Everything done by the judge in the process of attaining justice is called
judicial process. It basically confines itself to the study of is to ought to
of the law.
Judicial process is basically “whole complex phenomenon of court” and to find
the lacunae in the midst of the process is what the object of this project.
Right from the Golakhnath case to Justice K.S. Puttaswamy case (Aadhar
Judgment) some kind of fundamental rights were affected some way or the other
despite the studious and calibrated judicial interpretation of Article 21
through various landmark case laws. We still couldn’t find what restraint is
and what activism is all about. And also our courts cannot find conclusive
solution to innovative problems placed before them due the modernization of the
So, this article deals with the lacunae in the judgment delivery
system i.e. the judicial process in India with decided case laws and the way
forward. One of the famous judge of the supreme court stated that humans were
not infallible and subjected to error. If error is done accidentally it’s a
mistake and if error persists for a long time it’s called Injustice.
Law As An Instrument Of Social Ordering:
American Judge Benjamin Cordozo said that “the Last reason for law
is the welfare of society
”. As stated by justice P.N. Bhagwati “the judge
mixes life blood into the dry skeleton gave by the legislature and makes a
living being fiting and satisfactory to address the issues of the general
Law is a product of the society responsible for social ordering.
Law maintains order in the society. If you want to know about the society and
how it is working then you have to first look upon its enacted legislations
which gives you a clear idea of how a society is!! Whether it is developed or
wild!! And answers to many more fundamental questions. There are basically two
kinds of law , one is “Law ordering the society” and the other is “Society
ordering the law”.
In the first one law orders the society in order to keep the
civilian population in control and also to govern them in a peaceful manner. For
example: Constitution. The second one is society ordering law according to its
needs. For example: Customs and tradition as a source of law where laws were
made according to the changing needs of the society. (Jallikattu issue in
particular in Tamil Nadu)
Definition Of Law:
Law is the basic rules of the society through which the social order
is maintained. Various jurists defined law as follows.
“it is a formula which expresses the necessity of an action”.
“Law is the command of the sovereign”.
“Law is the collection of rules which the state recognizes and applies
in the administration of justice”.
“is the expression of the judgments of value which we human beings
make by virtue of our disposition and nature”.
“Law is that portion of the established thought and habit which
has gained distinct and formal recognition in the shape of uniform rules backed
by the authority and power of the government”
“A law is of general rule of external human action enforced by a
sovereign political authority”. 
Law And Justice:
The purpose and aim of law is to attain justice in society. Justice
is an abstract idea of right and wrong in the society , the measurement of
fairness and equality.
Common Law is developed by Judges through case laws and it is also
called as Law of Precedents. This system was followed by British and hence it
was also in India. It is totally based on the principle that it is unfair to
treat the same facts differently in different circumstances. Body of Precedent
is called common law and it binds future decisions and another kind of law which
is followed in India is through Legislation i.e Statute.
Common Law model in India
India is a common law country deriving its judicial framework mostly
from the British system rather than the federal Judiciary as in the United
States. The history of common law courts dates back to the British rule in
India. The Admiralty courts were set up at madras and Bombay whereas
collector’s court in Calcutta in the 17th century A.D.
In the 18th century Uniform Judicial system was made for all presidency towns
and was then called Mayor’s Court. After the Royal Charter, the court derived
their authority directly from the crown. A system of appeals to the privy
council was initiated, and this marked a historic landmark in the development
of the Indian Judicial system, because the Privy Council functioned as the last
court of appeal in India for more than 200 years.
In the Late 18th century Mayor’s court was replaced by the Supreme court and
this was the first attempt to make separate and Independent judicial organ in
India under the direct authority of the king. This Court had Jurisdiction over
Civil, Criminal, Admiralty and ecclestial matters and was required to formulate
rules of practice and procedure. Appeals from this court lay to the Privy
Council. Local civil and criminal justice was left under a system known as the
By the mid 19th century, the adalat system and Supreme court were abolished and
a High Court was established in each presidency town which created Uniform
Judicial System in India which is prevailing till now.
The Current Supreme Court of India enjoys the combined jurisdiction
of the privy council and the Federal Court, which are no longer in existence.
The predecessor of the present Supreme court of India was the Federal Court
established in 1937, which heard appeals from the High Courts, and whose
decisions were appealable to the Privy Council.
Criminal Justice System:
The Process of attaining Justice takes different forms in different countries
among which the most used ones are:
- The Inquisitorial system and
- The Acquisitorial system or the Adversarial system
According to Black’s Law Dictionary, Adversary system is the curt system where a
judge decides on a case argued by a prosecutor who is suing the plaintiff and
the defense attorney who defends their plaintiff. A jury has also been used to
decide such cases”.
According to Black’s Law Dictionary, the inquisitorial system is , “Proof taking
used in civil law, whereby the judge conducts the trial, determines what
questions to ask, and defines the scope and extent of the inquiry”.
This process is meant for deciding a matter of guilt of a person. A Judge can
straight away decide the case with the primary evidence and witnesses, But there
is a procedure for making it fair without any bias.
In Acquisitorial Trial in India there is presentation and examination of
evidences and then the decision is made. Accurate Procedure were followed as
mentioned in the Criminal Procedure Code 1973, Indian Evidence Act 1872 , and
Indian Penal Code 1860 in the adversarial system followed in India whereas In
the Inquisitorial Trial Judges investigate and raise questions.
In Inquisitorial system effectiveness of the procedure depends upon the
individual judge who examines in the case as in France whereas in acquisitorial
system the judge needs to observe the case and examine the witness and parties
only on the questions related to the material facts presented by their Counsels
as in India.
Legal Reasoning And Growth Of Law Change And Stability:
Legal reasoning is nothing but giving a reason for the Judgement.
No legal argument can be accepted or rejected without the following
Issue is one in which both the parties to the suit or proceeding
were concerned upon a particular material fact which is in dispute between
them. Thus, lawyers apply their mind to resolve the dispute either through
settlement or through adjudication. Thus Fact in Issue plays a major role in
the Civil or Criminal proceeding in the Court of Law.
The law should be state explicitly to the fact in issue. If the
Advocate feels that the law has some inherent lacunae which is apparent or not
in accordance with the updated technology, the advocate may state the rule which
is outdated and streamline the laws. For example: The Introduction of
Electronic evidence in the Indian Evidence Act made it Admissible in the Court
of Law. Rule sets out the procedures to be followed in the court of law. For
example: The Civil Rules of Practice rules lay down the procedure for civil
cases and Criminal Rules of Practice Lay down the rules for Criminal cases which
should read in consonance with Civil Procedure Code and Criminal Procedure Code
Fact is a thing or state of thing or relation of things which
happens in our day to day activities and which forms the base of the fact in
issue or material fact which is the core element of the dispute.
Analysing the given fact by the client, Advocate in compliance with
the Advocates Act,1961 and other moral and ethical code of conduct will further
the court proceedings by production of evidence and the points collected from
the examination of witnesses forms a basis for the case.
An Advocate is one who assists the Judge in the process of Judgement
making process in order to render justice. So an Advocate plays an important
role in the Judgement making process . So, Legal Reasoning should be one of the
key skills every advocate ought to know which is inevitable in Drafting,
Pleading and conveyancing process.
Growth Of Law-Change And Stability:
Religion is susceptible to several changes. As society develops the
religion also changes its form through legislations which has binding force on
religion. Custom as a source of law is an area of drastic uncertainty and which
could be changes frequently according to the lifestyle of the particular
people. Here we need to think upon the definition of law i.e. Law is nothing
but the will and wish of the society. If we think in this perspective law is
subjected to change according to the norms of the society and society is nothing
but the people themselves in a community as a whole.
With the recent growth in the Private sector after the
Liberalization, Globalization and Privatization several changes have been made
to the existed legislations both social and economic which is an important
factor in the growth of law susceptible to changes in the near future.
In Mohammmud Ahmed Khan V. Shah Bano Begum and ors
, 1985 The Supreme Court Gave
a Clear Distinction between the Criminal Procedure code and Muslim Personal Law
(Shariat) that section 125 of the Criminal Procedure Code is applicable in cases
of Maintanence of either Muslim or Hindu or Christian and it is irrespective of
the Religion they profess.
Thus, Maintenance should be given to the Muslim
Women after the period of Iddat(Waiting Period) If she is unable to maintain
herself and does not have the sufficient source thereto, unless she is
remarried. Thus another point here is If the women is able to maintain herself
after the divorce then maintenance will not be granted. Thus, we connect it
with the stability concept of law where law on maintenance is clearly explained
through Judicial Precedents by the Supreme Court of India
Activism And Restraint
Flagrant violation of Human rights and other fundamental rights were taking
place everywhere in the modern Indian Society. In order to mitigate these
problems and to give an effective justice system the Judiciary have crossed its
line and transgressed into the functions of other organs through Judicial
Activism which is good one for a democratic country but there should be a
Lakshman rekha for every creative judicial activism or else it would become
Judicial restraint which could be good and also bad at times.
Few examples of
Judicial Activism made by the apex court of the country from A.K. GOPALAN V.
STATE OF MADRAS TO JUSTICE PUTTASWAMY RETD. V UNION OF INDIA deciphered the
true judicial capacity and also it has in several instances made out the
difference between activism and overreach.
There has been a several dispute right from A.K. Gopalan case between Due
process and procedure established by law. As Influenced by Justice Felix frank
furter, B.N. Rau suggested to remove the Due process clause from the Article 21
of the Indian Constitution which restricted the courts to go beyond the
legislature. After which evolved the concept of Judicial activism in Menaka
Gandhi v. Union of India where the apex court included the due process within
the ambit and scope of procedure established by law if there is a violation of
personal liberty and the court has to look after the principles of natural
justice which is the core principle in administering justice.
JUSTICE KANIA remarked that in A.K. Gopalan case that:
By adopting the phrase “procedure established by law” the Constitution gave the
legislature the final word to determine the law
As Rightly stated by our constitutional makers that the constitution is an
organic document which means it changes according to the socio, economic and
political changes in the country accordingly and entails the recognition of new
rights through amendments and other judicial interpretations as in the case
evolved from precedents.
Post Menaka Gandhi times the supreme court has found Article 21 to incorporate
the substantive freedom that serves as a means to remove major areas such as
poverty , poor economic opportunities as well as systematic social deprivation.
Justice Jackson of the U.S. has rightly pointed out that:
“The doctrine of
judicial activism which justifies easy and constant readiness to set aside
decisions of other branches of Government is wholly incompatible with a faith in
democracy and in so far it encourages a belief that judges should be left to
correct the result of public indifference it is a vicious teaching.”
Thus while having these many high creative power with the apex court
it should be very cautious on each and every interpretation which is made to the
laws made by the legislature. The Judiciary should always have some strong
principle to follow in the case of Public Interest Litigation as it is
inevitable in a country like India where judiciary need to step in to avoid
transgression of the fundamental rights of the citizen by the executive and
In the process of keeping check upon the other organs the
Judiciary in itself had to refine the rules of judicial activism as it happened
in the case of Vikram singh v state of Punjab
the legislature has transgressed
its authority over the Judiciary. Thus the horizontal system of governance in
India and it’s purpose to find a balance between all the three organs of the
government should be delineated by the Judiciary. The factors of Justice,
equity and good conscience to deliver justice in consonance with the above all
as envisaged by our Constitutional makers.
Judicial review is slightly different from judicial activism. The
basic essence of Judicial review is the power vested in the court of law to
invalidate the legislation passed by the parliament if it violates any
Fundamental rights and basic human rights as enshrined in the constitution and
also the decisions made by the executive. In India, the power of Judicial
Review is enshrined in Article 13 of the constitution to have a check over the
legislations made by the parliament and also the irrational administrative
actions as envisaged through wednesbury principle (associated provincial picture
house v. wednesbury).
After the Keshvanandha bharti judgement
in 1973, the Judicial review
is also made a Basic Structure of the Constitution of India. It cannot be
abrogated even by the constitutional amendment under article 368.
Article 13(2) bars the state from making any law which infringes the fundamental
right. Under article 12 of the constitution of India the term state means and
includes, “the government and parliament of India, the Government and
legislature of the state, all local authorities and other authorities within the
territory of India”.
Here the word other authority mentioned in the article 12 gives wide
scope for interpretation to the judiciary. Which are all the authorities
included under the term other authorities? Which was deciphered by the Judiciary
through various Judgments thus makes a great significant change in the Judicial
In Ajay Hasia v. Khalid mujib
the supreme court laid down following
tests to adjudge whether a body is an instrumentality of the government or not.
- If the entire share capital of the body is held by the government, it
goes a long way towards indicating that the body is an instrumentality of
- Where the financial assistance given by the government is so large as to
meet almost entire expenditure of the body, it may indicate that the body is
impregnated with governmental character.
- It is a relevant factor if the body enjoys monopoly status which is
conferred or protected by the state
- Existence of deep and pervasive state control may afford an indication
that the body is a state instrumentality
- If the functions performed by the body are of public importance and
closely related to governmental functions, it is relevant factor to treat
the body as an instrumentality of the government.
In order to be a company or agency holding on the functions of the Public nature
the supreme court has arrived at the above conclusion which was a result of
Judicial review of the term State under article 12.
Not only in ajay hasia but also in Rupa ashok Hurra v. Ashok Hurra The Judiciary
through its Judicial review power has evolved with the concept of Curative
petition under the ambit of Article 137 of the Constitution of India.
Public interest litigation:
The matters of public importance were unnoticed in the large scale.
Then comes the concept of Public Interest Litigation which is a watershed moment
in the history of Judicial Process in India. Where a question of public
importance may be espoused by the affected person and also for the public at
large or some other person who doesn’t have any relation to the victim and thus
the concept of locus standi stands to be waived off in the public interest
litigations which is a major turnover.
Enunciating the broad aspect of Public interest litigation Justice
P.N. Bhagawati observed that; “Whenever there is a public wrong or public injury
caused by an act or omission of the State or a public authority which is
contrary to the Constitution of the law, any member of the public acting bona
fide and having sufficient interest can maintain an action for redressal of such
wrong or public injury”.
The Addition of Pubic Interest Litigation in the first case in Hussainara
Khatoon Vs State of Bihar (1979), which focused on the rights of the prisoners
and under trial prisoners and the inhuman practices inflicted on them in prisons
during their pendency of trial Which led to the release of more than 40,000
under trial prisoners.
Another greatest creative move made by the judiciary was made in S.P.Gupta
V. Union of India, In this case Justice P.N. Bhagwati held that the mere
technicalities in filing a petition is done away with the Public Interest
Litigation Writ Petitions by considering even the letters from any public
Another observation made in the same case by Justice P.N. Bhagavati is that a
private person with Private injury is considered as PIL if it redresses the
group of people at large.
Locus standi is not required for filing a Writ petition under Public Interest
Accountability And Judicial Law Making:
Judicial Accountability is defined as the responsibility of
Judiciary’s own decisions or actions and expected to explain them whenever it is
asked for. It is one of the bedrock of the democratic country. It is the Sine
qua non for the effective functioning of the democracy. The Faith of the people
on Judiciary is eroding day by day due to lack of accountability.
The recent contempt of court case of Senior Advocate Prashanth
Bhushan and the Stand-up Comedian Kunal Kamra’s case of Criminal Contempt
Proceedings for their act of questioning the democracy of their inabilities had
thrown light on the judicial autocracy and it leads to an ineffective judiciary
without any kind of accountability.
Thus in a country like India, to have a judiciary without
accountability is like eroding the base of the democratic pillar.
Code of ethics for judge:
Nemo Debet Esse Judex Inpropria Causa Sua: Which means No person
should be the Judge in his own cause. This means that If a Judge feels that he
is some way or the other connected to the case as mentioned in the Principle of
Naural Justice concept then he should suo moto recuse to take the case. This
Move will Instill confidence in the People on Judiciary and its
Fiat Justicia, Ruat Caelumaudi Alteram Partem: “Let Justice be done though the heavens fall”
- this is the objective to be followed by every judge while delivering their
duty in the court hall.
Audi Alteram Partem:“Hear the other side” – which means that Justice is
seemed to be delivered only after hearing the other side. Both the parties to
the suit should be heard or given a chance to be represented by their cousel in
order deliver unobstructed and clear Justice.
Salus Populi Suprema Lex Esto:which means Let the health of the people
should be the supreme law.
- Judges should stay away from Public Functions on a frequent basis and
should avoid contact with people frequently and the reason is that people
may think that the judge is so close to someone and they may not get fair
In Ram Pratap Sharma v Dayanand
issued a note of caution to the effect that it
is proper for a judge not to accept any invitation and hospitality of any
business or commercial organization or of any political party or of any club or
organization run or sectarian communal or parochial line.
6.Judicial Decision should be Impartial and the judge should be honest in his
duty of delivering justice.
Factors Leading To Judicial Unaccountability:
A History of Impeachment proceedings in the Higher Judiciary:
- Muzzling dissent and stifling criticism:
- Judging the Judges
The Draft Judicial Standards Accountability Bill, 2010 
- Justice Veera Ramaswami who was the then Justice of the Hon’ble Supreme
Court of India. An Impeachment proceeding was passed against him and it was
failed to be passed by 2/3rd majority as the ruling party had not voted in
favour of the impeachment motion and it was abdicated on the whole.
- Justice Soumitra Sen Case, It was about the Misappropriating funds
received by him as a court receiver and further giving false explanations to the
High Court. Despite these acts of misconduct he was appointed during that time
due to lack of Transparency and there was a complete lack of seriousness in the
part of the government to enact a legislation in this regard to ensure judicial
The Draft Judicial Standards and Accountability Bill which seeks to set the
Judicial Standards and make Judges accountable for their own misconduct. It
Mandates the Judges of the High Court and Supreme court to reveal their assets
and also spouses and children before taking over the office as a Judge. It also
requires the Juges not to have close ties with any member of bar , especially
those who practise in the same court. The Bill will ensure Judicial
Transparency and Accountability in the Higher Judiciary. It consists of an
Oversight Committee and a Scrutiny panel.
The bill was to replace the Judges Enquiry Act,1968 and to set up
the national oversight committee headed by the Former Chief Justice of India.
This is a platform through which the Public can lodge a complaint against erring
judges including the Chief Justice of India and the Chief Justice of High
Courts. As far as now concern there is no mechanism to regulate the erring
judges and the only platform existing is the “Restatement of Values of Judicial
Life” which is more like a moral code of conduct without any statutory sanction.
The Committee consists of a Serving Supreme court Judge and Serving
High Court Judge who were nominated by the Chief Justice of India , The
Attorney-General and an eminent person nominated by the President.
Scrutiny Panels and Investigation committee:
On registering a complaint, the committee will forward the case to
scrutiny opanels. In the case against Supreme court Judge the scrutiny panel
will consist ofa former chief Justcie of India and two sitting Supreme Court
Judges, and in the case of a com;plaint against a High Court Judge, the panel
will have a former chief justgice of the High court and two of its sitting
The Scrutiny panels is embedded with the power of the civil court.
They will be mandated to give the report to the Oversight committee within a
period of three months and if its for the Chief Justice the oversight committee
itself will conduct the scrutiny.
On receiving the report from the scrutiny
panel the oversight committee will futher set up another committee to further
investigate the same. Like the Scrutiny panel the investigation committee shall
also have the power of the Civil Court and are entrusted with the duty to frame
charges and investigate and collect evidence regarding the same.
If the Charges
are not proved the investigation committee can dismiss the case or it can
forward it to the oversight committee for further investigation.
On investigation it is found by the oversight committee that the
charges were serious then the committee will request the judge concerned to
resign. In case of non- compliance of the order by the committee it will
forward the cause to the president with an advisory for the removal of the
Everything done by the judge in the process of delivering justice is
called as judicial process and the researcher in the above chapter have analysed
all the historical precedents and laws made by the judges and its impact on the
society. It also gave an understanding of how the judiciary works as a whole.
It brings the traditional aspect of law making i.e customs as a source of law.
The Creative tools judiciary have used so far in order to do complete justice
and the concept of evolution of PIL in the late 90’s were some of the
astonishing feature of the Indian Judiciary. Till date there was no formal
statutory legislation was enacted regarding the streamlining of the conduct of
the Judges both ethically and morally.
There should be some balance between the
Judicial Accountability and Judicial Independence which is a major issue in
implementing the Judicial standards accountability bill, 2012 which never became
an act till date and we are sticking to the Judges inquiry Act, 1968 to impeach
the judges in case of proved misbehaviour or misdemeanour.
- Indian Constitutional Law – M.P. Jain – 8th Edition written by Justice
Chelameshwar and Justice Dama Seshadri Naidu
- Text Book on class 11th – Political Science Tamilnadu Textbook
- https://acadpubl.eu/hub/2018-120-5/4/344.pdf article written by Sozhiya.
S and Ms. Jayapreethi on Law and social transformation.
- https://www.lawctopus.com/academike/comparison-trial-procedure-indian-courts-franch-courts/ article
written by Madhubala Solanki on Common law in India.
- http://www.legalservicesindia.com/article/538/Judicial-Accountability-in-India.html article
written by Heenavrm
- http://www.legalservicesindia.com/article/587/Legislation-&-Common-Law-:-Indian-Legal-System.html article
written by Abhijeet Aryan.
- Black’s Law Dictionary – web source.
- Legal Article written by sabaha published in Legal service India.com on
Judicial Process in India.
- Law as an instrument of social change- International Journal of Pure and
- Law as an instrument of social change - International Journal of Pure
and applied mathematics
- Political Science textbook – Samacheer kalvi Class 11 – chapter 4 basic
concepts of political science p.no.77
- Comparison of Trial Procedure Between Indian Courts and French Courts By
Madhubala Solanki published in academike
- Ajay Hasia v Khalid Mujib, AIR 1981 SC 487 – taken From Book On
Constitutional Law Written By M.P.Jain -8th Edition.
- PP-448 taken form Book on Constitutional Law By M.P.Jain- 8th Edition.
- http://www.legalservicesindia.com/article/538/Judicial-Accountability-in-India.html written
Award Winning Article Is Written By: Mr.Gokul Prasad.S
Authentication No: MA113064230486-10-0521