Judicial Process

1. Judicial Process as an Instrument of Social
Ordering
NAME – ANKUSH RAJENDRA LADHE.
PRN – 210104031010.
LLM 1st
Year Criminal Law, Sem – 2.
SUBJECT – JUDICIAL PROCESS.
TOPIC – JUDICIAL PROCESS AS AN INSTRUMENT OF SOCIAL
ORDERING
SUBJECT TEACHER – PROF.ANUSHRI UPASE.

2. JUDICIAL PROCESS
► • "Judicial process" means any judicial proceeding in connection with the dispensation
of justice by any court of competent jurisdiction.
► • "Social ordering" means activating the instrument of judicial Process is setting right
the wrong done or eliminating injustice from the society.

3. Historical Background of Judicial System in India
► The present judicial system of India was not a sudden creation.
► Slow and gradual process
► After Constitution have been the greatest molding factors.
► Administration of justice is one of the most essential function of the state.
► If men were god.
► Laws and courts have always gone together.

4. JUDICIAL PROCEDURE IN ANCIENT TIMES.
► In early Vedic times, no judicial procedure.
► Rigveda gives civil laws.
► The kings can do no wrong.
► Disputes according to the rule of their own profession. Artisans, trade guilds,
money-lenders etc,.
► No limits to the jurisdiction of courts in Civil matters.
► No evidence was forthcoming.
► Plaintiff-the Prasnin, the defendant -Abhi Prasnin, judge- Prasna-Viveka

5. JUDICIAL SYSTEM IN PRESENT INDIA
► Is a foreign transplant on Indian soil.
► Constitution of India- three types of court
► The Supreme Court of India. instrument of social ordering –
Article 32. Chapter IV of Part V.
► Original jurisdiction-dispute between centre and state.
► Appellate Jurisdiction- (substantial question) Article 132,133 and 136.
► Advisory Jurisdiction (the court report to president- Ques of public importance- Article
143.

6. THE LITIGATION PROCESS
► Civil litigation
► Criminal litigation
► Alternative dispute resolution-out of court
► 1) Arbitration
► 2) Mediation
► 3) Conciliation
► 4) Negotiation
► 5) Lok Adalat.

7. JUDICIAL PROCESS AS AN INSTUMENT OF
SOCIAL ORDERING
► Judicial process & social ordering meaning.
► Article 32- instrument of social ordering.
► Administration of justice is application of legal principles through the court of law.
► Cardozo, a democratic system-judicial process becomes an instrument of social
ordering.
► Every society has to maintain- rights and duties.
► Various factors play imp role in the decision making by the courts.
► 1. Precedent.
► 2. Custom.
► 3. Morality and sociology.

8. PRECEDENT
► Precedent in England with authority: it is not merely the evidence of law but a source of
it; and the courts are bound to follow the law that is so established...........

9. Meaning of Precedent
► Is statement of Law found in a higher judicial decision, followed by the same court or
subordinate court.
► "law" involves and be speaks of a uniformity.
► The judges surely could hat have ignored the mores, the customs, usages and habits of
the people.
► In Common Law of England, precedents -to some extent, based on the recognized,
reasonable and time honored customs and usages of the people.

10. PRECEDENT AS A SOURCE OF LAW
► Precedent speaks with authority
► Principle becomes binding for future cases and it thus becomes a source of law.
► An established rule to abide by the former precedents where the same points come
again in litigation.
► Authoritative precedents are a legal source of Law.
► Persuasive precedents are a historical source of law (not a binding)

11. Nature of Judicial Precedent
► Is purely constitutive in nature and never abrogative.
► Create a Law but cannot alter it.
► Judges are not at liberty to put their own views.
► Judges can fill in the gaps and remove imperfections of the existing laws.

12. Doctrine of Stare Decisis
► Means "let the decision stand in its rightful place".
► Maxim includes stare decisis et non quieta movere---to stand by decisions and not to
disturb what is settled.
► Two principles
► Each court is absolutely bound by the decisions of the courts above it.
► Higher Courts are bound by their own decision. In India, SC is not bound by its own
decision.
► Doctrine of prospective overruling.

13. CUSTOM
"Custom may be defined as the uniformity of habits or conduct of people under like
circumstances“
- Allen
An action or way of behaving that is usual and traditional among the people in a particular
group or place.

14. Kinds of Custom
► Two kinds of Customs
► 1. Legal - operative per se as binding rule of law. Itself the force of law. Absolute.
► I. Local- pervails in some defined locality. narrowest sense.
► In India, Local custom may be divided into two Geographical Local Custom:
► Personal Local Custom :- these customs are Law only for a particular sect or family
► II. General - all the members of a society
► Keeton- General Custom must not only be reasonable but also be followed and accepted
as binding
► Should not be contrary to statute law as well as the common law of the land.

15. 2. Conventional Custom - According to Salmond, is one whose authority is conditional on
its acceptance and incorporation in agreements between the parties to be bound by it.
► Is referred to as usage and legal custom Its apply in three stages:
► 1. Well established, must be proved on the basis of evidence.
► 2. Through a judicial decision- form of a precedent
► 3. After this- finally accepted as a statutory law after its codification(development)
► the Bills of Exchange and most of the provisions of the Sale of Goods Act have their
origin in the conventional custom and usages.

16. JUDICIAL PROCESS AND CREATIVITY IN
LAW
► Source of law is used different senses.
► Source is origin.
► Source of law - 1) Material and formal
► Material -Legal and Historical.
► Legal - 1) legislation 2)precedent 3)custom 4) agreement and Professional opinion.
► Formal sources are the law derives its force and validity.-will of the state.
► Material sources are 2 types. conti...

17. ► Legal sources are those which are recognized as such by the law itself.
► Historical material source are unauthoritative lacking formal recognition by the law.
► They have no legal recognition.
LEGAL SOURCES OF LAW ARE -
► Reasonable Immemorial customs.
► Judicial decisions.
► Acts of legislature.
► Equity.
► Conventions.

18. Source of law in India
► Prior British rule in India, Hindus and Muslims -population of this country-were
governed by their personal laws.
► Original Hindu law -4 sources of law
► I. The Shruti;
► II. The Smritis:
► III. The conduct of the virtuous,
► IV .One's own conscience.

19. The primary sources of Mohammedan law -
► 1. Quran;
► II. Sunnat and Ahadis;
► III. Ijma, and
► IV. Qiyas .
Classification of Sources
► The binding source of law.
► Persuasive sources.

20. Law and Society
► Indian legal system is dependence on colonial rule.
► The practice of the British legal system created conflict between old laws and modern
notions of justice------Justice Krishna lyer.
► Law is a social science-linked with society.
► A society cannot remain static but it keeps on changing with economic, scientific and
technological developments.
► Law and society gave inspiration---therefore pronounced sociological theory for the
study of law.

21. ► Law depends on popular acceptance which has a great creative force.
► Law consists not of propositions alone, but of legal institutions which people cherish in
the society.
► Law is not a branding omnipotence in the sky but a flexible instrument of social order,
► The law should keep on changing along with the changing social order.
► New added and old should be discarded-time to time.
► This change is known as the dynamic of law.

22. LAW AND SOCIAL CHANGE
► In a changing society,
► Law cannot afford to remain static.
► Law takes its own time to articulate social changes through a process of amendment.
► Social group play a vital role.
► Indian societies applies- with changing norms of legitimacy in every society.
► The history of development of Hindu Law,-----
► it was never static, changed from time to time to meet challenges of the changing social
pattern at different time.

23. Rule of Law is a Dynamic Concept
► Adjustment of law to social needs is a continuing process.
► Law must always be responsive to the social development.
► Continuing process requires a watchful legislature and an alert judiciary.
► Need for certainty in Law.
► The law should be clear & certain so that people know, where they stand and conduct
their affairs.
► Mathematically accurate classification cannot be done.
► Reasonable & rational applies, should not be allowed vagueness and uncertainty.

24. Social order: The Purpose of Law
► According to Austin, Law is the command of the sovereign.
► According to Roscoe Pound, the purpose of law is social engineering.
► The welfare of the society is the paramount consideration of law.
► Law aspires to end all social evils and to bring about social order.
► Law and society are interdependent and neither can be separated from the other.
► Law serves the role of protector of the social order.
► Law aims to attain the good and order in the society.

25. Role of Judges In Bringing about Social Order
► The judge is an important member of the legal institution.
► A Judge is empowered to review the various provisions of law.
► He is an independent and impartial authority which can verify the reasonableness of a
law.
► A social problem requires a solution and judges have the role of resolving disputes.
► The welfare of the society must be the guiding force for a judge when he sits to perform
his duty.
► Being the interpreter of the society of its sense of law and justice, the judge has to be
careful in his work as his decisions determine the rights and obligations of various
members of the society and effect the people at large.

26. Conclusion
► The main object of law is to bring about social order and the judges play an important
part in attaining that objective.
► A judge is the interpreter of the society. He makes visible the various laws.
► While interpreting a law, the judge also corrects the errors present in the law, he
supplies the omissions in the law.
► A democracy needs a forum, other than the legislature and the executive, for redressing
the legitimate grievances of the minorities- racial, religious, political or others.
► Thus, it can be concluded that judicial process has a very active and positive role in
social ordering.