Interpretation of statues

Meaning of Interpretation
“the essence of law lies in the spirit, not its letter, for the letter is significant only as being
the external manifestation of the intention that underlies it” – Salmond
Interpretation means the art of finding out the true sense of an enactment by giving the words
of the enactment their natural and ordinary meaning. It is the process of ascertaining the true
meaning of the words used in a statute. The Court is not expected to interpret arbitrarily and
therefore there have been certain principles which have evolved out of the continuous
exercise by the Courts. These principles are sometimes called ‘rules of interpretation’
The object of interpretation of statutes is to determine the intention of the legislature
conveyed expressly or impliedly in the language used. As stated by SALMOND, "by
interpretation or construction is meant, the process by which the courts seek to ascertain the
meaning of the legislature through the medium of authoritative forms in which it is
expressed."
Interpretation is as old as language. Elaborate rules of interpretation were evolved even at a
very early stage of the Hindu civilization and culture. The importance of avoiding literal
interpretation was also stressed in various ancient text books – “Merely following the texts of
the law, decisions are not to be rendered, for, if such decisions are wanting in equity, a gross
failure of Dharma is caused.”
Interpretation thus is a familiar process of considerable significance. In relation to statute law,
interpretation is of importance because of the inherent nature of legislation as a source of law.
The process of statute making and the process of interpretation of statutes are two distinct
activities
Need for interpretation
Interpretation of something means ascertaining the meaning or significance of that thing or
ascertaining an explanation of something that is not immediately obvious. Construction and
Interpretation of a statute is an age-old process and as old as language.
Interpretation of statute is the process of ascertaining the true meaning of the words used in a
statute. When the language of the statute is clear, there is no need for the rules of
interpretation. But, in certain cases, more than one meaning may be derived from the same
word or sentence
. It is therefore necessary to interpret the statute to find out the real intention of the statute.
Interpretation of statutes has been an essential part of English law since Heydon's Case in
1854 and although it can seem complex, the main rules used in interpretation are easy to
learn. Elaborate rules of interpretation were evolved even at a very early stage of Hindu
civilization and culture. The rules given by ‘Jaimini’, the author of Mimamsat Sutras,
originally meant for srutis were employed for the interpretation of Smritis also.
The concept of interpretation of a Statute cannot be static one. Interpretation of statutes
becomes an ongoing exercise as newer facts and conditions continue to arise.
We can say, interpretation of Statutes is required for two basic reasons viz. to ascertain: •
Legislative Language - Legislative language may be complicated for a layman, and hence
may require interpretation; and
Legislative Intent - The intention of legislature or Legislative intent assimilates two aspects:
i. the concept of ‘meaning’, i.e., what the word means; and
ii. the concept of ‘purpose’ and ‘object’ or the ‘reason’ or ‘spirit’ pervading through the
statute.
Necessity of interpretation would arise only where the language of a statutory provision is
ambiguous, not clear or where two views are possible or where the provision gives a different
meaning defeating the object of the statute. If the language is clear and unambiguous, no need
of interpretation would arise. In this regard, a Constitution Bench of five Judges of the
Supreme Court in R.S. Nayak v A.R. Antulay, AIR 1984 SC 684 has held: “… If the words
of the Statute are clear and unambiguous, it is the plainest duty of the Court to give effect to
the natural meaning of the words used in the provision. The question of construction arises
only in the event of an ambiguity or the plain meaning of the words used in the Statute would
be self defeating.”
The purpose of Interpretation of Statutes is to help the Judge to ascertain the intention of the
Legislature – not to control that intention or to confine it within the limits, which the Judge
may deem reasonable or expedient.
Literal Rule
In construing Statutes the cardinal rule is to construe its provisions Literally and
grammatically giving the words their ordinary and natural meaning. This rule is also known
as the Plain meaning rule. The first and foremost step in the course of interpretation is to
examine the language and the literal meaning of the statute. The words in an enactment have
their own natural effect and the construction of an act depends on its wording. There should
be no additions or substitution of words in the construction of statutes and in its
interpretation. The primary rule is to interpret words as they are
Golden Rule of Interpretation
The Golden rule, or British rule, is a form of statutory interpretation that allows a judge to
depart from a word's normal meaning in order to avoid an absurd result. It is a compromise
between the plain meaning (or literal) rule and the mischief rule. Like the plain meaning rule,
it gives the words of a statute their plain, ordinary meaning. However, when this may lead to
an irrational result that is unlikely to be the legislature's intention, the judge can depart from
this meaning. In the case of homographs, where a word can have more than one meaning, the
judge can choose the preferred meaning; if the word only has one meaning, but applying this
would lead to a bad decision, the judge can apply a completely different meaning
Judicial process : Instrument of social order
Judicial Process means any judicial proceeding in connection with the dispensation of justice
by any court of competent jurisdiction and ―Social Ordering‖ means activating the
instrument of Judicial Process in setting right the wrong done or eliminating injustice from
the society. But here we are mainly concerned with role of the constitutional courts evolving
new juristic principles during the course of judicial process for upholding social order
keeping in view the need of fast changing society. Therefore, it would be appropriate to
examine as to whether Judicial Process, is an instrument of social ordering?
So, what exactly judicial process is? Everything done by judge in the process of delivery of
justice is called Judicial Process .It basically confines itself to the study of ―is‖ to ―ought‖
of the law.
Or,
Judicial process is basically ―whole complex phenomenon of court working‖ and what went
wrong with this phenomenon is the issue in my current project
Speaking of the Supreme Court of the United States of America, Jackson J., of the court
said, “we are final, not because we are infallible, we are infallible because we are final.” The
judgments of the Supreme Court are final but not infallible. They require constructive
criticism, especially to take them out of the morass of alien concept and ideas foreign to the
land and culture. The Supreme Court is virtually the proverbial ivory tower, with the judges
sitting on the top. Disturbed by some of its judgments, Pt. Nehru once said in a diatribe,
“judges of the Supreme Court sits on ivory towers far removed from ordinary men and know
nothing about them.” The Supreme Court is sometimes said to be beyond the reach of a
common person

Judicial Process under the Indian Constitution Judicial process is basically the path or
the method of attaining ―
justice‖. Justice is the approximation of the is‘ to ought‘. Judicial power is involved in the
legal ordering of facts and is under the obligation to approximate ‗is‘ with the ought‘. This
ordering is nothing but the performance of administrative duties.
Supremacy of law implies that it is equally applied and nobody is above the law. Everyone is
equal in the eyes of law so that a level playing field is created in order to strengthen parity of
power. Indian Constitution adopted this principle in the form of Article 14 and the Preamble
which provide equality of status and opportunity. Thus, Constitution ensues to establish
parity of power which requires that every person must be on the same plane.
The wording of Article 14 made it an ‗umbrella‘ Article under which all other rights, both
constitutional and statutory, find protection. This is so because all laws treat every individual
with equality and the protection of laws is extended to all without any discrimination, then all
others rights are automatically enforced. This duty to extend equality before the law and
equal protection of the laws has been casts on the state.
Article 256 makes it obligatory upon the executive of every state to ensure compliance with
the law made by Parliament and any existing law which applies in that state. The Union
executive is empowered to give such directions to a state as may appear necessary to ensure
the compliance of the laws by the state executive. Thus, according to Article 256, it is the
duty of the executive to ensure compliance with the laws and that too in a manner that
satisfies the mandate of Article 14.
Article 256, is in fact, the reflection of the true tradition of the Rajadharma Principles which
regarded it the responsibility of the executive to deliver justice through affirmative executive
action
Judicial process as an instrument of social ordering Article 32:
Instrument of Social Ordering Article 32 of the Constitution empowers the Supreme Court to
issue directions or orders or writs for enforcement of any right conferred under the
Constitution for securing social justice. The Supreme Court has granted great relief in cases
of social injustice to the affected groups of the society under this provision. Article 32 is an
important instrument of judicial process to enforce social ordering. Article 32 of the
Constitution of India itself is a fundamental right, which accorded free hand to the Judicial
Process enable the Supreme Court to take suitable action for the enforcement of social order.
Deprivation of the fundamental rights often results in to social disorder. The Supreme Court
is a sentinel of all fundamental rights, and we are satisfied to see that the Apex Court has
taken recourse of judicial process effectively in every area of social disorder to set it right and
granted relief for each type of evil prevailing in the society. The Supreme Court has played
positive role in implementing social order
In "Indra Sawhney v. Union of India", AIR 1993 SUPREME COURT 477, the Apex Court
has innovated concept of 'creamy layer test' for securing benefit of social justice to the
backward class, needy people, and excluded persons belonging to 'creamy layer .'
Bigamy is a social evil which often creates social disorder. The Apex Court has tightened the
noose over those avoiding punishment by taking plea of conversion to Islam. In "Lily
Thomas v. Union of India", AIR 2000 S C 1650, it was held by the Apex Court that the
second marriage of a Hindu husband after conversion to Islam without having his first
marriage dissolved under law, would be invalid, the second marriage would be void in terms
of the provisions of Section 494, IPC and the apostate-husband would be guilty of the offence
punishable under Section 494, IPC. This verdict of the Apex Court would certainly be helpful
in eliminating social evil of bigamy
In "Paniben v. State of Gujarat", AIR 1992 S C 1817, the Apex Court held that it would be a
travesty of justice if sympathy is shown when cruel act like bride burning is committed.
Undue sympathy would be harmful to the cause of justice. The Apex Court directed that in
such cases heavy punishment should be awarded.
Bandhua Mukti Morcha v. Union of India", AIR 1984 S C 802, is a good example of social
ordering by way of judicial process. The Apex Court has tried to eliminate socio-economic
evil of bonded labour, including child labour and issued certain guide lines to be followed, so
that recurring of such incidents be eliminated
Goal of Judicial Process Ultimate goal of Judicial Process , undoubtedly, is to ensure social
order and to make the society safer for its people. Law cannot be effective and useful without
taking recourse of judicial process in maintaining social order. Justice P. N. Bhagwati and
Justice V. R. Krishna Iyer, both were of the opinion that law is an instrument of social
change, social justice and social ordering. Justice Rangnath Mishra, former C.J.I., has rightly
observed that ' Law is a means to an end and justice is the end.' Therefore, undoubtedly we
can say that Judicial Process, which operate laws, is an instrument of social ordering.
The Apex Court in Vishaka v. State of Rajsthan (AIR 1997 SC 3011) created law of the land
holding that the right to be free from sexual harassment is fundamental right guaranteed
under Articles 14, 15 and 21 of the Constitution. The Court has issued guidelines to be
followed by employer for controlling harassment of woman at her work place.
It is satisfying to see that achievements of Judicial Process in respect of social ordering has
been significant . Judiciary has not shied away from its responsibility of enforcing social
order. Looking to the need of hour and demands of the changing society, the Supreme Court
has innovated various tools and techniques, for securing social order. One can see how the
Supreme Court of India has innovated, case after case, various juristic principles and
doctrines, for upgrading social order.

Judicial activism VS judicial restraint

The Indian judiciary, like its counterparts worldwide, grapples with the enduring tension
between two distinct judicial philosophies: judicial activism and judicial restraint. These
philosophies represent the twin pillars upon which the edifice of legal decision-making
stands. Judicial activism embodies a proactive judicial approach, where the judiciary takes an
assertive role in interpreting and enforcing constitutional principles, safeguarding individual
rights, and correcting perceived wrongs, often transcending the traditional boundaries of the
judicial role. Conversely, judicial restraint advocates for a more cautious and deferential
approach, urging judges to exercise self-restraint in deferring to the legislative and executive
branches of government, emphasizing their roles as policymakers and enforcers of laws.

History
The historical evolution of judicial activism and restraint in India can be traced back to the
colonial past, when British jurisprudence laid the foundation for legal thinking in the
subcontinent. The Indian judiciary, with its inherent conservativism, primarily served as an
instrument of colonial administration, interpreting and enforcing laws created by the British
Crown and its colonial apparatus. However, this colonial period also saw the emergence of
early legal luminaries like Sir Syed Ahmed Khan and Dadabhai Naoroji, who laid the
intellectual groundwork for Indian legal thought and reform. The struggle for independence
led to the promulgation of the Indian Constitution in 1950, which established India as a
sovereign, democratic republic and granted significant powers to the judiciary, including the
power of judicial review. This marked the beginning of a new era in the Indian judiciary's
role in shaping the nation's destiny.

Judicial Activism
Judicial activism in India is a proactive approach by the judiciary to interpret and enforce
constitutional principles, safeguard individual rights, and address societal issues beyond the
traditional purview of the judicial role. This philosophy transcends mere legal interpretation
and involves judges actively shaping public policy and effecting social change. Judicial
activism is rooted in the constitutional framework, which grants the judiciary the authority to
review and strike down laws that contravene the Constitution's fundamental principles. The
earliest manifestations of judicial activism in India came with the case of A.K. Gopalan v.
State of Madras (1950), where the Supreme Court grappled with the interpretation of Article
21 of the Constitution. This shift in judicial interpretation marked the beginning of a more
activist approach by the judiciary in safeguarding individual liberties. The judiciary's role
expanded beyond traditional legal doctrines, engaging with principles of justice, fairness, and
equity in its decisions.
The advent of Public Interest Litigation (PIL) in India in the 1980s marked a significant
milestone in judicial activism. PIL allowed citizens, non-governmental organizations, and
judges to bring cases before the courts on matters of public interest, often involving issues
related to social justice, environmental protection, and government accountability. This
innovative legal tool expanded the judiciary's reach beyond the traditional realm of individual
rights, enabling it to address systemic issues and societal concerns.
Judicial activism has played a pivotal role in upholding constitutional values, ensuring social
justice, and holding the government accountable. However, it has faced criticisms, such as
encroachment upon the powers of the elected branches of government, potential
inconsistency in judicial decisions, and unpredictability. Striking the right balance between
judicial activism and restraint is an ongoing debate in India's legal and political discourse.
Rule of Law
The rule of law is a crucial pillar of modern democracies, providing a framework for a just
and equitable society. In India, a vibrant democracy with a rich legal tradition, the rule of law
is a fundamental necessity for the preservation of individual rights, social justice, and
democratic governance. The principle of legality dictates that laws must be clear, accessible,
and applied consistently and fairly. The Indian legal system, influenced by its colonial legacy
and democratic aspirations, has strived to uphold these principles through a robust framework
of laws and institutions. Central to the rule of law is the concept of equality before the law, as
enshrined in Article 14 of the Constitution. This provision ensures that every person,
regardless of their background or status, is entitled to equal treatment under the law. The
judiciary, as the custodian of the rule of law, plays a pivotal role in upholding its principles
through its hierarchical structure and independent Supreme Court. The principle of legal
certainty is another vital component of the rule of law, requiring that laws be clear,
predictable, and consistent.
Access to justice for all members of society, regardless of their economic or social standing,
is essential for the rule of law. The judiciary in India has taken steps to make justice more
accessible through mechanisms such as Legal action taken in the name of the public good is
known as "public interest litigation" (PIL).bring cases of public interest before the courts,
often related to social justice, environmental protection, and government accountability.
A judiciary's ability to deliver timely and effective justice is crucial, and delays and
inefficiencies can undermine public trust. Landmark cases and judgments often play a pivotal
role in shaping the judiciary's legitimacy, as decisions that uphold fundamental rights, protect
vulnerable populations, and ensure accountability resonate with the public. Judicial
legitimacy is also closely linked to its role as a check on the power of the executive and
legislative branches. It is critical to maintain public trust by impartially upholding the
Constitution in such situations. The Indian judiciary has demonstrated its commitment to
upholding via seminal decisions like Sadananda Bharati v. State of Kerala (1973) and
Maneka Gandhi v. Union of India (1984), the rule of law and the ideals of justice (1978).
However, the issue of judicial appointments and vacancies in the higher judiciary has been a
subject of debate in India, with concerns about transparency, alleged political interference,
and delays in delivering justice. In recent years, the Indian judiciary has faced challenges
related to internal functioning, including allegations of misconduct and corruption among
some judge
CONCLUSION
The Indian judiciary faces a complex and dynamic pattern in its legal landscape, balancing
judicial activism and restraint. This delicate equilibrium is essential for preserving
democracy, separation of powers, and the rule of law. Judicial activism, as demonstrated in
landmark decisions like Kesavananda Bharati v. State of Kerala (1973), has been
instrumental in upholding the Constitution's core values and protecting individual rights.
However, it must be wielded judiciously, respecting the boundaries set by the Constitution.
Judicial restraint, as exemplified in decisions like S.R. Bommai v. Union of India (1994),
emphasizes the importance of respecting the autonomy of elected representatives and
preserving the principles of federalism. It acts as a counterbalance to the potential excesses of
judicial activism, ensuring the judiciary does not usurp the legitimate policymaking functions
of the legislature and executive. However, excessive restraint can pose challenges, such as
erode public trust and undermine its responsibility as the guardian of the Constitution
The delicate balance between activism and restraint is not static; it must adapt to the evolving
needs and challenges of society. The Indian judiciary must be responsive to complex issues
related to gender equality, environmental conservation, economic justice, and social inclusion
while maintaining the principles of democracy and separation of powers. Landmark cases
have played a pivotal role in shaping the trajectory of Indian jurisprudence, representing the
judiciary's commitment to upholding constitutional values, protecting fundamental rights, and
addressing societal challenges. However, challenges such as judicial appointments,
vacancies, and delays in justice continue to test its efficiency and effectiveness

UNIT 2

Judicial reasoning and growth of law

Judgment writing requires skills of narration and storytelling. After giving facts and
discussing admissible and relevant evidence a judge is required to give reasons for deciding
the issues framed by him. The reasons convey the judicial ideas in words and sentences. The
reasons convey the thoughts of a judge and are part of judicial exposition, explanation and
persuasion
There is a difference between giving reasons and the reasoning, which may ultimately lead to
a decision by a judge on the issue or the issues raised before him. The process adopted by a
judge in arriving at a decision through the reasoning, tests a judge of his ability and integrity.
He may adopt a syllogistic process, inferential process or intuitive process. 'Syllogism'
means, a deductive scheme of a formal argument consisting of a major and a minor premise
and a conclusion. A judge accepts an argument on a major premise, which overweighs the
minor premise to draw his own conclusion. In case of inferential process a judge simply relies
upon the evidence, and reaches to a conclusion. In the intuitive process, the Judge adopts
psychological process, which may or may not be based by his subjective preference or biases.
In this process the judge arrives at a conclusion more by intuition or emotion rather than
reason.
The judge may believe a witness in part (which is permissible in India) or whole and then
draw a conclusion by justifying it from the reasoning supplied by him either by his own belief
or experience. In all these methods the object is to arrive at the truth. If judge succeeds in
finding out the truth, the method may be justified
The directive force of a principle may be exerted along the line of logical progression; this I
will call the rule of analogy or the method of philosophy; along the line of historical
development; this I will call the method of evolution; along the line of the customs of the
community; this I will call the method of tradition; along the line of justice, morals and
social welfare, the mores of the day; and this I will call the method of sociology.”
Greek reasoning of Aristotle
'Homer' a Greek philosopher in eight century B.C. used mystic stories that used gods to
explain the formation of the world. 'Aristotle' is the first writer, who gave an extended,
systematic treatment of methods of human reasoning. He identified two methods of
reasoning:
(a) Analysis: in which we try to understand the object by looking at its component parts.
(b) Synthesis: in which we try to understand a class of objects by looking at the common
properties of each object in that class.
'Aristotle developed syllogistic logic: which analyses reasoning in a way that ignores the
contents of the arguments and focuses on the form or structure of the argument.
There are various forms of reasoning:- Deductive Reasoning Reasoning in an argument is
valid if the argument's conclusion must be true, when the premises (the reasons that support
the conclusion) are true, also known as syllogism.
Within the field of formal logic, a variety of different forms of deductive reasoning have
developed. These forms include syllogistic logic, propositional logic and predicate logic.
Inductive Reasoning: It contrasts with deductive reasoning. Even in the best, or strongest
cases of inductive reasoning, the truth of the premise does not guarantee the truth of the
conclusion. Instead, the conclusion of an inductive argument follows with some degree of
probability. The conclusion of the inductive argument contains more information than it is
already contained in the premises
A logical argument is rational if it is logically valid. Rationality is, however, broader term
than logical. It also includes 'uncertain but sensible' argument based on probability,
expectation, personal experience, whereas logic deals with provable facts, and demonstrably
valid relations between them.
A simple philosophical definition of rationality refers to “practical syllogism”. The accused
did not like the deceased. The accused always avoided him. The deceased came and set
besides the accused. Therefore the accused attacked him. Now all that is required to be
rational is to believe the action. The argument is logically valid but not necessarily sound.
The premise may be incorrect
German sociologist Max Weber distinguished between four types of rationality.
 Purposive or Instrumental rationality: Expectation about the behavior of other human
beings or objects in the environment.
 Value/ Belief oriented rationality: Action for one might call reasons intrinsic to the
other; some ethical, aesthetic, religious or other motive.
 Effectual: Action determined by actor’s specific effect, feeling or emotion, which are
meaningfully oriented.
 Traditional: Determined by ingrained habituation.
Max Weber emphasized that it is very unusual to find any one of these orientations.
Combinations are the norm. First two are significant and the third and fourth are subtypes.
Bonded Rationality Humans can be reasonably approximated or described as rational entities.
Some people are, however, hyper rational
The traditional theory of adjudication is that a judge must search for the relevant rule of law
derived from settled legal principles found in precedents and then apply it to the facts of the
case. The approach basically assumes that the answer to any legal problem is to be found by
searching in the reports and locating the relevant case. Benjamin Cardozo likens the process
of identifying a precedent to matching 'the colors of the case at hand against the colors of
many sample cases'.1 The sample nearest in shade supplies the applicable rule. Thus, the
decision should be the same regardless of the identity of the judge. The traditional view is
seen as 'the archetype of legal science in the practice of law'. It places 'emphasis on
uniformity, consistency and predictability, on the legal form of transactions and relationships'
and, sometimes, on literal, rather than purposive interpretation.
Effect of bias in reasoning
The reasons are very often based on personal beliefs, morality, biases and prejudices
harboured patently or latently. We may not even know such prejudices which shadow our
judgments. They pollute our thoughts and act as a dangerous virus which corrupts our
thought process. We do not try to sanitise ourselves, perhaps because there is no accepted
process to do it and more because we refuse to acknowledge such biases.
In law, we know of personal bias, pecuniary bias, and official bias. A predisposition to decide
for or against one party without proper regard to the true merits of the dispute is bias. A
biased decision also stands included in it the attributed and broader purview of the word
“malice”, which in common acceptation means and implies “spite” or “ill will”.
Allthough most judges strive diligently to avoid bias in making their decisions and firmly
believe their rulings are free from extraneous influences, subconscious factors may
sometimes lead a judge to make a factual determination on unacceptable grounds. Judges are
not 'dehumanized vehicles of faultless, logical truth'. We are all prone to using subconscious
simplifying strategies when processing significant amounts of information
 Courts engage in moral and empirical reasoning to determine what outcome is best, all
things considered. Past decisions are relevant to the extent that they have generated
justified expectations of consistency in the future. For those who reject our views about
equal treatment, past decisions are also relevant to the extent of the weight properly
accorded to equality. Past decisions are not, however, authoritative: the overall balance of
reasons for a decision, including expectations and equal treatment, determines the
outcome of judicial reasoning.
Law of precedent dictates that adherence to precedent must be rule rather than the exception
if litigants are to have faith in the even handed administration of justice in our courts.
 The judge is to compare the case before him with the precedence, back of precedence
are the judicial conceptions which are postulates of judicial reasoning, and farther
back are the habits of life, the institutions of society in which these conceptions had
their origin and which by a process of interaction they have modified in turn.
The duty of a judge is to match the colours of the case at hand against the colours of many
sample cases spread out upon their desk. The sample nearest in shade supplies the
applicable rule. But of course, no system of living law can be evolved by such a process
and no judge of a high court worthy of his office views the function so narrowly. If that
were all there was to our calling there would be little of our intellectual interest about it.
The man who had the best card index of cases would also be the wisest judge. It is when
the colours do not match when the reference index fails, that the serious business of the
judge begin.”

Judicial Review and Creativity

• Judicial review is not an expression exclusively used in constitutional law. Literally, it

means the revision of the decree or sentence of an inferior court by a superior court.
• Under general law, it works through the remedies of appeal, revision and the like, as
prescribed by the procedural laws of the land, irrespective of the political system
which prevails. Judicial review has, however, a more technical significance in public
law, particularly in countries having written constitutions. In such countries it means
that courts have the power of testing the validity of the legislative as well as other
governmental actions.
• The necessity of empowering the courts to declare a statute unconstitutional arises not
because the judiciary is to be made supreme but only because a system of checks and
balances between the legislature and the executive on the one hand and the judiciary
on the other hand provides the means by which mistakes committed by one are
corrected by the other and vice versa .
 • The function of the judiciary is not to set itself in opposition to the policy and politics
of the majority rule. On the contrary, the duty of the judiciary is simply to give effect
to the legislative policy of a statute in the light of the policy of the Constitution. The
duty of the Court is to consider and decide whether a particular statute accords or
conflicts with the Constitution and make a declaration accordingly.
• The scope of judicial review generally speaking is in three specific areas:
• i) Judicial review of legislative action;
• ii) Judicial review of executive or administrative action;
• iii) Judicial review of judicial decisions
• The Indian Constitution explicitly provides for judicial review through articles 13, 32,
131-136, 226 and 246.
• In the famous Gopalan case, the Supreme Court held that a statute to be valid must in
all cases be in conformity with the constitutional requirements and it is for the
judiciary to decide whetever any enactment is constitutional or not.' In the Golak Nath
case Chief Justice Subba Rao upheld the law-making role of the judiciary. He said, "...
Articles 32, 141 and 142 are couched in such wide and elastic terms as to enable this
court to formulate legal doctrines to meet the ends of justice.
• Hence the scope of judicial review before Indian courts has evolved in three
dimensions – firstly, to ensure fairness in administrative action, secondly to protect
the constitutionally guaranteed fundamental and other rights of citizens and thirdly to
rule on questions of legislative competence of and between the centre and the states.
• It can be understood in the context of two distinct—but parallel—legal systems (civil
law and common law), and also by two distinct theories on democracy and how a
government should be set up (the ideas of legislative supremacy and separation of
powers). First, two distinct legal systems, civil Law and common law, have different
views about judicial review. Common-law judges are seen as sources of law, capable
of creating new legal rules, and also capable of rejecting legal rules that are no longer
valid. In the civil-law tradition judges are seen as those who apply the law, with no
power to create (or destroy) legal rules.

JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS

A. ILLEGALITY
• Lack of Jurisdiction
• Excess of Jurisdiction
• Abuse of Jurisdiction
• Failure to exercise jurisdiction
B. IRRATIONALITY (WEDNESBURY TEST)
If the decision is
• Without the authority of law
• Based on no evidence
• Based on irrelevant and extraneous consideration
• Outrageous in its defiance to logic or accepted norms of moral standard that no
sensible person, on the given facts and circumstances, could arrive at such a decision.
C. PROCEDURAL IMPROPRIETY
Procedure of a decision is as important as the decision itself because if “procedure” is not
fair, decision cannot be trustworthy. Requirement of a “fair procedure” may arise in the
following ways:
1. As a constitutional mandate where fundamental rights of the people are violated
2. As a statutory mandate where statute lays down a procedure, it must be followed by
the administrative authority before taking action
3. As an implied requirement where statute is silent about the procedure, the
administrative authority must follow fair minimum administrative procedure which
guarantee ‘fair play in action.’ It includes:
i. Rule against bias- No one should be made judge in his own cause
ii. Rule of fair hearing- No one should be condemned unheard
D. PROPORTIONALITY
The doctrine is applied when:
• An administrative action invades fundamental rights
• Deference Principle: “Canon should not be used to shoot a sparrow”
Grounds of Proportionality:
1. Whether the relative merits of different objectives or interests have been
proportionately weighed and fairly balanced?
2. Whether the action under review was in the circumstances, excessively restrictive or
inflicted an unnecessary burden?
It was in Maneka together with Kesavananda Bharati that the Supreme Court expounded a
new jurisprudence—some fundamental and higher principles of law which may endure and
adapted to varying social and political situations in India. It is through judicial fiat or review
that the judiciary has created both a philosophy of law and theory of politics inextricably
based on values like reason, nature, morality, liberty, justice and restraint consistent with the
spirit of the Constitution and traditions of the people. In Kesavandanda,22 the Court rejects
the positivistic instance that sovereign power lay with Parliament. Denying such claims the
Court postulated what it described ‗the basic features, doctrine as an impenetrable bulwork
against every assumption of despotic or unconstitutional exercise of power by the legislature
and the executive. This indeed is a far-reaching development in the annals of Indian
jurisprudence for meeting the challenges of troubling times

The Maneka Gandhi, is another landmark decision from the point of human rights and
remedial jurisprudence in which Justice Bhagwati has beamed the ‗Lead Kindly light
message‘ admits the encircling gloom of State repression by emitting New Freedoms for
making human rights a living reality for those denied or unable to exercise and enjoy such
rights on account of poverty or ignorance. Through Maneka people now realise what State is
if it is devoid of justice or denies liberty, human dignity, equality etc. to ordinary citizens
under the garb of populist democracy, capsuled socialism and controlled freedoms
BAD EXERCISE OF JUDICIAL REVIEW
 Marbury vs Maddison
The chain of events leading to **Marbury v. Madison** began in early 1801, when President
John Adams, nearing the end of his term, nominated John Marshall as Chief Justice of the
U.S. Supreme Court. Adams also tried to fill numerous other judicial positions before his
term ended, including appointing William Marbury as a justice of the peace. However, when
Thomas Jefferson became president, his Secretary of State, James Madison, refused to deliver
the commissions for these last-minute appointments.
Marbury sued Madison directly in the Supreme Court, seeking a writ of mandamus to compel
Madison to deliver the commission. The case raised three key issues: whether Marbury had a
right to his commission, if there was a legal remedy available, and if the Supreme Court had
the authority to issue such a writ.
Chief Justice John Marshall, who wrote the opinion, ruled that Marbury had a right to the
commission and that there was a legal remedy. However, Marshall also found that the
Supreme Court did not have the jurisdiction to issue the writ, as the Judiciary Act of 1789,
which allowed such actions, was unconstitutional. This landmark decision established the
principle of judicial review, asserting that laws conflicting with the Constitution are void and
that the Constitution is the supreme law of the land.

 Dred Scott v. Sandford decision

Taney became best known for writing the final majority opinion in Dred Scott v. Sandford,
which said that all people of African descent, free or enslaved, were not United States
citizens and therefore had no right to sue in federal court. In addition, he wrote that the Fifth
Amendment protected slave owner rights because enslaved workers were their legal property.
The decision also argued that the Missouri Compromise legislation — passed to balance the
power between slave and non-slave states — was unconstitutional. In effect, this meant that
Congress had no power to prevent the spread of slavery.
Despite Taney’s long tenure as a Supreme Court justice, people vilified him for his role in
the Dred Scott v. Sandford decision.
 Plessey vs Ferguson
On June 7, 1892, Plessy bought a ticket on a train from New Orleans bound for Covington,
Louisiana, and took a vacant seat in a whites-only car. After refusing to leave the car at the
conductor’s insistence, he was arrested and jailed.
Convicted by a New Orleans court of violating the 1890 law, Plessy filed a petition against
the presiding judge, Hon. John H. Ferguson, claiming that the law violated the Equal
Protection Clause of the 14th Amendment.
The Supreme Court delivered its verdict in Plessy v. Ferguson. In declaring separate-but-
equal facilities constitutional on intrastate railroads, the Court ruled that the protections of
14th Amendment applied only to political and civil rights (like voting and jury service), not
“social rights” (sitting in the railroad car of your choice).
In its ruling, the Court denied that segregated railroad cars for Black people were necessarily
inferior.
 Brown vs board of education
In the case that would become most famous, a plaintiff named Oliver Brown filed a class-
action suit against the Board of Education of Topeka, Kansas, in 1951, after his
daughter, Linda Brown, was denied entrance to Topeka’s all-white elementary schools.

In his lawsuit, Brown claimed that schools for Black children were not equal to the white
schools, and that segregation violated the so-called “equal protection clause” of the 14th
Amendment, which holds that no state can “deny to any person within its jurisdiction the
equal protection of the laws.”

Warren wrote that “in the field of public education the doctrine of ‘separate but equal’ has no
place,” as segregated schools are “inherently unequal.” As a result, the Court ruled that the
plaintiffs were being “deprived of the equal protection of the laws guaranteed by the 14th
Amendment.”

ARTICLES
• Article 32
Review is not of the decision of the administrative authority but of the decision making
process. Therefore, the Court cannot assume appellate jurisdiction and reappreciate the
primary or perceptive facts found by the fact-finding authority.
• Article 136
It does not grant right of appeal but it is a discretionary power, it exists even at the stage of
hearing. Tribunal must have the trappings of a court.
• Article 226
The power of the HC is discretionary and it cannot be used as a court of appeal. It is
supervisory in nature. It can strike down an impugned rule and direct the authorities to
reframe it , but it cannot itself frame it.
• Article 227
Power of superintendence over administrative agencies exercising adjudicatory powers. The
nature of this power is administrative and judicial. Wrong decision referable to grave
dereliction of duty and flagrant abuse of power by the subordinate courts and tribunals
leading to grave injustice to the parties attract the jurisdiction of the court. It is revisional and
not appellate jurisdiction. Hence limited and restrictive.
It is used for want of jurisdiction, errors of law, perverse findings, gross violation of the
principles of natural justice and when finding is based not on evidence.
It is not confined to administrative superintendence it includes power of judicial review
also.
The jurisdiction under Article 226 and Article 227 are separate and independent.
Article 13: power to review amendments
Article 123, 213: Power to review ordinances
R.K. Garg v. Union of India 1981
A.K. Roy v. Union of India 1982
D.C. Wadhwa v. State of Bihar 1987
Article 72,161: Power to review pardons
Epuran Sudhar v. Government of AP

Accountability and judicial law making

We must first ask what it means to say someone is accountable for their actions. In many
areas accountability means that, just like football managers, an individual who fails to
perform satisfactorily in their job should be sacked or should resign. Some people have called
this form of accountability, ‗sacrificial accountability‘, meaning that the only solution is for
the individual concerned to no longer continue in their role.
In the case of the judiciary, however, safeguards are needed to ensure that Judges are free to
make their judicial decisions without fear or favour and thus to preserve their independence.
For example, if a politician or senior judge felt able to sack a particular judge, or remove him
or her from a case, simply because they did not like the decision reached, the principle of
judicial independence would be greatly undermined and there could be no possibility of a fair
trial. It could also lead judges to make decisions they felt might be more acceptable to
whoever had the right to decide whether they should continue serving as judges or be
promoted
If, for instance, the permanent or continued appointment of a part-time temporary judge was
in some way determined by one of the parties to the case, there would be a real risk that
independent and impartial judicial decision-making.
We have stated that judges who commit a criminal offence may be subject to an investigation
by the Office for Judicial Complaints and may be subject to a disciplinary sanction in
accordance with the relevant statutory provisions. Apart from this, however, it is clear that
judges are not subject to this ‗sacrificial accountability‘. However, they are subject to a
different form of accountability, which has been referred to as ‗explanatory accountability‘.
Put simply this form of accountability means that individuals can be asked to give an account
as to why they have behaved in a particular way. The judiciary is subject to this form of
accountability in a multitude of ways. Taken together, these ensure a considerable degree of
accountability.
The emergence of Realism in jurisprudence—the study of law as it works and functions,
contributed to the growth of skeptism towards law and its administration and accordingly
subjected law to realities of social life. The trial of such realism was blazed by Holmes, Gray,
Cardozo, Pound—the ‗mental fathers,31 of Realist Movement‘—who highlighted on the
functional and realistic study of law not as it contained in legislative statute or enactment but
as finally interpreted and laid down by the Courts in a judicial decision while adjudicating
disputes.

Independence of Judiciary
An independent judiciary is the substratum on which the whole edifice of constitutional
fabric, democratic way of life, the rule of law and legal process rest. The vitality of
democratic processes and the ideals of justice, the imperatives of social change and other
great values of human liberty, equality and freedoms are all dependent on the tenor and tone
of the judiciary. Where judicial wings are clipped, trimmed or transgressed by way of
politically motivated supersession or transfer to brow-beat the judges to follow the social
philosophy of the Government rather than the philosophy of the Constitution the
consequences of such a policy are disastrous to the Rule of Law and the Constitution. It is the
judicial independence which ensures democratic form of government, the rule of law and
basic rights and liberties of the citizens
In the words of Justice Krishna Iyer, ‗Independence of the Judiciary is not genuflexion nor
is it opposition of Government‘. At one point Justice Iyer characterised this concept as a
‗Constitutional Religion.‘ According to Justice Pandian, ‗this concept of independence of
judiciary.... is a ‗fixed star‘ in our constitutional consultation and its voice centres round the
philosophy of the Constitution‘

Legal Formalism vs Legal realism

Legal realism and legal formalism represent two distinct approaches to interpreting and
applying the law.
Legal Realism
1.Core Idea: Legal realism focuses on how laws are actually applied in practice, emphasizing
the role of judges’ experiences, social contexts, and real-world implications in decision-
making.
2.Judicial Discretion: Realists believe that judges have considerable discretion and that their
personal values and social considerations influence their decisions.
3.Practical Outcomes: This approach stresses the importance of practical outcomes and the
impact of judicial decisions on society. It often advocates for considering the broader social
and economic contexts in legal interpretation.
4.Flexibility: Legal realism supports a more flexible approach to the law, suggesting that
strict adherence to legal texts or established precedents can sometimes lead to unjust results.

Legal Formalism
1.Core Idea: Legal formalism emphasizes a strict, literal interpretation of legal texts and
established precedents. It maintains that legal reasoning should be objective and detached
from personal or societal considerations.
2.Predictability and Consistency: Formalists argue that the law should be applied consistently
and predictably based on clear, established rules and principles. This approach aims to limit
judicial discretion and ensure that legal outcomes are based on the letter of the law.
3.Role of Judges: In formalism, judges are seen as applying existing rules to cases, rather
than making new law or considering social consequences. Their role is more mechanical and
less influenced by external factors.
4.Rigidity: Legal formalism tends to resist flexibility, arguing that adherence to written laws
and precedents is essential for maintaining legal stability and integrity.
Summary
- Legal Realism: Focuses on real-world implications, judicial discretion, and the context in
which laws are applied. It values practical outcomes and flexibility.
- Legal Formalism: Emphasizes strict adherence to legal texts and precedents, aiming for
consistency, predictability, and minimal judicial discretion.
Both approaches offer valuable perspectives on legal interpretation and application, and often
elements of each are used in practice to balance the need for consistency with the demands of
justice.

SUGGESTIONS TO IMPROVE JUDICIAL PROCESS

Legislature: Legislature being policy formulator must perform following works-

(1) Parliament must in exercise of its power under article 32(3) empower the lower courts to
exercise the writs jurisdiction within their local limits under, so that common people may
have easy access to the justice.
(2) Parliament must in consultation with judiciary to frame a time limit within which the
matter should be disposed of and its failure to attract the punishment
(3) Alternative dispute resolution system must be proper funded and equipped with necessary
infrastructure, So as to reduce the arrears of cases
(4) Legislature by law must fix the rules according to which the quorum of the judges be
fixed, so as to avoid the personal influence of the convening authority on the decision.
(5) Presently there is no supervisory jurisdiction of Supreme Court on the High court to
prevent the misuse of their power except in appeal by quashing the judgment, So Parliament
should empower the Supreme court to ask the explanation from a High court judge when it
found that he had exercised his power illegally
(6)Parliament by a law establishes an independent body consisting of impartial legal experts
to enquire into the conduct of judges whose decisions is quashed by Supreme Court or High
Court in appeal.
(7) Judiciary The role of judiciary is policy control which comes into picture when executive
fails to deliver the justice. In order to make judicial process effective the court must observe
following guidelines-Judiciary must keep in mind that its work is to say authoritatively what
the law i.e. policy is controlling
(8) When a petition is made to test the legality of the decision of any subordinate
court/tribunal the court should only issue the writ of certiorari if grounds are satisfied, it must
not issue other writs unless the statutory remedies are exhausted
(9) Judiciary must accept the norm of democracy that justice not only be done but it appears
to be done. How government could fight against corruption if judiciary itself against the
Right to Information Act, regarding disclosure of assets on ground of being not a public
servant but constitutional authority. It amounts to double standing as on one hand they claim
salaries and other benefits on ground of being public servant and denying the liability to
disclose the assets by saying not a public servant