Nature Of Judicial Process

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�[1] 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 society.
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�[2]. 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 public�[3].

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.
According to:

Immanuel Kant:
�it is a formula which expresses the necessity of an action�.

Austin:
�Law is the command of the sovereign�.

Salmond:
�Law is the collection of rules which the state recognizes and applies in the
administration of justice�.

Krabbe Law:
�is the expression of the judgments of value which we human beings make by
virtue of our disposition and nature�.

Woodrow Wilson:
�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�

Holland:
�A law is of general rule of external human action enforced by a sovereign
political authority�. [4]

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:
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
�adalat system�.

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[5].

Criminal Justice System:

The Process of attaining Justice takes different forms in different countries
among which the most used ones are:
 1. The Inquisitorial system and
2. 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[6]�.

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[7]�.

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

1. Issue
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.
 2. Rule
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
respectively.

3. Facts
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.

4. Analysis
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.

5. Conclusion
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

Judicial Creativity:
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 legislature.

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:
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 process.

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.

1. 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 the
government
 2. 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.
3. It is a relevant factor if the body enjoys monopoly status which is
conferred or protected by the state
4. Existence of deep and pervasive state control may afford an indication
that the body is a state instrumentality
5. 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[8].

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[9]�.

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 spirited persons.

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
Litigation

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:

1. 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 accountability

2. 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.

3. 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.

4. Salus Populi Suprema Lex Esto:

which means Let the health of the people should be the supreme law.

5. 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 justice.

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[10].
6.Judicial Decision should be Impartial and the judge should be honest in his
duty of delivering justice.

Factors Leading To Judicial Unaccountability:

1. Muzzling dissent and stifling criticism:

2. Corruption
3. Judging the Judges

A History of Impeachment proceedings in the Higher Judiciary:

1. 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.

2. 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 accountability.

The Draft Judicial Standards Accountability Bill, 2010 [11]

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.

Oversight Committee
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 judges.

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 concerned Judge.

Conclusion:
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.

Bibliography
  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
corporation(Samacheerkalvi books)
 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.

End-Notes:

1. Legal Article written by sabaha published in Legal service India.com on

Judicial Process in India.
2. Law as an instrument of social change- International Journal of Pure and
applied mathematics
3. Law as an instrument of social change - International Journal of Pure and
applied mathematics
4. Political Science textbook � Samacheer kalvi Class 11 � chapter 4 basic
concepts of political science p.no.77
5. http://www.legalservicesindia.com/article/587/Legislation-&-Common-
Law-:-Indian-Legal-System.html
6. https://www.lawctopus.com/academike/comparison-trial-procedure-
indian-courts-franch-courts/
7. Comparison of Trial Procedure Between Indian Courts and French Courts
By Madhubala Solanki published in academike
8. Ajay Hasia v Khalid Mujib, AIR 1981 SC 487 � taken From Book On
Constitutional Law Written By M.P.Jain -8th Edition.
9. PP-448 taken form Book on Constitutional Law By M.P.Jain- 8th Edition.
10.http://www.legalservicesindia.com/article/538/Judicial-Accountability-
in-India.html written by heeTop of Form

Need for stronger judicial accountability

Table of Contents
 Introduction
 Judicial accountability
o
 Meaning
 Requirement
 Challenges
 Need for stronger judicial accountability
o
Judicial independence and judicial accountability: the

balance
 Doctrine of Separation of Powers
 Landmark judgments
 Conclusion
 References

Introduction
The judicial system in any country is an independent and impartial set up in
any nation to remedy injustice. Justice is declared to be blind and therefore, it
is on the judges to decide how to provide justice, keeping in mind that justice
should be rendered to each and every citizen of the nation. Therefore, there
comes the need to hold these judges to be accountable for their verdicts as it is
the decision taken by the judges that decide the fate of the parties involved in
a case being heard by the court.

Accountability is declared to be the sine qua non of any democratic nation as it

secures the rights provided to the citizens and delivers justice that is meant to
be equal for all. It is true that the judiciary is an independent body and it does
have the authority to decide on its own way over a case. But the decisions that
are made subsequently affect the public at large and therefore the judges
should be held accountable for the decisions they make. Therefore, in order to
regulate its function and promote impartiality among the judges while making
a decision, the judiciary must strike a balance.
Remembering the important role of the judiciary and its influence on the
public, there arises a necessity to judge the judges to safeguard the judiciary
from abusive powers of the judges. Internal conflicts in the judiciary affecting
the role of the judiciary are detrimental for the entire nation. An increase in
such conflicts calls for the need for stronger judicial accountability so that
justice that is to be delivered is not compromised. Judicial accountability is a
two-fold mechanism. The two folds are provided below:

1. The necessity of the judges to provide reasons for the decisions they
make in order to maintain transparency in decision-making.
2. The circumstances associated with the judges relating to their
tenures, which also give rise to the disciplinary measures to be
undertaken by them.

Judicial accountability

Meaning

 By the term judicial accountability, it means that the judges are

responsible for the decisions they deliver all by themselves. It is the
transparency in the decision-making process that helps in bringing the
accountability. Every public body is responsible for answering the
public for the decision they take and the function they carry out.
 The extent of accountability differs in terms of the work being carried
out and the functions that are discharged by the public body or
institutions. Similarly, the judiciary which is one of the wings of the
government is to be held accountable as well. But the judiciary is not
subject to the same level of accountability as the executive or the
legislative wings of the government.
 The judiciary is supposed to be an independent body responsible for
delivering justice and holding the integrity of the Constitution and
therefore it has to be impartial in its action as well. But all seems to be
not well in the judiciary as well. Conflicts associated with appointment
procedure, execution of the functions and powers are arising between
the judges or between the judges and the Chief Justice of India which
have become a common sight nowadays.
 Judicial accountability takes place by means of the provisions that
have been laid down relating to the review, appeal and revision.
 The Constitution of India provides for the removal of the judges of the
Supreme Court of India as well as the High Courts for misbehaviour
and arbitrary regulation of power by means of impeachment. The
provisions for the removal of judges rests on Articles
124(2) and (4) for the judges of the Supreme Court whereas for the
judges of the High Courts the removal provision rests on Article 217.
 The removal is carried out by two-third of the votes provided by the
members of each House of the Parliament. To date, only one
impeachment proceeding was initiated against a Supreme Court judge
but the procedure failed as the limit of the two-thirds vote was not
achieved as one of the political parties in the parliament abstained
from casting vote against the judge. This incident reflected that the
procedure to carry out impeachment was indeed filled with several
stumbling blocks in the form of political, social, economical aspects
that harmed the independence and the integrity of the judiciary. This
became a reason to bring a stronger system of judicial accountability.
 Judicial independence provides the judges with an ample amount of
freedom but does not provide them with the authority to misuse the
freedom affecting the public interests. Whenever judges or judicial
officers are found to regulate corrupt practices in delivering justice or
carrying out the legal procedure which results in contravention with
public trust, the same must be subjected to investigation by a fair
procedure to prohibit and restrict the judge from doing so.
 Article 124(5) of the Constitution of Judges (Inquiry) Act, 1968 came
into force in order to regulate the investigation procedure and to find
proof showing incapacity and misbehaviour on the part of the judges
of the Supreme Court and the High Courts which are supposed to be
presented in front of the Houses of Parliament while they cast a vote.
But a fact not to be ignored is that the implementation of this Article
is subjected to several loopholes as well.

Requirement

India is a democratic country and the Preamble in the Constitution is painted

with the word called justice which has been guaranteed to all citizens of the
country in terms of social, political, and economical. The people of this
democratic country are entitled to certain rights which include the right to be
informed as well. Accountability is necessary for those possessing power and a
dignified position and therefore is a need in order to maintain democracy and
prevent it from getting eroded. In any democracy, power and position are
associated with responsibilities otherwise the same goes against the very
establishment of the democracy. Judges are the representatives of law holders
in the courts which is an agency of the judicial system. The credibility of the
judicial system, therefore, lies in the hands of these judges.

Due to several loopholes and drawbacks of the court system recent instances
that have taken place in India reflect the frustration and distress the public
have developed towards the courts. Judiciary which is one of the most
important wings of the government should, therefore, be held accountable for
the evolving derogative values within it that are causing severe effects on the
country and its people. Several countries all across the world have the
provision for accountability of the judiciary and therefore this concept of
judicial answerability is not a new one. Several renowned judges themselves
have held that as every profession has some ethics and values to be abided
with, the profession of a judge should also have ethics and morality that every
judge mandatorily should follow while conducting in the court. Some of these
ethics have been listed below:

1. Honest decisions: The whole question of judicial accountability arises

due to the influence and biases involved in judicial pronouncement. A
judge has to be neutral in his approach thereby ensuring that justice is
provided to all. Any wrong decision by the judge that has been made
with honesty, good faith, and fairness can no longer remain wrong.
2. Abiding by the principle of natural justice: The two basic rules of the
principle of natural justice that are Audi Alteram Partem and Nemo
judex in causa sua should be applied in every decision taken by the
judges. This eliminates any kind of irrational and arbitrary action on
the part of the judges along with being impartial.
3. Administration of justice: One of the most recognised ethics of all
judges is to administer proper justice without any kind of fear or
influence. In a recent incident that took place in Bihar which involved
the killing of the person under trial during the court session which
was followed by the lynching of a person who was suspected of being
a thief shows that the administration and regulation of justice are not
taking place in a correct manner and the same should be put under
check.
These codes help in moving a step forward towards the attainment of judicial
accountability. A judge is also said to avoid too much socializing in terms that
prohibits the judge from functioning independently for being social, making
the judge be influenced to a greater extent. Although this should not be
counted as an ethical value to be followed by the judges, the Supreme Court in
the case of Ram Pratap Sharma v. Dayanand opinionated that a judge should
avoid accepting invitations from any business, political party, commercial
entities to avoid getting influenced in any way. It is rather an act of caution
that needs to be followed.

At present, the judges of the Supreme Court and the High Courts are
appointed by a collegium system which includes all the senior judges of the
Supreme Court. Although there have been many debates associated with this
method of appointing judges, the collegium system is one where transparency
is absent in totality. Some refer to this system as a system of bias as well for
the credentials of the judges are not taken into concern in this system.
Therefore the courts in India are provided with an excessive amount of
unchecked powers compared to any other court in the world. Removal of
judges can take place in no way other than impeachment which again depends
on the majority of votes of both the Houses of the Parliament.

Therefore the need for stronger judicial accountability is increasing on an

everyday basis. Whenever an allegation that is supported by documents as
evidence, is brought against a judge, the same gets very less coverage by the
media for there exists the fear of contempt of court. The judges of the
Supreme Court and the High Courts are manifested with the power to charge
any person for the criminal contempt of court and subsequently send him
behind bars. Setting up of judges associations with a strong framework can
help the judges to deliver judgment with independence but with a check in the
same.

Challenges

Accountability can be considered as one of the cornerstones for establishing

good governance. Judicial accountability can be termed as a corollary to
judicial independence. Some of the challenges in implementing judicial
accountability are listed below:

1. The most important challenge for the regulation of judicial

accountability is that the judiciary is an independent organ and the
 independence of the judges cannot be done away with. Article 235 of
the Indian Constitution provides for the authority any High Court has
over the Subordinate Courts which clearly hints on the effective
mechanism necessary to enforce accountability.
2. There exists no other way in which a judge can be removed except
through impeachment. Impeachment is a process that involves a lot
of hurdles. This is the other challenge faced by the judiciary in
bringing in judicial accountability.
3. The influence of politics in the judicial system is another challenge for
the judiciary to perform with integrity. The judges failed to make
decisions with transparency and fairness if they are dominated largely
by the political bodies in the country. This indeed becomes a
challenge for the judiciary to implement accountability alongside
securing the independence of the judiciary.

Need for stronger judicial accountability

The demand for stronger judicial accountability with respect to today’s
scenario is arising due to the following factors:

1. Change in demands of the public belonging to a welfare State: India

as a democratic country is fast changing with more and more citizens
are seeking education which is raising the awareness of the rights and
obligations among them. Public participation has also taken a rise
from what was a decade before. The willingness to know as to how
things being regulated in the country is required to be fulfilled by
increasing the accountability on the part of public officials and
institutions which is inclusive of the judiciary also.
2. Absence of remedy for regulating misbehaviour among judges: In
several judgments delivered by the courts, the one thing that has
come under notice is that there are no remedies to regulate the
misbehaviour or mistakes committed by the judges except just
removing them through impeachment which is again a long process.
The court in the case of Sub-Committee on Judicial Accountability v.
Union of India took into the observation that there exists no provision
in any statutes to charge a judge of the Supreme Court or the High
Courts for their misbehaviour during a court proceeding. This absence
calls for stronger judicial accountability to keep intact the uprightness
of the judiciary.
3. The legitimacy of a judicial procedure: Constitutional legitimacy is
essential to be present and abided by in any decision taken by the
judges or any law passed by the judiciary. In order to ensure
legitimacy, the judiciary should be held accountable as well to show
that the decisions are taken by then or the law brought to force by
them is abiding by the Constitution of India.
4. Knowledge about the standard of the judges practising in the
courts: The credentials of the judges practising in the Supreme Court
of India or the High Courts are kept private from the public in general.
There has also been the appointment of several judges based on
political connections, biases which are disadvantageous for the
judiciary. In order to avoid the same in the future, stronger judicial
accountability is necessary to ensure the delivery of justice with
fairness and clarity.
5. Reservation of seats in the judiciary: In light of the presence of both
the minorities as well as the majorities in India, demand as to
reservation of seats in the judiciary for the weaker and the depressed
section of the society has been brought to focus. Accountability on
the part of the judiciary is necessary to ensure that such a thing is
carried out in some way or the other. The only way to carry out the
same is to treat the judicial service examination as the sole
examination to enter the judiciary for all.
6. The necessity of efficiency: At present, there is a presence of thirty-
one judges in the Supreme Court of India but astonishingly only a few
judgments passed by the court have brought in differences and
change in the existing framework. Therefore this system filled with
loopholes and deficiencies calls for efficiency in the judges and in the
system. Accountability helps in keeping a check on the judges and
their activities. If the judges are checked and are restricted from
accessing excessive power then the efficiency of the judicial system
will automatically be restored.
7. The necessity of transparency: Judiciary is the only organ of the
government that delivers justice to the common citizens. Therefore, in
order to successfully achieve this role of the judiciary, there comes a
requirement for accountability on the part of the judicial system. It is
not that accountability was absent from the system but negligence on
the part of the judges in delivering judgment existed and still exists.
This calls for stronger judicial accountability as the Chief Justice of
 India has clearly mentioned that the judiciary will not be subjected to
the Right to Information Act, 2005.
8. Absence of provision to review the Supreme Court’s decisions: There
exists no provision in the Indian Constitution which directs in
reviewing the Supreme Court’s decision. Except for the Supreme
Court itself, there exists no other body or council to have a check on
the decisions passed by the apex court. But the three organs of the
government are not interdependently independent therefore the
judiciary cannot resist the want for security, accountability, and
transparency. In this 21st century, there is not only the necessity for
the speedy delivery of justice but also justice that will include honesty,
fairness and accountability on the part of the judiciary.
These are some of the instances that call for stronger judicial accountability in
recent times.

Judicial independence and judicial accountability: the balance

Judicial independence is a need to ensure the efficient delivery of justice to the

common people of the nation. Judges are supposed to protect the law and
remedy injustice without any favour or fear on their part. Judicial
accountability as has been mentioned earlier also is reasoning the judges, the
regulators of law about their decisions and verdicts which has an impact on the
entire nation. With a microscopic view on both these terms, it can be said that
both are contrary to each other. But both have a similar level of importance to
be present in the judicial system of the country. One of the reasons for having
stronger judicial accountability is to strike a balance between judicial
accountability and judicial independence.

Both these concepts are believers of the rule of law that is the supremacy of
law over all men. Further judicial accountability is necessary to bring in fair and
impartial hearings by the judges similar to judicial independence which
promotes fair and transparent hearing and does not benefit the judges as
having been perceived in several cases. But these similarities are handled by
the two concepts in different ways and therefore independence can never be
equated with absolutism. Rather they can be considered to be complementary
with each other. The aim of both these concepts is to bring about judicial
courage and judicial integrity is to be enforced together to increase the
efficiency of the working of the judicial system. Both judicial independence and
judicial accountability first take a look at finding correct judges who can work
with courage, diligence and fairness to correctly carry out their job.

This is the essence of both these concepts which are required to be taken into
concern. The balancing of these two concepts should be out on the basis of the
needs of the country and the quality of judges already functioning in the
courts. Rather than competing with each other, judicial accountability and
judicial independence should be regulated together to bring in impartial justice
to the citizens of the nation. It is only through balancing these two concepts,
can stronger judicial accountability be brought into the nation.

Doctrine of Separation of Powers

As India is a democratic country, all the three organs of the government are
supposed to be accountable for their very function and duties. The judiciary
cannot be allowed to remain absolute and unaccountable. The doctrine of
separation of powers provides that the three organs of the government are
independent of each other and are subject to their own functions. In India, as
the doctrine does not have a stronghold, the organs of the government are
interdependent with each other. It is only through the process of checks and
balances can the organs of the government allow the doctrine of separation of
powers to be activated. The checks and balances should be carried out on one
organ by the other two organs in order to bring in an equitable relation among
the three organs of the government to restrict arbitrary use of powers by any
one organ of the government. The doctrine of separation of powers provides
help to the judiciary to bring in strong accountability on its part to uphold the
correctness of the judiciary. The doctrine instead makes the work easier for
stronger judicial accountability to take a shape. Therefore a need for stronger
judicial accountability can be met if the doctrine of separation of powers is
carried out effectively.

Landmark judgments

 The Supreme Court in S.P. Gupta v. Union of India rejected the claim
made by the Central Government to extend protection against
disclosure of confidential documents to the public in general. The
court clearly mentioned that disclosure of documents is only
restricted to those documents that are contrary to the interest of the
public in general and not any other documents. In this case, the
 petitioner had asked for information about the transfer of judges and
their appointments by the Chief Justice of India.
The court observed that in this situation, the knowledge about transfer and
appointment of judges is immensely important for the public to have. This is
one very essential judgment delivered by Justice Bhagwati regarding the
essentiality of strong judicial accountability. The court agreed to the fact that
they are accountable to the public to answer queries related to the decisions
they take for the interest of the public. This has been granted to the public
by Article 19(1)(a) of the Constitution. It is not that the courts always adhered
to being accountable for their judgments.

In the Mid-Day Journalists case, there was the involvement of corruption in the
decision made by the judges. The Midday journalists were convicted for
contemplating the court for publishing certain evidence against one Justice
who had passed the order to seal all commercial properties in and around the
residential areas of Delhi. This order was passed after Justice’s sons were
involved in a partnership with some of the recognized shopping malls.

Therefore the order passed by the Justice was made in consideration with the
benefits of his sons. Although no actions were taken on the part of the court
against the Justice, it is only after the journalists were convicted the general
public could come to know about the same. This incident reflects that there
exists a fear in part of the media fir regulation of arbitrary powers by the
Judges whenever an investigation involving the judiciary is carried out.
Therefore this kind of situation calls for the need for strong judicial
accountability.

 In the case of K. Veeraswami v. Union of India and Others, the

Supreme Court of India compounded the problem associated with
judicial accountability. The Supreme Court held that no investigation
of a civil or criminal offence can be carried out by a judge belonging to
the Supreme Court or the High Courts without taking the written
approval from the Chief Justice of India. This judgment of the court
was indeed detrimental for the entire judiciary and raised questions
on the integrity of the court system. Due to such a judgment, it has
been very rare that a judge has been subjected to investigation. This,
therefore, deletes the concept of judicial accountability as well. This
judgment had overturned the decision taken by the court in S.P.
Gupta v. Union of India and Others. It has been long known that the
 only way of removing a judge from his duty is by impeachment. But
this process has not been successful yet.
 In the case of Sarojini Ramaswami v. Union of India & Ors, also known
as the Ramaswamy case, the impeachment issued by the apex court
failed badly due to the lack of majority vote from the Houses of the
Parliament. Justice Ramaswamy was charged with misusing the
court’s fund but was not impeached for the refusal of one of the
parties to cast a vote. This case brought to light the drawbacks of the
judiciary and the need for strong judicial accountability to keep in
check such issues happening in the future. The judgments that have
been listed above makes us realize that stronger judicial accountability
is welcoming because it ensures the correct and fair delivery of justice
to the people. Great scholars have said that justice must not only be
delivered but also must see to have been delivered. Therefore for the
judiciary to be certain in its decision-making activity, the judiciary
must be accountable for its activities.

Conclusion
The judiciary has been provided with key responsibilities to be carried out.
Transparency and fairness are the two important ingredients that are required
to be adopted by the judges who are the agents of the courts. In order to
increase the faith of the citizens in the judiciary, the judiciary should have a
stronger and more developed system of accountability in order to bring in
clarity to the decision-making activity. Several allegations have been raised
over many judges of the Supreme Court and the High Courts along with the
Chief Justices on the fact that they were partial in coming to a conclusion of a
case. The only way such allegations can be erased away is by making the
judiciary more accountable to the public. Therefore keeping the facts that have
been discussed, the issues that have been raised, and the cases that have been
mentioned the conclusion that one can reach is that the country requires
stronger judicial accountability in order to provide justice to every citizen of
the nation.your email

All about the doctrine of Stare Decisis and its position in India

Table of Contents
  Introduction
 Essential objectives of the doctrine of Stare Decisis
o Illustration on the doctrine of Stare Decisis
 Effect of precedents on future decisions of courts
 Advantages and disadvantages of the doctrine of Stare Decisis
o Advantages of the doctrine of Stare Decisis
o Disadvantages of the doctrine of Stare Decisis
 Position of the doctrine of Stare Decisis in India
 Doctrine of Stare Decisis under Article 141 of the Indian Constitution
o Binding nature of the doctrine of Stare Decisis under Article
141 of the Indian Constitution
o Non-binding nature under Article 141 of the Indian
Constitution
o Types of judicial precedents
o Precedents and treatment by Higher Courts
o Doctrine of prospective overruling
 Conclusion
 References

Introduction
The term ‘Stare Decisis’ originates from Latin. It means ‘to abide by things
decided.’ The doctrine of Stare Decisis is used by all courts in all cases/legal
issues. A doctrine is nothing but a principle or instruction, however, it is not
essentially a hard and fast rule that can not be broken. For instance, if the
Supreme Court passes a judgement and it becomes a precedent, then as per
the doctrine of Stare Decisis, the lower courts must follow such a judgement.
The same principle has been mentioned in Article 141 of the Constitution.

The doctrine of Stare Decisis means that courts refer to the previous, similar
legal issues to guide their decisions. Such previous decisions that courts refer
to are known as “precedents”. Precedents are legal principles or rules that are
created by the decisions given by courts. Such decisions become an authority
or an example for the judges to decide similar legal cases/issues in the future.
The doctrine of Stare Decisis creates an obligation on courts to refer to
precedents when taking a certain decision. Let us know more about the
doctrine of Stare Decisis through this article.
Essential objectives of the doctrine of Stare Decisis
The doctrine of Stare Decisis refers to the concept that courts must follow
previously made judicial decisions in cases where the same legal issues are
brought before them in subsequent matters. The concept of Stare Decisis aims
to pursue four essential objectives, they are as follows –

 The doctrine of Stare Decisis builds confidence amongst the people in

planning their economic and social transactions by acknowledging
that their actions are in compliance with the law.
 The doctrine of Stare Decisis encourages the private resolution of
disputes as the court may give its decision based on the decision of a
similar previously decided case or legal issue. Since the parties to an
issue already know the outcome of a similar legal issue, they might
look for private dispute resolution rather than going through the
conventional court procedure.
 The doctrine of Stare Decisis reduces the burden on the courts as
well. It eliminates the requirement to litigate again in the cases
wherein the decisions have already been given. It also curbs the need
for fresh litigation whenever the judge/bench changes.
 The doctrine of Stare Decisis strengthens the confidence of the people
in the judiciary as the said doctrine establishes certain restrictions and
constraints on the powers of the judges. For instance, the doctrine of
Stare Decisis requires the judges to decide legal matters before them
in a foreseeable and rational manner.
The doctrine of Stare Decisis is premised on the maintenance of certainty,
stability and consistency in the legal system. A precedent interests the primary
need in a legal system which includes the factors of regularity, rationality and
stability. The said doctrine ensures that a legal issue is resolved based on the
previously decided cases irrespective of the judiciary and its jurisdiction. In the
case of Hari Singh v. the State of Haryana (1993), it was held that in a judicial
system that is administered by courts, one of the primary principles to keep
note of is that the courts under the same jurisdiction must have similar
opinions regarding similar legal questions, issues and circumstances. If
opinions given on similar legal issues are inconsistent then instead of achieving
harmony in the judicial systems, it will result in judicial chaos. The decision
regarding a particular case that has been held for a long time cannot be
disturbed merely because of the possibility of the existence of another view.
Further, in the case of ICICI Bank v. Municipal Corporation of Greater Bombay
(2005), it was held that the decision given by the Apex Court must be read
following the context of the statutory provisions which have been interpreted
by the competent court. It was also stated that no judgement can be read if it
is a statute. Since the law cannot always be static, based on the relevant
principles and rules, the Judges must cautiously make use of the precedents in
deciding cases.

Illustration on the doctrine of Stare Decisis

Let us assume that James borrows Bond’s bike while James is on a holiday.
Bond does not ask James for permission to borrow his bike. Bond accidentally
crashes and breaks James’s bike, but he does not tell James about it. Later,
Bond simply places back James’s bike at James’s garage. When James returns
home and discovers his broken bike, he demands that Bond must buy him a
new one. The two bring their issue before the court, and the Court decides in
favour of James stating that Bond is liable and owes James the money required
for James to fix his bike, however, Bond does not have to buy James a new
bike.

The aforesaid judgement given by the court now becomes precedent. Now
onwards, based on the precedent established in this case, the lower courts in
the same jurisdiction must abide by this new rule i.e., whenever a borrower
breaks a thing or an item belonging to a borrowee and such borrower was
using the borrowee’s thing or item without the permission of the borrowee in
the first place, then the borrower is liable to pay as far as the damages done by
them to the borrowee’s item. The lower courts must follow this newly
established precedent because the doctrine of Stare Decisis obligates them to
do so.

Effect of precedents on future decisions of courts

The doctrine of Stare Decisis is favoured in judicial systems because it
encourages predictable, impartial and consistent development of legal
principles, the said doctrine also promotes reliance on judicial decisions and
contributes to the actual and perceived integrity of the judicial process. Stare
Decisis aims to ensure that the public is guided in its personal and professional
transactions by previously given court decisions, through established rules and
principles. Stare Decisis reflects a concept wherein the applicable rule of law
must be settled rather than that it be settled right. Further, the doctrine of
Stare Decisis abides by the application of decision-making in a consistent and
certain manner which in turn reflects in our legal culture and it is a prima facie
display of the belief that such decision-making consistency has a normative
value within itself.

The doctrine of Stare Decisis allows the public to presume that the
foundational principles are rooted in the law rather than in the bias of the
individuals and thereby the said doctrine contributes to the integrity of our
judicial system and the government in the branches of application and
sustainability. The doctrine of Stare Decisis is indispensable when it comes to
the judicial system because it ensures unbiased adjudication and the
predictability and certainty of law.

Advantages and disadvantages of the doctrine of Stare Decisis

Like every coin has its two sides, the doctrine of Stare Decisis also has its
advantages and disadvantages. They are as follows –

Advantages of the doctrine of Stare Decisis

 The doctrine of Stare Decisis reduces the need for successive litigation
and it further saves time and energy of the judiciary as it is not
required to determine the same question of law or any legal issue
repeatedly if it has been previously settled in some other case.
 When it comes to deciding a question of law it is often witnessed that
there is a huge possibility of arbitrariness and bias trying to creep in.
The doctrine of Stare Decisis curbs such unwanted and vicious
elements from affecting fair and reasonable adjudication by obligating
the judges to abide by the established precedents thereby preventing
any kind of arbitrariness or bias.
 The element of predictability is one of the primary needs in the
efficient functioning of a judicial system. The doctrine of Stare Decisis
thus ensures that the judgements given by the courts are predictable
thereby boosting the confidence of the people in the judicial system.
  The doctrine of Stare Decisis inculcates flexibility in the law. It can
further be said that, by the virtue of the said doctrine, the law is
moulded as per the social, cultural, economic and other
circumstances.
 The doctrine of Stare Decisis also brings stability, certainty and
consistency in the law. The said doctrine not only helps in the smooth
operation of the judiciary but also records the application of law in
deciding cases.

Disadvantages of the doctrine of Stare Decisis

 The doctrine of Stare Decisis may lead to the preservation and

propagation of certain cases which might have been judged wrongly.
It cannot be denied that there is a possibility of the existence of some
case that has been decided in an arbitrary manner and because of the
doctrine of Stare Decisis such case will be given primary importance at
the expense of an aggrieved party.
 The doctrine of Stare Decisis is also considered as a doctrine that is
against the principles of democracy since it allows unelected judges to
make law through their judgements.
 The doctrine of Stare Decisis can also be supporting erroneous
precedents that are moderately inconsistent with the Constitution,
however, such error in the interpretation may be propagated and
increased by further judgements premised on such precedent until
such an interpretation is made out that contradicts the original
understanding of the Constitution.
 Sometimes the doctrine of Stare Decisis is applied in a biased manner
by particular judges in order to amend the precedents regarding
which they might have had a dissenting opinion.
 The doctrine of Stare Decisis can also greatly hinder the all-around
development of the law. As society and its ideologies change and as
per the requirement of each legal question, there must be some
reasonable variation in the approach towards the application of the
law. The said doctrine basically echoes the concept of “one size fits
all” i.e., it is not static in nature. Thus, the said doctrine might greatly
affect the proper interpretation of the law as per the changing
cultural, social, economic and other circumstances.
Position of the doctrine of Stare Decisis in India
The doctrine of Stare Decisis did not exist in India during the ancient or
mediaeval period. It was only during the advent of British rule in the country
that the concept of binding precedent was introduced and applied in India. The
adoption of the doctrine of Stare Decisis was suggested by Dorin in the year
1813. The British legal establishment led to the concept of the hierarchy of
courts along with the reporting of decisions, these two elements are the
preconditions for the functioning of the doctrine of Stare Decisis.

The Britishers established the Sardar Diwani Adalats and the Supreme Courts
at Calcutta, Bombay and Madras. The High Court Act, 1861 was enacted
enabling the establishment of High Courts by the issue of letters of patent.
Such High Courts had original and appellate jurisdiction. Therefore, a system of
hierarchy of courts was established by the Britishers.

The Government of India Act, 1935 distinctly made the decisions of the Federal
Court and the Privy Council binding on all courts in British India and in this way
the doctrine of Stare Decisis gained statutory recognition in India. However,
the Federal Courts were not bound by their own decisions. Post-independence,
the doctrine of precedent continues to be followed in India.

Article 141 of the Constitution of India, 1950 establishes that the ‘law
declared’ by the Supreme Court of India is binding on all courts within the
territory of India. The term ‘law declared’ implies the law-making role of the
Supreme Court. However, the Supreme Court is not bound by its own
decisions. In Bengal Immunity Co. v. the State of Bihar (1955), the Apex Court
held that there is nothing in the Indian Constitution that prevents the Supreme
Court from departing from its own previously made decision if it is convinced
of its error and the detrimental effect such decision might have on public
interest. As far as the High Courts are concerned, the decisions of the High
Courts are binding on all subordinate courts within the jurisdiction of such High
Courts. In the case of Suganthi Suresh Kumar v. Jagdeesham (2002), the Apex
Court held that a High Court does not have the permission to overrule the
decision given by the Supreme Court merely based on the ground that such
decision given by the Supreme Court had laid down principles without
considering any of the legal factors. Further, in the case of Pandurang Kalu
Patil v. State of Maharashtra (2002), the Supreme Court had further reiterated
that the decisions of the High Court shall be binding until the Supreme Court
overrules them.
Doctrine of Stare Decisis under Article 141 of the Indian Constitution
The Constitution of India, 1950 under Article 141 states that when the
Supreme Court declares any law then such law shall be binding on all courts
that are within the territory of India. Article 141 further states that the ratio
decidendi of a case shall be binding and not the obiter dicta or the facts of the
case. Thus, whenever a lower court wants to follow or apply the decision of the
Supreme Court, the law laid down by the Apex Court in such a decision must
be interpreted correctly in the case at hand.

Binding nature of the doctrine of Stare Decisis under Article 141 of the Indian

Constitution

 All the courts within the territory of India are bound by the law to
abide by the decision of the Supreme Court. The lower courts are
bound to hold a uniform and constant approach towards the principle
of following such a decision given by the Apex Court.
 The Supreme Court is however not restricted or bonded by its own
judgement or decision. Even special leave petitions are also binding in
nature, they must be followed by the lower courts. The reasons such
as mere procedural irregularity or immateriality do not alone
invalidate the binding nature of the judgement or decision.
 A judgement passed by the higher court can be considered as a
precedent by the lower courts if and only when such judgement is
capable of resolving a legal matter.
 The decision given by the court must be read together as a whole.
Further, the observations from such a decision given by a higher court
must be determined in accordance with the questions presented
before the court.
 In certain cases, the bench might be of different opinions and in such
cases, the opinion that has the support of the majority shall prevail as
a precedent. In the case of Siddharam Satlingappa Mhetre v. State of
Maharashtra and Others. (2011), it was held by the Apex Court that
the judgement of a bench that is larger in strength shall be binding
not only on a judgement of a bench smaller in strength but also on a
Bench of Judges of co-equal strength.
  The cases where the Supreme Court has pronounced ex-parte
decisions, even though one of the parties to the case was not present,
still such decisions can be considered as a precedent.

Non-binding nature under Article 141 of the Indian Constitution

 The decisions that are not expressed properly. In the case of State v.
Synthetics and Chemicals Ltd. and Anr. (1991), it was stated that a
decision that lacks expression and rational grounds and further where
it did not proceed on consideration of the legal issue, such decision
shall not have a binding effect as per Article 141 of the Constitution of
India.
 The decisions that are not founded on appropriate grounds.
 The decisions that did not proceed based on consideration of the legal
issue. In the case of Dr. Shah Faesal and Others v. Union Of India and
Another (2020), it was observed by the Supreme Court that only the
principle laid down in a judgement shall be considered as binding law
under Article 141 of the Constitution.
 As per the doctrine of Stare Decisis, the Obiter dicta of a case is not
binding, thus it cannot be considered solely as a reason to declare any
statutory rule invalid. It only has a persuasive value.
 The decision rendered per incuriam is not binding in nature. This
means any decision made on per incuriam, must not be used as a
precedent.
 In the case wherein the decision is rendered sub-silentio, even then
such decision is not used as a precedent. Sub-silentio means when a
question of law was not correctly and reasonably determined.
 The scenario wherein the Court’s observations regarding the facts of
the cases are not binding.

Types of judicial precedents

 Declaratory precedent – A declaratory precedent refers to such a

precedent wherein an already existing rule is applied in deciding a
question of law.
  Original precedent – In the case of an original precedent, a new law is
established to apply it in a legal issue. It can be said that the original
precedents are primarily the reason for the making of new laws.
 Persuasive Precedent – A persuasive precedent is a kind of precedent
wherein there is no compulsion for the judge to abide by a certain
precedent regarding a legal issue, however, such a judge has the
responsibility to consider the precedent before taking any action.
 Absolutely Authoritative Precedents – In the case of an absolutely
authoritative precedent, it is a mandate for the judges to follow a
particular precedent in deciding a legal matter. Moreover, the judge
must abide by the precedent even if they have a dissenting opinion
regarding such precedent.
 Conditionally Authoritative Precedents – When it comes to the case of
conditionally authoritative precedents, the concerned judge has to
follow the authoritative precedent as it is, but in certain special cases.
A judge may disregard the decision of a court if it fails to be rational
and lawful.

Precedents and treatment by Higher Courts

For a case that has been earlier decided by a lower court, a higher court can do
the following –

 Reversal of decision – By order of a higher court, the judgement of

the lower courts shall cease to have any effect on the parties or the
public.
 Refusal to follow a decision – A High Court has the power to refuse to
follow the decision of a lower court in cases where the High Court
cannot reverse or overrule the lower court’s decision.
 Distinguish from the decision – Where a High Court finds that the
material facts of the case differ and the principles decided in the
precedence is extremely narrow to be adequately applied to the facts
of the case before it, then the High Court may distinguish such case
from the previously given decision by the lower court.
 Overrule of decision – In a situation where a High Court decides that
the decision taken by the lower court regarding a particular is wrong,
then it overrules such decision of the lower court.
Doctrine of prospective overruling

Generally, the courts follow the doctrine of Stare Decisis, however, the higher
courts may overrule the decisions that may be arbitrary, erroneous or which
are not applicable to the facts of the new case. The court may also overrule a
decision where there is divided opinion.

Further, a court can overrule a decision where such a decision is vague, lacks
clarity or causes inconvenience and hardship or the error in the prior decision
cannot be easily corrected only with the help of the legislative process. When
an earlier decision is overruled, it no longer is a binding precedent. In a case of
overruling the decision of a previous case, the re-opening of old disputes on
the ground of a change in the legal standing may arise, as a consequence, a
multiplicity of proceedings may also arise.

Conclusion
The statutes and enactments of the legislature lay down the rules to be applied
in the adjudication of disputes between parties and the final authority for the
interpretation of these rules is the judiciary. The doctrine of Stare Decisis
makes the decisions of courts, generally, the higher courts, binding on the
subordinate courts in cases wherein similar questions of law are brought
before the court. The applicability of the said doctrine ensures that there is
predictability and certainty within the law. The said doctrine saves the time,
energy and efforts of the judiciary and helps in eliminating the arbitrary and
biased action on part of the judges. The doctrine of Stare Decisis is therefore
within the interest of public policy and it creates confidence in the public by
ensuring that their actions are in accordance with the law.

Law of precedent with reference to ratio decidendi and obiter dicta

Table of Contents
 Introduction
 The Doctrine of Precedent and Article 141 of the Indian Constitution
 Ratio Decidendi
 oDescriptive ratio
o Prescriptive Ratio
 Obiter Dicta
 Conclusion
 References

Introduction
The law is a significant mechanism in any of the societies as it properly carves
the behaviour and conduct of beings in that society. It realizes the acceptable
norms between the people and institutions which has the potential to avoid
conflicts and mandates the following of such norms. The absence of law in the
society would depreciate the ideal societal relationships and lead to an
increase in selfish and brutal notions among people of that society. In light of
the aforementioned significance of law, it is pertinent to mention the sources
of law. Law has been evolved from three kinds of sources namely customs,
legislation, and precedents. First, customs are the accepted rule of conduct or
behavior which is voluntarily adopted by a group of people in the initial stage.

Later, such conduct evolves to be an elementary rule of that particular group.

The evolution of such conduct to be a rule is known as customary law. As far as
the second source is concerned, legislations are the consciously made laws
either by the government or legislature of a country, and these are currently
considered as the major source of law across the countries. The last source of
law is the precedent or case law. It can be defined as a former legal decision
given by a particular court which has similar or related principles in a latter
case. Thus, the former decision is either binding or persuasive so that there is
no need for all the courts to determine the legal principles which are to be
attracted in the latter case. Hence, as the precedents and its contents seem to
be important for the functioning of judiciary and law, the current Article deals
with the doctrine of precedent, stare decisis, Article 141 of the Indian
Constitution with special reference to its contents such as ratio decidendi and
obiter dicta.

The Doctrine of Precedent and Article 141 of the Indian Constitution

The term ‘precedent’ usually refers to an action or decision which is
undertaken previously by someone in similar circumstances and can be utilized
as a reference or guide for future conduct. But in the judicial sense, it is the
decision taken by the same or the other court in a former case in which similar
circumstances of the latter case existed and such decision must be used as a
standard rule in deciding the latter case. Keeton defined judicial precedent as
the decision of a court that contains authority to a certain extent. The word
‘precedent’ evolves from ‘precedence’ which means ‘to be considered
important or prior to the other things’. The administration of justice functions
on a notion that cases which are attracting similar principles of law must be
decided similarly. Hence, the general rule is to follow the path of former
decisions provided that there seems no reasonable justification for diverging
from them.

The judicial precedents are divided into four types. The first kind is the
authoritative precedents which are to be followed by the court of law without
diverging from the previous decisions. These decisions usually consist of the
judgments given by the superior court. The second type of precedent is the
persuasive precedents which are the decisions that carry no obligation to be
followed but have a persuasive value in the court. Generally, the decisions of
foreign courts and High courts of other states are persuasive in a high court of
a particular state and the decision of the Supreme court is persuasive in the
same court. This is because SC doesn’t have any obligation to follow its own
decision and can diverge from the previous decisions. The third type is the
original precedent which involves the creation and application of the new rule.
Thus, the new rule becomes a guide in deciding future cases. The last type of
precedent is declaratory precedents. Salmond defines it as the mere
implementation of the existing rule.

The application of this principle of following the former path is known as the
doctrine of precedent. The law of precedent is based on the doctrine of stare
decisis which is derived from the maxim “Stare decisis et non-quieta
movere” which can be described as “to stand by the decisions and not to
disturb settled rules”. With regards to the application of stare decisis, the
Supreme Court in the case of Waman Rao v. Union of India held that a
principle that has been applied in decisions by the earlier courts can be directly
followed by the courts in subsequent cases and there is no need to determine
the rationale upon which such principle was built. Herein, we need to
understand the doctrine of precedent evolved into a law that has a binding
effect but the doctrine of stare decisis is a mere principle that could be broken.
Hence, the law on precedents evolved even when there is the principle of stare
decisis.
The doctrine of precedents is a significant mechanism coined by the English
law in the medieval ages. At the time when the parliament had not evolved as
legislation making body, the judges in the English court determined certain
principles while deciding the cases. These principles made a notable
contribution to the advancement of English law. The case of Mirehouse v.
Rennell contributed a lot to the concept of precedents or judge-made laws
wherein it was held that the previous decisions of the courts cannot be
diverged by the judges for the reasons of uniformity, certainty, and
consistency. In this case, Justice Parke also held that the judges cannot apply a
rule set by previous judges in a way they like because such a path is convenient
and reasonable to their mind. Among the newly evolved legal systems existing
across the globe, Anglo-American law is common law as it evolved from the
decisions of the judges. The common law was also applied in India by a few
modifications made by the courts which align with the Indian context.

As far as the Indian context is concerned, the judges in ancient India did not
follow the doctrine of precedent as they were not dealing with complicated
laws, and as this concept did not evolve much. Even in the medieval period,
this concept was not traced to the actions of the justice administration. The
formation of the Regulating Act of 1773 brought significant changes in the
concept of precedent in India. Primarily, this Act established a Supreme Court
in the Bengal Presidency and the aftermath effect of this Act is the
establishment of Supreme Courts in other presidencies. Later, in the year of
1861, the Indian High Courts Act was introduced in the Indian colony thus
ensuring the structure of inferior and superior courts. These two Acts
developed an obligation upon the inferior courts functioning in these
presidencies to abide by the rules followed and laid down by the superior
courts. Finally, by the induction of the Government of India Act, 1935, a federal
court was established in British India thus ensuring a supreme authority in the
judiciary. Section 212 of this Act expressly ensured that the decisions of the
federal court are binding on all the courts in India.

Post-independence, the Constitution of India, 1950 established the Supreme

Court, and Article 141 of the Constitution promulgates that the law declared by
the Supreme Court to be obligatory upon all the courts in India. First, the
expression ‘law declared’ herein is well explained in the case of Bimal Devi v.
Chaturvedi. Justice Agarwala held that law declared includes ratio decidendi as
well the obiter dictum only in the case where to point regarding obiter dictum
is raised and argued. But it is to be understood that all contents of a judgment
cannot be deemed to be binding under Article 141. The statements made by
the court in the usual course of giving a judgment but not with respect to the
law does not carry any obligatory force.

In another case, State of Kerala v. Vasudevan, the court held that as no case is
perfectly similar with respect to the facts, the decisions made on the question
of fact cannot be used as precedents. Secondly, the expression ‘all courts’ has
a certain significance as to whether the Supreme Court is bound by its own
decisions or not. But, this question is settled with the pronouncement of
various judgments that SC can take a divergent path from its previous decision.
In the case of Dwarkadas v. Sholapur Spinning and Weaving Co, while dealing
with the same question, held that there is no obligation upon the Supreme
Court to follow its own decisions and can take a conflicting path if the previous
decision seems to be erroneous but such power must be used diligently.
Hence, judgments of higher courts are binding on the lower courts but have
persuasive value in the courts giving such judgment.

As it is already discussed that ratio decidendi and obiter dictum are two
contents of judgment, it is pertinent for us to understand which one of these
parts is binding in case a precedent is raised in the court of law.

Ratio Decidendi
Ratio decidendi literally means ‘reason for deciding’. In the judicial context, it is
the reason which is cited for arriving at a decision in a case. Such reason is not
the law that is getting attracted in the contemporary case but is the necessary
notion which helps the court arrive at a particular decision. It is this part of the
precedent which has to be followed by the courts in subsequent decisions but
not the general observations of the court. There is a dispute of law involved
with respect to the reasoning given by the judgment and not a dispute of fact.
As the facts cannot be similar in other cases, the observations pertinent to the
facts made by the judge cannot be binding in the other cases though the
similar laws are attracted. But the reasons for arriving at a decision are binding.
In case there are multiple reasons for deciding in a manner, all those reasons
will be binding in the subsequent cases.

In the case of B. Shama Rao v. UT of Pondicherry, it was observed that any of

the decisions of a court which is binding as a precedent is not because of the
end result or the order of that decision but based on the reasons and principles
referred to in such a decision. The ratio in deciding a case would evolve from
the interpretation of a statute, principles of natural justice, and the common
law principles. In the case of multiple judges deciding a case, the reasons cited
by the majority of them will have an effect of precedent on further cases. But if
the judges agree with the judgment or order but not with the ratio for arriving
at such a decision, such judgment or order does not carry an obligation to be
followed as a precedent. Though it is difficult to pick a ratio from a judgment,
the primary duty of judges while arriving at a decision is to determine a ratio,
and the court’s duty while citing a case as precedent is to identify what is the
ratio in such a case. Ratio decidendi can be determined by prioritizing the
material facts and leaving the unimportant facts behind. Another way to
identify ratio is to narrow down the precedents which could be applicable in
determining the case. Even in this method, due importance must be given to
the majority opinions and the crux of the cases. Rather than these general
techniques, certain specific tests are laid down by the jurists such as Halsbury,
Wambaugh, Goodhart, and Julius Stone. These tests are used to this day to
correctly determine the ratio of a case.

Descriptive ratio

The descriptive ratio is the rationale or the reason which helped the court to
arrive at a decision. It is the original ratio and is used as an aid in future cases

Prescriptive Ratio

On the other hand, the prescriptive ratio is the way in which the descriptive
ratio is used as a precedent in a future case. No case is totally similar to the
facts or the law. Due to this reason, there arises a problem in the application of
the principle as it is laid down in a future case. Hence, the descriptive ratio is
slightly altered by using the level of generality so as to apply it as a prescriptive
ratio.

Obiter Dicta
This is another part of any judgment. Obiter dictum is defined in the case
of Mohandas Issardas v. A.N. Sattanathan as the opinion expressed by the
judge in the court or during pronouncement of judgment which does not have
any importance in the decision. This is not an important constituent to arrive at
a decision but is just used to describe the circumstances. They are the
incidental remarks made by the court while dealing with the actual conflict
between parties. In the case of Sarwan Singh Lamba v. Union of India, the SC
observed that in general circumstances, even the obiter dictum mentioned in a
decision of the court is expected to be followed. Moreover, the Supreme
Court’s obiter dictum carries a considerable weightage. But such weightage
depends upon the kind of dictum given by the court. If the dictum is a casual
remark by the court, it does have any effect on the parties or the subsequent
cases. In another scenario, certain obiter dicta have recommendatory or
persuasive value but do not bind anyone. Hence, the ratio decidendi is an
important constituent of judgment rather than obiter dicta.

During erstwhile India, the obiter dicta of Privy Council was given the highest
position. In Mohandas’ case, it was held that as the Privy Council is the highest
court of appeal, the obiter dictum will also be binding on all the courts in India.
But in England, the situation was different with respect to the effect of obiter
dicta and it was not binding on any court. (As per Halsbury Laws of England,
Volume 22, page. 797)

Conclusion
Precedents are major players in the legal field as they lessen the burden on
courts to a larger extent. It helps the judges deciding the subsequent cases to
understand the crux and jurisprudence behind a legal principle rather than just
applying it. Moreover, as the ratio decidendi is the part that has to be
identified from the whole judgment while using a precedent, the legal
students, academicians, lawyers, and the judges would require skill in culling
out the ratio and leaving behind general observations.

Legal reasoning
Legal reasoning is about various factors and has various components attached
to it. This concept is of thinking which the learners and researchers should use
in order to reach a legal conclusion and make further decisions. When we talk
about co relation in between law and society, we understand the social control
perspective, it happens because law enables to provide solution to conflicts
that may arise by setting precedents in past, present and future.

It has been very long history that has given us the opportunity to formulate
logical reasoning in law. Legal procedure, history and its binding ability can
resolve conflicts in the society and further direct current activity while
maintaining continuity with the past, and to control the future by laying down
procedures, approaches and theories.

Decision are guided and followed by a logical reasoning which takes into
account the past decisions and statutes, the present position of the parties to
the cases, and its own impact on future activity. The ability of open
interpretation with boundaries help the learner and researches to reach a legal
conclusion.

Objectives

 To introduce the concept of legal reasoning and its importance.

 To understand the basic components in legal reasoning.
 To understand the role of logical reasoning in law
 To know about the various types of legal reasoning methods in terms of
kinds of arguments.
 To focus on deductive method of research.
 To understand the Steps of deductive method
 To understand the merits and de merits of deductive method

Basic Components In Legal Reasoning

The four pillars of legal reasoning are "Legal Process Logic", "Justice",
"Experience" and "Policies".

 Legal process logic lays on the principle of consistency and equal

application of law. The science that involves forming legal conclusion can
never be as simple as right and wrong it inherits the correct application
of precedents and equal application of law.
 The principle justice is the sword that slays and ensure the to do right
between the parties. The concept of justice revolves around the
philosophical thought of justice based on evidence.
  Experience teaches the most integral component of legal reasoning. The
practice of law is about experience and through experience we
understand the logic. It is the tool that empowers the user to
understand come to legal conclusion of legal judgments.
 The term policy is used to describe the process of approaching a conflict
as well as a solution. It is the give and take of the scientific attempt to
see into future and understand the consequences and impacts. It is
emphasizing on the individual to put aside die current interests of the
parties and to keep in mind how this decision would affect other persons
in future.

Logical Reasoning Types And Principles

When we look at all the four components, the logical thinking is the core which
creates the concept of legal reasoning similar to scientific generalizations are
based on logical explanations. Every science is based on the principles of logic
or reason. Science involves die rules of reasoning or use of arguments.
Arguments are made on the basis of connection, relationship, association,
property, common variable or attribute between things and activities
mentioned in the argument.

Inductive Method
Scientific method of research emphasizes and works on the principle of
induction. It is the process which involves the reasoning from particular cases
to whole group of cases, from specific instances of the concerning law. It can
also be called the historical or empirical or a posteriori method. It can be also
said that it is a practical ideology to legal work, study and research problems. It
is that bridge which covers the gap in between theoretical and practice.

It ignites the chain reaction between the causes and further establishes the
relation in between them. It is a collective of instances and facts also known as
raw data of experience, that is the reason it is called as empirical. The data is
can be of various field and background such as statistics, historical records, etc.
as long as it related.

Deductive Method
From the title we understand that this method is about deduction of
conclusions, assumptions and both of them collectively. It is process that gives
reasoning and its principle varies from general to particular hence makes the
base broader. It provides the premise because its vast reasoning. It has other
components such as analytical, abstract and a priori method. What the
abstract method indicates is the ideology and the approach for the study. It is
the rational approach qualifies it as scientific. It is basically a rational approach
in accordance with the tenets of deductive logic. It is the logic that uses a
general statement as the basis of argument.

If we focus on syllogism of this method, it's major components consists a major

premise, a minor premise, and a conclusion.

A major premise is the principle that states a general rule. During the legal
research this premise state generally a statement of law. A minor premise the
part which makes a factual statement of the facts of the research. During the
legal research and arguments, this premise states the statement of fact. The
role of conclusion is to make a connect the major and minor premise through a
statement and hence the relation establish further provides a general rule that
applies to the facts and during the legal research it can be said that it is the
Step of instating the law to the facts.

Example: to qualify as a victim of rape under criminal law there must be:

1. Sexual intercourse with a woman

2. The intercourse must be without her will" (Major premise; states a rule
of law). Here, the woman had consensual sex. (Minor premise; makes a
statement of fact.) Therefore, the plaintiff cannot be a "victim" of rap
under criminal law. (Conclusion; correctly applies the law to the facts.)

When the truth of the premise follows:

In order for a syllogism to be valid, it must be logically impossible for its
premises to be true and its conclusion to be false. In other words, a syllogism is
valid if, given the truth of its premises, the conclusion "follows" logically such
that it, too, must be true. An argument is not valid simply because its premises
and conclusion are all true.

Example: All teachers are human. Some human are excellent racers. Therefore,
some teachers are excellent racers.

During the research the study of the causal factors of the delinquencies have
some general anticipatory idea which enables the researcher guides them to
observe on the specific facts which is relevant to their inquiry. It is not
necessary that the implications are clear then in those cases the observation
helps them user to formulate certain single propositions leading to clearing out
irrelevance. That is, they deduce from die complexities of observed behaviour
certain single ideas. In other words, they use a process of reasoning about the
whole observed situations in order to arrive at a particular idea. This process of
reasoning is called deduction or deductive reasoning.

The following example can be cited for the deductive reasoning:

Lombroso, an Italian, observed peculiar physical features among the criminals
and by using the logical deductive thinking formulated the following
propositions by taking his observations into consideration:

1. Criminals are by birth a distinct type of persons

2. They can be recognized by stigma or anomalies such as a symmetrical
cranium, long lower jaw, flattened nose, scanty beard and low sensitivity
to pains
3. These physical anomalies identify the personality which is predisposed
criminal behavior
4. Such persons cannot refrain from committing crime unless the
circumstances of life are generally favoured.

Deduction is logical reasoning and if we start with good premises, deduction

can serve scientific research in three ways:

1. Deduction enables to detect the questionable assumptions logically and

it is involved in what is believed to be the truth and it multiplies the
number of available hypothesis by formulating the possible alternatives.
2. The logical deduction of its consequences makes clear the meaning of
any hypothesis.
3. The process of rigorous deduction is an aid in the attempt to steer clear
of irrelevancies and thus the right principle is found.

Steps In The Deductive Method

Step 1
In this Step the problem is explored and it preliminary to any investigation. It
states the existence of a definite problem in the mind of the researcher. The
problem should hold significance in the factual world.
Step 2
In this Step the hypothesis from the assumption which are made are selected
which can lead to the final conclusion from the research. It is important the
selection and the relevant assumptions are taken into account from the
observation. This Step bridges the gap of assumptions and facts. The final
results from this Step is; conjuncture, a hunch, of the possible connection
between two phenomena.

Step 3
Theoretical development of the formulated hypothesis has been taken
together with the implications and should be carefully studied to further result
into a theory. We understand the consequences and implications are deduced
from the logical reasoning.

The explanandum and explanans are the two parts of this Step.

The explanandum is the part which enables the user to reach to conclusion of
the deductive argument of the issue at hand which may be pertaining of
anything. It might be singular or multiple which can always vary.

The explanans (premise) explain the explanandum (conclusion). The

explanandum is deduced from the explanans. The deductive explanation has a
valid argument because it takes the form of conditional argument, affirming
die antecedent which is a valid form of inference.

Step 4
The final Step of this process is the verification of theories.

Merits And Demerits Of Deductive Method

Merits

1. Powerful: "Deductive explanation is very powerful because it makes use

of a valid form of deductive argument where the explanandum must be
true if the explanans are true."
2. Simple method: "From a few basic facts of human nature, a number of
inferences can be drawn by logical reasoning."
3. Substitute for experimentation: "It is not possible for the investigator to
conduct controlled experiments with the legal phenomena in a
laboratory. He can, therefore, fall back upon deductive reasoning."
 4. Actual and exact: "The deductive method lends for the generalizations
which are accurate and exact."

Demerits

1. The diversity and complexity of brain poses the trouble for part of the
population whose logic and reasoning might not be very strong hence
not everyone can be successful in using this method. This is further
growing with time and even after experience it may not be definite that
the conclusion reached is applicable in the scenario.
2. It is also interpreted that there is a danger of building inapplicable
models. If the user confines to only abstraction. Then this model may
have the elegance and be logically sound but still can be distinct from
the reality.
3. It is important to understand the conditions because deductive
reasoning are valid only under right assumed conditions. It is important
for assumptions to be valid.
4. Despite the vast base and assumptions this method might not be
applicable to all the scenarios and cases. Hence it may be applicable to
some but not all the studies.