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PHILOSOPHICAL CONTENT OF JUDICIAL
PROCESS
Regal Mentor-Ph-9995400709
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CONTENTS
List of Abbreviations ...................................................................................... 03
Cases Referred ................................................................................................ 04
Introduction .................................................................................................... 06
The Concept of Philosophical Content of Judicial Process ............................ 07
•
Cardazo’s Methods of History, Tradition and Sociology
Judicial Creativity ........................................................................................... 13
•
Indian Perspective
Role of Judges in bringing about Social Order ............................................... 16
Judicial Reasoning .......................................................................................... 28
•
Elements of Reasoning
•
Forms of Reasoning
Conclusion ...................................................................................................... 37
Bibliography ................................................................................................... 38
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LIST OF ABBREVIATIONS
AC
Appeal Cases
AIR
All India Reporter
AP
Andhra Pradesh
Camb Law J
Cambridge Law Journal
Colum. J. Transnat'l L
Columbia Journal of Transnational Law
Corpn.
Corporation
IOC
Indian Oil Corporation
Monash Univ Law Rev.
Monash University Law Review
NLSA
National Legal Services Authority
Ors.
Others
PUCL
People’s Union for Civil Liberties
PUDR
People’s Union for Democratic Rights
SC
Supreme Court
SCALE
Supreme Court Almanac
SCC
Supreme Court Cases
SCR
Supreme Court Reports
UOI
Union of India
UP
Uttar Pradesh
WB
West Bengal
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CASES REFFERED
A K Gopalan v. State of Madras AIR 1950 SC 27
All India Judges' Association v. UOI
AIR 1993 SC 2493
Ashok Kumar Gupta & Ors v. State of U.P. & Ors.
Bandhua Mukthi Morcha v. UOI
AIR 1984 SC 802
Bengal Immunity Co. Ltd. v. State of Bihar
AIR 1955 SC 661
Bombay Dyeing Co. Ltd. v. Bombay Action Group & Ors.
(2005) 5 SCC 61
D K Basu v. State of WB
AIR 1997 SC 610
Dr. Upendra Baxi v. State of UP
(1983) 2 SCC 308
E P Royappa v. State of Tamil Nadu AIR 1974 SC 555
Food Corporation of India v. M/s. Seil Ltd.
AlR 2008 SC 1101
Gaurav Jain v. UOI
AIR 1997 SC 3021
Golak Nath v. State of Punjab
AIR 1967 SC 1643
Hussainara Khatoon v. Home Secretary, State of Bihar
1979 SCR (3) 532
Indira Gandhi v. Raj Narain
1975 SCR (3) 333
Indra Sawhney v. UOI
AIR 1993 SC 477
Joseph Shine v. UOI
2018 SCC OnLine SC 1676
Justice K S Puttuswamy (Retd.) v. UOI
(2017) 10 SCC 1
Kariapper v. Wijesinha
(1968) AC 717
Kesavananda Bharti v. State of Kerala
AIR 1973 SC 1461
Kihoto Hollohan v. Zachillhu
1992 SCR (1) 686
Lalit Narayan Mishra Institute of Economic Development and Social
Change, Patna v. State of Bihar 1988 SCR (3) 311
Laxmi v. Union of India
(2013) 9 SCALE 290
Laxmikant Pandey v. UOI
AIR 1984 SC 469
M C Mehta v. UOI
AIR 1987 SC 965
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M. C. Mehta v. State of Tamil Nadu & Ors.
(1996) 6 SCC 756
Maneka Gandhi v UOI
AIR 1978 SC 597
Minerva Mills v. UOI
AIR 1980 SC 1789
Mohini Jain v. State of Karnataka
AIR 1992 SC 1858
Municipal Corpn. Greater Bombay v. IOC Ltd.
AIR 1991 SC 686
National Legal Services Authority v. UOI
AIR 2014 SC 1863
Navtej Singh Johar v. UOI
(2018) 10 SCC 1
Olga Tellis v. Bombay Municipal Corporation
1985 SCC (3) 545
P. Ramachandra Rao v. State of Karnataka
AIR 2002 SC 1856
PUDR v. UOI
1982 3 SCC 235
PUCL v. Union of India
(2007) 1SCC 728
Randhir Singh v. Union of India 1982 SCR (3) 298
S.R Bommai v. UOI AIR 1994 SC 1918
Sajjan Singh v. State of Rajasthan
1965 SCR (1) 933
Shankari Prasad v. UOI
AIR 1958 SC 458
Shayara Bano v. UOI
(2017) 9 SCC 1
Sheela Barse v. State of Maharashtra 1983 SCR (2) 337
State of Bihar v. Bal Mukund Sah (2000) 4 SCC 640
Sunil Batra v. Delhi Administration
1979 SCR (1) 392
Unni Krishnan & Ors v. State of A P 1993 SCR (1) 594
Vellore Citizen Welfare Forum v. UOI & Ors.
(1996) 5 SCC 647
Vishaka & Ors. v. State of Rajasthan
(1997) 6 SCC 241
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INTRODUCTION
“Judges have an interstitial law-making function in so- called penumbral cases that
are not clearly covered by existing law.”
-H.L.A. Hart
Modern democracies are inconceivable without judiciary. There is no better test
of the excellence of a government than the efficiency of its judicial system, for nothing
more touches the welfare and security of the average citizen than his knowledge that he
can rely on the certain and prompt administration of justice. Judicial Process can be
construed as everything done by judge in the process of delivery of justice. It basically
confines itself to the study of “is” to “ought” of the law.
Although judges have traditionally seen themselves as declaring or finding rather
than creating law, and frequently state that making law is the prerogative of Parliament,
there are several areas in which they clearly do make law. However, the area gave rise
to debates. Jurists like Bentham, Austin, Hart and Kelsen were of the opinion that law
making is the task of the legislature, not the judiciary. However, the Sociological school
of jurisprudence, involving jurists such as Jhering, Geny, Duguit and Roscoe Pound
said that judges can, and in fact do, legislate.
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PHILOSOPHICAL CONTENT OF JUDICIAL PROCESS
The word ‘Philosophy’ is of ancient Greek origin meaning “Love of Knowledge”
or “Love of Wisdom”. Philosophy is the study of general and fundamental problems
concerning matters such as the nature knowledge, truth, justice, beauty, mind and
language. Philosophy is the root of all knowledge. It is considered as mother of all
sciences. Philosophy helps to coordinate the various activities of the individual and the
society. It helps us to understand the significance of all human experience. Philosophy
critically evaluates and analyses the variety of human experiences. It develops a
comprehensive system of thoughts about the universe and the life as a whole.1
Benjamin Cardozo’s discussion on the nature of the judicial process begins with
a series of questions asking precisely what a judge does when he decides a case. In the
The Nature of the Judicial Process, he posed the problem thus:
“What is it that I do when I decide a case? To what sources of information do I
appeal for guidance? In what proportions do I permit them to contribute to the
result? In what proportions ought they to contribute? If a precedent is applicable,
how do I reach the rule that will make a precedent for the future?”2
He sees as the force formulating "judge made law" some principle whether it is
unavowed, inarticulate or Subconscious. Conscious principles which are to guide the
judge in arriving at decisions in appellate cases are latent within the cases, and they may
be separated and classified. Of the subconscious forces which lie behind a judge's
decision he says: "All their lives, forces which they do not recognize and cannot name,
have been tugging at them-inherited instincts, traditional beliefs, Acquired convictions,
and the resultant is an outlook on life, a conception of social needs, a sense in James'
phrase of the total push and pressure of the cosmos,”3 Which, when nicely balanced,
must determine where choice will fall.-These subconscious forces, however, and their
1 Social Philosophy, [Accessed Dec.15, 2023, 4.00 PM] available at
http://archive.mu.ac.in/myweb_test/SYBA%20Study%20Material/soc_
philo-II.pdf.
2 Benjamin N. Cardozo, the nature of the judicial process, page no 10
3 Benjamin N. Cardozo, the nature of the judicial process, page no 13
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influence in decision, were never treated very completely by Cardozo. The
questionnaires as to where the law is to be found that the judge will apply.
Cardozo does not deny that when constitution and statute are clear, the judge' s
search is at an end. In this event the role of the judge becomes secondary. But not so
clear is the area left by the gaps in the law. For these exigencies he advocates a method
of interpretation by the judges within the interstitial limits of the Jus scriptum suggested
by Geny and Ehrlich “a method of free decision- Libre recherché scientifique”4 of this
judicial interpretation he says “the function flourishes and persists by virtue of the
human need to which it steadfastly responds”. 5It is important to note that Cardozo is
urging this method of free decision in the instance where statute and constitution fail.
At this point the common law as interpreted by the judge comes into play in filling the
gap. He freely admits that stare decisis is “at least the everyday working rule”6 of the
law. Yet he sees the method of free decision as the process that gives a system of living
law. Finally, he points to the need for a guide to govern the choice of the judgments
potentially applicable in a given case, in order that the judgment rendered is not the
personal whim or caprice of the judge.
Judicial process is the process involved in the administration of justice through
the judiciary. The Judge plays the most important role in this process. The case starts
with the filing of plaints / petitions before the court of law. The permission of the judge
is essential to proceed with the case. Examination of witness to collect evidence to
support the case, arguments of advocates of both sides etc. involves a lengthy procedure.
The judge being the presiding officer of the court, his presence is essential at every stage
of the case. After hearing both sides of the case, the judge analyses the case and
depictions before him, applies relevant law and arrives at a decision and pronounces the
judgment.
The correctness of the decision depends on the ability of the judge to find out the
truth and the clarity of law applicable in the case. The quality of the decision depends
4 Benjamin N. Cardozo, the nature of the judicial process, page no 16
5 Benjamin N. Cardozo, the nature of the judicial process, page no 18
6 Benjamin N. Cardozo, the nature of the judicial process, page no 20
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on so many factors. The process of judicial decision making is an art which requires
skill, wide knowledge, expertise, rational thinking, creative mentality, sensible and
meaningful approach towards social problems. Righteousness, honesty, courage,
dedication, patience the ability to find out the truth and the capacity to discriminate right
and wrong are the qualities of a good judge. A good Judge should be unbiased in his
judgment, open minded, uncorrupt and should have a value based positive personality.
He should hear the depictions of parties before the court patiently, hear both sides and
find out the truth in the case by applying his own reasoning power and give a correct
decision through his judgment. In that process he should take in to account social needs
also. Judges try to solve social problems by different methods.
(1)
Application of law to the facts of the case before him in the light of
the changing needs of the society
(2)
Adopting new techniques and methods to bring social issues before
courts of law. Eg. Accepting letters or news reports as public interest
litigations and giving remedies by suo moto actions.
(3)
By giving meaningful interpretation to constitutional provisions
and statutes and by widening their scope accommodate new social
needs. Eg. In Maneka Gandhi v. Union of India7, case the scope of
Article 218 was widened by observing that a law depriving one’s
personal liberty should be fair, just and reasonable.
(4)
By laying down new principles. Eg. Basic structure theory, pith and
substance, colourable legislation, legitimate expectation etc.
(5)
By laying down new norms / guidelines . Eg. D. K. Basu v. State of
West Bengal (1996) the Supreme Court issued norms to be followed
by police for all types of arrest and detention.. In Visakha v. State of
7
8 Constitution of India
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Rajasthan (1997) the Supreme issued guidelines to to alleviate the
problem of sexual harassment against women in workplace.
Whenever a disputed case comes before a judge, however complicated the issues
may be, the judge is bound to give a decision. If the case involves a clear violation of
statute, the task of the judge becomes easier. He can apply law to the facts of the case
and decide the case. But if the legislation is silent he should search for case law to find
out the suitable precedents which would correctly fit the case before him. If he cannot
find out such a precedent but the precedent has some similarity he can by applying
logic and his own reasoning power extend the ratio of the previous case to the facts of
the case before him to arrive at a decision.
For example, In Rylands v. Fletcher, water was stored in a reservoir. Due to the
negligent construction of the reservoir, water escaped and flooded the neighbour’s land.
The doctrine of strict liability was evolved by the court to give justice to the aggrieved
person. The court pointed out that if a person stores water or anything which is likely to
cause mischief he must keep it at his own peril. If it escapes , he is answerable for all
damage which is the natural consequence of its escape. This ratio can be logically
extended to another case where a person stores Kerosene or petrol on his land which
catches fire and causes loss to the neighbors. The same ratio decidendi can be extended
to cases where poisonous gases are stored.
In M C Mehta v. Union of India,9 the Supreme Court of India applied the
doctrine of strict liability and modified it to an absolute liability principle to protect the
victims of oleum gas leakage. The principle of absolute liability was applied in Union
Carbide Corporation v. Union of India10 to award compensation to the people affected
by the leakage of the toxic gas methyl isocyanate. Thus it is seen that by starting from
the ratio decidendi of a single case so many similar cases can be decided.
If legislation and precedent are absent for the application to the facts of the case
the judge can look for customs or convention. If they are also absent, the judge has to
9 AIR1987 SC 1086
10 AIR1990 SC 273
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frame a rule by applying his own reasoning power, taking in to account the social needs
and values. During such process, the judge’s own ideas, aspirations, values, his own
sense of justice, the lessons he has learnt from his experiences in life whether good or
bad, the circumstances in which he was born and brought up etc creep in to such
decisions.
Cardazo’s Methods of History, Tradition and Sociology
Cardozo describes the other three methods or principles of selection guiding the
judge in the path of developing the system of living law. This is the methods of history,
custom and sociology. It does not delay long on the method of history, For him the
method of history is predominantly an investigation of origins as opposed to the method
of philosophy or the logic which is mainly the work of reason. It is clear that in his
development of the method of history he limits that method to clarifying a problem in
law rather than solving it. Equally clear is Cardozo’s refusal to approve of historical
school of jurisprudence, such as that advanced in the nineteenth century by F.C. Von
Savigny (1779-1861). Of this historical school A.P.D “Entreves has this to say:
“the historical school had begun by stressing the growth and development of law,
it ended by fostering its scientific study. It had begun with an apology for history.
It ended with an apology for jurisprudence.’ To such a narrow view of
jurisprudence Cardozo did not give his approval. For him the duties of a judge
went beyond bare historical exegesis of the problems occurring in judicial
process.
Cardozo admits that the development of positive law has taken place in a
historical context. He realizes also that the development of positive law considered apart
from that context would be meaningless for those interpreting it. It seems clear that his
sympathy does not lie with this historical method, though he admits its utility in areas
such as the interpretation of the law of feudal tenures and contracts.
The third method or principle of selection to guide the judge in determining the
application of a principle of the law is the method of custom. Cardozo rejects Coke’s
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theory that the common law is separated from customs, and Blackstone’s that custom
pervades all of the law. These were the old views, the views that prevailed at different
times in the thought of English Jurisprudence. Cardozo’s view is more moderate. “In
these days,’ he says, “at all events, we look to customs, not so much for the creation of
new rules, but for the tests and standards that are to determine how established rules
shall be applied.’ Customs, if it is to obtain the dignity of positive human law must do
so through legislation. It is enough for Cardozo that the method of custom exercise its
creative power “not so much in the making of new rules as in the application of the old
ones.” But the potential of custom to be extended until it becomes identified with
“customary morality, then prevailing standard of right conduct,” brings the method of
custom or tradition to the point of convergence with the last method, the method of
sociology.
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THE CONCEPT OF JUDICIAL CREATIVITY
In the words of HLA Hart “judges have an interstitial law-making function in
so-called penumbral cases that are not clearly covered by existing law.”11 The liberal,
purposive, law- creative interpretation of the constitution must be used by the courts
“with insight in to social values, and with suppleness of adaptation to changing needs.”12
The creative activity of judges has existed from the very beginning of dispensing justice
by courts. The whole body of law known as the common law of England is nothing but
the creative activity of judges.13 However the topic has been subject to much discussion.
The division among judges on the issue has been described as a ‘pervasive
dichotomy’ which encompasses those who support ‘doctrinal certainty’ and those whose
support ‘doctrinal innovation’.
A judge supporting doctrinal certainity prefers the more restricted judicial role
and thinks that the precedent must ‘stand and apply to cases reasonably analogous’.
Such judges tend to refuse to adopt a creative stance to reverse a decision which they
disagree with as it was made in a creative capacity.
In favour of ‘doctrinal innovation’ proponents assert that the courts are one of
‘two law making institutions’ within the constitution. Gray says "that the power to
interpret law is not different from power to make law. In fact it is the judge who has
final word to say what law on any point and this is real Law making and person doing
it lawfully is true law maker"
Highlighting the significance of the creative role of a judge, Mr. Justice E.G.
Brennan of Australia observes – “The great judge is a bold judge, because he so
perceives the philosophy and history of the law that he can sweep aside the incidental
and reaches for the essential, and fashion and refashion the basic principles so that they
serve the society of his time. And so the significant contribution which judges are able
11 H.L.A.HART, THE CONCEPT OF LAW, 125 (1st ed. 1961)
12 Kariapper v Wijesinha (1968) AC 717
13 O CHINNAPPA REDDY, THE COURT AND THE CONSTITUTION OF INDIA, 256-257 (1st ed. 2008)
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to make to the society of their time is not confined to the application of principles, but
includes more importantly the modification of principle to suit the good of that time.14
According to Justice Cardozo, creativity of the court should be mainly for the
creation and introduction of certain new concepts not found in any specific provision of
the Constitution, but are essential for its meaningful interpretation.15 Judicial creativity
is not anathema to constitutional principle but an accepted doctrine, as an extended facet
of stare decisis.16
The Indian Perspective
In India, there is the concept of Separation of powers, whereby the three branches
of the government exercise functions and powers separately without interference in each
other’s duty or functions. On the basis of this concept, the judiciary’s role is confines to
interpreting and applying the laws. But sometimes these laws become archaic or the
rules enacted cannot do justice in the current situation. It is then that judicial creativity
comes into the picture. Judges use their wisdom and innate sense of justice and give
meaning to the letters of the law that is relevant to the time and more importantly is
relevant to the facts of the case.
Furthermore, the scope of judicial creativity cannot be totally abrogated by
ushering in of the statutes. Because, another reason as to why there is judicial creativity
being employed by the judges is the reason that the statutes so not meet all the demands
of the legal system. In most situations when a law is passed by the parliament, they do
so by looking into all the matters present and future where this law could be applied.
But sometimes situations arise where the legislation does not talk about; in such a
situation, the judiciary has the role to decide the case and because of that judicial
creativity might be employed.
14 E G Brennan, New Growth in the law- 'Judicial Contribution' Monash Univ. Law Rev. 8 (1979).
15 See: BENJAMIN CARDOZO, THE NATURE OF THE JUDICIAL PROCESS (1921).
16 Ashok Kumar Gupta & Ors v. State Of U.P. & Ors on 21 March, 1997
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In Indra Sawhney v. UOI,11 the court stated that the permissible judicial
creativity in tune with the Constitutional objectivity is essential to the interpretation of
the Constitutional provisions so that the dominant values may be discovered and
enforced
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ROLE OF JUDGES IN BRINGING ABOUT SOCIAL ORDER
Cardozo has stated that the final cause of law is the welfare of society. When
judges are called upon to say how far existing rules are to be extended or restricted, they
must let the welfare of society fix the path, its direction and its distance. Law and society
are interdependent and neither can be separated from the other. The good of the society
is its greatest requirement. Law serves the role of protector of the social order. Law aims
to attain the good and order in the society. Social order is what the law aims to achieve.
It is the ultimate object of all laws. Law has to provide social order in order to protect
the society from disintegrating. The judge is an important member of the legal
institution. He plays an important role in shaping the law to serve the social interest.
For a judge, law is never static. A social problem requires a solution and judges have
the role of resolving disputes. While settling a dispute, the judge is also required to take
into consideration the various social requirements. Amongst the various options being
available before him, a judge has to choose the one which best serves the interests of
the society. A judge is empowered to review the various provisions of law. He is an
independent and impartial authority which can verify the reasonableness of a law. Being
independent from the influence of the executive and the legislative machinery, a judge
can form an unbiased opinion on any question of law.
According to Cardozo, by the method of history, it is meant that the judge makes
use of the past decisions. He follows the doctrine of precedent. He compares the case
he has in hand with the past decisions and makes use of the one which most closely
resemble with the one he has to decide. The doctrine of precedent is based on the
principle that like should be treated alike and that there is stability and certainty in law.
However, while dealing with the precedents, the judge has to distinguish between those
which are liberal and beneficial for the future and those which are oppressive to the
society. The judge has to choose those precedents which best serve the purpose of the
society. The method of sociology demands that within the narrow range of choice, the
judge shall search for social justice. The judge has to see that his work leads to the
attainment of social order. He has to provide for the welfare of the society. The judge
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keeps the welfare of the society as the ultimate aim of his work. He cannot attempt an
action which would not be beneficial for the society at large.
By the method of analogy, it means that the judge makes use of the alien
jurisprudences. It is a case where the judge borrows from other jurisprudences. While
borrowing from other jurisprudences, the judge has to make use of the similarity in laws
and prevailing social conditions of the region from where he borrows the provisions.
The judge compares the case with similar problems in other regions. In the case of Bijoe
Emmanuel & Ors v. State of Kerala17, popularly called the National Anthem case, the
Supreme Court of India made use of the law prevailing in other countries to decide the
issue. In this case, the Supreme Court made reference of the similar cases decided by
the courts in Australia and U.S.A. to deal with the special case of a particular sect.
Minersville School District v. Gobitis18 and West Virginia State Board of Education
v. Barnette19 are two cases decided by the American Supreme Court in which Jehovah's
witnesses claimed that they could not be compelled to salute the flag of the United States
while reciting pledge of allegiance. So, the judge has to take care that the law is
progressive and protects the interests of the society. The goal of judicial process is to
make sure that all parties receive the due process and fundamental justice provided to
them under the Constitution. The aim of judicial process is the attainment of social good.
The judge has to see that the law helps the society at large and does not infringe the
goals justice and liberty.
The judge provides for social order during his job as an interpreter. The various
ways in which he can provide for social order are by methods of interpretation,
supplying of omissions, suggesting and recommending changes and new regulations
and also through mediation process. These are the techniques by which a judge brings
about social order. These are the techniques by which a judge brings about social order:
17 1987 AIR 748.
18 84 Law.Ed.US 1375
19 87 Law. Ed. 1628
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Interpretation
The judge is the interpreter of the community of its sense of law and order and
therefore, he must supply omissions, correct uncertainties and harmonise results with
justice through a method of free decision.
While dealing with a case, the judge is required to apply law on the facts. While
applying law he may be faced with a question of law which requires him to interpret the
various legal provisions placed before him.
While interpreting a statute, a judge can take either a literal approach or a liberal
one. In literal interpretation, the judge sticks to the letter of the word and there is not
much creativity in his job. In S. Nayak v. A.R. Antulay20, the appellant filed a
complaint against the respondent, A.R. Antulay, a public servant being the Chief
Minister of Maharashtra under S.161, S.165 of IPC and S.5 of Prevention of Corruption
Act,1947 alleging abuse of office of CM, the issue as regard to interpretation of the act
came before the court. If the language is clear and unambiguous, no need of
interpretation would arise. The 5-judge bench further observed that the question of
construction arises only in the event of ambiguity or the plain meaning of the words
used in the statute would be self-defeating.
One of the most important rules of interpretation is the mischief rule, in which
the judge has to determine the mischief which the law had sought to make good. Using
the mischief rule, the judge has to imagine and understand the problems in the society
which required that a particular law be made. Within the context of law, the mischief
rule is a rule of statutory interpretation that attempts to determine the legislator’s
intention. Originating from a 16th century case in the United Kingdom, its main aim is
to determine the “mischief and defect” that the statute in question has set out to remedy,
and what ruling would effectively implement this remedy. When material words are
capable of bearing two or more constructions the most firmly established rule for
construction of such words “of all statutes in general” is the rule laid down in Heydon’s
case also known as mischief rule. This rule is also known as purposive construction.
20 1986 AIR 2045
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The rules lay down that the court should adopt the construction which shall suppress
the mischief and advance the remedy.21
In the famous case, Smith v Hughes7 the brief facts were that the defendant was
a common prostitute who lived at Curzon Street, London and used the premises for the
purposes of prostitution. The defendant solicited men passing in the street, for the
purposes of prostitution, from a first-floor balcony. It was contended on behalf of the
defendant, inter alia, that the balcony was not ‘in a Street’ within the meaning of section
1(1) of the Street Offences Act, 1959, and that accordingly no offence had been
committed. “The sole question here is whether in those circumstances the appellant was
soliciting in a street or public place was guilty. The judge applied the mischief rule to
conclude that they were guilty as the intention of the act was to cover the mischief of
harassment from prostitutes. Another important principle in interpretation is that there
a presumption of constitutionality of the statute. The judge has to presume that the
statute is constitutional and the legislator had not intended to infringe the fundamental
rights.
In CIT v. Sundaradevi22, it was held by the Apex court that unless there is an
ambiguity, it would not be open to the court to depart from the normal rules construction
which is that the intention of the legislature should be primarily to gather from the words
which are used. It is only when the words used are ambiguous that they would stand to
be examined and considered on surrounding circumstances and constitutionally
proposed practices. In Union of India v. B. S. Agarwal, the court held that an
interpretation should be avoided if results in injustice, hardship, inconvenience or
anomaly and should be adopted if supports the sense of justice,23
Further, there is the rule of harmonious interpretation, which states that all the
provisions are to be interpreted harmoniously so as to give meaning to all the provisions.
The rule of harmonious interpretation underlines the principle that all the provisions of
21 SUBHYANKA RAO, Mischief Rule of Statutory Interpretation,
https://www.lawctopus.com/academike/mischief-rule-statutory-interpretation/ 7 (1960)2 All E.R.859.
22 1957 AIR 832, https://indiankanoon.org/doc/1092564/
23 AIR 1987 ALL 108
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a statute are complementary to each other and are not mutually destructive. While
interpreting a statute, the judge has to take care that he gives such an interpretation to
the provision that when the statute is read in its entirety, there is no conflict between the
provisions. The role of a judge as an interpreter requires great skill from his side. He is
required to give such an interpretation to the legal provisions which best serve the
interest of the society. While interpreting the legal provisions, the judge has to think
what purpose, what end of the society his interpretation would serve. He has to take the
interest of the society as the paramount issue. The statue affecting the society at large
require the most careful interpretation as the interests of a large number of individuals
may be lying at stake.
Filling up of blanks
Sometimes a judge has to do something more than just simply interpret a statute.
He may be required to correct all errors in it. He may further be required to fill in the
missing blanks in a statute. It is not possible for the legislator to imagine each and every
circumstance which could arise in the future. While interpreting a statute a judge has to
imagine what the legislator would have intended, he takes the place of the legislator. A
judge cannot legislate infinitely. According to Cardozo, “He legislates only between
gaps. He fills the open spaces in the law”. He has to act for the legislator, giving sense
to the statute as a whole and making up what had been left behind. While interpreting
any statute, the judge has to keep within the restraints laid down by the legislator. The
role of the judge is not legislating but of interpreting and applying the law. It is during
his job as an interpreter that a judge may be required to fill in the missing blanks in the
statute. However, while filling up the blanks, he has to take precaution that what he
supplies to the law protects the spirit of the law and does not destroy it. Cardozo has
seen the process of gradual change in man-made law come full circle, holding
something lawful that was formerly unlawful, and it prompts the remark: “Nothing is
stable. Nothing is absolute. All is fluid and changeable.”24 A judge has to take care that
24 BENJAMIN.N. CARDOZO, Nature of Judicial Process, Page No. 28
Page 21 of 38
he maintains the harmony between the various provisions of a statute. While supplying
omissions, the judge has to protect and preserve the spirit of the law. According to
Cardozo, “when the question is one of supplying the gaps in the law, it is not of logical
deductions, it is rather of social needs, that we ask the solution.” Thus, in order to fulfil
the needs of the society, the judge supplies the gaps in the statutes.
Recommendations
A judge plays a very important part in social ordering when he lays down
suggestions or recommendations regarding any social problem. Often a judge may be
required to give his recommendations or suggestions to enact the particular law which
would serve the social need. Where the law is silent, the judge may be required to cross
his bounds and take up the role of legislators. He may be required to give suggestions
in order to resolve certain social problems. These suggestions play a very vital role in
satisfying the various requirements of the society.
The public interest litigations play a very important role in protecting the
interests of the society. Public interest litigation is a litigation filed in the court to protect
the public interest. It has not been defined by any statute in the country and is based on
the interpretation of judges. The Public interest litigation is filed as an application under
Article 32 (Supreme Court) and Article 226 (High Courts) of the Indian Constitution to
protect the legal rights of disadvantaged people.25 By means of public interest
litigations, the lawyers and judges attempt to eradicate certain social problems. Public
interest litigation plays a useful role when the legislature and executive fail to find out
solution for the existing problems. Public interest litigations are a recent creation of the
courts by which they aim to provide the cure for the ills prevalent in the society. The
judges are very instrumental in eradicating the social problems.
Initially, cases entertained by the Supreme Court or the High Court were only
from litigants who were affected directly. But after the Public Interest Litigation, the
25 LEXLIFE INDIA, https://lexlife.in/2020/05/18/public-interest-litigation-pil/
Page 22 of 38
courts also acknowledged those cases which indirectly affected the parties, for the
interest of the general public. The initial motive of the Public interest litigation was to
make the courts more responsive to the issue of inequality and poverty, but later it
became a medium for justice. The seeds of the idea of Public interest litigation case
were first planted in India, by Justice Krishna Iyer, in 1976 in Mumbai Kamagar Sabha
V Abdul Bhai26. The primary announced instance of Public interest litigation was
Hussainara Khatoon V State of Bihar27 that was based on the brutal states of jails. The
Public interest litigation was filed before the bench, headed by Hon’ble Justice P.N.
Bhagwati in the name of the suffering prisoner, Hussainara Khatoon. Hon’ble Justice
P.N. Bhagwati broadened the rules of Locus Standi to community orientation from
traditional individualism through public interest litigation. However, he gave an
extensive exposition in S.P. Gupta vs Union of India28 known as “the Judges Transfer
case”. He observed that when a legal injury is caused to a definite class because of
violation of their basic, legal rights and such person on account of their poverty,
illiteracy is unable to reach out to the courts for relief, then any member from the public
could apply Article 32 and Article 226 of the Constitution, seeking judicial relief for the
legal wrong caused. The judiciary took a very active role while laying down the
procedural requirements required while making an arrest in the case of D.K. Basu v
State of West Bengal29 In this case the Apex court laid down various guidelines which
are to be followed by the policemen which making any arrest. The reason behind laying
down such provisions was that there were complaints of police atrocities in the police
lock ups.
Another famous case, M.C. Mehta vs Union of India30, this Public interest
litigation was filed before the court, concerning the tanning industries located on the
banks of river Ganga that were responsible for the pollution of the river. The petitioner
26 1976 AIR 1455
27 1979 AIR 1369
28 AIR 1982 SC 149
29 1997(1) SCC 416
30 1987 SCR (1)
Page 23 of 38
requested the court to restrain the respondent from releasing waste effluents into the
river and questioned the responsibility of Kanpur Nagar Mahapalika. In its final
judgement, the court held that no efficient steps were taken by the State Board to avert
the release of effluents into the river Ganga and ordered the tanneries to set up primary
treatment plants or secondary treatment plants. It observed that just like an industry
which cannot pay minimum wages is denied existence, similarly an industry which
cannot set-up primary treatment plant cannot be allowed to continue. So, Public interest
litigation has expanded the jurisprudence of human rights in India. Public interest
litigation has helped the Indian Judiciary in gaining public support and establishing
legitimacy in society. It acts as an avenue to enforce diffused rights for which either it
is hard to recognize an aggrieved person, or where distressed persons have no incentives
to knock at the doors of the courts.
Similarly, the courts have taken active parts in issues related to illegal
constructions, anomalies in school admissions, sexual harassment against women,
ragging at university level and so on. The court had taken these steps in order to ensure
social justice.
Mediation Proceedings
The social institution requires certain relationships to be protected and sanctified
in order to prevent minor problems developing into irresolvable issues, the judges take
the role of mediators. The role of a judge as a mediator is a very recent one. Till date,
judges used to solve the disputes. Now they try to prevent the disputes from arising. In
cases of minor discords, the judges help in solving the issues before they take the form
of major disputes. The judges suggest out of court settlement of disputes in order to
prevent certain relationships from breaking down. In the present-day society, judges
suggest the use of mediation proceedings specially when the need is to protect an
institution as sacred as the institution of marriage. Judges serve as the mediator in
various cases to prevent a relationship from breaking down. The law mandates
mediation and the courts encourage and endorse it. Alternate Dispute Resolution system
serves as an alternative to settling disputes through the alternative judicial system, other
Page 24 of 38
than the regular system of court. Typically, in ADR, disputes are settled in a quick and
cost-effective manner as the procedure followed is non-formal without strict adherence
to procedural aspects. The government has also given a tremendous boost to the ADR
system by establishing special tribunals and dispute settlement bodies by means of
various Acts. Settlement of disputes through arbitration, conciliation, mediation or by
an impartial third party is also a component of ADR.31
It is a cheaper, simpler and more productive manner of dispute resolution. It helps
to restore the broken relationships and focuses on improving the future and not on
dissecting the past. The benefit of mediation is that it is a voluntary process and both
the parties are able to assess their case and come up to an amicable solution. The judges
play an active role in encouraging and endorsing mediation proceedings.
HOW JUDICIAL PROCESS MAINTAIN SOCIAL ORDER
Now it will be appropriate to examine the areas in which judicial process played
a
vital
role
in
eliminating
social
disorder:
-
Backward Classes of the Society
Reservation in India is a system of affirmative action that provides representation
for historically and currently disadvantaged groups in Indian society in education,
employment and politics. Enshrined in Articles 15 and 16 of the Indian Constitution, it
allows the Indian government to set quotas to ensure any "socially and educationally
backward classes of citizens" is properly represented in public life. It is intended to
realize the promise of equality enshrined in the Constitution of India.
Reservation is primarily given to 3 groups; Scheduled Caste, Scheduled Tribe
and Other Backward Classes. These are groups that have faced social and economic
discrimination in the past were severely underrepresented in public life. Originally
31 MALIK & RAVAL, LAW & SOCIAL TRANSFORMATION IN INDIA, 4TH EDITION
Page 25 of 38
reservation was only given to SCs and STs but was later extended to OBCs in 1987 after
the implementation of the Mandal Commission report.
In Indra Sawhney v. Union of India32, the Apex Court has innovated concept of
'creamy layer test' for securing benefit of social justice to the backward class, needy
people, and excluded persons belonging to 'creamy layer.' It was also observed that “if
one keeps in mind the context in which Article 16(4) was enacted, it would be clear that
the accent was upon social backwardness and that in the Indian context social
backwardness leads to educational backwardness and both of them together lead to
poverty-which in turn breeds and perpetuates the social and educational
backwardness”.33 National Commission for Backward Classes was an outcome of Indra
Sawney & Ors v. Union of India, which is a constitutional body under India’s Ministry
of Social Justice and Empowerment established in 1993.
Bonded Labourers
Bandhua Mukti Morcha v. Union of India34 is a good example of social
ordering by way of judicial process. The Apex Court has tried to eliminate socio-
economic evil of bonded labour, including child labour and issued certain guide lines to
be followed, so that recurring of such incidents be eliminated.
Child labour and Child prostitution
In M.C. Mehta v. State of T. N35, the Supreme Court has issued direction the
State Governments to ensure fulfilment of legislative intention behind the Child Labour
(Prohibition and Regulation) Act (61 of 1986). In Gaurav Jain v. U.O. I36, the Apex
court issued directions for rescue and rehabilitation of child prostitutes and children of
32 AIR 1993 SC 477
33 PRIYA ANURAGINI, OBC RESERVATIONS https://www.theleaflet.in/obc-reservations-investigating-caste-
backwardness-and-representation/#
34 AIR 1984 SC 802
35 AIR 1997 SC 699
36 AIR 1997 SC 3021
Page 26 of 38
the prostitutes. These judicial decisions made a drastic change in the disordered society
and helped to abolish child labour and child prostitution to a large extent.
Crimes against women
Outraging the modesty of a woman is a serious social disorder has to be taken
seriously by courts during the course of Judicial Process. In Kanwar Pal S. Gill v. State
(Admn. U. T. Chandigarh), the accused slapped on the posterior of the prosecutrix, Mrs.
Rupan Deol Bajaj, and I. A. S. officer, in the presence of other guests. The accused, who
was then the D.G.P. of the State of Punjab. The CJM convicted him under Sections 354
and 509 IPC. Appeal filed by the accused was dismissed by the Apex Court. That by
itself is setting a model for others and it is a good example in connection to social
ordering. A socially sensitized Judge is a better armour in cases of crime against women.
The Criminal Law (Amendment) Act, 2013, an Indian legislation came into force
from 3 February 2013 in light of the protests in the 2012 Delhi gang rape case popularly
known as the Nirbhaya case. The protest in the Delhi after the barbarous Rape Incident
indicated the whole of India, the enormity as well as the seriousness for an immediate
reform in Rape Laws as it became a necessity for the society. There had been widespread
demand by the public as well as various human rights groups and women’s
organisations to change or amend the existing law relating to sexual offences. A graver
punishment for the accused was demanded for committing such a heinous crime. As a
result of the nationwide protests, the Justice Verma Committee was constituted under
the notification of the Government of India to suggest changes in the existing laws. Out
of the 6 offenders, 4 of them were sentenced to death on March 2020. Major
amendments by the Act in the Indian Penal Code, not only widen the ambit of certain
offences but also recognises new offences like acid attacks which earlier lacked a
specific provision and definition in the Code. It is one of the most concrete steps taken
by the Indian government to curb violence against women. The Apex Court in Vishaka
v. State of Rajasthan37 created law of the land holding that the right to be free from
sexual harassment is fundamental right guaranteed under Articles 14, 15 and 21 of the
37 AIR 1997 SC 3011
Page 27 of 38
Constitution. The Court has issued guidelines to be followed by employer for
controlling harassment of woman at her work place.
Another social evil against women is the female foeticide. Leading to unhindered
female infanticide affecting overall sex ratio in various states causing serious disorder
in the society. In Centre for Enquiry into Health and Allied Themes (CEHAT) v. Union
of India,38 the Apex Court has held that despite the PNDT Act being enacted by the
Parliament and directions are issued by the Court for the proper implementation of the
PNDT Act for eliminating the social evil. Dowry death is perhaps one of the worst social
disorders prevailing in the society, which demands heavy hand of Judicial Process to
root-out this social evil. The Dowry Prohibition Act, 1961 and the Protection of Women
from Domestic Violence Act, 2005 are protecting the rights of women. The Dowry
Prohibition Act, 1961 exclusively deals with the cases related to the dowry system in
India. The Apex Court had tried and suggested in many judgements for the inclusion of
death sentence in dowry death cases, where the case is the rarest of the rare.
38 AIR 2001 S C 2007
Page 28 of 38
JUDICIAL REASONING
There are two sources of information (or knowledge): knowledge which is produced by
thoughts and knowledge which is produced by observance. The followings contain the
details:
The first type of knowledge is information which is produced mainly by thoughts. For
example, by one sitting down and thinking about certain things, and thinking about
the meaning and the implications of such things. The conclusions and propositions
that result from this sort of thinking is a type of information which is produced by
thoughts.
The second type of knowledge is that information which is produced mainly4 by the
observance of controlled procedures. For example, in a chemistry laboratory, in order
to figure out what will happen when mixing two different substances together,
through thoughts alone, one cannot know the outcome - the observance of the
experiment is key to producing this knowledge. Judicial reasoning is not the second
type of knowledge, as no observance of a controlled procedure is involved in judicial
reasoning. Judicial reasoning is a type of knowledge which is produced by the process
of thoughts, the first source of knowledge production above. Not only judicial
reasoning belongs to the first reasoning belongs to the first type of information
production - other fields include philosophy, ethics, and some fields in mathematics
(e.g. mathematical proof) are also produced by thoughts. This type of knowledge
production is governed by rules that govern the production of correct forms of
arguments such as the consistency of the premises with the conclusions. What is
meant by the phrase ‘consistency of the premises with the conclusions’ is that: the
absence of a contradictory element (or elements), in the premises and the conclusions
that follow those premises.39
39 MUSTAFA,JUDICIAL REASONING:THE PRODUCTION OF LEGAL KNOWLEDGE ( Nov 15,2020 5 pm),
https://www.researchgate.net/publication/332911967_Judicial_Reasoning_The_Production_of_Legal_Knowle
dge.
Page 29 of 38
The reasons, satisfy us to draw conclusions which affect people’s lives, influence
their behaviour, and sometimes change society’s reactions to issues that govern life.
Paradoxically, these reasons are very often not supported by reasoning, leaving people
confused, as a result, raising doubt over institutional wisdom and integrity. The
reasoning in support of reasons is an important function in decision making process. It
assures society of the quality of the decisions, promotes healthy and informed debate
and clears the way of improvement of future actions. Ethical reasoning is important in
all spheres of influential decision making.40
Judgment writing requires skills of narration and storytelling. After giving facts
and discussing admissible and relevant evidence a judge is required to give reasons for
deciding the issues framed by him. The reasons convey the judicial ideas in words and
sentences. The reasons convey the thoughts of a judge and are part of judicial
exposition, explanation and persuasion.41
There is a difference between giving reasons and the reasoning, which may
ultimately lead to a decision by a judge on the issue or the issues raised before him. The
process adopted by a judge in arriving at a decision through the reasoning, tests a judge
of his ability and integrity. He may adopt a syllogistic process, inferential process or
intuitive process. 'Syllogism' means, a deductive scheme of a formal argument
consisting of a major and a minor premise and a conclusion. A judge accepts an
argument on a major premise, which overweighs the minor premise to draw his own
conclusion. In case of inferential process a judge simply relies upon the evidence, and
reaches to a conclusion. In the intuitive process, the Judge adopts psychological process,
which may or may not be based by his subjective preference or biases. In this process
the judge arrives at a conclusion more by intuition or emotion rather than reason. The
judge may believe a witness in part (which is permissible in India) or whole and then
draw a conclusion by justifying it from the reasoning supplied by him either by his own
belief or experience. In all these methods the object is to arrive at the truth. If judge
succeeds in finding out the truth, the method may be justified. Reasons are the rational
40 ETHICAL RESONING IN JUDICIAL PROCESS
41 Ibid at.21
Page 30 of 38
explanation to the conclusion. Reasoning is the process by which we reach to the
conclusion. Reasoning is the mental process of looking for reasons for beliefs,
conclusions, actions or feelings. In philosophy, the study of reasoning typically focuses
on what makes reasoning efficient or inefficient, appropriate or inappropriate, good or
bad. This is done by either 2 examining the form and structure of the reasoning within
the argument or by considering the broader methods used to reach particular goals of
reasoning. 42
ELEMENTS OF JUDICIAL RESONING43
Judicial reasoning is a process. This process consists of:
a. Analysing the details of the case which is brought before the Court.
b. Looking at guidance, if any, from relevant statutes or from precedents (previous
related judgments).
c. Establishing the premises upon which the Judge(s) will be relying. Those premises
can be from the actual details of the case which is brought before the Court as per
‘a’ above or from the relevant guidance.
d. Drawing relations among those different premises, which are established as
explained in ‘ above.
e. Reaching general conclusions that can be used in future analogous cases.
f. Applying general conclusions that can be used in future analogous case from above
in order to judge the specific case in hand (the case law which invoked the need to
carry out this judicial reasoning process.
What is meant by the phrases ‘logical’ and ‘non-logical’?
42 Supra note 21
43 Ibid at 20
Page 31 of 38
The phrase ‘non-logical’ does not mean ‘illogical’, ‘irrational’ or ‘contradictory’;
any ratio which cannot be classified as ‘logical’ (i.e. does not fit the definition of logical)
will be automatically classified as ‘non- logical’. For a ratio to be considered logical, in
the sense of this paper, this ratio has to contain the following:
i) Premises (which is element ‘c’ in the judicial reasoning process); and
ii) The relationship between/among these premises yields a conclusion and
iii) This conclusion is produced by elements of necessity rather than elements
of probability .
Those three points above (i, ii, iii) are the elements of which a ratio consists. If a
conclusion does not follow necessarily from
1)
the premises and
2)
the relationship among the premises, then it is ‘non-logical’.
Two examples of logical judicial ratio44
The first example:
It has been stated in the case of Regina v Broadcasting Complaints
Commissioner, Ex Parte Owen45, by May LJ that: ‘Where the reasons given by a
statutory body for taking or not taking a particular course of action are not mixed and
can clearly be disentangled, but where the court is quite satisfied that even though one
reason may be bad in law, nevertheless the statutory body would have reached precisely
the same decision on the other valid reasons, then this court will not 10 interfere by way
of judicial review.’
The second example:
44 Supra note 35
45 Ca 1985
Page 32 of 38
Another example of a logical judicial ratio can be found in Pinnel’s case. The
ratio is as follows: ‘a payment of a lesser on the day in satisfaction of a greater sum
cannot be any satisfaction for the whole’
Two examples of non-logical judicial ratios:46
The first example:
In the case of Donoghue v Stevenson47 the House of Lords decided, by a slight
majority , in favour of expanding the law to award damages in situations wherein no
contract of sale between the seller and the consumer existed.
It has been stated by Lord Atkin, who advocated the expansion of the law, that:
‘I do not think so ill of our jurisprudence as to suppose that its principles are so remote
from the ordinary needs of civilised society and the ordinary claims which it makes
upon its members as to deny a legal remedy where there is so obviously a social wrong.’
The second example:
In the case of R v R48 which concerns marital rape, the following conception
was examined by the Court: ‘By marriage a wife gives her irrevocable consent to sexual
intercourse with her husband under all circumstances.’ However, the judgment
concluded that: ‘In modern times any reasonable person must regard that conception as
quite unacceptable.’
Similar to the first example of non-logical ratios, there is no justification (no
premises) provided as to why ‘In modern times any reasonable person must regard that
conception as quite unacceptable’. One can only reason that there has been a change in
views in the society and the Court is willing to implement these views while deciding
upon cases.
46 Supra note 35
47 [1932]
48 [1991]
Page 33 of 38
By contrasting logical and non-logical ratios, what implications can one derive
from logical and non-logical ratios in terms of the nature of the law?
With regard to non-logical ratios, one can predict that such ratios are influenced
(i.e. affected) by cultural and value changes thus, this paper argues that existing non-
logical ratios which are considered the law at present carry a higher likelihood of being
reversed than that of logical ratios. If one wonders what factors determine or should
determine Judges’ attitudes towards reversing the existing common law or establishing
new common law rules, then the answer can be that:
Judges may look at the examined common law and consider whether this existing
common law can be classified as logical or non-logical; non-logical ratios should be
more susceptible to change than logical ratios, this is because non-logical ratios rely
more heavily on the current state of culture and values of the country than logical ratios.
Which one is better: logical or non-logical ratios?
Objectivity is better than subjectivity. The reason for holding this principle is
that: objectivity can be communicated to the audience more clearly than subjectivity;
hence clarity of communication is the factor in deciding which one is better: logical or
non-logical ratios. Based on the principle that objectivity is better than subjectivity, it
follows that the more objective a ratio is, the better. Objectivity and subjectivity are not
exclusive endpoints; rather, there exists a grey area between them. There is neither
100% objective nor 100% subjective information. All types of information carry
elements of subjectiveness and objectiveness; the question is: which element is greater
in a given piece of information? The more objective an information is, the less
subjective it is, and vice versa: the more subjective information is, the less objective it
is.
Judicial logical ratios are more objective (i.e. less subjective) than non-logical
ratios. This is because logical judicial ratios represent how the law should be from a
necessity point of view, whereas non-logical ratios represent a form of argument from
authority. The difference between logical and non-logical can be summed in the
following points:
Page 34 of 38
Non-logical judicial ratios: in the process of reasoning, the ends (the conclusion) are
decided first by the Judge and then all supporting propositions are presented in order
to support the ends (the conclusion).
Logical judicial ratios: in the process of reasoning, the evidence is examined by the
Judge and then this examination yields the ends (the conclusion).
FORMS OF REASONING49
Three forms of logical reasoning are particularly relevant to the judicial decision-
making process: deductive, inductive and reasoning by analogy. Deductive reasoning
involves starting with a general principle and drawing a specific conclusion based on it.
Inductive reasoning involves upturning this process, using specific outcomes to
construct a general principle that also applies to the scenario at hand.
Deductive and Inductive reasoning
Reasoning by analogy is sometimes considered a branch of inductive reasoning,
but it moves from specific evidence to draw a specific conclusion without constructing
a general principle. It relies on one set of facts being sufficiently similar to another set
of facts to infer that the same outcome ought to be reached.
Deductive syllogisms depend on a strict order of logic that cannot easily be
altered. The idea of deduction in general – reasoning from the general to the specific –
is not quite so strict, but you have to make sure each category of objects fits entirely
within the wider category above it to be certain of a categorical conclusion.
The important thing to remember about deductive reasoning at this stage is that
the logic is flawless when applied correctly. If the premises are true and the statements
are properly constructed in relation to one another, the conclusion will always be true.
49 THREE FORMS OF LOGICAL REASONING, ( Dec 15, 2023 5 pm),
https://www.open.edu/openlearn/ocw/mod/oucontent/view.php?id=68380§ion=1.1.
Page 35 of 38
But the syllogism itself says nothing about the truth of the premises or the construction
of the statements; if either of these is flawed then the conclusion is also fallible.
Inductive reasoning is not as rigorous as deductive reasoning in terms of its
logical process. Instead, it is the process of building a hypothesis, a theory about a
general rule, from the evidence available that both supports that theory and contradicts
competing theories. The more evidence there is available, the higher the probability that
the conclusion, the general rule, will be correct, but this can never be known for certain.
The conclusion using reasoning by analogy is much less likely to be certain than
for deductive reasoning. It is sometimes considered a form of inductive reasoning, and
is unstable because it relies heavily on the choices that you make about which pre-
existing examples are similar to your case and why.
Legal precedent as deductive reasoning50
It is however misleading to say that applying case precedent is a deductive
process. Common law as a whole can be described as an inductive system of law
because it involves developing principles ‘bottom-up’ from specific cases rather than
‘top-down’ from highly generalised legal principles. Applying case precedent involves
active choices to select cases with appropriate similarities to a new case and then
treating it in the same way as a result. This is more accurately described as an analogous
process than a deductive one.
The way in which judges reason their decisions is a vital component of how the
law functions. The process of interpreting statutory provisions and applying case law is
far more complicated than a simple formula for logical reasoning would suggest. It
seems inevitable that factors outside of the logical and legal reasoning process must
play a part in judicial decision-making. The amount of uncertainty inherent even in
formal logical reasoning processes gives room for the engagement of non-legal factors
to contribute to legal judgments: these factors may include morality, economics, politics
50 Supra note 35
Page 36 of 38
and social issues. Judgments often come across as highly reasoned arguments, reaching
the only inevitable conclusion based on the law through an objective and rigorous
analysis of the evidence – statutes, common law, case law, etc. However, this is as much
part of the narrative structure and rhetoric of legal argument as it is a reality.
Judicial decisions are often couched in the language of objectivity and at pains
to show that conclusions are based on legal rules and logical argument rather than
choices and extra-legal factors. However, the courts have to deal with many issues that
require inherently political judgements and/or are not covered by the existing law. In
these situations, factors such as the choice of precedent, identification of ratio
decidendi, identification of relevant analogies, and even the application of overriding
public policy concerns can reveal the devices used to ensure judgments appear both
neutral and purely legal, and thereby free from bias and the influence of non-legal
factors.
Page 37 of 38
CONCLUSION
A strong, independent and well-organised judiciary plays a vital role in the
democratic system of government. It is changed with the duty of preventing arbitrary
use of governmental authority and safeguarding the rights and liberties of citizens. It is
satisfying to see that achievements of Judicial Process in respect of social ordering has
been significant. Judiciary has not shied away from its responsibility of enforcing social
order. Looking to the need of hour and demands of the changing society, the Supreme
Court has innovated various tools and techniques, for securing social order. One can see
how the Supreme Court of India has innovated, case after case, various juristic
principles and doctrines, for upgrading social order. Noble preamble of our Constitution
promises citizens of India to secure Justice – inter alia, social justice, transforming
social order. Judicial Process has played a significant role in order to deliver social
justice, by eliminating socio-economic imbalance and social injustice from the society.
Justice V. R. Krishna Iyer, has rightly observed that “Law is not a brooding omnipotence
in the sky but a pragmatic instrument of social order. Judicial Process is a means of
enforcing law. In the light of the above discussion certainly it would be perfectly right
to say that Judicial Process is an instrument of social ordering.
Ultimate goal of Judicial Process undoubtedly, is to ensure social order and to
make the society safer for its people. Law cannot be effective and useful without taking
recourse of judicial process in maintaining social order. Justice P.N. Bhagwati and
Justice V. R. Krishna Iyer, both were of the opinion that law is an instrument of social
change, social justice and social ordering. Justice Rangnath Mishra, former C.J.I., has
rightly observed that ' Law is a means to an end and justice is the end.' As Justice V.R.
Krishna Iyer said “If people lose faith in the Bench and the Bar, they will easily take to
remedies in the streets. This will inevitably lead to downfall of democracy and the
impotency of the Court.” Therefore, undoubtedly, we can say that Judicial Process,
which operate laws, is an instrument of social ordering.
Page 38 of 38
BIBLIOGRAPHY
BOOKS REFERRED
A LAKSHMINATH, JUDICIAL PROCESS AND PRECEDNT, (4th ed.
2016).
A LAKSHMINATH, PRECEDENT IN INDIAN LAW, (2nd ed. 2005).
B. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS (1921).
DR. G P TRIPATHI, JUDICIAL PROCESS, (2nd ed. 2018).
V N SHUKLA, CONSTITUTION OF INDIA, (10th ed. 2007).
ARTICLES REFERRED
‘JUDICIAL ACTIVISM UNDER THE INDIAN CONSTITUTION’
[Address by Hon’ble Mr. Justice K.G. Balakrishnan, at Trinity College Dublin, Ireland
on October 14, 2009].
CONSTITUTIONAL CONTROL PRAXIS IN THE PRESENT DAY
[Lecture by Hon’ble Mr. Justice K.G. Balakrishnan, at the Supreme Court of Brazil on
15th August, 2008].
JohnHarrison, RobertBork, Judicial Creativity, and
Judicial Subjectivity, 80(1) UCLR Online 205 (2017).
S. P. Sathe, Judicial Activism: The Indian Experience, 6 WASH. U. J.
L. & POL’Y 029 (2001)
WEBSITES REFERRED
www.manupatra.in
www.researchgate.net
www.lawyersclubindia.com
