same power of the
riches in the land.‘
For the alleviation of yawning gap between the rich and poor
Gandhiji suggested definite and humane policy indicators. As he

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put‘176 it: ‗I will give you a talisman. Whenever you are in doubt or
when the self becomes too much with you, apply the following test.
Recall the face of the poorest and the weakest man whom you may
be of any use to him. Will he gain anything by it? Will it restore him
to control over his own life and destiny. In other words, will it lead to
Sivaraj for the hungry and spiritually starving millions?
Then you will find your doubt and yourself melting away.‘
The Swaraj of Gandhiji‘s conception is truly enshrined in the

Preamble and parts III & IV of the Constitution. Such has been the
thrust of welfare legislation for socio-economic reforms in India since
1950 which led to several constitutional amendments for the
implementation of land reform measures which had been held up
because of fundamental right to property and equality. The
judgments,177 of the courts hindered agrarian reforms,
nationalisation of big industries and banking business and abolition
of privy purses. A conflict ensued between vested interests
supported by the Courts and the Government of India—the architect
of social change and social justice. The charge that the Supreme
Court was insensitive to the cause of common welfare and social
justice programme came no less than from the Prime Minister
Jawaharlal Nehru himself as agrarian statutes were struck down
unconstitutional. So was the fate of State Monopoly Bills and
Nationalisation schemes which fell at the altar of fundamental rights.
As several schemes or legislative measures—fiscal, agrarian, social
and educational—invariably went to the Court and no one could
predict what this ‗third house‘ might do. Accordingly Nehru exhorted
the judges to come down from the ‗ivory tower‘ and sympathise with
the legislatures which had to do a thousand things urgently needed
by an awakened but deprived people. Like the criticism of U.S.

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Supreme Court as ‗nine-old men‘ by President Franklin Roosevelt

Nehru echoed similar dig at the Apex judiciary when he remarked 178:
‗No Supreme Court and no judiciary can stand in the judgment over
sovereign will of Parliament representing the will of the entire
community. If we go wrong here and there, it can point out, but in the
ultimate analysis where the future of the community is concerned, no
judiciary can come in the way. And if it comes in the way, ultimately
the whole Constitution is a creature of the Parliament. ...it is obvious
that no system of judiciary can function in the nature of a third
house, as a kind of third house of correction.‘However, the judiciary
did not adopt a more modern liberal and progressive outlook and
declared,179 property as a sacrosanct fundamental right resulting in
making fundamental rights immutable, transcendental and beyond
the reach of Parliament. Subba Rao C.J. declared180: ‗We declare
that Parliament will have no power from the date of this decision to
amend any provision of Part III of the Constitution so as to take away
or abridge the fundamental rights enshrined therein‘.Since the
amendments in the Constitution were necessary to give effect to the
purpose enshrined in the Preamble and Directives of the
Constitution but the Apex Court being conservative came in the way
of removal of poverty and in the establishment of social justice. It
appeared as if the Court was trying to protect vested interests and
becoming an obstacle in creation of more humane and just social
order as was evident in the Bank Nationalisation181 case and Privy
Purses,182 case. The main problem before the Supreme Court during
the 1950-71 was that it failed to uphold, promote and establish social
justice with democracy as envisaged in the Constitution.
13.4. Selected Cases of Supreme Court of India which are

influenced by theories of Justice

Page 336
Kesavananda Bharati—Basic Structure Theory
When 24th, 25th, 26th and 29th Constitution Amendments were

enacted by the Parliament after 1971 general elections their validity
was challenged on the authority of Golak Nath in Kesavananda
Bharati.183 The majority of judges held that the view taken in Golak
Nath that the word ‗law‘ in Article 13 included a constitutional
amendment could not be upheld. The said decision was, therefore,
overruled. However, the 13 Judges Bench was sharply divided on
the question whether the word ‗amend‘ in Article 368 included the
power to alter the basic features or repeal the Constitution itself.Six
Judges led by Sikri CJ. were of the view that the Constitution could
not be amended so as to abrogate or emasculate the basic features
of the Constitution which could not be touched by Parliament.
Supreme Court and Social Justice—A Copernican Change.
Hitherto the Supreme Court had been strucking down all the laws
and legislation meant for the amelioration of condition of rural and
urban poor. It appeared as if judiciary had failed in ensuring
distributive justice. A new generation of progressive judges came on
the scene who castigated Oxford-oriented judges who declared law.
illegal without regard to the social and economic consequences of
their decisions. Consequently hereafter laws enacted in furtherance
of the Directive Principles of State Policy contained in Article 39 (b)
and (c) were upheld against all attacks notwithstanding the basic
structure theory of Kesavananda Bharati. This period witnessed the
emergence of new Indian jurisprudence with more socialist content
including the addition of the word ‗socialist‘ in the Preamble of the
Constitution in 1976 coupled with some progressive judges fully alive
to the cause of social justice and ever responsive to the social
philosophy of the Constitution. The founding fathers of Indian
Constitution too had envisaged,184 the Supreme Court ‗to be an arm

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of social revolution‘ and the national goals enshrined therein were

addressed,185 as much to be judiciary as to the legislature and the
executive. As Krishna Iyer J. observed,186 ‗Our Constitution is a tryst
with destiny, preambled with luscent solemnity in the words ‗Justice-
social economic and political.‘ The three great branches of
Government, as creatures of the Constitution, must remember this
promise in their functional role and forget it at their peril, for to do so
will be a betrayal of those high values and goals which this nation
set for itself in its Objective Resolution and whose elaborate
summation is in Part IV of the paramount parchment...... While
contemplating the meaning of the Articles of the Organic Law, the
Supreme Court shall not disown social justice.‘Consequently after
1976,187 there was a solemn commitment on the part of Supreme
Court to promote social change for bringing about a new egalitarian
order in furtherance of the Directive Principles of State policy. The
Supreme Court in Minerva Mills remarked188 :The significance of the
perception that Parts III and IV together constitute the core of
commitment to social revolution and they together, are the
conscience of the Constitution is to be traced to a deep
understanding of the scheme of the Indian Constitution...... They are
like a twin formula for achieving the social revolution.... The Indian
Constitution is founded on the bedrock of the balance between Parts
III and IV. To give absolute primacy to one over the other is to
disturb harmony of the Constitution. This harmony and balance
between Fundamental Rights and Directive Principles is an essential
feature of the basic structure of the Constitution. Those rights are not
an end in them selves but are the means to an end. The end is
specified in Part IV.‘Accordingly the Apex Court has been fully alive
to the cause of social justice and has been responsible to the claims

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to social justice of the poor and disadvantaged persons.189 The

sensitivity of the contemporary, Indian judicial process to the social
justice claims of poors because of their exploitation at the hands of
State,190 or powerful sections,191 of the community the Supreme
Court has been successful in counteracting social injustice despite
the criticism that it has usurped the powers which rightly pertain to
Executive and Legislature. In the face of Himalayan poverty the
Apex Court has not waivered or looked back in advancing and
promoting social justice to the poor, the miserable and the weaker.
In 1976 the Supreme Court of India observed 192.‗Social Justice is the
conscience of our Constitution, the State is the promoter of
economic justice, the foundation faith which sustains the
Constitution and the country..... The Public Sector is a model
employer with a social conscience not an artificial person without a
soul. Law and Justice must be on talking terms and what matter
under our constitutional scheme is not merciless Law but Human
legality. The true strength and stability of our policy is in Social
justice.‘Likewise in the same strain but with greater concern and
vigour the Supreme Court (K. Ramaswamy J.) expounds the new
fabric of social justice in the current social milieu of 1995. It
declares193 :―The Preamble and Article 38 of the Constitution of
India—the supreme law envisions social justice as its arch to ensure
life to be meaningful and liveable with human dignity..... The
Constitution. Commands justice, liberty, equality and fraternity as
supreme values to usher in egalitarian social, economic and political
democracy......Social justice is a dynamic device to mitigate the
sufferings of the poor, weaks, Scheduled Castes (Dalits), Tribals and
deprived sections of society and to elevate them to the level of
equality to live a life with dignity of a person. Social justice is not a

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simple or single ideal of a society but is an essential part of complex

of social change to relieve the poor etc. from handicaps, penury to
ward off distress, and to make their life liable, for greater good of
society at large..... The Constitution, therefore, mandates the State
to accord justice to all members of the society in all facets of human
activity. The concepts of social justice imbeds equality to flavour and
enliven practical content of ‗life‘. Social justice and equality are
complimentary to each other so that both should maintain their
vitality. Rule of law, therefore, is a potent instrument of social justice
to bring about equality in results.‘
Dialectics of Social Justice and the Constitution
The Constitution envisages,194 a casteless and classless society

equality to all citizens with equality of treatment under Article 14
which ‗pervades like a brooding omnipresence.‘ However, in the
interest of social justice it retains the concept of ‗Scheduled Castes;
and ‗Scheduled Tribes‘ as a caste for extending to them protective
discrimination because these castes had suffered in the past from
certain historical and social disabilities. Such a concern for their
upliftment and regeneration have been expressed through several
constitutional amendments and court decisions from time to time. At
the same time demand for affirmative action was also raised for
extending reservation in government and public sector employment
for a large ‗intermediary section‘ of society vaguely called Socially
and Educationally Backward Classes (SEBCs) or Other Backward
Class (OBCs) who constitute about 52% of the population of India.
In political jargaon of SCs, STs and OBCs are compendiously
described as ‗weaker sections of the people.‘ It is for their
advancement that the Constitution in Articles 15, 16, 38 and 46
makes provision so that these communities cross the rubicon.

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Article 15 (1) and (2) prohibit discrimination between citizens on

grounds of religion, race, caste, sex, place of birth etc. with the
underlying ideal to eradicate anachronistic disabilities of Hindu social
system to pave way for an egalitarian casteless society. However,
clauses (3) and (4) of Article 15 constitute exceptions to Article 15
(1) and (2) to make provision for the advancement of socially and
educationally backward classes of citizens or SCs and STs. Article
15 (3) makes exception in favour of women and children and Article
15 (4) is also an exception to Article 15 (1) and (2). added by the
Constitution (1st Amendment) Act, 1951 which has overruled the
decision of the Supreme Court in State of Madras v. Champakam
Dorairajan.195 In short, it is an enabling measure for facilitating the
making of special provisions for backward classes. However, the
Supreme Court invalidated,196 the classification of backwards into
‗Backward Classes‘ and ‗More Backward classes‘ for purposes of
Article 15 (4) which is similar to Article 16 (4) of the Constitution. In
Devadasan,197 the Court overruled the rule of carry forward as
unconstitutional, in these cases the Court had set it face against
excessive reservation in the interest of merit and efficiency.
However, in Thomas198 the court took a liberal view to give
preferential treatment to SCs and STs under Article 16 (1) outside
Article 16 (4) to help SCs and STs. It had thrown in the melting pot
the decision in Devadasan in which the carry forward rule of
reservation was not to exceed 50%. In ABSK,199 the Supreme Court
following Thomas upheld the validity of the Railway Board Circular
under which reservations were made in selection posts for SCs and
STs. It also upheld the carry-forward rule under which 17% posts

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were reserved for those categories. Justice Krishna Iyer thus

summed,200 up to overall thrust of social justice.
The dynamics and dialectics of social justice vis-a-vis the special

provisions of the Constitution calculated to accelerate the prospects
of employment of the harijans and girijans in the civil services with
particular emphasis on promotions of these categories in the Indian
Railway—that in all these cases, is the cynosure of judicial scrutiny,
from the angle of constitutionality in the context of guarantee of
caste-free equality to every person.‘
Justice Iyer reminds the people on the urgency of social justice

dispensation which the Founding Fathers dreamt, as he puts it:201
The authentic voice of our culture voiced by all the great builders of
modern India stood for the abolition of hardships of the pariah, the
malecha, the bonded labour, the hungry, hardworking half-slave
whose liberation was integral to our Independence. To interpret the
Constitution rightly the Courts must understand the people for whom
it is made the finer ethos, the frustrations, the aspirations, the
parameters set by the constitutional interpretation if alienation from
the people were not to afflict the justicing process.‘ The Apex Court
have consequently evolved clear indicators to be followed in respect
of reservations for SCs and STs by asserting protective
discrimination as a tool for promoting social justice. In K.C.
Vasanth,202 the 5—Judge Constitution Bench—with Chandrachud
C.J., D.A. Desai, O. Chinnappa Reddy, A.P. Sen and
Venkataramiah, J.J. dealt the subject comprehensively with a slant
to social justice to weaker sections of society. The Chief Justice
accordingly laid down the policy propositions thereto:

Page 342
(i) the reservation in favour of Scheduled Castes and

Scheduled Tribes must continue as at present, that is
without the application of a means test, for a further period
not exceeding fifteen years. Another fifteen years will make
it fifty years after the advent of the Constitution-a period
reasonably long for the upper crust of the oppressed
classes to overcome the baneful effects of social
oppression and humiliation;
(ii) the means test that is to say, the test of economic

backwardness ought to be made applicable even to SCs
and STs after the period mentioned in (i) above;
(iii) so far as the backward classes were concerned, they

should satisfy, two tests, namely, (a) that they should be
comparable to the SCs and STs in the matter of their
backwardness and (b) that they should satisfy the means
test such as a State Government may lay down in the
context of the prevailing economic conditions;
(iv) the policy of reservation is employment, education and

legislative institutions should be reviewed every five years
or so. That will at once afford an opportunity to the State to
rectify distortions arising out of particular facets of the
reservation policy and to the people, both backward and
non-backward, to ventilate their views in a public debate on
the practical impact of the policy of reservation.
Justice D.A. Desai, on the other hand, advocated the application of

economic criteria for identifying socially and educationally backward
classes. He noted with concern how the use of caste as a criterion of
the backwardness had created vested interest in remaining or being
identified as backward. On the contrary Justice O. Chinnappa Reddy
did not agree to individual poverty as a criterion of social
backwardness. Instead he favoured poverty as well as social and

Page 343
educational backwardness. But mere poverty,203 it seems is not

enough to enough the constitutional branding, because the vast
majority of the people of our country are poverty-struck but some
among them are socially and educationally forward and others
backwards. The judge further observed204: ‗Class poverty, not
individual poverty, is therefore the primary test. Other ancillary tests
are the way of life, the standard of living, the place in the society
hierarchy, the habits and customs etc.....Notwithstanding our
antipathy to caste and sub-regionalism these are facts of life which
cannot be wished away.‘Indra Sawhney and Social Justice to
OBCs—The Mandal Case.The momentous Indra Sawhney was an
aftermath of the controversial recommendations of the Mandal
imbroglio which had led to caste tensions, ethnic dissensions and
wide-spjead violence in Hindu society. Moreover, the Mandal
Commission recommendations became contentious legal and
political issue which Prime Minister V.P. Singh also used as a clock
to increase his vote-bank amongst Socially and Educationally
Backward Classes (SEBCs) by espousing social justice to weaker
sections of society. Indeed the Mandal Commission
recommendations had rocked the nation, the Government of V.P.
Singh and the Parliament and their constitutionality even did not go
unchallenged in the Supreme Court wherein a battery of best legal
brains and great legal luminaries fought legal and constitutional
battles culminating in what is known as Indra Smvhney,205 case (the
Mandal case)—an acme on social justice.
The Mandal Commission—A Background
The need for a commission to investigate the condition of backward

classes is set forth in Article 340 of the Constitution. The First
Backward Classes Commission (Kelkar Commission) was appointed
on January 29, 1953 to investigate the condition of socially and

Page 344
educationally backward classes within the territory of India. The

Commission submitted its report on March 30,1955. Its
recommendations were not accepted by the Government for a
variety of reasons including inconsistencies in the collection of date,
dissensions amongst its members coupled with dissent of the
Chairman himself. It was during the Prime Minister Morarji Desai that
the Second Backward Classes Commission was appointed by
President Neelam Sanjiv Reddy on March 21, 1979 with B.P.
Mandal M.P. as its Chairman—the Commission popularly known as
the Mandal Commission. The terms of reference of the said
Commission inter-alia were:
(i) to determine the criteria for defining the socially and

educationally backward classes;
(ii) to recommend steps to be taken for the advancement of

socially and educationally backward classes of citizens so
identified; and
(iii) to examine its desirability of making provision for the

reservation of appointments or posts in favour of such
backward classes which are not adequately represented in
public services of the Union or State etc.
The Commission finally submitted its report on December 31, 1980.

Of course Mandal Commission was mainly moved by the
consideration of achieving social justice for a multiple undulating
society like ours. It identified as many as 1743 castes as socially and
educationally backward constituting 52 percent of the population.
Accordingly it recommended reservation of 27 per cent Government
jobs for SEBCs. However, Prime Minister Indira Gandhi did not
implement the Mandal Commission recommendations as its date
were based on 1931 census besides apprehending social turmoil
and the report remained shelved over 10 years until Prime Minister
V.P. Singh of the Janata Dal national Front took a gigantic leap

Page 345
towards implementation of Mandal recommendations. He

bemoaned,206 ‗What I want to convey is that treating unequals as
equals is the greatest injustice. And the correction of this injustice is
very important.......Let us forget that the poor are begging for some
crumbs. They have suffered it for thousands of years. They are now
fighting. Now they are fighting for their honour as a human being.‘
Office Memorandums—Challenged
Accordingly V.P. Singh issued Office Memorandum on August 13,

1990 implementing one part of Mandal recommendations, namely,
establishing a job reservation quota of 27 per cent for Central
Government jobs for Socially and Educationally Backward classes
(SEBCs). This triggered a major political explosion in India including
self-immolation by forward caste youths. Writ petitions were filed in
the Supreme Court questioning the legality of the said Memorandum
along with applications for staying the operation of the Memorandum
which was stayed by the Court. In the meantime National Front
Government collapsed due to defections and in 1991 General
Elections the Congress led by P.V. Narsimha Rao Government
came to power in the Centre. The Narsimha Rao Government with
immediate effect decided to amend the Office Memorandum of
August 13, 1990 and issued another Office Memorandum of
September 25,1991 which modified the earlier Memorandum mainly
as below:
(i) Preference to poorer to SEBCs (OBCs)—The

Memorandum introduced economic criterion while granting
reservation to poorer sections of the SEBCs in 27 per cent
quota as allotted by Mandal Commission.
(ii) The backward class candidates recruited on the basis of

merit in open competition along with general candidates

Page 346
are not to be adjusted against the quota of 27% reserved

for them.
(iii) Reservation of 10 percent quota for other economically

backward sections of the people who are not covered by
any of the existing schemes of reservation.
The aforesaid writ petitions were heard in the first instance by a

Constitution Bench presided over by the then Chief Justice
Ranganath Mishra who after hearing them for sometime referred
them to a Special Bench of 9-Judges to finally settle the
constitutional position relating to reservation. The 9-Judges
Constitution Bench of the Supreme Court was sharply divided over
the correctness of the Mandal Commission report. While the majority
did not express any opinion on the correctness or adequacy of
Mandal report the minority of three judges Mr. Justice T.K.
Thommen, Kuldip Singh and R.M. Sahai held Mandal report as
unconstitutional and recommended for the appointment of another
Commission for identifying the SEBCs of citizens. These judges
accordingly held the two Office Memorandums unconstitutional.
Mandal Dispute—Supreme Court
However, 6 of the majority of the judges consisting of M.H. Kania

C.J., M.N. Venkatachaliah, S. Ratnavel Pandian, A.M. Ahmadi, P.B.
Sawant, B.P. Jeevan Reddy J.J. concurred through separate
judgements and upheld the decision of the Union Government to
reserve 27 percent of the government jobs for SEBCs with some
modification.
(1) The Court interpreted the various facets and aspects of Article 16
(4) and held as valid the Office Memorandum of August 13,1990
reserving 27% of Central Government jobs to SEBCs subject to the
creamy layer‘ or to exclusion of such socially advanced persons of
the backwards ‗the creamy layer or top layers or the forward among

Page 347
the backwards depending upon the means test. After excluding them
alone, would the class be a compact class.
(2) The Court observed that reservation is not anti-meritarian but at

the same time the judges admitted,207 that the very idea of
reservation implies of a less meritorious person. At the same time,
we recognise that this much cost has to be paid if constitutional
promise of social justice is to be redeemed.‘ It stipulated, 208 that sub-
classification of backward classes into more backward and backward
for purposes of Article 16 (4) can be done. The object of the clause
is to provide a preference in favour of more backward among the
‗socially and educationally backward class.‘
(3) The Court further held that said reservation is only confined to
initial appointment and not promotion. It remarked,209 ‗.....At the initial
stage of recruitment reservation can be made in favour of backward
class of citizens but once they enter the service efficiency of
administration demands that those members too compete with
others and earn promotion like all others.......Crutches cannot be
provided throughout one‘s career. That would not be in the interest
of efficiency of administration nor in the larger interest of the nation.‘
(4) As to the limit of reservation the Court held that reservations

contemplated in clause (4) of Article 16 should not exceed 50%. The
plea that reservation in favour of backward class should be more
than 50% because of the population of backward classes is more
than 50% is not tenable. Clause (4) of Article 16 speaks of adequate
representation and not proportionate representation and adequate
representation cannot be read as proportionate representation.
However, the carry forward rule of unfilled reserve vacancies is not
per se unconstitutional provided such rule does not result in breach
of 50% rule.

Page 348
(5) The Court struck down 10% reservation or the posts in favour of
‗other economically backward sections of the people who are not
covered by any of the existing schemes of reservation‘ made by the
Office Memorandum of 1991. It declared such a reservation
inconsistent with guarantee of equal opportunity held out by clause
(1) of Article 16.
(6) According to the Apex Court there are certain services and posts
which it may not be advisable to apply the rule of reservation in
matters of super specialities in medicine engineering and other
courses in physical sciences, in defence services, professors, pilots,
scientists, technicians in space and nuclear application.
The Apex Court with considerable toil and trouble have finally settled
the notion of social justice in respect of job reservation which has
been a recurring problem since the very inception of the
Constitution. Through decision-making process and judicial self
restraint the judges have been successful in deciding delicate and
emotional questions steep in controversy truly in the national spirit
and the mandate of the Constitution. However the Executive through
its willy and nilly decision has once against tampered with Indra
Sawhney wherein the Apex Court had ruled out reservation in
promotion. The Constitution (77th Amendment) Act, 1995 has been
passed hurriedly to allow reservation in promotion for SCs and STs
leaving out the SEBCs. Such an amendment is not without political
considerations which the OBCs may also demand in future. This
leaves a gray area for the politicians making reservation a political
ploy to perpetuate caste-politics and use caste to increase their vote
bank,210 to remain in power.In short, Indra Sawhney reads like the
Bible on social justice and social equality. It is both history and story
of contemporary Indian conspectus of social justice. It takes a
copricon perspective peeping back to hoary past at our gory
traditions and looks ahead to 21st century where all citizens are

Page 349
blessed with essential human dignity, equality, social justice etc.

where goals and values of the Preamble are not more theoretical
rhetorics but are the cementing beams of a just nation took a difficult
challenging juristic just task of interpreting a cluster of old and new
values over which there was a clash in Hindu society. It tried to
project and protect with great care and clarity new values of
freedom, justice and human dignity overtruncated values of past
centuries. Interpreting the constitutional provision such as Articles
14, 15, 16, 17, 38, 46, 338 and 340 designed to redress the
centuries of old pent up grievances of the weaker sections the Court
was expounding modern constitutional jurisprudence in defence of
rights of the weak with no more tears, sweat and blood. Thus,
declares,211 Justice S.R. Pandian: ‗No one can be permitted to
invoke the Constitution either as a sword for an offence or as a
shield for anticipatory defence, in the sense no one under the guise
of interpreting the Constitution can cause irrevertible injustice and
irredeemable inequalities to any section of the people or can protect
those unethically claiming unquestionable dynastic monopoly over
constitutional benefits. Therefore, the Judges who are entrusted with
the task of fostering an advanced social policy in terms of the
constitutional mandates cannot afford to sit in ivory towers keeping
Olympian unnoticed and uncaring of the storms and stresses that
affect the society. It may be a journey of thousand miles in achieving
equality of status and of opportunity yet it must begin with a single
step. So let the socially backward people take their first step in that
endeavour and march on and on. When new societal conditions and
factual situations demand the Judges to speak, without professing
the tradition of judicial lock-jaw, must, speak out—so I speak.
13.5 SUMMARY

Page 350
Social Justice is the conscience of our Constitution; the State is the

promoter of economic justice, the foundation faith which sustains the
Constitution and the country.....
In this unit we have discussed the role of judicial process in Indian
Judiciary as an instrument of social ordering. We have also analyzed
selected cases of the Supreme Court where the judicial process can
be seen as influenced by theories of justice.
 S.P. Gupta v. Union of India, AIR 1982 SC 149.

 Maneka Gandhi v. Union of India, 1978 SC 597.
 Mohinder Singh v. Chief Election Cominr., AIR 1978 SC 851
at 870.
 Ibid., at 873.
 Ibid., 876.
 A.K. Gopalan v. State of Madras, AIR 1950 SC 27.
 AIR 1978 SC 659.
 R.D. Shetty v. International Airport Authority, AIR 1987 SC
1628; Kasturi Lal v. State of] & K, AIR 1987 SC 1992; R.S.
Dass v. Union of India, AIR 1987 SC 850 at 858; Ashok Kuinar
Yadav v. State of Haryana, AIR 1987 SC 454 at 468;
Sheonandan Paswan v. State of Biliar, AIR 1987 SC 877;
Vaidyanatli Malmpatra v. State of Orissa, AIR 1989 SC 2218;
Neelima Mishtra v. Harinder Knur, AIR 1990, SC 1402; Delhi
Transport Corpn. v. D.T.C. Mazdoor (Congress), AIR 1991 SC
101; D.V. Bakshi v. Union of India, (1993) 3 SCC 663; O.K.
Yadav v. f.M.A. Industries, (1993) 3 SCC 258; Union of India
v. W.N. Chadlm, AIR 1993 SC 1843; Union of India v. V.P.
Setlii, AIR 1994 SC 1261; Premium Granites v. State of Tamil
Nadu, AIR 1994 SC 1233; Khedat Mazdoor Cltetna Sangh v.
State ofMP, AIR 1995 SC 31; M.f. Sivani v. State of
Karnataka, AIR 1995 SC‘l770; Lawyers Initiative Through RS

Page 351
Bains v. State of Punjab, AIR 1996 P & H 1; Kammalapati

Bralunmarao v. State of Karnataka, AIR 1996 Kar 37;
Wariyam Singh v. State ofU.P., AIR 1996 SC 305; }.N.
Banavalikar v. Municipal Corpn. Delhi, AIR 1996 SC 326;
Union of India v. M/s. Jesus Sales Corprn. AIR 1996 SC 1508;
Baburao Vishwananth Mathpati v. State, AIR 1996 Bom 228;
State Bank of Pntinhi v. S.K. Sltarma, AIR 1996 SC 1669.
 Ragliunathrao Ganpatrao v. Union of India, AIR 1993 SC 1267
at 1305; R.C. Poudyal v. Union of India, AIR 1993 SC 1804,
R.K. Jain v. Union of India, AIR 1993 SC 1769.
 State of Karnataka v. Ranganath Reddy, AIR 1978 SC 215 at
234.
 Golak Nath v. State of Punjab, AIR 1967 SC 1643.
 Maneka Gandhi v. Union of India, AIR 1978 SC 597; D.S.
Nakara v. Union of India, AIR 1983 SC 130; Bandtma Mukti
Morcha v. Union of India, AIR 1984 SC 802; Vincent v. Union
of India, AIR 1987 SC 990; A.R. Antulay v. R.S. Naik, AIR
1992 SC 1872, Unni Krislman v. State of A.P., AIR 1993 SC
2178; State of Maharashtra v. Manubliai P. Vashi, AIR 1996
SC 1.
 International Conference on Interpreting South African Bill of
Rights, AIR Journal, Section 145 at 146, Oct. 1993.
 Kashyap Sublmsli C. Human Rights and Parliament 94
Metropolitan Book Co New Delhi 1978.
 Knmeshwnr v. State of Bihar, AIR 1951 Pat 91; State of West
Bengal v. Subodli Capal, AIR 1954 SC 92, Dwarkadas v.
Sliolapur Spinning & Weaving Co, AIR 1954 SC 119; Saghir
Ahmed v. State of U,P, , AIR 1954 SC 728, State of West
Bengal v. Beta Banerjee, AIR 1954 SC 170; State of Gujarat
v. Slwnti Lal, AIR 1965 SC 1017; R.C. Cooper v. Union of
India, AIR 1970 SC 564.
 Krishna Iyer VR, Law and the People 172-173 Peoples
Publishing House 1972 see also Iyer, Krishna V.R. Some Half

Page 352
Hidden Aspects of Indian Social Justice 80-81 Eastern Book

Co. 1979.
 Golak Nath v. State of Punjab, AIR 1967 SC 1643.
 Ibid., para 53.
 R.C. Cooper v. Union of India, AIR 1970 SC 564.
 Madhav Rao Scindia v. Union of India, AIR 1971 SC 530.
 Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
 Austin, Granville, the Indian Constitution Cornerstone of a
Nation, 164 1st Indian ed. 1972.
 Per Hidayatullah J. (as then he was) in Colak Nath.
 D.G. Mahajan v. State of Maharashtra, AIR 1977 SC 915 at
934.
 State of Kerala v. N.M. Thomas, AIR 1976 SC 690.
 Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789 at
1806-7.
 Municipal Council Ratlam v. Vardiclwnd, AIR 1980 SC 1622;
ABSK v. Union of India, AIR 1981 SC 298; U.S. Nakara v.
Union of India, AIR 1983 SC 130; K.C. Vasanth Kumar v.
State of Karnataka, AIR 1985 SC 1495; Olga Tellis v. Bombay
Municipal Coloration, AIR 1986 SC 567; Unni Krislman J.P. v.
State of A.P., AIR 1993 SC 2178; State of Karnataka v. Appa
Bull ‗nynle, AIR 1993 SC 1126; Consumer Edu., Research
Centre v. Union of India. AIH-1J95 SC 922.
 State of Haryana v. Darshana Devi AIR 1979 SC 855;
Women‘s Resource Centre v. Commissioner of Police, AIR
1990 SC 513.
 Bishan Devi v. Sirbakash Singh, AIR 1979 SC 1862; State of
Karnataka v. Appa Balu Ingale, AIR 1993 SC.
 State of Kerala v. Tliomas. AIR 1976 SC 490.
 Consumer Education & Research Centre v. Union of India,
AIR 1995 SC 923 at 938.
 Articles 14,15,16,17,38,39,39A, 41,43A, 46,332 and 340.
 AIR 1951 SC 226.
Page 353
 Balaji v. State of Mysore, AIR 1963 SC 469.

 Devadasan v. Union of India, AIR 1964 SC 179.
 State of Kerala v. N.M. Thomas, AIR 1976 SC 490.
 ABSK(Sangh) Raihoay v. Union of India, AIR 1981 SC 298.
 ABSK (Sangh) Railway v. Union of India, AIR 1981 SC 298
 Ibid.
 K.C. Vasanth Kumar v. State of Karnataka, AIR 1985 SC,
1495.
 K.C. Vasanth Kumar v. State ofKarnataka, AIR 1985 S.C.
1495 at 1529.
 Ibid.
 Indra Sawlmey v. Union of India, AIR 1993 SC 447.
 Indra Snwlmey v. Union cf India, AIR 1993 SC 447 at 514.
 Infra Sawhney v. Union of India, AIR 1993 SC 447 at 575.
 Ibid., 577-78.
 Ibid., 573.
 e.g. Ashoka Kumar Thakur v. State of Bihar, (1995) 2 SCC
403 The Supreme Court quashing economic criteria laid down
by Bihar and U.P. Govt. for identifying ‗Creamy layers‘
amongst OBCs.
 Indra Sawhney v. Union of India, AIR 1993 SC 477 at 593.
1. Discuss the role of judicial process in Indian Judiciary as an

instrument of social ordering?
2. Discuss and analyze selected cases of the Supreme Court
where the judicial process can be; seen as influenced by
theories of justice?

Page 354

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UTTRAKHAND OPEN UNIVERSITY LM-107

SCHOOL OF SOCIAL SCIENCE न्याययक प्रक्रिया

Prof. K.C. Joshi Prof. Girija Prasad Pande

Prof. Harbansh Dixit Prof. P.C. Joshi

Mr. Narendra Kumar Jaguri

Course Coordination & Editing

Dr. Dinesh Kumar Sharma 1-12

Narendra Kumar Jaguri 13

UTTRAKHAND OPEN UNIVERSITY

BLOCK-1 Nature of judicial process Page- 1-83

Block-II-Special Dimensions of Judicial Process in Constitutional

Unit-4- Notions of judicial review; Role in constitutional adjudication - various theories of

Unit-5- Tools and techniques in policy-making and creativity in constitutional adjudication.

Unit-6- Problems of accountability and judicial law-making. Page-135-155

Block- III- The Concepts of Justice Page-156-234

Block- IV : Relation between Law and Justice Page- 235-354

Unit-12- The independence of justice theories - means to end relationship of law

Subject: JUDICIAL PROCESS

Block I- Nature of judicial process

1.3 What is judicial process?

1.4. Judicial process as an instrument of social ordering

1.5 The tools and techniques of creativity and precedents

1.7 SUGGESTED READINGS/REFERENCE MATERIAL

1.8 SELF ASSESSMENT QUESTIONS

UTTARAKHAND OPEN UNIVERSITY

The judiciary is one of the pillars on which the edifice of the

After reading this unit you will be able to:

 Understand the concept, definition, and nature of judicial

1.3 WHAT IS Judicial process?

―Judicial Process‖ means any judicial proceeding in connection with

constitutional courts evolving new juristic principles during the

UTTARAKHAND OPEN UNIVERSITY

Now, a question arises;

UTTARAKHAND OPEN UNIVERSITY

"The gravity of this development cannot be underestimated. Justice

exhaust your first remedy under Article 226, because it is violative to

Article 256, is in fact, the reflection of the true tradition of the

In today‘s era, it becomes crystal clear that our judicial process is on

enforcement of rights and to charge it in rigorous ways, failure to pay

has become a convenient method for avoiding prompt retribution by

1.4 Judicial process as an instrument of social ordering

Article 32: Instrument of Social Ordering

UTTARAKHAND OPEN UNIVERSITY

under the Constitution for securing social justice. The Supreme

UTTARAKHAND OPEN UNIVERSITY

In "Paniben v. State of Gujarat", AIR 1992 S C 1817, the Apex Court

UTTARAKHAND OPEN UNIVERSITY

her, therefore, even if Gayatri committed suicide, S. 304-B of the I.

UTTARAKHAND OPEN UNIVERSITY

followed by employer for controlling harassment of woman at her

Need of Judicial Process

1.5 The tools and techniques of creativity and precedents

The Importance of Precedent

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is divided into regions called ―circuits.‖ There are 11 circuits in the

UTTARAKHAND OPEN UNIVERSITY

Besides arguing from favorable precedent, you need to explain why

Supreme Court (Strongest)

relevant to that decision. Although the judge‘s general views do not