Paper I Judicial Process

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Paper I - Judicial Process
Unit 1 :
1. Nature of Judicial Process

It is a Set of Inter-related procedures and rules for for deciding disputes by an
authorities person or persons whose decision were regularity obeyed, the decision of
dispute mist by based upon the set of procedure which was previously agreed upon and in
conformity with prescribed rules.
An authorities person or persons who are deciding any dispute under judicial process
make a authorities statement which consists, the reasons which clarifies that now the rules
are to be applies and how such statement have a impact on the behavior of immediate
parties of dispute.
According to various theories of judicial process the judges are trained technicians
who apply their specialized knowledge to discover the solutions for legal disputes. And if
the judges come across a novel situation for which there is no prescribed procedure or rules
to apply then they may be said to create rules.
2. Judicial Process as an Instrument of Social Change
Social Changes may Refer to the notion of social progress or socio-cultural evolution.
In a Simpler means we can understand social changes as a step of alteration of the social
order in a society.
Law is an important agency of social control because its regulates the behavior of the
people in society. There are two objective of law which has to be served to a agency of
social control, the objective is:
I. To keep up stability and afford orderly life in society.
II. To persuade social change by changing itself according to the needs of
changing society.
To understand the social changes through law and legal system, it is pertinent to
understand the working of legal system in the light of political, social and economic
perspectives, first, law is a mirror for peoples to seek the values of others life as well as
security of own life. The political, social or economic perspective can be seen in the
constitution of India.
3. Judicial Process and Creativity in law – Common Law Model
As we knoe that judicial process is ‘a Set of inter-related procedures and rules for
deciding disputes by an authorative person whose decision were regularly obeyed. In
Democratic country, such procedure is followed by the judiciary.
From the above mentioned meaning of judicial process is we can say that the dispute
is resolved from prescribed set of procedure and rules and this is a fact that such procedure
and rules were prepared and based on the environment of society, which means to prepare
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such procedure and rules, the legislative bodyhave to study the behavior of Individual or
group of individuals who can cause the outrage in society and on basis of result of that
study they can prepare appropriate rules and procedure to maintained the peace and once
the rules and procedure are prescribed and executed they are set for the rest of the time of
civilization.
Now upon setting such procedure and rules one problem raised in front of law making
and maintaining authority, i.e., ‘How can be a rules and procedure once enacted is
applicable on a society which changes every day’, then the jurist comes up with a solution
of interpretation of laws which leads some creativity in law. The jurists states that in
democratic country the judiciary performs the key role of expounding the provisions of the
constitution, so the judiciary has been advices a pragmatic wisdom to adopt a creative and
purposive approach in the interpretation of various rights embodied in the constitution. A
Democratic society lives and swears by certain values such as liberty of individual, human
dignity; rule of law, constitution etc., and it is the duty of the judiciary to so interpret the
constitution and the law as to constantly inculcate these values on which democracy
thrives.
4. Legal Reasoning and growth of law change and stability
Legal reasoning is a method of thought and arguments used by lawyers and judges
when applying legal rules to specific interaction among person of legal background. Legal
reasoning of court’s ruling in the case can be found in the ‘Discussion or Analysis’ Section
of the Judicial Ruling.
The reason behind the legal reasoning provided by the court in its rulling is to hel
other courts, lawyers, judges and the interested parties to use and follow the rulling in
subsequent proceedings.
It is true to say that there is a bias towards maintain the existing rules, nevertheless,
the bias does not presume the law as it is to be just, fair or practical and thus immune from
change. Following are some basic case law which provides appropriate legal reasoning for
the growth by changing the law:
I. Backward class
II. Bonded labourers
III. Caste system
IV. Child labour
V. Child prostitution
VI. Dowry death
VII. Harassment of women
VIII. Maintenance
5. The tools and techniques of judicial creativity precedent
I. Public Interest Litigation (PIL):
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So far the Public Interest Litigation are concerned:

i. It is a remedy for justice in true sense “The fundamental rights are intended
not only to protect’s Individuals right but they based on high public policy,
liberty of the individual and the protection of his fundamental rights are the
very essence of the democratic way of life adopted by the constitution. The
court would refuse to circumscribe them or to curtail them except as provided
by the constitution.
ii. The court has broadened the scope of these right by interpretative techniques.
The court has rightly observed. “It must be remembered that fundamental
right are constitutional guarantees given to the citizens of India and are not
merely paper hopes or fleeting promises and so long as they find a place in
the constitution, they should not be allowed to emasculated in their
application by narrow and constricted judicial interpretation.
II. Judges have power and right to make law
III. Changing demands of society
IV. Creativity in open space – Vishaka v state of Rajasthan [AIR 1977 SC 2011] -
Supreme Court Stated that right to be free from sexual harassment is a fundamental
right under Article 14, 15 and 21 of the Indian Constitution.
6. Legal development and creativity through legal reasoning under statutory and
codified systems
Legal development is a procedure which assists the laws for alteration according the
social transformation. If we dig deeper in the meaning of the legel development then we
conclude that development means the nation of social progress or socio-cultural evolution,
the philosophical idea that society moves forward by evolutionary means and in the context
of law, development means the evolution of rules and regulation by the means appropriate
enactment or amendment means.
The legal development may be done with the creativity through legal reasoning.
Legal reasoning is a method of thought and arguments used by lawyers and judges when
applying legal rules to specific interaction among persons of legal background. When the
creativity with laws through legal reasoning is happen then it results to the precedents for
some sector for which law is not prepared.
The creativity through statutory and codified system can only be seen in the
interpreting manner of the court and it is needless to say that, court have played very vide
role in interpreting the provision of Article 14, 15, 16, 17, 38, 39A and 42 of Indian
Constitution to achieve social justice.
7. Notions of Judicial Review
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The judiciary plays very important role as a protector of the constitutional values
that the founding father have given us. This is possible due to the power of judicial review
and employing judicial activism through the judicial process.
A judicial review is a part of basic structure of constitution and it means the revision
of the decree of an inferior court by a Superior court. The Doctrine of Judicial Review has
been originated and developed by the American Supreme Court in Marbury versus
Madison case.
The power of judicial review is specially enumerated under Article 13 of the Indian
Constitution under which the court have power to declare any enactment which violates a
fundamental rights as invalid.
In Shankari Prasad versus Union of India the first amendment Act of 1951 was
challenged before the Supreme Court on the ground that the said act abridged the right to
property and that it could not be done as there was a restriction on the amendment of
Fundamental Rights under Article 13[2]. The Supreme Court rejected the contention and
unanimously held, “the term of Article 368 are perfectly general and empower parliament
to amend the constitution without any exception whatever”.
8. Role of Judiciary in Constitutional adjudication – Various Theories of Judicial Role
The word Adjudication means a legal process by which a judge reviews evidence
and argumentation including legal reasoning to come upon a decision. Whereas the
constitution adjudication means judicial review of the provisions of Indian Constitution to
deliver the best decision to resolve dispute. It is needless to say that the main role of judges
is to deliver a justice but for achieving the object of justice, judges need to play various
role as such as a legislator, administrator, executive etc., as the time requires for the justice
in true sense, and to complete judicial process, judges requires to perform various
functions, such functions are known as theories of judicial roles, which can be classified as
follows:
I. As a Judicial officer – Hold office to hear the parties
II. As an executive and administrator – Judges taking part in appointment and
removal procedure.
III. As a guardian and protector of constitution
IV. As a legislator and creative new principle
9. Judicial Behavior and Constitutional Adjudication
Constitutional Adjudication means review of the constitutional provision to deliver
the best decision for resolving a dispute. Whereas judicial behavior refers to the action of
courts and judges in any case law.
Normatively, judicial behavior in constitutional adjudication influences over what
judges ought to do include evaluating legal rules such as precedent or legislative intent in
an attempt to find the best answers to cases before them.
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Unit 2 : Judicial Process in India:
1. Judicial Accountability – Problems and Prospects

Accountability is also called answerability. It is the liability of person or authority
toward the person to answer for his act or omission. It shows to whom an authority is
answerable. At every stage a person is answerable to some other person. Such stage is
because there must be fair & perfect conduct. So it is quit necessary that each & every
authority must be answerable to the other authority. There might be control of a superior
on the inferior regarding the conduct and the fair practice.
Every other institution of the State is accountable to the anti-corruption agencies, and
to the judiciary which has the power of judicial review over every executive and legislative
action. Moreover, the political executive is accountable to the legislature and the legislature
is democratically accountable to the people-that at least is the theory of our constitutional
scheme.
However, when it comes to the judiciary, we find that it is neither democratically
accountable to the people, nor to any other institution. Judges cannot be accountable to the
electorate as politicians are accountable: The duties of the Judiciary are not owed to the
electorate; they are owed to the law, which is there for the peace, order and good
government of all the community’. On the other hand, the point is made that accountability
is required nowadays in most areas of public life and that the judiciary should be no
exception to this rule. A full Bench of the Delhi High court held on the 12th of January
2010. The historic judgment which rules that the office of the Chief Justice of India (CJI)
is a “public authority” that comes under the ambit of the Right to Information (RTI) Act,
also held that judges of superior courts should make public their assets.
“Judicial independence was not a judge’s personal privilege but a responsibility cast
upon him “Judges like all other public officials in the community must be accountable to
the community. The judiciary has become almost a law unto itself, answerable to none and
under no pressures to reform or change with time. There is no manner of public
accountability procedure, grievance reported by the public, no monitoring or periodic
performance audit and its annual reportage and public discussion by concerned organs. The
only recourse against a judge committing judicial misconduct is impeachment, which has
been found to be a totally impractical remedy.
It is a fact that in the present parliamentary system, judiciary has a role to play. But
there are many weaknesses, shortcomings and deficiencies in the functioning of judiciary,
which have to be rectified and remedied, so that the judicial system would become more
efficient.
Judicial Accountability means to whom the judiciary is answerable for his conduct.
An accountability of judiciary has always being in question. Many debates are been seen
on the issue of judicial accountability. There are credible complaints against the higher
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Judiciary regarding the corruption, excessive use of power, arbitrary exercise of judicial
discretionary etc.
2. Indian Debate on the role of Judges and on the notion of Judicial Review
I. Judicial Review and Judicial Activism
Generally judicial review means the revision of the decree or sentence of an
inferior court by a superior court. Judicial review has a more technical significance
ion pubic law, particularly in countries having a written constitution which are
founded on the concept of limited government. Judicial review in this case means
that Courts of law have the power of testing the validity of legislative as well as other
governmental action with reference to the provisions of the constitution. The doctrine
of judicial review has been originated and developed by the American Supreme
Court, although there is no express provision in the 118 American Constitutions for
the judicial review. The power of judicial review was first acquired by the U.S.
Supreme Court in Malbury vs. Madison case.
The constitution of India, in this respect, is more a kin to the U.S. Constitution
than the British. In Britain, the doctrine of Parliamentary supremacy still holds goods.
In the United Kingdom, statutes cannot be set aside under the doctrine of
parliamentary sovereignty. No court of law there can declare a parliamentary
enactment invalid. On the contrary every court is constrained to enforce every
provision” of the law of parliament.
Under the constitution of India parliament is not supreme. Its powers are
limited in the two ways. First, there is the division of powers between the union and
the states. Parliament is competent to pass laws only with respect to those subjects
which are guaranteed to the citizens against every form of legislative encroachment.
Being the guardian Fundamental Rights and the arbiter of-constitutional conflicts
between the union and the states with respect to the division of power between them,
the Supreme Court stands in a unique position where from it is competent to exercise
the power of reviewing legislative enactments both of parliament and the state
legislatures. This is what makes the court a powerful instrument of judicial review
under the constitution. As Dr. M.P. Jain has rightly observed; “The doctrine of
judicial review is thus firmly rooted in India, and has the explicit sanction of the
constitution.
II. Principles on judicial review
In 1973, the Supreme Court in the landmark case ‘Keshavananda Bharathi v.
State of Kerala’ presented the basic principles of judicial review. Legislature can
amend the constitution, but cannot change the basic principles of the Constitution.
Justice V.S.Deshpande in his book propounded a thesis that Judicial Review
of legislation in India should rest merely on Article 245 (1) and not on Article 13.
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According to him, Article 245 (1) interpreted broadly would ensure the supremacy of
the constitution over all kinds of laws.
Thus, a law to be valid must conform with the constitutional forms. The grave
responsibility of deciding upon the validity of laws, is laid up on the judges of the
Supreme Court. If a statue isn’t within the scope of legislative authority or it offends
some constitutional restriction or prohibition, that statue is unconstitutional and hence
invalid.
A renowned author of Constitutional law H.M. Sheervai has enumerated
following rules in this regard.
i. There is a presumption in constitutionality, and a law will not be declared
unconstitutional unless the case is so clear as to be free from doubt; and
the on us to prove that it is unconstitutional lies upon the person who
challenges it.
ii. Where the validity of a statue is questioned and there are two
interpretations, one of which would make the law valid, and the other
void, the former must be preferred and the validity of the law upheld.
iii. The court will not decide constitutional questions of a case are capable of
being decided on other grounds.
iv. The court will not decide a larger constitutional question than is required
by the case before it.
v. The court will not hear an objection as to the constitutionality of a law by
a person whose rights are not affected by it.
vi. Ordinarily, courts should not pronounce on the validity of an Act or part
of an Act, which has not been brought into force, because till then the
question of validity would be merely academic.
III. Judicial review of legislative enactment and ordinance
One of the first major case A.K. GopalanVs. Stateof Madras. 1951 that came
up before the Supreme Court in which the preventive Intention Act, 1950 was
challenged as invalid. The court by a unanimous decision declared section 14 of the
Act invalid and thus manifested its competence to declare void any parliamentary
enactment repugnant to the provisions of the constitution.
In Champakan Dorairajan’s case, the Supreme Court held that the order of the
state government fixing proportionate scales, for different communities for admission
to medical colleges was unconstitutional. The presidential order de-recognising privy
purses was also challenged in the Supreme Court which declared the order as
unconstitutional and void. Between 1950-1980 parliament passed as many as 1977
Acts and out of them, the Supreme Court invalidate laws passed on 22 occasions.
3. The “Independence” of Judiciary and the “Political” Nature of Judicial Process
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The Indian judiciary is famous for being independent and impartial. The
independence of the judiciary is of utmost importance in upholding the pillars of the
democratic system and the fundamental rights. Judicial independence is the idea that the
judiciary needs to be kept away from the other branches of government. i.e. Courts should
not be subject to improper influence from the other branches of government, or from
private or partisan interests.
Justice should not only be done; it must also be seen to be done. This is a famous
legal maxim which states that the justice must be there in real sense and justice be like that
people should say that the justice is taken place. For the purpose of justice in real sense the
authority or institute which gives the justice should be free from any kind of pressure or
influences. Independence of judiciary is an international phenomena that the justice should
be independent from the influence other state organs. Justice is a sacrosanct human right.
No one should be the victim of denial of justice. The denial may be due to any reason
should not be condemn at any cost because justice is faith of being a member of civilized
society. If this faith is disturbed, the entire humanity and civilized system will also disturb.
So for the protection of civilized society there should not be injustice with the member of
civilized society. The noble work is given to judiciary, to do the justice and restore the faith
of people to protect the society for long life and welfare of human being. It is a well-known
fact that the independence of the judiciary is the basic requisite for ensuring a free and fair
society under the rule of law. Rule of law that is responsible for good governance of the
country can be secured through unbiased judiciary.
The doctrine of Separation of Powers which was brought into existence to draw upon
the boundaries for the functioning of all the three organs of the state: Legislature, Executive
and the Judiciary, provides for a responsibility to the judiciary to act as a watchdog and to
check whether the executive and the legislature are functioning within their limits under
the constitution and not interfering in each other’s functioning. This task given to the
judiciary to supervise the doctrine of separation of powers cannot be carried on in true spirit
if the judiciary is not independent in itself. An independent judiciary supports the base of
doctrine of separation of powers to a large extent.
4. Development of Human Rights Jurisprudence by Judiciary
5. Judicial activism and Creativity of the Supreme Court – The Tools and Techniques
of Creativity
The mind of creative judge is never free. His mind is always working for innovation
in law. That makes to pass the judgment going beyond the for-corner of traditional
decisions.
Robert Jennings. J , “perhaps the most important requirement of the judicial function
(is to) be seen to be applying existing, recognized rules or principles of law’ even when it
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creates law in the sense of developing, adapting, modifying, filling gaps, interpreting or
even branching out in a new direction”.
Likewise The Indian judiciary, at times, is forging new tools, devising new strategies
for the purpose of making fundamental rights meaningful for the large masses of the
people. While treating a letter, addressed to the Supreme Court seeking release of bonded
labours in the country, as a writ petition under Article 32.
In Bandhua Mukti Morcha v. Union of India, (A.I.R. 1984 S.C. 802) it was held that
when the poor comes before the court, particularly for enforcement of their fundamental
rights, it is necessary to depart from the adversarial procedure and to evolve a new
procedure.
Judiciary has invented novel forms of action to provide relief to the poor,
underprivileged, downtrodden sections of the society. Epistolary jurisdiction allows access
to justice to the poor and the weaker section of the society. The court entertains a letter as
writ petition ignoring all procedural norms and technicalities. The epistolary jurisdiction is
a new strategy adopted by the judiciary for protection of the human rights of the vulnerable
sections of the society.
There is no express provision in the Constitution of India for grant of compensation
for violation of a fundamental right to life and personal liberty. But the judiciary has
evolved a right to compensation in cases of illegal deprivation of personal liberty. Rudal
Shah v. Stateof Bihar (A.I.R. 1983 S.C. 1086.) is an instance of breakthrough in Human
Rights Jurisprudence. The Court granted monetary compensation of Rs.35, 000 against the
Bihar Government for keeping a person in illegal detention for 14 years even after his
acquittal. The Court departed from the traditional approach, ignored the technicalities while
granting compensation.
Followings are the different techniques of creativity implemented by the higher
judiciary for giving a justice in true sense by molding the judicial process.
I. Judgment by going out of box for integrity of nation i.e. Ayodhya case
II. Epistolary jurisdiction
III. Compensatory jurisdiction
IV. Relaxation of rule of locus-standi
V. Public interest litigation or socio-action litigation.
VI. Expansion of scope of article 21.
VII. A letter treated as P.I.L
VIII. Order against the executive to enforce the fundamental rights.
IX. Taking a step as legislator.
X. Environment protection with reference to compensation and polluter pay
principle, etc…
XI. Rule of absolute liability and strict liability.
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XII. Writ jurisdiction

XIII. Issue of guidelines in the field where law is not enacted or the existing law is
unable to provide remedy.
The above new techniques are created with the help of following tools. The higher
judiciary has used the following Articles as a tool for creation of new way of justice
delivery called techniques of judicial creativity. Precedents with reference to the Obiter-
dictum and ratio decedendi are binding over all the country and treated as law.
I. Under Article 32. Anybody can move to Supreme Court for redress against
the violation of the fundamental rights.
II. Under Article 226 Anybody can move to High court for redress against the
violation of the fundamental rights as well as other legal rights.
III. Under Article 227, 141, 142, 136 of the Constitution.
IV. Section 134, 144 and 482 of Cr.P.C.
V. Section 151 of C.P.C.
6. Judicial Process in Pursuit of Constitutional Goals and Values
Judicial process is to be followed by one of the organ of democracy called as
judiciary. Judicial process is a process followed by courts while deciding a case. It is very
wide concept. It includes all the things which court perform or has to perform while giving
judgment.
Justice Cardozo states that, “In judicial process, a judge has to follow a fair process,
which law is applicable, which is not, what is logic behind the statutes, facts of the case,
admissibility & reliability of evidence, circumstances of fact, reasoning behind each &
every issue or fact in issue, applicability of precedents, consequences of his judgment, the
social & legal aspect of the case, etc. all the thing which are necessary for fruitful
judgment”. He described that “all the facts & legal aspects should go through the machine
& the outcome will be judgment”.
In short the judicial process is a process followed or which have to follow by court
as well as judges while delivering of justice. If one of part of chain of judicial procedure is
missed, then the outcome may not be called as justice. It may be sometimes turn to give
injustice. Nowadays, there are codified laws which are more clear i.e. CPC, Cr. PC,
Evidence, etc. Evidence Act is helpful regarding reliability & admissibility of evidence.
In our democracy, the Constitution is supreme law & the judiciary is safe guarder of
constitution. The constitution has envisaged the different goals like
I. Democracy 133
II. Secularism
III. socialism
IV. sovereign
V. republic
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VI. Freedom
VII. Equality
VIII. Dignity
IX. Equity
X. Fairness.
In judicial process one of the main functions is delivery of judgment, because
judgment of Supreme Court& high court termed as precedent for all other subordinate
authority. Precedent also called as judge made law. According to art. 141 & 142, its
decision is binding in all over the citizens.UpendraBati has described Indian Supreme
Court is most powerful court in the world.
7. New dimensions of Judicial Activism and Structural Challenges
Judicial activism is a concept firstly established in America in 1959, where in Mebury
vs. Madison’s case, chief justice Marshall has recognized the right of Negros against
discrimination. In India, justice Krishna Ayer& Justice PN Bhagwati has developed this
trend from 1979. The first PIL is recognized in the case of Hussainara Khatoon vs. Chief
Secretary of Bihar. In this case a writ is filed concerning the prisoners who were behind
the bars more than a period which they may suffer if the maximum sentence awarded. The
Supreme Court has given guidelines to release all the prisoners who were behind bars more
than a period which they may suffer if the punishment is awarded & also issue a
commission to see the actual situation of jails in Bihar state. This judgment recognized the
right to speedy trial as a part of right to life & personal liberty under article 21 of the
constitution. This active and creative act of the judiciary is called as judicial activism.
Indian constitution has provided a structure to achieve the constitutional goals &
value by forming three organs; judiciary, executive & legislation. This structure is formed
with the application of theory of separation of power by which all these organ is vested
different jurisdiction & no one have to interfere with the working of the other organ.
Though there is impossible a watertight separation, but each organ have to work in their
jurisdiction with certain limits. There is structural balance made by imposing certain limits
on each organ & also by way of observation of each organ by other organ. But the Indian
judiciary is more powerful because of its independent nature. Indian Supreme Court is
vested with wide jurisdiction & vast discretion for protection of the constitution. If any
organ cross his limit & encroach in the jurisdiction of another organ, the structural balance
will shake & automatically structural challenges come forward.
8. Institutional Liability of Courts Scope and Limits
Courts are the institutions which deliver a justice. It has its own limitation. Sometimes
courts also unable to provide a justice. Because the boundary of jurisdiction & exercise of
power has made by constitution. Constitution has provided that jurisdiction of SC & HC
of various states. Central laws have prescribed the limitation over a subordinate judiciary.
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Though the higher judiciary is vested with discretion, but it shall not be excessive,
unreasonable or against the justice. All are very wider terms depending upon the
circumstances of the case & different from case to case. The courts while delivering a
justice, judiciary have to use a self-restraint principle.
The limitation on Institution
I. Jurisdiction – jurisdiction means the authority to try the matter and give
judgments. Every courts has definite and defined jurisdiction and the court
should try the matter which is coming under their authority.
II. No one can be judge of his own cause.
III. Audi alters am partum.
IV. Limitation law
V. Judicial self -restraint principle that judicial should not enter into the domain
of legislator or executive.
9. Judicial Review and Principles of Constitutional Interpretation
“Constitutional Interpretation” comprehends the methods or strategies available to
people attempting to resolve disputes about the meaning or application of the Constitution.
The possible sources for interpretation include the test of the Constitution, its “Original
History,” including the general social and political context in which it was adopted as well
as the events immediately surrounding its adoption, the governmental structures created
and recognised by the Constitution, the “ongoing history” of interpretations of the
Constitution, and the Social, political, and moral values of the interpreter’s society or some
subgroup of the Society. The term “originality” refers to interpretation concerned with the
first three of these sources.
Judicial Review is the power of Courts to pronounce upon the constitutionality of
legislative and executive acts of the government which fall within their normal jurisdiction.
It has the origin in the theory of limited government and in the theory of two laws, viz...
An ordinary law and a supreme law i.e. Constitution. According to Basu in his book Basu's
commentaries on constitution of India, vol 1. Any act of the ordinary law making bodies
which contravenes the provisions of the supreme law must be void and there must be some
organ which is to possess the power or authority to pronounce such legislative acts void. In
Fundamental Rights Case Justice Khanna said that judicial review has became an integral
part of our constitution and a power has been vested in the High Courts and the Supreme
Court to decide about the constitutional validity of the provisions of statutes. If the
provisions of the statutes are found to be voilative of any of the articles of the constitution
which is the touchstone for the validity of all laws the Supreme Court and the High Courts
are empowered to strike down the said provision.
The uncommon current interest for Constitutional Interpretation is incompletely the
consequence of contention over the high court's sweeping readings of the fourteenth
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amendment; it additionally matches advancements in abstract hypothesis and all the more
for the most part the humanities. Gotten ideas about the inherent significance of words or
messages, admittance to a creator's goals, and the very thought of "legitimacy" in
translation have been strongly assaulted and passionately shielded by logicians, artistic
scholars, social researchers, and antiquarians of information. Lawful essayists have
brought grant from these orders into their own, and a few humanists have gotten intrigued
by legitimate understanding.
Issues of interpretive approach have consistently been politically charged—surely
so in established law. John Marshall's basic choices affirming the intensity of the focal
government were met by claims that he had determinedly misjudged the archive.
Voluntarily, innovator interpretive speculations will in general be summoned by defenders
of legal activism, and more regular perspectives by its rivals. The discussion inside the
humanities and the sociologies is itself profoundly political, for the innovator attestation
that fact or legitimacy is socially developed and consequently unforeseen is regularly seen
as destabilizing or delegitimizing.
The Constitution is a political archive; it serves political finishes; its translations
are political acts. Any hypothesis of Constitutional Interpretation thusly surmises a
standardizing hypothesis of the Constitution itself—a hypothesis, for instance, about the
limitations that the words and aims of the adopters ought to force on the individuals who
apply or decipher the Constitution. As Ronald Dworkin watched, "A few pieces of any
sacred hypothesis must be autonomous of the aims or convictions or surely the
demonstrations of the individuals the hypothesis assigns as Framers. Some part should
remain on its own political or good hypothesis; in any case the hypothesis would be entirely
roundabout.”
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Unit 3
1. Concept of Justice
I. PRINCIPLE OF PITH AND SUBSTANCE
This principle means that if an enactment substantially falls within the
powers conferred by the constitution upon the legislature by which it was enacted,
it does not become invalid merely because it incidentally touches upon subjects
within the domain of another legislature as designated by the constitution.
Consequently, this principle invoked to judge the legislative competence of a
legislature with regard to a particular enactment on the question as to whether that
legislature was empowered to make law on that subject as per the entry in the list.
In other words its means o look the object of law when any law made by parliament
and state legislature if incidentally touches subject matter of another list, it shall not
be deemed invalid on ground that touches subject matter of other list it will be valid
and not ultravires, court shall see the object of that law.
Validity of Bengal Money lenders Act 1946 was challenged which limited
the amount and rate of interest recoverable by money lender on ground that it was
ultra vires as it relate to promissory note, subject matter of union list. Held object
of Act is to regulate law related to money lending in Bengal and incident touch the
subject matter of other list is valid.
II. PRINCIPLE OF COLOURABLE LEGISLATION
The doctrine of colourable legislation refers to the question of competency
of the legislature while enacting a provision of law. In India ‘the doctrine of
colourable legislation’ signifies only a limitation of the law making power of the
legislature. It comes into picture while the legislature purporting to act within its
power but in reality it has transgressed those powers. So the doctrine becomes
applicable whenever legislation seeks to do in an indirect manner what it cannot do
directly. If the impugned legislation falls within the competence of legislature, the
question of doing something indirectly which cannot be done directly doesn’t arise.
Legislature in passing a statute purports to act within limits of its power yet
in substance and in reality it transgresses those powers, transgressed being Yield
by what appears on proper examination to be a more presence or disguise, in other
words it is the substance and subject matter in substance is something which beyond
the power of that legislature to legislate upon, the form is which law is clothed
would not save it from condemnation, the legislature could not violate
constitutional provision by employing direct method.
III. PRINCIPLE OF TERRITORIAL NEXUS
There must be direct/territorial nexus between enacting state and object of
law made by state for property or person situated or resides outside the territory of
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state. The law made by state may apply to person or property situated or residing
outside.
Newspaper published in Bangalore and distributed in Bombay Tax imposed
by legislature of Bombay on sale and distribution on that Newspaper. Court held if
there is sufficient nexus between person brought to be charged and state seeking
the axing statute.
IV. PRINCIPLE OF SEVERABILITY
It is well-established principle that when the constitutionality of an
enactment is in question and it is found that part of the enactment which is held to
be include can be severed from the rest of enactment, the par so severed alone shall
be declared unconstitutional while the rest of the possible, the whole enactment
shall have to be held unconstitutional.
Law which contain a particular part inconsistent with part III of
Constitution, not entire law, if that part is severable then, part inconsistent will be
declared invalid and unconstitutional and rest of law will be declared constitutional
and valid.
V. PRINCIPLE OF PROSPECTIVE OVERRULING
The Doctrine of Prospective Overruling dictates that a decision made in a
particular case would have operation only in the future and will not carry any
retrospective effect on any past decisions. Going by the literal meaning of this
terminology, “prospective” is understood as something which only has a future
operation and the term “overrule” connotes setting aside a precedent or a decision.
It has been often tagged as a deviation from the Blackstonian view of Law, which
postulates that a judge should follow the Doctrine of Stare Decisis in courts and
that the power of a judge is restricted to declaration of law and not making the law.
This view undeniably confirms the retrospective norm of a precedent.
VI. PRINCIPLE OF ECLIPSE
According to Article 13(1) of the constitution all laws in force in the
territory of India immediately before the commencement of this constitution, in so
far as they are inconsistent with the provisions of this part, shall, to the extent of
such inconsistency, be void. article 13[2] of the constitution says that the state shall
not make any law which takes 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.
Pre-Constitutional Law, inconsistent with Part III of constitution,
inoperative to the Extent of the inconsistency. It is overshadowed by the
fundamental right and remains dormant but is not dead [ab initio] void by
subsequent amicable constitutional amendment such law, can be revived.
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2. Concept of Justice or Dharma in Indian Thought

Dharma is a duty based legal system duty is something explained by Duguit as
“right possessed by every man.” Dharma signifies natural law.  When something is ऋत
it simply means that it is true, right and nothing more.  Dharma has been derived from
the vedic concept of ‘Rit’ (ऋतम्) i.e. order, rule; truth and which literally meant, ‘the straight
line’. WHAT IS DHARM.

Religion, then, is only one subset of Dharma’s scope. Dharma provides the
principles for the harmonious fulfillment of all aspects of life, namely: 1. the acquisition
of wealth and power (artha), 2. fulfillment of desires (kama), and 3. liberation (moksha).
Bhisma who has mastered the knowledge of Dharma, explains: “It is most difficult
to define Dharma. Dharma has been explained to be what which helps the upliftment of
living beings. Therefore, that which ensures the welfare of living beings is surely Dharma.
The learned rishis have declared that what sustains this universe is Dharma”. (Santiparva,
109. 9-11.) Mahabharat says: “They call it Dharma since it is Dharma that upholds
people. That which upholds the created universe, supports it and sustains it, without which
the universe just falls apart, is 'Dharma'. Dharma sustains and maintains the social, moral,
political and economic order.” (Kamaparva, 69,58.) DHARMA AND INDIAN
SCRIPTURES
In Atharvaveda, the word seems to be used in the sense of ‘merit acquired by the
In most cases, the meaning of Dharma is ‘religious ordinance or rites’, like in Rig Veda (I.
22.18, V. 26. 6, VIII. 43. 24, IX. 64.1) and Vajasaneya Samhita. (11. 3)  In all places, the
word is used either in neuter or in masculine gender.  In the Rig Veda, the word appears
to be used in the sense of upholder, supporter or sustainer. (RV, X. 92. 2.)
British Rule: With the onset of British rule, and their ignorance of the Indian laws
had a devastating effect on the concept of Dharma as they started to fix the issue by either
importing western law. Gandhi ji remarked that he disobeyed the law not to show disrespect
to British law, ‘but in obedience to higher law of our being – the vice of conscience’, by
which he meant Dharma Islamic Rule: The place of Dharma was taken by Koranic
teachings along with Gita teachings. Though the objective of both is same as Dharma but
the path became different. Gradually the general perception about Dharma converted to
Religion.
DHARMA DURING VARIOUS AGES: Post Independence Era: The principles of
natural law (Dharma) found its way into the constitution in the way of fundamental rights.
Dharma was codified. Narayana Deekshitulu vs. State Of Andhra Pradesh & Ors, there
is a comparison between the constitutional laws and Raja Dharma, the definition of Dharma
is tried to be clarified by using different verses from everywhere, ‘Dharma In context of
Rajya only means law’ and Dharma is secular or maybe the most secular.
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Article 325 provides that no person can be ineligible for inclusion in an electoral
roll or can claim inclusion in a special roll on the grounds of religion Article 15(1) of the
constitution of India prevents to state from discriminating anybody on the ground of
religion  Under the “Right to Freedom of Religion” from Article 25 to 28, various
provisions can be seen which again reinforce the ideal of secularism.  Unlike many
countries of the world, in India there is a freedom of religion which is defined under Article
25(1) of its constitution.
CONSTITUTION AND DHARMA Religious Games Played by Politicians
Religious Intolerance  Riots in the name of Dharma  Dharma and Uniform Civil Code
 Dharma and Secularism  “Sarva Dharma Sambhava, which literally means that all
Dharmas (truths) are equal to or harmonious with each other”. In recent times this statement
has been taken as meaning “all religions are the same”.
3. Dharma as the foundation of legal ordering in Indian thought
Any government will have a strong basis for its survival, “if it is founded on liberty
and justice”. Justice under law without social justice, no longer has any meaning or
significance.
It is no doubt that people since times immemorial hoped for justice and its survival
at all times and 'justice' has been the watchword of all major social and political reform
movements. Endless and ceaseless efforts were made to abolish injustice, tyranny and
exploitation. In the common parlance justice is equated with everything that is good,
mercy, charity and truth and other equivalent expressions. However, in the words of a
Greek thinker Thrasymachus, it cannot be defined as the interest of the stronger.4 Justice
is not an irrational idea and the search for it is an eternal quest.
Whatever is considered as 'just', according to a reasonable man is considered as
'justice'. Gandhiji emphasized the need for establishing a 'just society' which he considered;
as a necessary ideal for India's survival as an independent and vibrant nation'8 in his
concept of Ram Rajya and Swarajya which he elucidated as follows:
i. Poorest shall have an effective voice in the making of the country;
ii. No distinction/existence of rich and the poor;
iii. All communities shall live in peace;
iv. No curse of untouchability or curse of intoxicating drugs or drinks; and
v. Women shall enjoy the same rights j as men. Nehru highlighted the need for 'social
justice', and "only through social justice, chronic poverty in India will be solved...;
ending of poverty, ignorance, disease and inequality of opportunity to wipe every
tear from every eye.
In ancient Indian society, law and dharma were not distinct concepts. In dharma
Sastras, Smrities and Arthasastra, the concept of justice, law and religion were not
distinguished and invariably justice was equated to dharma and vice-versa.10 The Mosaic
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Law of Israel considered law and justice as inextricably inter-woven11 and justice' is
considered as a distinct segment of morality to which law must conform.
Respect for human person and means of participation shall be ensured and no one
shall be subjected to arbitrary will another and no member shall be arbitrarily excluded
from the legal community. John Rawls proposed a general concept of justice in these terms:
“All social primary goods-liberty and opportunity, income and wealth, and the basis 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 establish justice in the world is to destroy the bad and the evil, to stop the strong
exploiting the weak, to develop knowledge and welfare of the people.15 Verily that which
is justice is truth16 and the law is a means to an end and justice is that end.”
4. The concept and various theories of Justice in the western thought
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 interfering with
their voluntary actions, so long as those do not violate others’ rights; Mill said justice is a
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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.
I. Ancient Greece
For all their originality, even Plato’s and Aristotle’s philosophies did not
emerge in a vacuum. As far back in ancient Greek literature as Homer, the concept
of dikaion, used to describe a just person, was important. From this emerged the
general concept of dikaiosune, or justice, as a virtue that might be applied to a
political society. The issue of what does and does not qualify as just could logically
lead to controversy regarding the origin of justice, as well as that concerning its
essence.
Perhaps an effective aid to appreciating the power of their thought is to view
it in the context of the teachings of the Sophists, those itinerant teachers of fifth-
century ancient Greece who tried to pass themselves off as “wise” men. In his trial,
Socrates was at pains to dissociate himself from them, after his conviction refusing
to save himself, as a typical Sophist would, by employing an act of civil
disobedience to escape (Dialogues, pp. 24-26, 52-56; 18b-19d, 50a-54b); Plato is
more responsible than anyone else for giving them the bad name that sticks with
them to this present time; and Aristotle follows him in having little use for them as
instructors of rhetoric, philosophy, values, and the keys to success.
So what did these three great philosophers (literally “lovers of wisdom”)
find so ideologically objectionable about the Sophists? The brief answer is, their
relativism and their skepticism. The first important one, Protagoras, captures the
former with his famous saying, “Man is the measure of all things—of the things
that are, that they are, and of the things that are not, that they are not”; and he speaks
to the latter with a declaration of agnosticism regarding the existence of divinities.
Gorgias (Plato named dialogues after both of them) is remembered for a striking
three-part statement of skepticism, holding that nothing really exists, that, even if
something did exist, we could not grasp it, and that, even if we could grasp
something real, we could never express it to anyone else. If all values are subjective
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and/or unknowable, then what counts as just gets reduced to a matter of shifting
opinion. We can easily anticipate how readily Sophists would apply such relativism
and skepticism to justice. For example, Thrasymachus (who figures into the first
book of Plato’s Republic) is supposed to have said that there must not be any gods
who care about us humans because, while justice is our greatest good, men
commonly get away with injustice. But the most significant Sophist statement
regarding justice arguably comes from Antiphon, who employs the characteristic
distinction between custom (nomos) and nature (physis) with devastating effect. He
claims that the laws of justice, matters of convention, should be obeyed when other
people are observing us and may hold us accountable; but, otherwise, we should
follow the demands of nature.
The laws of justice, extrinsically derived, presumably involve serving the
good of others, the demands of nature, which are internal, serving self-interest. He
even suggests that obeying the laws of justice often renders us helpless victims of
those who do not (First, pp. 211, 232, 274, 264-266). If there is any such objective
value as natural justice, then it is reasonable for us to attempt a rational
understanding of it. On the other hand, if justice is merely a construction of
customary agreement, then such a quest is doomed to frustration and failure. With
this as a backdrop, we should be able to see what motivated Plato and Aristotle to
seek a strong alternative.
II. Medieval Christianity
When Christian thinkers sought to develop their own philosophies in the
middle ages (“medieval” meaning the middle ages and “middle” in the sense of
being between antiquity and modernity), they found precious basic building-blocks
in ancient thought. This included such important post-Aristotelians as the
enormously influential Roman eclectic Cicero, such prominent Stoics as Marcus
Aurelius (a Roman emperor) and Epictetus (a Greek slave of the Romans), and neo-
Platonists like Plotinus.
But the two dominant paths that medieval philosophy would follow for its
roughly thousand year history had been blazed by Plato and Aristotle. More
specifically, Augustine uses Platonic (and neo-Platonic) philosophy to the extent
that he can reconcile it with Christian thought; Aquinas, many centuries later,
develops a great synthesis of Christian thought (including that of Augustine) and
Aristotelian philosophy.
A great difference, however, between their philosophies and those of
Hellenic thinkers such as Plato and Aristotle stems from the commitment of these
Christians to the authority of the Hebrew and Christian scriptures. Aquinas would
later agree with Augustine (who is accepting the mandate of Isaiah 7:9) that the
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quest for philosophical understanding should begin with belief in religious

traditions (Choice, pp. 3, 32). Both the Old Testament and the New Testament call
for just behavior on the part of righteous people, with injustice being a sin against
God’s law, the references being too numerous to cite (but see Job 9:2, Proverbs
4:18, Proverbs 10:6-7, Ecclesiastes 7:20, Matthew 5:45, Philippians 4:8, and
Hebrews 12:23).
The claim that God’s justice will prevail in the form of divine judgment is
both a promise for the just and a threat for the unjust. Righteousness is identified
with mercy as well as with justice (e.g., Micah 6:8 and Matthew 5:7) and involves
our relationship with God as well as with fellow humans. The ten commandments
of the Old Testament (Exodus 20:1-17) are prescriptions regarding how the
righteous are to relate to God as well as to one another. In the New Testament, Jesus
of Nazareth interprets how the righteous are to live (Matthew 22:36-40) in terms of
love of both God and their neighbors; the concept of one’s neighbor is meant to
extend even to strangers, as is illustrated in the parable of the Good Samaritan (Luke
10:29-37).
In the Beatitudes beginning the Sermon on the Mount, Jesus expands on this
gospel of love by advocating that his followers go beyond the duties of justice to
behave with compassion in certain supererogatory ways (Matthew 5:3-12). All of
this scriptural tradition essentially influenced medieval thinkers such as Augustine
and Aquinas in a way that distinguishes them from ancient Greek philosophers such
as Plato and Aristotle.
III. Early Modernity
Although only half as much time elapses between Aquinas and Hobbes as
did between Augustine and Aquinas, from the perspective of intellectual history,
the period of modernism represents a staggering sea-change. We have neither the
time nor the space to consider the complex causal nexus that explains this fact; but,
for our purposes, suffice it to say that the Protestant Reformation, the revolution of
the new science, and the progressive willingness publicly to challenge authority
(both political and religious) converge to generate a strikingly different
philosophical mentality in the seventeenth century. In the previous century, the
Protestant Reformation shattered the hegemony of the Roman Catholic Church, so
that thinkers need not feel so constrained to adhere to established orthodoxy.
The naturalistic worldview of the sixteenth and early seventeenth centuries
that eventuated in an empirical and experimental (non-dogmatic) methodology in
both natural and political science set an example for philosophers. Thinkers of the
modern era became increasingly comfortable breaking from the mainstream to
pursue their own independent reasoning.
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Although the influence of great ancient philosophers like Plato and Aristotle
and of great medieval thinkers such as Augustine and Aquinas would persist, there
was no returning to their bygone perspectives. This vitally affects moral and
political theory, in general, and views on justice, in particular. As we shall see in
this section, views of justice as relative to human needs and interests became
prominent as they had not been for a couple of millennia. This will locate Hobbes
and Hume closer to the Sophists than had been fashionable since pre-Socratic times
in philosophy, regarding justice as a social construct.
IV. Recent Modernity
Moving from one of the greatest philosophers of the Enlightenment to the
other, we shall see that Kant will take more seriously the “is-ought” challenge than
Hume himself did. As justice is both a moral and a political virtue, helping to
prescribe both a good character and right conduct, the question of how such
obligations arise is crucial.
For Hume, we ought to pursue virtue (including justice) because it
(allegedly) is agreeable and/or useful to do so. But, then, what is the logical link
here? Why should we, morally speaking, act for the sake of agreeableness and
utility? For Kant, the reason we should choose to do what is right has nothing to do
with good consequences. It is merely because it is the right thing to do. Conceding
that prescriptive “ought” claims can never be logically deduced from any set of
factually descriptive “is” claims, Kant will forsake the empirical approach to justice
(of Hobbes and Hume) in favor of the sort of rationalistic one that will revert to
seeing it as an absolute value, not to be compromised, regardless of circumstances
and likely consequences.
Then we shall consider the utilitarian response to this, as developed by the
philosopher who is, arguably, the greatest consequentiality of modern times, John
Stuart Mill, who, as an empiricist, like Hobbes and Hume, will make what is right
a function of what is good.
5. Various theoretical basis of justice
I. The liberal contractual tradition
Libertarians are people who favor negative rights (and the right to property
in particular), small government, and a free market. Many libertarians ascribe to an
extreme view that denies the existence of positive rights and favors a laissez-
faire free market no matter how horrible the consequences are. This seems to entail
no government regulation or public education.
Some utilitarians are libertarians because they think libertarianism will
promote goodness best, but Robert Nozick developed his own theory of justice that
finds utilitarianism completely irrelevant to justice, which was described
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in Anarchy, State, and Utopia. Nozick argues that we have “Lockean rights” by our
very nature prior to any political institutions, such as the right to property (95). For
Nozick these rights are absolute and can’t be violated for any reason—except
perhaps if the only alternative action would directly violate even more rights.
Nozick thinks that we have property rights to keep our possessions as
long as they were attained fairly—without violating other people’s rights, harming
others, or defrauding them (95-96). The world’s natural resources are all up for
grabs. They are the property of anyone who takes them. This conception of property
rights are described by three principles of justice:
i. A person who acquires a holding in accordance with the principle of justice
in acquisition is entitled to that holding.
ii. A person who acquires a holding in accordance with the principle of justice
in transfer, from someone else entitled to the holding, is entitled to the
holding.
iii. No one is entitied to a holding except by (repeated) applications of 1 or 2.
(97)
Nozick’s view seems to imply that taxation is a form of theft because it
violates our property rights. People are coerced by governments to give up their
property when they are being taxed. No one can take away our legitimately attained
property without permission. Any public service funded by taxation would then
also be illegitimate, such as public education or food for the poor.
Nozick argues for his theory of justice through a thought experiment, called
the “Wilt Chamberlain example” (97-98). Imagine that your favorite form of
economic justice is enacted and a basketball player, Wilt Chamberlain, agrees to
play for a team by getting paid twenty five cents for each ticket sold. Everyone was
entitled to their money (assuming your favorite form of economic justice is truly
just), and that they therefore have a right to spend their money as they wish. Wilt
Chamberlain also seems entitled to the money given to him (assuming that people
have a right to spend their money as they wish after justly attaining it).
II. The liberal utilitarian tradition
Utilitarians tend to be among those who see no major divide between justice
and morality. Utilitarians see justice as part of morality and don’t see justice to have
a higher priority than any other moral concern. In particular, utilitarians think that
we should promote goodness (things of value), and many think that goodness can
be found in a single good; such as happiness, flourishing, well-being, or desire
satisfaction. Utilitarian ideas of justice connect morality to the law, economic
distribution, and politics. What economic or political principles will utilitarians say
we should accept? That is not an easy question to answer and is still up in the air.
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We have to discover the best economic and political systems for ourselves by seeing
the effects they produce (90).
Utilitarians often advocate for social welfare because everyone’s well-being
is of moral interest and social welfare seems like a good way to make sure everyone
flourishes to a minimal extent. On the other hand utilitarians often advocate free
trade because (a) free trade can help reward people for hard work and encourage
people to be productive, (b) the free market allows for a great deal of freedom, (c)
freedom has a tendency to lead to more prosperity, and (d) taking away freedom
has a tendency to cause suffering.
One conception of utilitarian justice can be found in the work Utilitarianism
by John Stuart Mill (91). Mill said that justice was a subset of morality—“injustice
involves the violation of the rights of some identifiable individual” (ibid.). Mill
suggests, “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”
(ibid.). Morality is larger than justice because it’s plausible that we can be heroic
or act beyond the call of duty to help others and such acts would not be best
described as examples of “justice.”
When do we (or should we) have a right? When we can legitimately make
demands on society based on utilitarian grounds. “To have a right, then, is… to
have something which society ought to defend me in the possession of. If the
objector goes on to ask why it ought, I can give him no other reason than general
utility” (ibid.). Rights are rules society can make for everyone that could help
people flourish and prosper in general, and we should have rights given the
assumption that they are likely to increase goodness in the long run.
Mill’s conception of rights can include both positive rights (for public
education, food, shelter, medical assistance, etc.) and negative rights (to be allowed
to say what we want, to be allowed to have any religion, etc.) Both of these sorts of
rights can potentially help people have greater well being.
III. The liberal moral tradition
Rawls described his theory of justice called “Justice as Fairness” in his
book A Theory of Justice. Rawls agrees with Nozick that justice is quite separate
from morality and he too rejects utilitarian forms of justice. He first suggests a new
way to learn about principles of justice—the original position (103-105). The
original position asks us to imagine that a group of people will get to decide the
principles of justice. These people don’t know who they are (what he calls a ‘veil
of ignorance’), they are self-interested, and they know everything science has to
offer. He argues that in a veil of ignorance they couldn’t be as biased towards their
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profession, race, gender, age, or social status because they wouldn’t know which
categories they belong to (104-105).
As far as self-interest is concerned, Rawls argues that they will want
principles of justice that will “fairly distribute” certain goods that everyone will
value—what Rawls calls “primary social goods” (105). Rawls argues that the
people in the original position will discuss which principles of justice are best
before voting on them, and the best principles worth having will reach a “reflective
equilibrium”—the most intuitive principles will be favored and incompatible less
intuitive principles will have to be rejected in order to maintain coherence.
He argues that two intuitive principles of justice in particular will reach
reflective equilibrium:
i. Each person is to have an equal right to the most extensive total system of
equal basic liberties compatible with a similar system of liberty for all.
ii. Social and economic inequalities are to satisfy two conditions: first, they
are to be attached to positions and offices open to all under conditions of
fair equality of opportunity; and second, they are to be the greatest expected
benefit of the least advantaged members of society (107).
Rawls says that the first principle has priority over the second, “at least for
societies that have attained a moderate level of affluence” (ibid.). The liberties
Rawls has in mind are negative rights, like the freedom of thought. The distribution
of social goods can include education, food, and housing; which could be
considered to be positive rights.
The second principle’s second restriction—that social and economic
inequalities must benefit the worst off group—is known as the “difference
principle” and seems to imply that total communism is automatically just if such a
system has no economic or social inequalities because it’s only inequalities that
require a rationale. Capitalism will only be justified if it benefits the least
advantaged group—the poor, orphans, and so on. The assumption is that inequality
can allow hard work to be rewarded to the point that people decide to be more
productive and share their wealth with the poor. People won’t be allowed to be
wealthier unless the wealth is shared with the poor.
Unit 4
Relation between Law and Justice
I. Equivalence theories – Justice as nothing more than the positive law of the
stronger class
II. Dependency theories
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Dependency theory is the notion that resources flow from a "periphery" of poor
and underdeveloped states to a "core" of wealthy states, enriching the latter at the
expense of the former. It is a central contention of dependency theory that poor states
are impoverished and rich ones enriched by the way poor states are integrated into the
"world system". This theory was officially developed in the late 1960s following World
War II, as scholars searched for the root issue in the lack of development in Latin
America.
The theory arose as a reaction to modernization theory, an earlier theory of
development which held that all societies progress through similar stages of
development, that today's underdeveloped areas are thus in a similar situation to that of
today's developed areas at some time in the past, and that, therefore, the task of helping
the underdeveloped areas out of poverty is to accelerate them along this supposed
common path of development, by various means such as investment, technology
transfers, and closer integration into the world market. Dependency theory rejected this
view, arguing that underdeveloped countries are not merely primitive versions of
developed countries, but have unique features and structures of their own; and,
importantly, are in the situation of being the weaker members in a world market
economy.
Dependency theory no longer has many proponents as an overall theory, though
some writers have argued for its continuing relevance as a conceptual orientation to the
global division of wealth. Dependency theorists typically divides into two different
categories surrounding the theory: liberal reformists and neo-Marxists. Those that
align with liberal reformists typically believe that targeted policy intervention is the
most effective approach to improving lives. Comparatively, neo-Marxists believe a
command centered economy is the more effective approach to improving lives.
History - Dependency theory originates with two papers published in 1949 – one
by Hans Singer, one by Raúl Prebisch – in which the authors observe that the terms of
trade for underdeveloped countries relative to the developed countries had deteriorated
over time: the underdeveloped countries were able to purchase fewer and
fewer manufactured goods from the developed countries in exchange for a given
quantity of their raw materials exports. This idea is known as the Prebisch–Singer
thesis. Prebisch, an Argentine economist at the United Nations Commission for Latin
America (UNCLA), went on to conclude that the underdeveloped nations must employ
some degree of protectionism in trade if they were to enter a self-sustaining
development path. He argued that import-substitution industrialisation (ISI), not
a trade-and-export orientation, was the best strategy for underdeveloped countries. The
theory was developed from a Marxian perspective by Paul A. Baran in 1957 with the
publication of his The Political Economy of Growth. Dependency theory shares many
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points with earlier, Marxist, theories of imperialism by Rosa Luxemburg and Vladimir
Lenin, and has attracted continued interest from Marxists. Some authors identify two
main streams in dependency theory: the Latin American Structuralist, typified by the
work of Prebisch, Celso Furtado, and Aníbal Pinto at the United Nations Economic
Commission for Latin America (ECLAC, or, in Spanish, CEPAL); and the American
Marxist, developed by Paul A. Baran, Paul Sweezy, and Andre Gunder Frank.
In the 1960s, members of the Latin American Structuralist school argued that there
is more latitude in the system than the Marxists believed. They argued that it allows for
partial development or "dependent development"–development, but still under the
control of outside decision makers. They cited the partly successful attempts
at industrialisation in Latin America around that time (Argentina, Brazil, Mexico) as
evidence for this hypothesis. They were led to the position that dependency is not a
relation between commodity exporters and industrialised countries, but between
countries with different degrees of industrialisation. In their approach, there is a
distinction made between the economic and political spheres: economically, one may
be developed or underdeveloped; but even if (somewhat) economically developed, one
may be politically autonomous or dependent. More recently, Guillermo O'Donnell has
argued that constraints placed on development by neoliberalism were lifted by the
military coups in Latin America that came to promote development in authoritarian
guise (O'Donnell, 1982).
The sine qua non of the dependency relationship is not the difference in
technological sophistication, as traditional dependency theorists believe, but rather the
difference in financial strength between core and peripheral countries–particularly the
inability of peripheral countries to borrow in their own currency. He believes that
the hegemonic position of the United States is very strong because of the importance
of its financial markets and because it controls the international reserve currency –
the US dollar. He believes that the end of the Bretton Woods international financial
agreements in the early 1970s considerably strengthened the United States' position
because it removed some constraints on their financial actions.
III. The independence of justice theories
i. Rawl's Theory of Justice
A Theory of Justice is a 1971 work of political philosophy and ethics by
the philosopher John Rawls, in which the author attempts to provide a moral
theory alternative to utilitarianism and that addresses the problem
of distributive justice (the socially just distribution of goods in a society). The
theory uses an updated form of Kantian philosophy and a variant form of
conventional social contract theory. Rawls's theory of justice is fully a political
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theory of justice as opposed to other forms of justice discussed in other

disciplines and contexts.
The resultant theory was challenged and refined several times in the decades
following its original publication in 1971. A significant reappraisal was
published in the 1985 essay "Justice as Fairness", and a subsequent book under
the same title, within which Rawls further developed his two central principles
for his discussion of justice. Together, they dictate that society should be
structured so that the greatest possible amount of liberty is given to its members,
limited only by the notion that the liberty of any one member shall not infringe
upon that of any other member. Secondly, inequalities – either social or
economic – are only to be allowed if the worst off will be better off than they
might be under an equal distribution. Finally, if there is such a beneficial
inequality, this inequality should not make it harder for those without resources
to occupy positions of power – for instance, public office.
ii. Dwarkin's Rights Thesis
The judiciary plays an important role in all legal system. But the question
is: How does a judge decides a case? If a case is brought to the court, the judge
cannot refuse to adjudicate it on the basis that there is no precedent or the lawyer
cannot cite any authority on the point of law.
In this connection, Dworkin observed that there is a right answer to each
case. Dworkin’s Right Thesis involves the general claim that within legal
practice and a proper understanding of the nature of law, rights are more
fundamental than rules. This is the opposite claim to most legal positivists.
Rights are trumps in Dworkin’s Theory, which means that if there is any
right which comes into conflict with any policy, the right must prevail.
The law is to be treated as a seamless web in which there always is a right
answer. Judicial decisions are characteristically generated by principles and
enforces existing political rights, so that litigants are entitled to the judge’s best
judgment about what their rights are. To Dworkin, different judge may come to
different conclusions but he insists that judges may not rely on their own
political views but only on their beliefs in the soundness of those convictions.
It has long been received opinion that judges “filled in the gaps” left by
rules by using their discretion. HLA Hart has written, “That the rule-making
authority must exercise discretion…” Hart saw rules as ‘open-
textured’. Austin saw no problem in this. It is the thesis of Dworkin that judicial
discretion in what Dworkin calls its “Strong Sense” does not exist. Dworkin
rejects the view regarding judicial discretion. The judges often are heard to say:
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“We find the law to be this”, and they say they discover the law. They do not
profess the law to be their own discretion.
For Dworkin, judges are always constrained by the law. In every
adjudication of the so-called “hard-cases’ there are controlling standards which
a judge is obligated to follow.
Dworkin objects to judges acting as ‘deputy legislators’ for 2 reasons:
(i) Separation of Power: It offends the democratic ideal that a
community should be governed by elected officials answerable to
the electorate. The judge not being elected must not substitute his
own will as against the legislature. (In Lord Simmons words, “it’s a
naked usurpation of legislative functions).
(ii) Retrospectivity & The Rule of Law: Dworkin’s 2nd objection to
judicial originality is that “if a judge makes a new law and applies it
retrospectively in the case before him, then the losing party will be
punished, not because he has violated some duty he had, but rather
a new duty created after the event.”
iii. Libertarianism And Justice
Libertarianism is a family of views in political philosophy. Libertarians
strongly value individual freedom and see this as justifying strong protections
for individual freedom. Thus, libertarians insist that justice poses stringent
limits to coercion. While people can be justifiably forced to do certain things
(most obviously, to refrain from violating the rights of others) they cannot be
coerced to serve the overall good of society, or even their own personal good.
As a result, libertarians endorse strong rights to individual liberty and private
property; defend civil liberties like equal rights for homosexuals; endorse drug
decriminalization, open borders, and oppose most military interventions.
Libertarian positions are most controversial in the realm of distributive
justice. In this context, libertarians typically endorse something like a free-
market economy: an economic order based on private property and voluntary
market relationships among agents. Libertarians usually see the kind of large-
scale, coercive wealth redistribution in which contemporary welfare states
engage as involving unjustified coercion. The same is true of many forms of
economic regulation, including licensing laws. Just as people have strong rights
to individual freedom in their personal and social affairs, libertarians argue, they
also have strong rights to freedom in their economic affairs. Thus, rights of
freedom of contract and exchange, freedom of occupation, and private property
are taken very seriously.
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In these respects, libertarian theory is closely related to (indeed, at times

practically indistinguishable from) the classical liberal tradition, as embodied
by John Locke, David Hume, Adam Smith, and Immanuel Kant. It affirms a
strong distinction between the public and the private spheres of life; insists on
the status of individuals as morally free and equal, something it interprets as
implying a strong requirement of individuals sovereignty; and believes that a
respect for this status requires treating people as right-holders, including as
holders of rights in property.
It is popular to label libertarianism as a right-wing doctrine. But this is
mistaken. For one, on social (rather than economic) issues, libertarianism
implies what are commonly considered left-wing views. And second, there is a
subset of so-called “left-libertarian” theories. While all libertarians endorse
similar rights over the person, left-libertarians differ from other libertarians
with respect to how much people can appropriate in terms of unowned natural
resources (land, air, water, minerals, etc.). While virtually all libertarians hold
that there is some constraint on how resources can be appropriated, left-
libertarians insist that this constraint has a distinctively egalitarian character.
iv. Ulititarian Theory Of Justice
The utilitarians approach jiJistice from a different stand-point. They treat
utility as the ultimate standard of morality. Utilitarianism, as an ethical theory
signifies that the ultimate end is and ought to be general happiness, and that
those actions are treated to be right and just which bring the greatest happiness
for the greatest number of people.
It was James Mill who first enunciated such a principle which took a clear
form in the hands of his successors. Even Leibniz is sometimes regarded as the
precursor of utilitarianism when he speaks that the general good or happiness
is the end of law and of morality. Utilitarianism as a moral theory was first
formulated distinctly by Bentham, followed by a fundamental modification in
the hands of J.S, Mill, Sidgwick opines, "By utilitarianism is here meant the
ethical theory that the conduct which, under any given circumstances is
objectively right, is that which will produce the greatest amount of happiness
on the whole; that is, taking into account all whose happiness is affected by the
conduct."
Hedonism is a general term which includes all systems of ethics accepting
pleasure as the end of life. When pleasure is accepted to he an end which people
really seek^ it is regarded as psychological hedonism dealing v;ith whether
people really r\an after pleasure or not. But when we are interested in whether
people ought or ought not to seek pleasure, we are dealing with ethical
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hedonism. Ethical hedonism is the doctrine, which instead of involving itself

with what man actually wants, involves itself what man ought to want. A
moralist is not concerned with what actually is, hut what ought to be. He is not
concerned with whether people actually seek pleasure, but whether pleasure
ought to be treated as the end of life. According to ethical hedonism, pleasure
should be the ideal which should be the guiding principle both of the individual
and of the society. Utilitarianism is the revival of hedonism in the late
eighteenth and nineteenth centuries by the English thinkers like James Mill,
Benthem and J. S, Mill. Hedonism in its gross form seeks only the individual's
self-interest. But that form of hedonism known to be altruistic hedonism takes
the name of utilitarianism in the hands of the English philosophers.
Utilitarianism as a theory of morals and Ajalues seeks to maintain that
pleasure or general happiness should he the end of a moral life. Moralitylies in
the conduciveness of an action to general happiness. It does not take into
considerations the psychological factors. It does not tell us whether men do
really seek the general happiness hut that it provides a norm that speaks that
man ought to act in a manner which instead of seeking only the individualistic
interests to he fulfilled, hankers after fulfilling the general happiness - the
greatest happiness of the greatest number. It is a peculiar feature with almost all
the earlier utilitarians that they base the theory of the general happiness on the
psychological assumption that man always desires pleasure.
v. Basic Structure Theory
The basic structure doctrine is an Indian judicial principle, most notably
propounded by Justice Hans Raj Khanna, that the Constitution of India has
certain basic features that cannot be altered or destroyed
through amendments by the Parliament of India. Key among these "basic
features", as expounded by Justice Khanna, are the fundamental
rights guaranteed to individuals by the constitution. The doctrine thus forms the
basis of the power of the Supreme Court of India to review and strike down
constitutional amendments and acts enacted by the Parliament which conflict
with or seek to alter this "basic structure" of the Constitution. The basic features
of the Constitution have not been explicitly defined by the Judiciary, and the
claim of any particular feature of the Constitution to be a "basic" feature is
determined by the Court in each case that comes before it.
The Apex Court's initial position on constitutional amendments was that
any part of the Constitution was amendable and that the Parliament might, by
passing a Constitution Amendment Act in compliance with the requirements of
article 368, amend any provision of the Constitution, including the Fundamental
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Rights and article 368. That the Constitution has "basic features" was first
theorised in 1964, by Justice J.R. Mudholkar in his dissent, in the case of Sajjan
Singh v. State of Rajasthan. He wondered whether the ambit of Article 368
included the power to alter a basic feature or rewrite a part of the Constitution.
He wrote,It is also a matter for consideration whether making a change in a
basic feature of the Constitution can be regarded merely as an amendment or
would it be, in effect, rewriting a part of the Constitution; and if the latter, would
it be within the purview of Article 368?
In 1967, the Supreme Court reversed its earlier decisions in Golaknath v.
State of Punjab. It held that Fundamental Rights included in Part III of the
Constitution are given a "transcendental position" and are beyond the reach of
Parliament. It also declared any amendment that "takes away or abridges" a
Fundamental Right conferred by Part III as unconstitutional. In 1973, the basic
structure doctrine was formally introduced with rigorous legal reasoning in
Justice Hans Raj Khanna's decisive judgment in the landmark
decision of Kesavananda Bharati v. State of Kerala. Previously, the Supreme
Court had held that the power of Parliament to amend the Constitution was
unfettered. However, in this landmark ruling, the Court adjudicated that while
Parliament has "wide" powers, it did not have the power to destroy or
emasculate the basic elements or fundamental features of the constitution.
Although Kesavananda was decided by a narrow margin of 7-6, the basic
structure doctrine, as propounded in Justice Khanna's judgement, has since
gained widespread legal and scholarly acceptance due to a number of
subsequent cases and judgments relying heavily upon it to strike down
Parliamentary amendments that were held to be violative of the basic structure
and therefore unconstitutional. Primary among these was the imposition of a
state of emergency by Indira Gandhi in 1975, and her subsequent attempt to
suppress her prosecution through the 39th Amendment. When the Kesavananda
case was decided, the underlying apprehension of the majority bench that
elected representatives could not be trusted to act responsibly was perceived as
unprecedented. However, the passage of the 39th Amendment by the Indian
National Congress' majority in central and state legislatures, proved that in fact
such apprehension was well-grounded. In Indira Nehru Gandhi v. Raj
Narain and Minerva Mills v. Union of India, Constitution Benches of the
Supreme Court used the basic structure doctrine to strike down the 39th
Amendment and parts of the 42nd Amendment respectively, and paved the way
for restoration of Indian democracy
vi. Gandhian Theory of Justice
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The Gandhian outlook on social justice had its foundation in the over-
arching Indian concept Dharma. Dharma can be understood in many ways.
Generally, it is defined as “that which supports or sustains” 3 (the universe, the
relationships)—the moral law according to Sanskrit 4 tradition. In a derivative
sense, it can also mean religion and duty. Gandhi’s understanding of social
justice has both these meanings as a foundation, and they are inextricably
interlinked. For Gandhi, it is a spirituality based on his religion that inspires his
action. It is the Vedic 5 religious view of reality as non-dual, 6 which in the
ultimate analysis binds you to a life of “seeking truth alone” in its various
manifestations (including diverse individual world views and practices), and
thus creates immense space for tolerance. From this perspective, social justice
can become a reality only in a world where diverse presences have a rightful
claim to co-existence as manifestations of the “absolute truth.”
While today’s perception about social justice is often founded on a “rights-
based approach,” Gandhi’s vision of a just world is one based on “duties.”
Gandhi personally firmly adhered to the ancient religious doctrine of duty based
on one’s caste and status. 7 Among his beliefs, he lists varnashrama dharma or
“Discipline of the Castes,” which is to be on strictly Vedic lines, and may be
distinct from the crude popular belief of unequal class status based on birth.
Gandhi’s conception of the caste system does not base it on pride or vain
notions of social superiority, but on duties assigned to them specifically
(Rolland, 1924).
On October 6, 1921, Gandhi wrote, “I decline to be bound by any
interpretation, however learned it may be, if it is repugnant to reason or moral
sense” (quoted in Rolland, 1924, p. 26). He re-interpreted and redefined the
existing paradigm of caste-based duties by reiterating the dignity and
significance of all such duties for the “sustenance” of the society. However, the
reality of Indian experience of this framework was an enslaving and exploitative
hierarchical stratification, which led to the oppression of the majority by a
privileged minority. Hence, in his later years, while fighting to eliminate such
oppression, he also gave up on adhering to this notion of duty. All the same, he
never abandoned the “notion of duty” as fundamental to a just society, as he
writes in his radical attack on (modern) civilization:
Civilization is that mode of conduct which points out to man the path of
duty. Performance of duty and observance of morality are convertible terms. To
observe morality is to attain mastery over our mind and our passions. So doing,
we know ourselves. The Gujarati equivalent for civilization means “good
conduct.”
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6. The independence of justice mean’s to an end

Judicial independence, the ability of courts and judges to perform their duties free
of influence or control by other actors, whether governmental or private. The term is also
used in a normative sense to refer to the kind of independence that courts and judges ought
to possess.
That ambiguity in the meaning of the term judicial independence has compounded
already existing controversies and confusions regarding its proper definition, leading some
scholars to question whether the concept serves any useful analytical purpose. There are in
general two sources of disagreement. The first is conceptual, in the form of a lack of clarity
regarding the kinds of independence that courts and judges are capable of possessing. The
second is normative, in the form of disagreement over what kind of judicial independence
is desirable.
As a practical matter, the type of judicial independence that is widely considered
both the most important and the most difficult to achieve is independence from other
governmental actors. On the one hand, that type of judicial independence is highly valued
among those who impute to courts a special responsibility for ensuring that individuals and
minorities do not suffer illegal or unjust treatment at the hands of the government or a
tyrannous majority. On the other hand, that type is considered especially difficult to achieve
because the other branches of government ordinarily possess the power to disobey or thwart
the enforcement of judicial decisions, if not also to retaliate against the courts for decisions
that they oppose. In Alexander Hamilton’s famous formulation, the judiciary is the “least
dangerous” branch, having “no influence over either the sword or the purse,” and is
therefore least capable of defending itself against the other branches.
Formal guarantees of judicial independence from government control date to at
least 1701, when England’s Act of Settlement granted judges explicit protection from
unilateral removal by the crown in the context of a larger shift of power
toward Parliament and the courts. Today the idea of judicial independence has such broad
and powerful normative appeal that even states that do not honour it in practice are wont
to profess a commitment to it. Most of the world’s current written constitutions contain
some form of explicit protection for the independence of the judiciary, and the proportion
of constitutional documents that contain such protections has been increasing over time.
Judicial independence has been formally endorsed at the international level as well—for
example, in the Basic Principles on the Independence of the Judiciary, adopted by
the United Nations General Assembly in 1985. Empirical research suggests, however, that
the existence of formal constitutional guarantees of judicial independence is poorly
correlated with actual respect for judicial independence in practice.
Independence for whom? - Judicial independence can be defined as a
characteristic of individual judges or as a characteristic of the judiciary as a whole.
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Neither conception is indisputably preferable to the other as a practical matter. On the one
hand, if judicial independence is guaranteed at the institutional level but not at the
individual level, individual judges can be forced to obey the wishes of the leadership of the
judiciary, which may result in a less-than-wholehearted enforcement of the rule of law. In
Chile and Japan, for example, the extent to which the judiciary as an institution commands
obedience and conformity from its members has been blamed for producing timid judges
who are unwilling or unable to rule against the government. On the other hand, if judicial
independence is ensured at the individual level, individual judges will find themselves at
liberty to pursue their individual preferences. Unchecked discretion of that kind not only
invites abuse but also raises the likelihood that judges will decide cases in inconsistent
ways, with the potential effect of undermining the predictability and stability of the law.
Independence from whom? - The existence and adequacy of judicial
independence become matters of practical concern only when a court decides a dispute
involving the interests of some actor or institution with potential or actual power over the
court. Generally speaking, the more powerful the actor whose interests are at stake, the
greater the need to protect the independence of the court from that actor. If both sides to
the dispute are powerful, however, that symmetry of power may provide part or all of the
necessary protection.
The three scenarios that a court may encounter are:
i. disputes between private actors,
ii. disputes between government actors, and
iii. disputes between private actors and government actors.
In the first scenario, the court must strive to remain independent from the parties,
who may attempt to undermine its independence by a variety of means, such as bribery or
intimidation. In that situation the government is a friend of judicial independence: it can be
expected to defend the independence of the court from the efforts of the parties.
In the second scenario, the prospects for judicial independence are again relatively
favourable. The court is asked not to face down a powerful actor on behalf of a weak one
but rather to choose sides between two powerful actors in an impartial way. Whichever
side the court chooses, the result will be a two-against-one dynamic that ought to provide
the court a degree of protection from retaliation. The government does not pose a
meaningful threat to judicial independence in such cases, because it is at war with itself.
In the third scenario, the government does pose a potent threat to judicial
independence, but the threat may be either counteracted or compounded by the public. For
instance, if a ruler seeks to extend his or her own term of office in an illegal fashion, the
court faces a threat to its independence from the government, but its ability to withstand
that threat is greatly improved to the extent that it can count on public support if it rules
against the government. As long as the court is in the position of siding with either the
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government or the public, its independence enjoys protection. Either should be capable of
providing the court with the support that it needs to withstand attacks from the other. In
other situations, however, the court may be asked to take a position that is antagonistic to
both the government and the public, as in the case of illegal
government discrimination against an unpopular minority. Here the prospects for judicial
independence are at their nadir: the judiciary is called on to demonstrate independence
from both the government and the public, yet it lacks the help of a powerful ally to
withstand the pressures that it faces.
Independence from what? - Not all forms of influence over judicial decision
making constitute threats to judicial independence. Whereas some activities aimed at
influencing courts, such as bribery and intimidation, may be inappropriate under any
plausible conception of judicial independence, others can be evaluated only on the basis of
contestable normative judgments. In the case of public protests in front of courthouses, for
example, one view might be that such protests should be privileged as a form of political
expression and that judges in a democracy are permitted or even obligated to take public
opinion into account. Alternatively, one might take the view that judges should be shielded
from such expressions of public opinion, much as jurors are sequestered, to ensure that
their deliberations are not tainted by considerations that ought to be irrelevant. Likewise, a
public campaign to deny a judge reelection because he has ruled in unpopular ways on
controversial issues can be characterized as either a healthy manifestation of democracy or
as a threat to judicial independence.
Whether such efforts to influence judicial decision making are consistent with
judicial independence cannot be answered by fiat. Defining the requirements of judicial
independence in such cases demands instead a normative theory of what courts are
supposed to take into account when deciding cases, what judicial independence is supposed
to achieve, and to what extent judicial independence can and should be balanced against
other objectives and considerations.
Independence for what purpose? - Judicial independence is generally considered
a means to an end rather than an end in itself. Most would probably agree that the ultimate
goal can be described as the fair and impartial adjudication of disputes in accordance with
law. If that is indeed the goal, however, then the pursuit of judicial independence is open
to several objections.
One objection is that the goal itself is unattainable, because it rests on a
misconception of the nature of both law and adjudication. It is a commonly held view
among legal theorists that the law is frequently indeterminate and that it is therefore
impossible for judges to decide disputes simply by applying preexisting law. Rather, it is
said, the act of adjudication requires judges to make the very law that they purport to merely
apply. Yet if adjudication necessarily entails lawmaking, then judicial independence does
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not simply protect the ability of judges to decide disputes in accordance with law but
instead licenses them to make and impose whatever laws they see fit, which is a prospect
that many consider incompatible with either the appropriate role of judges in a democracy
or the idea of separation of powers.
7. Relationship of law and justice – The relationship in the context of the Indian
Constitutional ordering
What justice is? and why one wants access to it? are important question which need
to be addressed in introductory part of the literature. Justice is a concept of rightness,
fairness based on ethics, moral, religion and rationality. Laws made by sovereign body
strive for achieving justice to various section of the society; courts are established for
eradicating injustice by reprimanding for violation of this laws and in some cases providing
remedy to aggrieved person
When we talk of Access to justice in its general term, it means that individual”™s
access to court for getting justice. It has some fundamental elements such as identification
and recognition of grievance, awareness and legal advice or assistance, accessibility to
court or claim for relief, adjudication of grievance, enforcement of relief, of course this
may be the ultimate goal of a litigant public.
Justice is important, as it restores a sense of equal citizenship and humanity, forces
acknowledgement of the suffering, and prevents recurrence. To work in order to secure
justice to each and every section of the society is one of the most important goal of a
successful state . In Indian context securing justice to the citizens has been kept on supreme
priority, since constitution is drafted by the peoples which lays down the formation of state
and direct it to do its function keeping in mind basic principles enshrined in the constitution.
Preamble to the Indian constitution also talks about achieving social economic political
justice as its goal.
Constitutional provisions for securing justice
India became free from British rule after a long battle for independence, and finally
we attained our long-awaited desire for self-rule. Our founding father drafted for us basic
rule for governance of the country in the form of constitution. Major task of constitution
assembly was to provide to us a vehicle of national progress which reflects best from past
experience, catering the need of present and also at the same time having enough resilience
to cope up with the demand of coming future.
Framers of the constitution while keeping in mind bitter experience of the past made
ample provisions for achieving social, economic and political justice to all the section of
society, for the same reason they devoted chapters on fundamental right and directive
principle in the constitution. Social justice was the major plank for Dr. Ambedkar, and even
while introducing the draft of Constitution in the Constituent Assembly, he pointed out that
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with this Constitution we are entering the era of “˜one man one vote”™, i.e. political
democracy, but the social democracy seems to be still a goal not very easy to achieve.
The Preamble aims at securing to all citizens Justice: social, economic and political.
Though it is not easy to give a precise meaning of the term justice, by and large, it can be
stated that the idea of justice is equated with equity and fairness. Social justice, therefore,
would mean that all sections of society, irrespective of caste, creed, sex, place of birth,
religion or language, would be treated equally and no one would be discriminated on any
of these grounds. Similarly, economic justice would mean that all the natural resources of
the country would be equally available to all the citizens and no one would suffer from any
undeserved want. Similarly, Political justice entitles all the citizens equal political rights
such as right to vote, right to contest elections and right to hold public office etc.
Fundamental rights mentioned in the third chapter include in its content certain
basic rights which every individual enjoys being a part of free nation, it tries to ensure that
minimum standards that are required for survival with dignity and respect are not taken
away.
Directive principle of state policy were formulated to lay down directives for the
state. In word of Dr. B. R. Ambedkar Because we did not wanted merely a parliamentary
form of Government to the instituted through the various mechanisms provided in the
Constitution, without any direction as to what our economic ideal, as to what our social
order ought to be, we deliberately included the Directive Principles in our Constitution The
word 'strive' which occurs in the Draft Constitution, in judgment, is very important. We
have used it because our intention is even when there are circumstances which prevent the
Government, or which stand in the way of the Government giving effect to these Directive
Principles, they shall, even under hard and unpropitious circumstances, always strive in the
fulfillment of these Directives. That .is why we have used the word 'strive'. Otherwise, it
would be open for any Government to say that the circumstances are so bad, that the
finances are so inadequate that we cannot even make an effort in the direction in which the
Constitution asks us to go.
The judicially enforceable fundamental rights provisions of the Indian Constitution
are set forth in part III in order to distinguish them from the non-justifiable directive
principles set forth in part IV, which establish the inspirational goals of economic justice
and social transformation. It means Constitution does not provide any judicial remedy
when directive principles are not followed but in the word of Dr. Ambedikar
State may not have to answer for their breach in a Court of Law. But will certainly
have to answer for them before the electorate at election time. One of our directive principle
also talks about free legal aid it says, state shall secure that the operation of the legal system
promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal
aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for
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securing justice are not denied to any citizen by reason of economic or other disabilities.
Such provision became part of our constitution keeping in view immense poverty in the
country, where significant portion of population find it difficult to arrange for their basic
needs such as food and clothing, in such situation how could the peoples think of indulging
in costly and time taking litigation when their rights are violated .
Constitution provided for safeguards when the provisions of fundamental right are
violated by the state in the form of right to constitution remedy to move directly to the
Supreme court or High courts under article 32.This is most unique feature of the Indian
Constitution. The provision of the article states that:
(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part [Part-III] is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, whichever may be appropriate, for the enforcement of
any of the rights conferred by this Part.
In the Constituent Assembly Debates Dr. Babasaheb Ambedkar once said, “˜if I am
asked which is the most important provision of the Indian Constitution, without which the
Constitution would not survive I would point to none other than article 32 which is the soul
of the Indian Constitution. In addition to this Constitution includes Article 226 which gives
claimant the opportunity to file suit in high court, when there is a violation of fundamental
right or a right guaranteed by statute.
In our constitution scheme High court and Supreme court have been depicted as
guardian of fundamental right they have been bestowed with power to make void any law
passed by state and union legislature violating any fundamental right as per article 13
enshrined in the constitution.
Inclusive growth demands that all social groups have equal access to the services
provided by the State and equal opportunity for upward economic and social mobility, it is
also necessary to ensure that there is no discrimination against any section of the society.
In India, certain social groups have remained disadvantageous while drafting the
constitution due deliberation was done on the topic and suitable safeguards have been
incorporate
8. Judicial process as influenced by theories of justice - Analysis of selected cases if
Supreme Court where the judicial process can be seen as influenced by theories of
justice
In India from the very old period itself Justice was followed and it was even
considered to be the very embodiment of God itself where its sole mission was to uphold
justice, truth and righteousness. Vedas also demonstrated its deep commitment towards
justice. Manu, Yajnavakya etc also shed light on the nature and quality of justice which
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was followed in the ancient India. With the advent of the Britishers, they followed the
status qou and didn't go for much alteration to the laws enacted by Hindus and Muslims.
But in fact it was during the colonial period, the Britisher's drafted laws embodying
substantial and procedural justice where ideas of rule of law, freedom of persons, civil
liberties, natural justice, and equality were reflected. Later with the enactment of the
Constitution, these became law of the land which is evident from the Preamble, Part III and
IV of the Constitution.
As Cardozo has rightly stated in his book Nature of Judicial Process that a judge
may be influenced by his conscious and subconscious factors in arriving a judgment. And
he may even refer to various theories of justice as propounded by western philosophers
during the same.
Judiciary which is said to be the independent organ of the government has indeed
taken effective efforts to reflect various theories of justice as propounded by various jurists
in their judgments. Such theories of justice includes Bentham's Utilitarian theory of justice,
Hebert Spencer's and Immanuel Kant's theory of liberty of individual, Dwarkin's Rights
Thesis, Rawl's Theory of Justice, Amartya Sen's Idea of Justice, and also Socialist,
Gandhian and natural principles of Justice etc. Hence a brief analysis of the same is stated
below.
I. Rawl's Theory of Justice
Rawl's has propounded the social contract theory and he points out
that “Justice is the first virtue of social institution”•. Rawls theory of justice
which inculcates the issues of liberty, social equality, democracy etc can be
evidently witnessed in Indian judgments.
State of Madras v. Champakam Dwarairaja was the main case on
this point, after which the first amendment to the Constitution followed.
Indira Sawhney v. Union of India was the then landmark judgment
where by reservation of jobs for the backward classes was upheld. The ideas
of equality through protective discrimination for ensuring justice was
further followed in a number of judgments even in the judgments
of Nagaraj v. Union of India and Jurnail Singh v. State of
Gujarat pronounced in the recent past.
The principle of distributive justice, which dates back its origin to
Aristotle and as emphasized by John Rawl has been enshrined in the Indian
Constitution, Articles 142 and 144 along with Part III and IV of the
Constitution. Various judgments discussing environmental issues
highlighted the principles of distributive justice.
Doctrine of Public Trust as upheld in: M.C Mehta v. Kamal Nath
and as followed in The Majra Singh v. Indian Oil Corporation and also
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Polluter Pay principle as laid down by the court in Indian Council for
Enviro-Legal Action v. Union of India and Vellore Citizens Welfare Forum
v. Union of India which forms the fundamentals of environmental law
evolves its base from these principles. Even the landmark Maneka Gandhi
judgment also reflected this principle.
II. Dwarkin's Rights Thesis
Ronald Dwarkin in his book- Rights Thesis, emphasises the
importance of the rights of the individuals. Upholding the common citizen's
right and liberty to hold public meetings on streets and the extent to which
the state could regulate it, Himat Lal K. Shah v. Commissioner of Police [
1973 AIR 87], marked an important decision in upholding liberty ideals of
justice.
The individual's right to dignity was reinforced in:
i. Kharak Singh, [1963 AIR 1295]
ii. Satwan Singh[1967 AIR 1863]
iii. Cooper cases[1970 SCR (3) 530] and
iv. Maneka Gandhi v. Union of India [1978 AIR 597]
was the judgment which marked the paradigm shift towards
ensuring individual dignity even in cases where the right of a person is
affected by a procedure established by law. The judgment also reflected the
principles of dharma and ancient theories of justice of neethi and nyaya.
Judgment thereby also included substantial justice along with procedural
justice. Principles of Due process of Law of U.S Constitution, was thereby
interpreted to the Constitution, under Article 21.
III. Libertarianism And Justice
Libertarianism strongly value for individual liberty and freedom and
relates to the classical liberal traditions of John Locke, David Hume, and
Kant etc. In NALSA[14] judgment, the court referred to Kant's 225 year old
principle of free will and hedonist utilitarianism by Bentham and stated that
in the present case there exists no dichotomy between individual freedoms
as against public good and hence upheld the rights of the third gender
persons. It was followed in Navtej Singh Johar v. Union of India, striking
away the draconian law of section 377 of Indian Penal Code.
In Shayara Bano v. Union of India[(2017) 9 SCC 1], enforcing
equality the instant triple talaq was strucked down by the court and also
in Joseph Shine v. Union of India[ AIR 2018 SC 4898], the Supreme Court
of India in its landmark judgment held that adultery would no longer be a
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criminal offence under Indian law, outstripping 158 year old law of section
497 of Indian Penal Code.
IV. Ulititarian Theory Of Justice
Jeremy Bentham propounded his famous utilitarian theory where he
claims that a law should be enacted with the prime object of providing
maximum justice to the maximum number of people. Public utility is
thereby determined through the hedonistic calculus.
This was portrayed in Olga Tellis v. Bombay Muncipal Corporation
[1985 SCC (3) 545], where Chandrachud. J. applied this doctrine and
explained the concept in the brief statement: ‘Human compassion must
soften the rough edges of justice in all situations’.
The court ruled though the eviction order is valid under Article 14
and 19 of the Constitution, right to life was enlarged to engulf the right to
livelihood as being part of liberty of an individual. Court thereby focused
upon the concept of welfare state.
Referring to the Hume's theory of justice, in Union of India v.
Tulsiram Patel [ 1997 (3) SCC 545], the court underlined that public utility
is the sole origin of legal justice and for a useful legal system, it must adhere
to such rules, even though it may cause injustice in particular cases. In
Bangalore Medical Trust[ AIR 1991 SC 1902] case also the principle of
public utility was pointed out by court in preferring public parks over
hospitals.
V. Amartya Sen's Theory Of Justice
Amartya Sen propounded the Social Choice theory, whereby he
states that a law should be enacted understanding the needs of the society
and should be based on demand of justice. Recent landmark judgment
of Puttuswamy v. Union of India, apart from dealing with privacy it also
dealt with many other aspects. It invoked the writings of Amartya Sen's Idea
of Justice and stated that Political liberties and democratic rights are the
constituent components of development. Chandrachud .J. even overruled
his father's judgment in ADM Jabalpur v. Shivakanth Shukla[20] and
thereby upheld the dissent of Khanna J. and thereby the recognition of right
to life and personal liberty under the Constitution.
In 2010, Pradeshiya Jan Jati Vikas Manch and Others v. State of UP
and Others [AIR 2011 AII 1], referred to Part IV of the Amartya Sen's Idea
of Justice- Public Reasoning and Democracy in ensuring the civil and
political rights of the Scheduled Tribes and person's right to representation
at the grass root level. B.K. Pavitre v. Union of India referred to Amartya
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Sen's Merit and Justice in understanding merit as an instrument in achieving

social ordering and in lessening economic inequality. Court thereby ruled
that providing reservations to SC's and SCT's is not at odds with the
principle of meritocracy. Court ruled that merit must not be limited to
inflexible criteria's such as ranks in exams but seek to provide equality in
the society.
VI. Basic Structure Theory
After the enactment of 24 th, 25th, 26th and 29th amendments of the
Constitution, their validity was challenged on authority of Golak Nath
[1967 AIR 1643] Judgment in Keshavanda Bharathi v. State of Kerala[
(1973) 4 SCC 225]. But Golak Nath was overruled and the basic structure
doctrine was upheld by the judiciary where the basic structure has not been
still defined and is enlarged to include many of the rights of the individuals
which cannot be abrogated by the Parliament. Indira Nehru Gandhi v. Raj
Narain [1975 AIR 865] upheld the independence of judiciary in dispensing
justice and held that judicial review is a basic feature of the constitution.
Consequently after 1976, Supreme Court took considerable efforts
to bring a new egalitarian order in furtherance of Directive Principles of
State Policy. Thus in Minerva Mills [ AIR 1980 SC 1789], court underlined
that Part III and IV of the constitution is like a twin formula for achieving
the social revolution.
VII. Gandhian Theory of Justice
It is based on the principles of truth, equality and social justice. The
concept of Lok Adalath is an innovative Indian contribution to the world
jurisprudence and it is based on the Gandhian principles. It was so held in
the case of M.P State Legal Service Authority v. Prateek Jain [(2014) 10
SCC 690]
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