The Nature of the Judicial Process

(Project towards partial fulfilment of the internal assessment in the subject of

Jurisprudence)

Submitted By: Submitted To:

Anshu Goyal Mr. Alexander. D. Samuel

Roll no. 882 Faculty of Law

II semester National Law University,

B.Sc. LL.B (Hons) Jodhpur

NATIONAL LAW UNIVERSITY, JODHPUR

(January- May 2012)

TABLE OF CONTENTS

Acknowledgement…………………………………………………………………….……….4

Research Methodology………………………………………………………………………...5

Introduction……………………………………………………………………………………8

Chapter 1: The method of philosophy………………………………………………………..10

Chapter 2: The method of history, tradition and sociology …………………………………14

Chapter 3: The judges as a legislature…………………………………………………………16

Chapter 4: Adherence to precedent……………………………………………………………20

2

Indian judicial process: a critique……………………………………………………………......22

Conclusion……………………………………………………………………………………….31

References……………………………………………………………………………………….33

3

Acknowledgement

We would like to thank our Jurisprudence teacher Mr. Alexander. D. samuel, for his constant

support and guidance. First of all, we would like to thank his for giving us an opportunity for

doing a project on this topic. Secondly, we would like to thank his for guiding us throughout and

making our path clear when we were in doubt. She not only cleared our doubts but also made us

learn with each further step that we took in this project.

Next, we would like to extend our gratitude towards the engineers of the university for providing

us a round the clock access to the Internet without which this research could not have taken a

concrete form and also the library staff which proves to be the lifeline of any academic work.

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RESEARCH METHODOLOGY

Subject: Jurisprudence

Topic: The Nature of the Judicial Process

Broader area: Judicial Process

Objective: A lawyer, whether academic or professional, is expected to be competent to analyses

and evaluate the legal process from a broader juristic perspective. The objective of this project is

to study the nature of judicial process as an instrument of social ordering. It is projected to

highlight the role of court as policy maker, participant in the power process and as an instrument

of social change. This project further intends to expose the details of judicial creativity and the

judicial tools and techniques employed in the process. Since the ultimate aim of any legal

process or system is pursuit of justice, a systematic study of the concept of justice and its various

theoretical foundations is required. This project, therefore, intends to with various theories,

different aspects and alternative ways, of attaining justice.

Geographical Indications: The scope of this research paper is heading deal with judicial

institutions and processes and Indian judicial process critique.

Sources:

5

1. Library, National Law University, Jodhpur

2. World Wide Web

Chapterisation:

The Method of Philosophy: The first lecture lays out a philosophical method. In this explores

the implications of Constitutional priority as well as the principle of stare decisis. ‘Stare decisis

is at least the everyday working rule of our law.' Cardozo is well aware of judicial power, be it in

the Supreme Court or the lower courts. 'Every judgment has generative power,' he wrote, 'it

begets in its own image.' However, precedent is not all powerful, and a good dose of reason and

logic must be present in decision making.

The Methods of History, Tradition and Sociology: In his second lecture, Cardozo looks at the

issues of history, tradition and sociology in the judicial process. These all speak to the way in

which society influences and shapes what kinds of judicial decisions and processes are needed.

The Judge as a Legislator: The third lecture develops this further, even going so far as to have

the subtitle 'The Judge as Legislator.' This goes to the heart of one of the principles heavily in

debate in the current Supreme Court and lower court selections. However, this kind of 'judicial

activitism' is not the sole province of one political side or the other.

Adherence to Precedent: Late in the third and throughout the fourth lecture, Cardozo looks at

the issue of the subconscious or unconscious development of law and process for judges. This

happens in legislation, too, Cardozo argues - when laws are examined in judicial settings, their

dissection often reveals unintended and unknown aspects.

6

Indian judicial process: a critique

Critical Reception:

It is generally agreed that Cardozo's enduring reputation will rest on his contribution to the

modernization of legal principles. Through his progressive interpretation of the law, and of the

judicial function itself, Cardozo helped to make public policy more responsive to changing social

values and interests. Renowned for his legal erudition, cultured outlook, and literary style, he is

also widely praised for his open mindedness and fairness. While not all legal scholars have

agreed with his analysis of the judicial process, none have denied the spirit of compromise with

which he undertook his investigation.

7

Introduction:

In The Nature of the Judicial Process, Cardozo is concerned with the sources of common law:

how do judges decide cases; what counts as justification for decisions that rest uneasily, if at all,

on precedent and that are not required by a written text? Although evidently struck by the power

common-law judges exercise in such situations, Cardozo was not moved to question the

legitimacy of that power. Instead, he considered it sufficient to explain and classify the various

methods courts use in reaching decisions.

Cardozo illustrates how judges are unique in many ways and also illustrates how they must be

open to change, while educating themselves about their individual inclinations and opinions. No

additional sources cited. This predominantly descriptive approach assumes, among other things,

that judges ought to make the common-law, that is, ought to fashion principles and policies into

standards of decision. Cardozo's assumption remains the conventional understanding: while we

may disagree strongly with particular decisions, we rarely question the authority of common-law

courts, even in pivotal cases. Judicial review is another matter. Almost every important case that

displeases some sizeable group leads to questions about the legitimacy of the famous doctrine

proclaimed in Marbury v. Madison.1 To speak only of the recent past, it was some sixteen years

after publication of The Nature of the Judicial Process that judicial review of New Deal

legislation brought the executive and the Supreme Court into direct confrontation.2 More

recently, the segregation,3 reapportionment, and abortion cases4 have provoked very serious

attacks on the Court. In addition, the attempt to find a justification for judicial review is again

1 5 U.S. (1 Cranch) 137 (1803).2 See R. JACKSON, THE STRUGGLE FOR JUDICIAL SUPREMACY (1941); Lerner, The Great ConstitutionalWar, 18 VA. Q. REV. 530 (1942); Leuchtenburg, The Origins of Franklin D. Roosevelt's"Court-Packing" Plan, 1966 SUP. CT. REV. 347.3 Brown v. Board of Educ., 347 U.S. 483 (1954).4 Doe v. Bolton, 410 U.S. 179 (1973); Roe v. Wade, 410 U.S. 113 (1973).

8

engaging the attention of several of our prominent constitutional scholars, even as it did an

earlier generation some twenty years ago. This difference in attitudes toward constitutional and

common-law adjudication is fostered by a popular and influential view of our legal and political

landscape. We tend to think of courts at common law as acting because the legislature has not

and as making law the legislature can unmake. When statutes are involved, we see our courts

either as effectuating legislative will or, through an occasional misreading of legislative intent, as

producing an incorrect decision that can be remedied easily by a legislativereform. But in

picturing judicial review, we imagine Justices appointed for life permanently thwarting the will

of the people by striking down the work of their elected representatives.

9

CHAPTER 1

The Method of Philosophy

The first lecture lays out a philosophical method. In this explores the implications of

Constitutional priority as well as the principle of stare decisis. ‘Stare decisis is at least the

everyday working rule of our law.' The method of philosophy comes in competition, however,

with other tendencies which find their outlet in other methods. One of these is the historical

method, or the method of evolution. The method of philosophy finds itself sometimes supported

by and sometimes in competition with the method of history and tradition, which on occasion

gives origin to the legal doctrine which philosophy develops, and on occasion restricts its

philosophical development within the limits of hits history. And finally there is the method

which turns the directive force of principle along the lines of justice, morality, and moral and

social welfare; in short, the method of sociology. The tendency of a principle to expand itself to

the limit of its logic may be counteracted by the tendency to confine itself within the limits of its

history. A classification which treats them as distinct is, doubtless, subject to the reproach that it

involves a certain overlapping of the lines and principles of division. Very often, the effect of

history is to make the path of logic clear.5 Holmes has the same thought:6"If we consider the law

of contract," he says, "we find it full of history. The distinctions between debt, covenant and

assumpsit are merely historical. The classification of certain obligations to pay money, imposed

by the law irrespective of any bargain as quasi-contracts, is merely historical. The doctrine of

consideration is merely historical. The effect given to a seal is to be explained by history alone."

5 Cf. Holmes, "The Path of the Law," 10 Harvard L. R. 465.6 "The Path of the Law," 10 Harvard L. R. 472.

10

The powers and functions of an executor, the distinctions between larceny and embezzlement,

the rules of venue and the jurisdiction over foreign trespass, these are a few haphazard

illustrations of growths which history has fostered, and which history must tend to shape. If

history and philosophy do not serve to fix the direction of a principle, custom may step in. When

we speak of custom, we may mean more things than one. "Consuetudo," says Coke, "is one of

the maine triangles of the lawes of England; these lawes being divided into common law, statute

law and customs." Here common law and custom are thought of as distinct. Not so, however,

Blackstone: "This unwritten or Common Law is properly distinguishable into three kinds: (1)

General customs, which are the universal rule of the whole Kingdom, and form the Common

Law, in its stricter and more usual signification. (2) Particular customs, which for the most part

affect only the Inhabitants of particular districts. (3) Certain particular laws, which by custom are

adopted and used by some particular courts of pretty general and extensive jurisdiction."7 It is,

however, not so much in the making of new rules as in the application of old ones that the

creative energy of custom most often manifests itself today. General standards of right and duty

are established. Custom must determine whether there has been adherence or departure. My

partner has the powers that are usual in the trade. They may be so well known that the courts will

notice them judicially. Such for illustration is the power of a member of a trading firm to make

or indorse negotiable paper in the course of the firm's business.8 They may be such that the court

will require evidence of their existence.9The master in the discharge of his duty to protect the

servant against harm must exercise the degree of care that is commonly exercised in like

7 Blackstone, Comm., pp. 67, 68; Gray, "Nature and Sources of the Law," p. 266, sec. 598; Sadler, "The Relation of Custom to Law," p. 59.

88. Lewy v. Johnson, 2 Pet. 186

9 First Nat. Bank v. Farson, 226 N. Y. 218.

11

circumstance by men of ordinary prudence. The triers of the facts in determining whether that

standard has been attained, must consult the habits of life, the everyday beliefs and practices, of

the men and women about them. Innumerable, also, are the cases where the course of dealing to

be followed is defined by the customs, or, more properly speaking, the usages, of a particular

trade or market or profession. The constant assumption runs throughout the law that the natural

and spontaneous evolutions of habit fix the limits of right and wrong. Then he speak first of the

constitution, and in particular of the great immunities with which it surrounds the individual. No

one shall be deprived of liberty without due process of law. Here is a concept of the greatest

generality. Yet it is put before the courts en bloc. Liberty is not defined. Its limits are not mapped

and charted. How shall they be known? Does liberty mean the same thing for successive

generations? May restraints that were arbitrary yesterday be useful and rational and therefore

lawful today? May restraints that are arbitrary today become useful and rational and therefore

lawful tomorrow? I have no doubt that the answer to these questions must be yes. There were

times in our judicial history when the answer might have been no. Liberty was conceived of at

first as something static and absolute. The Declaration of Independence had enshrined it. The

blood of Revolution had sanctified it. The political philosophy of Rousseau and of Locke and

later of Herbert Spencer and of the Manchester school of economists had dignified and

rationalized it. Laissez faire was not only a counsel of caution which statesmen would do well to

heed. It was a categorical imperative which statesmen, as well as judges, must obey. The

"nineteenth century theory" was "one of eternal legal conceptions involved in the very idea of

justice and containing potentially an exact rule for every case to be reached by an absolute

process of logical deduction."10 Cardozo is well aware of judicial power, be it in the Supreme

Court or the lower courts. 'Every judgment has generative power,' he wrote, 'it begets in its own

10 Pound, "Juristic Science and The Law," 31 Harvard L. R. 1047, 1048

12

image.' However, precedent is not all powerful, and a good dose of reason and logic must be

present in decision making.

Cardozo saw logic as key to the very idea of law. Absent another relevant case “the method of

philosophy must remain the organon of the courts if change and favor are to be excluded, the

afire of the men are to be governed with the serene and impartial uniformity which is as the

essence of the idea of law. Only a strong argument made on the history, tradition or justice

should overcome the presumption the favor of logic as the governing method of decision

making. In defending the method of logic, Cardozo also clarify his goal. Judges need to use

disciplined method in order to avoid tainting justice with “chance and favor” and in order to

achieve a “serene and impartial uniformity.” Cardozo postulate the importance of rules of law.

Cardozo ended the first lecture on a tantalizing note. Sometime he conceded logical elaboration

of principle appear. Thus the first lecture left Cardozo’s listeners with a general statement of

sources of judicial making. It also left them, no doubt, with the hope that subsequent lecture

would be explain those sources with greater specificity. This was rarer opportunity for students

who have never heard a judge explain his work, and the reputation that Cardozo has brought to

the occasion was enhanced by the oratorical persuasiveness of his delivery.

CHAPTER 2

The Methods of History, Tradition and Sociology

13

Lecture two was entitled “method of history, tradition and sociology” it began with the

comparison of the method of logic and the method of history, the former seen as an effort on

pure reason, the latter involving the investigation of origin. Using the law of real property,

especially the land tenure system as an example, he demonstrated that sometime it was

impossible to understand legal principal without knowledge of history. In general, however, the

method of history prevailed over other methods only in those case that turned on “concept of law

have been in peculiar sense historical growth.” History was a useful source but not a dominant

factor. Cardozo then turned briefly to custom and tradition as an aid the fixing the direction of

the principle, but he did not find custom, especially in modern times, to be a very useful source

of assistance. To be sure the customary degree of care exercised in certain circumstances by

person of ordinary prudence may be consult in order to elaborate the meaning of due care. So too

in world of the commerce new practices that develop from business necessity are recognized that

custom in law. But in general “we look to custom, not so much the creation of the new rules, but

for the tests and the standards that are to determine how establish rules shall be applied” at this

point Cardozo referred quit casually and briefly to the important topic of the relation of the

judges of the legislator. “When custom seeks to do more then

Cardozo looks at the issues of history, tradition and sociology in the judicial process. These all

speak to the way in which society influences and shapes what kinds of judicial decisions and

processes are needed. The third lecture develops this further, even going so far as to have the

subtitle 'The Judge as Legislator.' This goes to the heart of one of the principles heavily in debate

in the current Supreme Court and lower court selections. However, this kind of 'judicial

activitism' is not the sole province of one political side or the other. Cardozo writes, 'sometimes

the conservatism of judges has threatened for an interval to rob the legislation of its efficacy.'

14

However, in speaking of the role of judge as legislator, Cardozo states, 'he legislates only

between gaps. He fills the open spaces in the law. How far he may go without traveling beyond

the walls of the interstices cannot be staked out for him upon a chart.' Cardozo argues that this is

far from a new way of thinking, and that this is precisely how the great tradition of the common

law developed.

CHAPTER 3

The Judge as a Legislator

15

The third lecture develops this further, even going so far as to have the subtitle 'The Judge as

Legislator.' This goes to the heart of one of the principles heavily in debate in the current

Supreme Court and lower court selections. However, this kind of 'judicial activitism' is not the

sole province of one political side or the other. The truth is that there is no branch where the

method is not fruitful. Even when it does not seem to dominate, it is always in reserve. It is the

arbiter between other methods, determining in the last analysis the choice of each, weighing their

competing claims, setting bounds to their pretensions, balancing and moderating and

harmonizing them all. Few rules in our time are so well established that they may not be called

upon any day to justify their existence as means adapted to an end. If they do not function, they

are diseased. If they are diseased, they must not propagate their kind. Sometimes they are cut out

and extirpated altogether. Sometimes they are left with the shadow of continued life, but

sterilized, truncated, impotent for harm. The method of philosophy finds itself sometimes

supported by and sometimes in competition with the method of history and tradition, which on

occasion gives origin to the legal doctrine which philosophy develops, and on occasion restricts

its philosophical development within the limits of hits history. And finally there is the method

which turns the directive force of principle along the lines of justice, morality, and moral and

social welfare; in short, the method of sociology.

“It is the arbiter between other methods, determining in the last analysis the choice of each,

weighing their competing claims, setting bounds to their pretensions, balancing and moderating

and harmonizing them all” means on line is that It is the admirable discussion of the interplay

and of the action and reaction of history, logic and the judge’s view of right and social need –

the essential elements in the judicial process, which take place in the making of the relatively

rare dynamic or “interstitial” precedent – which makes this book such stimulating reading and

16

such an effective provocative of reflective thinking. One could wish that the author had

expanded his concise and lucid statement of fundamentals with a wealth of illustration showing

where again and again in the history of the law doctrines with an historical origin and sometimes

with a philosophical basis have been finally rejected on sociological grounds or how a doctrine

of historical origin and without any purely logical justification has been retained because of its

social utility. And alas, how many are the instances where rules socially inconvenient and

burdensome have been perpetuated and expanded because of a defective philosophy or too great

a reverence for history; but this book contains well-chosen examples illustrating all of these

phases of legal development and sufficient in number to prove the author’s thesis. Let us quote

him in summarizing the procedure by which the sociological method is to moderate the demands

of philosophy and of history.

“My analysis of the juridical process comes then to this, and a little more: logic, and history, and

custom, and utility, and the accepted standards of right conduct, are the forces which singly or in

combination shape the progress of the law. Which of these forces shall dominate in any case,

must depend largely upon the comparative importance or value of the social interests that will be

thereby promoted or impaired.11 One of the most fundamental social interests is that law shall be

uniform and impartial. There must be nothing in its action that savors of prejudice or favor or

even arbitrary whim or fitfulness. Therefore, in the main there shall be adherence to precedent.

There shall be symmetrical development, consistently with history or custom when history or

custom has been the motive force, or the chief one, in giving shape to existing rules, and with

logic or philosophy when the motive power has been theirs. But symmetrical development may

11 Vander Eycken, "Methode Positive de FInterpretationjuridique," p. 59; Ehrlich, "Die juristische Logik,"p. 187.

17

be bought at too high a price. Uniformity ceases to be a good when it becomes uniformity of

oppression. The social interest served by symmetry or certainty must then be balanced against

the social interest served by equity and fairness or other elements of social welfare. These may

enjoin upon the judge the duty of drawing the line at another angle, of staking the path along new

courses, of marking a new point of departure from which others who come after him will set out

upon their journey”

It would be exceedingly difficult to state in more admirable fashion the part which the judge’s

notions of social utility may properly play in the judicial process, and we find ourselves in

cordial agreement with it. But can we dignify this procedure by terming it in any proper sense a

“method”? Has sociological jurisprudence any formulae or any principles which can be taught or

expounded so as to make it a methodical guide either to the student of law or to the judge? Judge

Cardozo deals with this aspect of the matter with characteristic frankness.

In short the method of sociology is the method which the wise and competent judge uses in

rendering the dynamic decision which makes the law a living force. Hardwick, Mansfield and

Marshall employed it long before the phrase “sociological jurisprudence” was thought of. The

weak and incompetent judge cannot use it and indeed in his hands it is a dangerous instrument,

for the only guide for its use is judicial wisdom. A vast deal has been written in recent years

about sociological jurisprudence until it has become the fashion to refer to it glibly as though it

were a cure for all the ills that our legal system is heir to. One who reads attentively Judge

Cardozo’s restrained and discriminating analysis will gain no illusion that the method affords

any positive formula or guide which can ever make it a panacaea. At most its value is negative. It

18

warns the judge and the student of law that logic and history cannot and ought not to have full

sway when the dynamic judgment is to be rendered. It points out that in the choice of the

particular legal device determining the result – social utility – the mores of the times objectively

determined may properly turn the scale in favor of one and against the other, and it should lead

us as lawyers and students of law to place an appropriate emphasis on the study of sociological

data and on the effort to understand the relation of law to them, because by that process we may

lay the foundation for a better understanding of what social utility is and where in a given case

the path of social utility lies. But sociological jurisprudence will never tell us how to ascertain in

any way, except by the exercise of a wise judgment, where the course of social utility lies or

what the mores of our times are. The capacity to do that and to give them their appropriate place

in judicial decision finds expression in the wisdom which characterizes the decision of the great

judge and distinguishes him from his inferior brethren.

CHAPTER 4

Adherence to Precedent

19

Late in the third and throughout the fourth lecture, Cardozo looks at the issue of the

subconscious or unconscious development of law and process for judges. This happens in

legislation, too, Cardozo argues - when laws are examined in judicial settings, their dissection

often reveals unintended and unknown aspects. The judicial process in the vast number of cases

which find their way to appellate courts is well understood. It consists in the sifting and analysis

of facts and the application to them of accepted rules or doctrines of law. This is the function the

performance of which absorbs for the most part the work-a-day life of the judge, a fact that

should be emphasized in an attempt to analyze that process with any due sense of proportion.

This the author clearly recognizes. He says:

“In what I have said, I have thrown, perhaps too much, into the background and the shadow, the

cases where the controversy turns not upon the rule of law, but upon its application to the facts.

Those cases, after all, make up the bulk of the business of the courts. They are important for the

litigants concerned in them. They call for intelligence and patience and reasonable discernment

on the part of the judges who must decide them. But they leave jurisprudence where it stood

before. As applied to such cases, the judicial process, as was said at the outset of these lectures,

is a process of search and comparison, and little else. We have to distinguish between the

precedents which are merely static, and those which are dynamic. Because the former outnumber

the latter many times, a sketch of the judicial process which concerns itself almost exclusively

with the creative or dynamic element, is likely to give a false impression, an over colored

picture, of uncertainty in the law and of free discretion in the judge. Of the cases that come

before the court in which I sit, a majority, I think, could not, with semblance of reason, be

decided in any way but one”. Means that Precedent is dynamic when it limits or overrules

precedent which is static, that is, the precedent which expresses an established rule, or when it

20

fills in the gaps of the law in those cases where judges, as Mr. Justice Holmes puts it, “legislate

interstitially.” It is the dynamic precedent, therefore, which is the constructive force in law,

bearing within itself the germ of the growth and adaptability of law the mores of the times. The

skill with which the judicial process is applied in creating it will determine whether law is to

move toward or away from the ideal of social utility. But it is nevertheless in the rendering of the

dynamic judgment that the judicial process is not so clearly discerned. Hence it is the dynamic

precedent with which this little book is mainly concerned.

Judge Cardozo does not share in in the opinion finding expression in current discussion, that the

rule of adherence to precedent ought to be abandoned altogether. He believes that adherence to

precedent should be the rule and not the exception, but he also believes

“. . . that when a rule, after it has been duly tested by experience, has been found to be

inconsistent with the sense of justice or with the social welfare, there should be less hesitation in

frank avowal and full abandonment. We have had to do this sometimes in the field of

constitutional law.12 Perhaps we should do so oftener in fields of private law where

considerations of social utility are not so aggressive and insistent. There should be greater

readiness to abandon an untenable position when the rule to be discarded may not reasonably be

supposed to have determined the conduct of the litigants, and particularly when in its origin it

was the product of institutions or conditions which have gained a new significance, or

development with the process of the years”.

Indian judicial process: a critique

12 Klein v. Maravelas, 219 N. Y. 383.

21

The ideal notion of the rule of law can be traced in ancient Indian legal system which laid greater

emphasis on the duty, by making the king as the head of administration . Dharma in ancient India

did not denote any kind of religion or right but only the performance of the duties13 .

Everyone  had to perform his  assigned  Dharmas (Duties) .The duties assigned to the king was

known as Rajadharma which was a combination of several Dharmas , hence it  was considered as

very pious and supreme Dharma. Although the king was the fountain head of the administration

of justice, his powers were limited by the norms of Rajadharma . He neither could impose

arbitrary taxes nor could favour his relatives, and if he deviated from the performance of the

norms of Rajadharma , the  punishment prescribed for him was thousands times more than an

ordinary individual . There was no distinction between weaker and stronger and the weaker was

able to prevail over stronger with the assistance of the king if his rights or liberty was

encroached. This duty approach setup of Rajadharma was distorted with the coming of the

Moughals and subsequently after the coming of Britishers.

CRATALOGICAL ANALYSIS OF ANCIENT JUDICIAL PROCESS:

 If we analyse the ancient legal system on the basis of power spectrum , we can say that  all six

power spectrum bands are balanced in equilibrium to give a just legal system  because head

count was satisfied with a very high degree, time count was also satisfied because of quick

contemporary judgments, ethical count is satisfied because law (Dharma) was the shared

conviction of the society having maximum social and moral values , coercion band is satisfied

because Praja (people) and Prajapalak(king) both were to follow the dharma in their conduct,

interest  and influence count is satisfied because vesting of power was in depersonalised manner 13  “Dharma” is that which upholds, nourishes or supports the stability of the society, maintains the social order and secures the general well-being and progress of mankind” M. Rama jois, LEGAL AND CONSTITUTIONAL HISTORY OF INDIA: Ancient Legal, Judicial and Constitutional System”, Universal Law Publishing Co. Pvt. Ltd p 25 .

22

avoiding the arbitrariness and king was subordinate to the Rajadharma, besides it  just upholding

the interest of the public and having positive influence to mass was the rule.

 

JUDICIAL PROCESS IN MODERN INDIA

 

After independence India adopted a normative constitution . The present Indian judicial process

is governed by British imposed adversary system even though there is no mention of it in the

constitution . Main attributes of this system can be understood under following heads:–

(i) ACCESS TO JUSTICE

The term access to justice is variable according to the variation of the definition of

justice, earlier access to justicemeant merely  the aggrieved individuals formal right to litigate or

defend a claim but now it means an equal right of havingrecourse to an affordable, quick,

satisfactory settlement of disputes from a credible forum.14 Modern access to justice can

categorized into formal and informal access to justice. The formal access to justice is basically

adjudication of disputes by the courts which follow the rules of Civil and Criminal

Procedure. Whereas informal access to justice includes alternative modes of dispute resolution

such as Arbitration, Conciliation, Mediation, Lok adalats and Nyaya-Panchayats , which are

merely of supplementary nature to the court system . They are not bound by the provisions of

C.P.C and I.P.C but has to follow the principles of natural law. Informal and formal modes of

justice both are against the principles of parity of law devised by Article 14 of the constitution,

because in informal modes of access to justice one has to often compromise with his legal rights

14 P P Rao, Access to Justice and delay in disposal of cases, Indian Bar Review, vol-30, 2003, p 208

23

in interest of time, cost of money etc. which is very much against the gurantee of Article 14 and

duty imposed on state therein .

 

(ii) HURDELS IN ACCESS TO JUSTICE: Formal modes of access to justice also has many

drawbacks which are discussed below-

 

1.      Law of limitation15: The aggrieved person has to satisfy first of all that his suit is not barred by

the law of limitation act 1963 and if barred by law of limitation the judge may or may not

entertain his suit . Thus it is absolutely denial of Article 14 which imposes unqualified duty on

state to provide equal protection of laws , and is anathema to any kind of arbitrariness . Law of

limitation is nothing but a restatement of exploiting British imposed law of limitation act , thus it

is also hit by Article 13(2) .

2.      Court fees: With the institution of the suit a court fees is required which is determined by the

court according to the provisions of the court fees act of 1870, and on  failure to pay the court

fees or postal charges  the suit may be dismissed16. This high cost of court fees compels the

litigants to abandon their just claims and defences. Here justice is not given but sold . Thus  court

fees act is unconstitutional under Article 13(2) read with Article 14, which was originally a

method of raising fund and exploitation by ruler on ruled so that there can be less accountability

of the state .It also does not satisfy the ethical, time and other essentials of the power spectrum.

3.    Advocacy : Advocates are inseparable part of the adversarial system , wherein the role of judge

is like a referee who decides the case on account of the performance of the both

parties  advocates . He never intends to provide the justice by bringing the truth , but to award

15 O-vii R – 6 of Civil Procedure Code 1908 .16 Ibid O- ix R 2 .

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the best competitor . Thus in this situation , the determining factor for the judicial process and

justice is the competency of lawyer which depends upon the financial capacity of the party ,

which results in absolute denial of the parity of power guaranteed by Article 14.

4.    Procedural hurdles: After institution of the suit the aggrieved person has to go through the

procedures of C.P.C or Cr.P.C which does not reflects the values of the constitution but the

values chosen by the colonial masters.

(iii) DELIVERY OF JUSTICE

Delivery of justice is basically the part and parcel of the executive branch of the

government popularly identified as the access to justice through administrative authorities.

Article 256 gives a supervisory power to the union over state for compliance of laws, and Article

356 read with Article 365 is the consequential result for non compliance of constitutional

obligations by the state .

 

But when the executive fails to perform his duty , the courts venture to deliver justice as a

corrective measure. Article 14 casts a duty on the state which also includes judiciary to provide

justice by giving equal protection of laws to all its citizens . But it has been seen that on many

occasions judiciary has failed to provide the justice according to the provisions of constitution

and statutes. It’s analysis can be done through following

CASE ANALYSIS 

 By the help of case analysis we easily understand the nature of judicial process in India:

S.C. Advocates- On- Record Association  v/s  Union of India17 

17 AIR 1994 SC 268

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FACTS: In this case a class petition was filed by the petitioner with regard to filing of the

vacancies in Supreme Court and high courts. The issue in this case was with regard to the role of

chief justice of India in appointment, transfer and fixation of number of judges in Supreme Court

and high courts.

 

JUDGMENT : Supreme court held that –

 

1.  The initiation for the appointment of the judges in supreme court and High courts shall be

taken  by a collegiums, wherein decision be taken by the chief justice of India after consultation

with two senior most judges of supreme court . The President in matter of appointment of

supreme court and high court Judges, is bound by the opinion of the chief justice of India , and

the term consultation  used in Article 124(2) and Article 217(1) means concurrence.

 

2. The opinion of chief justice of India does not have mere primacy but is determinative in the

matter of transfer of judges of high courts under Article 222.

 

3. Number of judges in high courts is sufficient but Supreme Court is empowered to order the union

to constitute a committee in future for fixation of number of judges. 

 

CRITICAL ANALYSIS OF THE JUDGMENT: 

 This case is criticised on the following grounds –

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(1) Supreme court has destroyed the power arrangement envisaged by the constitution, the

Grund-norm of the country. It has exercised its authority beyond the power conferred by the

court. The term consult cannot be interpreted as concurrence. Power lies in President, what is

required is only that he shall consult to the chief justice in case of appointment of a Supreme

Court judge. In case of appointment of a high court judge he is required to consult such number

of high court and supreme court judges as it deem fit . our constitution is a normative

constitution based on check and balance of powers among three branches of the government,

which has been destroyed by this  per-inquirium judgment . No doubt the Supreme Court is

given the inherent power to render justice under art 142 but that power is only for approximation

of is to ought within the parameter of the constitution and statute, not to override the constitution

or statute.

(2) Making consultation as concurrence amount to amendment in the constitution without the

procedure established by the constitution.

(3) Article 222 says that President may after consultation with chief justice of India transfer a

high court judge. it means that the president is not bound by the opinion of the C.J.I , Thus

the statement that the opinion of chief justice of India does not have mere primacy but is

determinative in the matter of transfer of high courts judges ,is per inquirium .

(4)  Determination of the number of judges in courts falls within the domain of the executive, not

of the judiciary.

 

Thus we see that this judgment does not stand the test of constitutionality being an arbitrary, per

inquirium decision, in violation of the art 14 and render the judges liable for punishment under

section 166 of I.P.C for deliberately violating the provisions of constitution . 

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Kasturilal v State of  U.P18 

 

FACTS : in this case the appellant was apprehended by police and some silver and gold were

seized and deposited by the police in police Malkhana, from where the Gold was

misappropriated by a constable who fled to the Pakistan .

 

JUDGMENT: The court held depositing of gold by police , in police Malkhana is a soverign

function and hence the government is not liable for the misappropriation of the gold.

 

CRITICAL ANALYSIS:  : this was an  absolutely wrong  judgment because –

 

1.  The court found that there was gross negligent on part of police authorities but it failed to punish

the wrong authorities under section 166 of I.P.C.

2. Neither keeping Gold in Malkhana nor its misappropriation amount to the sovereign function ,

sovereign function are those function which can be performed by the state only in comparison to

a private person .

3. Even if keeping gold was a sovereign function of the state , the state(judiciary)  is duty bound to

give Restitutive justice under Article 14 . The court also failed to take judicial notice of law of

tort under sec 57(1) of Indian Evidence Act 1872, that where there is infringement of a legal

right there exists  remedy . Thus in this case there was absolute denial of justice. Dhananjoy

Chatterjee alias Dhana  v  State of West Bengal and Ors19  

18 AIR 1962 SC 93319 (2004) 9 SCC 751

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FACTS:  The Petitioner  filed an appeal against  the death penalty awarded by Calcutta high

court for committing an offence under section 376 and 302 of I.P.C  against a minor girl.

 

JUDGMENT : The court held that the act of petitioner amounts to the rarest of rare case and

hence is liable for death penalty.

 

CRITICAL ANALYSIS :

 

1. According to Article 21 , No person shall be deprived from his personal life and liberty

except procedure established by ‘law’ and that Law must be just, fair and

reasonable. Where a death penalty is given to a person, he cannot exercise the

rights under Article 19(1)(a) to( g), because it amounts to the absolute restriction on those

freedoms which is unconstitutional because law requires only reasonable restriction on

those freedoms on grounds prescribed under Article 19(2) to (5). Besides it section 302 of

I.P.C is a pre constitutional law which is also hit by the art 13(2) of the constitution.

2. Doctrine of rarest of rare case does not have the quality of predictability according to law

but life of a person is kept at the sweet will of the judge which is against the rule of law

envisaged by the constitution under Article 14.

3. Petitioner was given double punishment for the same offence in violation of the art 20(2)

first punishment he faced was 14 years living in jail under death row and second was the

capital punishment itself .

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 Examples of gross constitutional faults can also be seen in Ramjawaya kapoor20,

A.K.Gopalan21 , Champakam Dorairajan cases.

20 Ram Jawaya Kapoor v. State of Punjab, AIR 1955 SC 54921 AK Gopalan v. State of Madras, AIR 1950 SC 27

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CONCLUSION

Summarizing his philosophy, Cardozo stated, "My analysis of the judicial process comes then to

this, and little more: logic, and history, and custom, and utility, and the accepted standards of

right conduct, are the forces which singly or in combination shape the progress of the law. Which

of these forces shall dominate in any case, must depend largely upon the comparative importance

or value of the social interests that will be thereby promoted or impaired. One of the most

fundamental social interests is that law shall be uniform and impartial. There must be nothing in

its action that savors of prejudice or favor or even arbitrary whim or fitfulness. Cardozo's

philosophy and thinking on the nature of the judicial process may not be to everyone's liking, but

it has a strong place and influence in modern American judicial practice, and is presented in

terms clear enough to make interesting reading even for those outside the legal profession. The

judicial process theories articulated by Holmes and Cardozo do not necessarily add to what we

already understand about legal realism. However, these two pieces do add to our understanding

of the judicial process. They offer a judicial perspective regarding the ways in which judges have

been, and ought to be, necessary contributors to the progression of the law. The work of a judge

is in one sense enduring and in another sense ephemeral. What is good in it endures. What is

erroneous is pretty sure to perish. The good remains the foundation on which new structures will

be built. The bad will be rejected and cast off in the laboratory of the years. Little by little the old

doctrine is undermined.

Often the encroachments are so gradual that their significance is at first obscured. Finally we

discover that the contour of the landscape has been changed, that the old maps must be cast

aside, and the ground charted anew. The process, with all its silent yet inevitable power, has been

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described by Mr. Henderson with singular felicity:22 "When an adherent of a systematic faith is

brought continuously in touch with influences and exposed to desires inconsistent with that faith,

a process of unconscious cerebration may take place, by which a growing store of hostile mental

inclinations may accumulate, strongly motivating action and decision, but seldom emerging

clearly into consciousness. Ever in the making, as law develops through the centuries, is this new

faith which silently and steadily effaces our mistakes and eccentricities.

I sometimes think that we worry ourselves overmuch about the enduring consequences of our

errors. They may work a little confusion for a time. In the end, they will be modified or corrected

or their teachings ignored. The future lakes care of such things. In the endless process of testing

and retesting, there is a constant rejection of the dross, and a constant retention of whatever is

pure and sound and fine.

22 "Foreign Corporations in American Constitutional Law," p. 164; cf. Powell, "The Changing Law of Foreign Corporations," 33 Pol. Science Quarterly, p. 569.

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REFERENCES

BOOKS :

1. Benjamin N. Cardozo, The Nature of the Judicial Process, New Haven, CT: Yale

University Press, 1921.

2. Oliver Wendell Holmes, Jr., The Path of Law, 10 Harv. L. Rev. 457 (1897). 

JUDICIAL DECISIONS:

1. Ram Jawaya Kapoor v. State of Punjab, AIR 1955 SC 549

2. AK Gopalan v. State of Madras, AIR 1950 SC 27

3. Dhananjoy Chatterjee alias Dhana v. State of West Bengal and Ors (2004) 9 SCC 751

4. Kasturilal v State of  U.P AIR 1962 SC 933

5. Record Association  v/s  Union of India AIR 1994 SC 268

6. Brown v. Board of Educ., 347 U.S. 483 (1954).

7. Doe v. Bolton, 410 U.S. 179 (1973); Roe v. Wade, 410 U.S. 113 (1973).

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