Professional Documents
Culture Documents
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establishment of High Courts of Calcutta, Bombay and Madras in 1862, they
also started the publication of law reports. Example:
● Madras High Court Reports - 8 Volumes: 1862-1875.
● Bombay High Court Reports - 12 Volumes: 1862-1875.
● Calcutta High Court: Bengal Law Reports - 15 Volumes: 1868-1876.
Sir J.F. Stevens (1872) (Law member of the Govt of India) was critical of the
quality of Indian Law Reporting and he said that non-official law reports don’t
distinguish between which cases are to be reported and which are not. He said
that non-official reporters is doing it only for money. Law Reporting should be
regarded as a branch of legislation and it was hardly a less important duty of the
government to publish that part of law which is pronounced by its tribunals in
their judgements than to promulgate its legislation.
Indian Law Report Act, 1875
It is the initiative of a Law member Hob House. The main purpose of this act
was to regulate the publication of the decisions of the High courts and to control
private law reporting. It only talked about High Courts and not about the Privy
Council or Federal Court.
Section 3 of the act says that ‘No court shall be bound to hear cited or shall
receive or treat as authority binding on it, report of any case decide by any of
the said High courts on or after the said date other than a report published under
the authority of Governor-General in Council’.
It is created a sort of hegemony in favor of Government law reporting.
This act had been criticized by Sir George Campbell (Governor-General of
Bengal). He said that ‘if you put into the hands of any one authority the power
of deciding which of these decisions should be treated as authoritative and
which are to be rejected, you give that authority an enormous power over the
superior Courts of the country, you make him, in fact, judge over the judges.’
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Report (AIR) 1922.(Published from Nagpur) (Covers all High Courts, all
judicial commissions & tribunals and Supreme Court)
Apart from this,many specialised law reports have been published.
Example: Madras Law Journal (Criminal), Election Law Report (published by
the Election Commission of India)
Privy Council Judgements
Privy Council was the highest Court of Appeal before the independence. The
decisions of the Privy Council were binding on all the Courts in India.
Williams Knapp was initiated the reporting of the decisions of the Privy
Council. He came out with the 3 volumes of law reporting of the cases which
was decided by the Privy Council. These 3 volumes covered the period of 1829-
1836.
The most famous law report series which was exclusively dedicated to the cases
of Privy Council related to the Indian appeals, was Moores Indian Appeals
(MIA). It was started by the F.F. Moore. He was a practicing lawyer and started
reporting of cases relating to Indian Appeals in Privy Council. The quality of
cases which was reported in it, was very good and language which was used is
also very lucid. Apart from the decisions, these reports include arguments &
facts and decision of lower courts also. He described the whole history of a
particular case that how it came to Privy Council from the lower court. The
language which was used in this report was English and it started in 1836 and
continued till 1872. He had an agreement with East India Company that East
India Company would buy 300 copies of these reports.
Federal Court Judgements
Federal Court was established in 1937 under the Government of India Act,
1935. Federal Court Reports (FCR) was published under the authority of
Federal Court. It was official Law report, started in 1939 and continued till
1949.
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Supreme Court Judgements
In 1950, the hon’ble Supreme Court of India was established under the
Constitution of India. Supreme Court Reports (SCR) was started under the
authority of Supreme Court of India. It was started in 1950 on the monthly
bases.
Problems
● Nature of quality of non-official law reports is not good.
● Report all the cases without any distinction between what to report or
what not to report.
● CJI S.R. Das criticized the practice and said that ‘there is a good deal of
overlapping, the same case being reported in several series of reports.The
system of law reporting as it operates in at present is neither efficient nor
expedient. It is of enormous quantity but of uncertain and dubious quality. The
system is inconvenient and expensive for both for the litigants as well as for the
professionals. It involves unnecessary waste of time and labor and it makes the
task of the legal practitioners difficult and confusing’.
(Non-official bill 1927 was introduced in the central legislative assembly. The
purpose was to stop the citation of non-official law reports but it was not passed
due to the protests by the lawyers at that time)
14th Law Report of Law Commission
The conclusion is irresistible that to permit a system which would restrict
citation to a particular series of law reports and exclude others would be
destructive to the entire doctrine of precedent as we understand it. In such a
system the decision would drive its authority not by reason of it being a decision
of a particular Court but from the fact of it being chosen by the report for
inclusion in the authorized series.
How to Improve
If the publication of Indian Law Report (ILR) series under government’s
authority is based on the duty of the government to make the law appearing in
the decisions of the Court available as soon after the decision as possible to the
Court, the professionals and the member of the public. The gross delay in a
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publication of series indicates a grievous neglect of that duty but for the
existence of non-official law reports. The judges and the lawyers practicing in
the Courts would have been for the months without any guidance as to the law
laid down by the Courts. The Indian Law Report (ILR) Series as now run and
publish may will cease to exist without any determent to anybody except
perhaps to those employed in tits publication.
The Madras High Court have said that whole system of law reporting requires
rationalization, simplification and co-ordination. We find sometimes
duplication& triplication of the same judgment being reported in different law
journals. Great care should be exercised before any case is reported by which
subordinate Courts would be bound until it is modified or overruled.
Guidelines for Publishing Houses
To Exclude:
1) Not to report decisions based on the question of facts.
2) Does not include a new rule of law or modifying an existing one.
3) Not to report decisions have been given by per incurium (without going
into the law)
4) Not to report a single judge decision which is of the same point as a prior
single judge decision.
5) Not to report decisions which are not of general interest.
6) Not to report final decision if it is pending.
To include:
1) Arguments of Councils
2) What judges have said about those arguments given by councils
3) Proper headnotes; pinpointed the idea of what has been said inside.
4) Editorial note; key findings – important legal points.
5) Minority opinions cannot be omitted.
6) Sources, books, articles or quotations on which judges have relied should
not be omitted.
7) Single judge decision should not be omitted if it contains binding value or
law.
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UNIT- III: Basic Principles of Case Law
Open Court v Closed Court (Principle of Transparency in Judgment)
Question: Discuss the concept of open court and closed court in the light of
legal provisions. (2017)
Or
Comment on the principle of transparency in judgement by way of open hearing
in the courtroom. Whether transparency is compromised in cases where there is
no open hearing? (2015)
Answer:The openness of courts should be a fundamental principle of a judicial
system. It is generally taken for granted that court proceedings are open to the
public and may be freely reported. However the idea of open justice is not
absolute. Exceptions have been developed by courts through the common law
where, on rare occasions, limits are placed on publicity. Numerous statutory
provisions also recognise that justice requires that the general rule of openness
be modified in particular cases.
Courts hearings can be of two types:
1) Closed Court
2) Open Court
Closed Court
The term Closed Court is applied to a trial that is held in private and is the
opposite of an open court.
Features
Open Court
Open court is a court where proceedings of the court are conducted publically.
Every person is allowed to watch the proceedings of the court. The concept of
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hearing in an open court is practiced because it brings transparency in
administration of justice. The parties get to know what is happening and
inculcate discipline and caution in the minds of all those involved in
administering justice.
But there are instances where it is not practical to accommodate persons other
than parties to the proceedings. Therefore, such proceedings are held in camera.
This means that the proceedings are held in a closed room where the public will
not have access to watch the proceedings. Example: Matrimonial disputes.
In criminal cases like rape, it is necessary to protect the identity and modesty of
the victim. These cases are held in camera. All the persons, including the
advocates practicing in that court and the litigants are asked to vacate the court
room. Only the accused, the rape victim, counsels for prosecution and defence
and the witnesses (at the time when they are giving witness) are allowed to be
present in the in-camera proceedings.
Features
● Public allowed
● Proceedings held in camera.
● Medial allowed to report as well, but cannot broadcast.
● US Supreme Court said, “Open Courts should be there in a democratic
system.”
● Plato said, “Where there is no publicity, there is no justice.”
● Bentham said, “Publicity is the very soul of justice. While the judges are
trying, they themselves on trial.”
Scott v Scott
Lord Shawsaid that ‘Publicity in the administration of justice is one of the surest
guarantee of our liberties’.
Offutt v United States
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US Supreme Court said that “To work effectively it is important that the
society’s criminal process satisfy the appearance of justice, Open Courts are
bulwarks of a free and democratic government. Public access to court
proceedings is one of the numerous check and balances of a system because
review in the forum of public opinion is an effective restrain on the possible
abuse of judicial power.
Right to freedom of expression:
Media can report
Public can criticize
International Covenant on Civil and Political Rights, 1966
● India has a reservation on Article 1, hence it is not apply to India.
● India does not have reservation on Article 14, hence it is legally binding.
● ICCPR has taken the idea of free and fair trial from the ECHR.
Article 14
All persons shall be equal before the courts and tribunals. In the determination
of any criminal charge against him, or of his rights and obligations in a suit at
law, everyone shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law. The press and the public
may be excluded from all or part of a trial for reasons of morals, public order or
national security in a democratic society, or when the interest of the private
lives of the parties so requires, or to the extent strictly necessary in the opinion
of the court in special circumstances where publicity would prejudice the
interests of justice; but any judgement rendered in a criminal case or in a suit at
law shall be made public except where the interest of juvenile persons otherwise
requires or the proceedings concern matrimonial disputes or the guardianship of
children.
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European Convention on Human Rights, 1950
Article 6 of the European Convention on Human Rights is a provision of
the European Convention which protects the right to a fair trial.
Constitution of India
Article 145(4) of the Constitution of India provides that Supreme Court
judgement should be in open court.
Article 145 (4)
No judgment shall be delivered by the Supreme Court save in open Court, and no report
shall be made under Article 143 save in accordance with an opinion also delivered in
open Court.
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access so far as the same can conveniently contain them : Provided that the
presiding Judge may, if he thinks fit, order at any stage of any inquiry into or
trial of any particular case, that the public generally or any particular person,
shall not have access to, or be or remain in, the room or building used by Court.
Criminal Procedure Code, 1973
Section 327(3): Court to be Open
Where any proceedings are held under sub-section (2), it shall not be lawful for
any person to print or publish any matter in relation to any such proceedings
except with the previous permission of the Court.
(Otherwise he will be punished under Section 228 of IPC)
Exceptions
1) Right to Privacy (Privacy of victim)
2) Different convention on human rights
3) Article 17 of ICCPR
4) Article 228 of IPC
● The exceptions are themselves the outcome of a yet more fundamental
principle that the chief objective of the courts of justice must be must be to
secure that justice is done as the paramount object must always be to do justice
the general rule as to publicity after all only the means to end (Scott v Scott).
● The burden lies on those, seeking to displace this application in the
particular case to make out that the ordinary rule must as of necessity be
superseded.
● Sir Jack Jacobs, House of Lords, pointed out two exceptions:
1) Proceedings in chamber of the judge, only parties and legal advisers
2) In the Courtroom with camera, but no public or press.
Naresh Sridharan & Ors. v State of Maharashtra
Justice Sarkar in this case opined that the High Court has inherent power to
prevent publication of the proceeding of a trial. The power to prevent
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publication of proceeding is facet of the power to hold a trial in camera. The
CPC contain no express provision authorizing them to hold its proceedings in
camera but if excessive publicity itself operate as an instrument of injustice, the
court has inherent jurisdiction to pass an order excluding the public when the
nature of case demand so.
Ujjam Bai v State of UP 1963
The hon’ble Supreme Court said that the power to prohibit publication of
proceedings is essentially the same as the power to hold a trial in camera and
the law empowering a trial in camera is a valid law and does not violate
fundamental right in regard to liberty of speech.
Every child shall have a right to protection of his privacy and confidentiality, by
all means and throughout the judicial process.
1) The State Government shall constitute, for every district, one or more Juvenile Justice
Boards for exercising the powers and discharging its functions relating to children in
conflict with law.
2) A Board shall consist of a Metropolitan Magistrate or a Judicial Magistrate of First
Class not being Chief Metropolitan Magistrate or Chief Judicial Magistrate (CJM)
with at least three year experience and two social workers selected, of whom at least
one shall be a woman.
● Cases relating to Juvenile are not to be conducted in normal courts.
Family Courts Act, 1984
Section 11: Proceedings to be held in camera
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In every suit or proceedings to which this Act applies, the proceedings may be
held in camera if the Family Court so desires and shall be so held if either party
so desires.
THE UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967
Section 44 (1): Protection of witnesses
The proceedings under this Act may, for reasons to be recorded in writing, be
held in camera if the court so desires.
● For the purpose of protecting witnesses it permit the court to hold
proceedings in camera and take any other measures for keeping the identity and
the address of the witnesses secret, and it includes of passing an order that all or
any other proceedings pending before such a court shall not be published in any
manner.
Advantages of Open Court
● Check on Judiciary
● Make Judiciary accountable
● Educate and inform public about proceedings
● Hearing effect that justice has been done.
Conclusion
A balance between the rights of public to know what’s happing in courtroom
and parties’ right to privacy, has to be maintained. The proceedings should be
held in open courts, if not, the court has to provide reasons why does decision of
the court not challenge in the higher judiciary.
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Question: What do you mean by doctrine of precedent? Discuss the concept of
binding and persuasive precedent with help of illustrations and also state the
advantages and disadvantages of precedent as source of Law. (2017)
Or
Discuss circumstances in detail which increase or decrease the binding value of
a precedent. (2016)
Answer: Doctrine of Precedent
Precedents are the source of Law same as Legislation and customs. Precedent is
basically a Law point which is decided by the higher judiciary and has to be
followed by the lower judiciary.Only the ratio decendi of a judgment is binding
on the Lower Courts.In England, the importance of doctrine of precedent is
much more than any other country because there is no written Constitution.In
India, we also follow the doctrine of precedent.
Definition of Precedent
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● According to Austin, “precedents are Judiciary’s Law.”
● Justice Blacktone supported the doctrine of precedent and said that this is
an establish practice that if the same point of law have come up before the Court
then judges have to follow the precedent.
● Justice Cardozo also supported the doctrine of precedent and said,
“Adherence to the doctrine of precedent should be a rule, not an exception. The
rule of precedent can be ignored if it is inconsistence with the notion of justice
and social welfare policies.
TYPES OF PRECEDENT
1) Binding Precedents or Authoritative Precedents
2) Persuasive Precedents
In Civil law and pluralist systems, as under Scottish law, precedent is not
binding but case law can be taken into consideration by the courts.
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Binding precedent relies on the legal principle of stare decisis. A stare decisis
means to stand by things decided. It ensures certainty and consistency in the
application of law.
Persuasive precedents
Persuasive precedent (also persuasive authority) is precedent or other legal
writing that is related to the case at hand but is not a binding precedent on the
court under common law legal systems. However, persuasive authority may
guide the judge in making the decision in the instant case. Persuasive precedent
may come from a number of sources such as lower courts, horizontal courts,
foreign courts, statements made in dicta, treatises or law reviews. In Civil
law and pluralist systems, as under Scottish law, precedent is not binding
but case law is taken into the consideration by the courts.
Lower Courts
Higher Courts
A court may consider the ruling of a higher court that is not binding. For
example, the Supreme Court of India could consider a ruling made by the
Bombay High Court as persuasive authority.
Horizontal Courts
Courts may consider rulings made in other courts that are of equivalent
authority in the legal system. For example, the Delhi High Court could consider
a ruling made by the Bombay High Court as persuasive authority.
Courts may consider obiter dicta in opinions of higher courts. Obiter Dicta or
judicial dicta of a higher court is not binding but will often be persuasive to
lower courts.
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A Dissenting judgement
A judgment heard by the Supreme Court, in which one judge dissented from the
decision. The judge in the next case can decide to follow the dissenting judge’s
obiter and rationale. However, the judge can only opt to overturn the holding of
a court lower or equivalent in the hierarchy.
An Indian court might cite judgments from countries that share the common law
system.
The Hon’ble Supreme Court of India held that the Supreme Court is not bound
by its own decision.
The Hon’ble Supreme Court clarified that obiter dicta of higher court is not
binding on the lower court, only ratio decidendi is binding on the lower courts.
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2) Sometimes, the conflicting decisions of superior tribunal throw the judge
of a lower court on the horns of a dilemma. The courts faced with what an
English judge called “complete fog of authorities.”
3) A great demerit of the doctrine of precedent is that the development of
the law depends on the incidents of litigation. Sometimes, most important points
may remain unajudicated because nobody brought action upon them.
4) A very grave demerit or rather an anomaly of the doctrine of precedent is
that, sometimes it is extremely erroneous decision is established as law due to
not being brought before a superior court.
Circumstances decreasing the binding value of precedent
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silentio. Binding force of a precedent does not depend on whether a particular
argument was considered therein or not, provided the point with reference to
which an argument was subsequently advanced was actually decided by the SC.
1. The number of judges constituting the bench and their eminence is a very
important factor in increasing the authority of precedent.
2. A unanimous decision carries more weight.
3. Affirmation, approval or following by other courts, especially by a higher
tribunal, adds to the strength of a precedent.
4. If an Act is passed embodying the law in a precedent, the gains an added
authority.
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Question:What is Public Interest Litigation? Enumerate the advantages and
disadvantages of Public Interest Litigation. Also mention cases where it has
been misused. (2017) (2013)
Or
Write a detailed note on Public Interest Litigation. (2014)
Answer:PIL means litigation for the protection of public interest. It is a
litigation introduced in a court of law, not by the aggrieved party but by the
court itself or by any other private party.Public Interest Litigation is the power
given to the public by courts through judicial activism.Article 32 of the
Constitution of India contains provisions regarding the involvement of public in
the judiciary.
Public Interest Litigation (PIL)
Public interest litigation is not defined in any statute or in any act. It has been
interpreted by judges to consider the intent of public at large. Although, the
main and only focus of such litigation is only Public Interest. There are various
areas where a Public interest litigation can be filed. Example:
● Violation of basic human rights of the poor,
● Content or conduct of government policy,
● Compel municipal authorities to perform a public duty,
● Violation of religious rights or other basic fundamental rights.
Concept of PIL
According to the jurisprudence of Article 32 of the Constitution of India, The
right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this part is guaranteed. Ordinarily, only
the aggrieved party has the right to seek redress under Article 32.
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● Restrictive rules of standing are an antithesis to an effective system of
administration.
● Activism is essential for participative public justice.
The rule of locus standi have been relaxed and a person acting bona-fide and
having sufficient interest in the proceeding of Public Interest Litigation will
alone have a locus standi and can approach the court to wipe out violation of
fundamental rights and genuine infraction of statutory provisions, but not for
personal gain or private profit or political motive or any oblique consideration.
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In the case of Sheela Barse v. State of Maharashtra, the case dealt with a
historical judgment on the issue of custodial violence against women. The Court
held that there must be separate police lockups for women convicts to protect
them from further trauma and brutality.
In the case of M.C. Mehta v. Union of India, it lead to the landmark judgment
which lashed out at the civic authorities allowing untreated sewage from
Kanpur tanneries making its way into the Ganges.
In the case of Paramanand Katara v. Union of India, Supreme Court held that in
the field of Public Interest Litigation, which was filed by a human rights activist
for general public interest that it is a paramount obligation of every member of
medical profession to give medical aid to injured person as soon as possible
without waiting for any procedural formalities.
You can borrow any level but not history, there should be indigenous idea, in
USA purpose of PIL is different. India’s purpose is tool against state
oppression, for US it was civic participation in government decisions (wholly
different context) In USA, the purpose is to protect the interest without a group
but in India the purpose is group was there along with interest.
Counters to Bakhshi
● PIL is fine but SAL is extra
● Social engineering can only be brought up by legislation
● The ambit of PIL is too small to engage social revolution
● The Article was written in 1980s, PIL has transformed and now it is not
limited to disadvantaged section of the society but it also covers middle class.
(Right to healthy environment)
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● Became the full time work of NGOs. (Institutionalized)
● Issues and scope increased.
● Judiciary started to formulate the law & policies in some cases (Vishakha
guidelines).
● Misuse for publicity & personal reasons.
III Stage: 21st Centuary
● PIL filed for almost everything. E.g. Indian team be called back from
Australia.
● Judiciary finds PILs of unserious nature.
● PIL against Liberalisation; judiciary didn’t interfere since it is a policy
matter (Self-restraint from interfering into executive & legislation)
● PIL against Socialism and Privatization.
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9) Litigants can focus attention on and achieve results pertaining to larger
public issues especially in the field of human rights, consumer welfare and the
environment.
Disadvantages or Demerits of PIL
1) Workload increased of judiciary and there is lack of judicial infrastructure
2) Led to conflict between different organs of the government
3) Blatant misuse of PIL
4) Many people started handling PIL as a tool for harassment because
frivolous cases can be filed without heavy court fee as compared to private
litigations.
5) Due to the flexibility of character of the PIL, the opposite party gets an
opportunity to ascertain the precise allegation and respond to specific issues.
6) The judiciary has been criticised due to the overstepping of its
jurisdiction and that it is unable to implement its orders effectively.
7) PIL is being misused by the public agitating for private grievances in the
grab of public interest by seeking publicity rather than supporting the public
cause
8) Professor M.P. Singh said that a judge may talk of Right to life, Right to
education, right to food & large no. of social rights without exactly determining
who has the duty and now such duty to provide social benefits could be
enforced.
9) Lack of consistency: No consistent approach may not interfere in th
sphere of legislature or executive but sometimes they do (Vishakha Guidelines).
10) Disturbing the Constitutional distribution of power: PIL is a weapon
which must be used with the great care and courts need to keep in view that
under the appearance of redressing a public grievance PIL does not encroach
upon the sphere reserved by the Constitution to the executive and legislature.
(Professor M.P. Jain)
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who are waiting for the vindication of their private interests through
conventional adversarial litigation.
A related problem is that the courts are taking unduly long time in finally
disposing of even PIL cases. This might render “many leading judgments
merely of [an] academic value”.90 The fact that courts need years to settle cases
might also suggest that probably courts were not the most appropriate forum to
deal with the issues in hand as PIL.
Judicial populism
Judges are human beings, but it would be unfortunate if they admit PIL cases on
account of raising an issue that is (or might become) popular in the society.
Conversely, the desire to become people’s judges in a democracy should not
hinder admitting PIL cases which involve an important public interest but are
potentially unpopular. The fear of judicial populism is not merely academic is
clear from the following observation of Dwivedi J. in Kesavananda Bharati v
Union of India:
“The court is not chosen by the people and is not responsible to them in the
sense in which the House of People is. However, it will win for itself a
permanent place in the hearts of the people and augment its moral authority if it
can shift the focus of judicial review from the numerical concept of minority
protection to the humanitarian concept of the protection of the weaker section
of the people.”
Symbolic justice
Another major problem with the PIL project in India has been of PIL cases
often doing only symbolic justice. Two facets of this problem could be noted
here. First, judiciary is often unable to ensure that its guidelines or directions in
PIL cases are complied with, for instance, regarding sexual harassment at
workplace (Vishaka case) or the procedure of arrest by police (D.K. Basu case).
No doubt, more empirical research is needed to investigate the extent of
compliance and the difference made by the Supreme Court’s guidelines.92 But
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it seems that the judicial intervention in these cases have made little progress in
combating sexual harassment of women and in limiting police atrocities in
matter of arrest and detention.
The second instance of symbolic justice is provided by the futility of over-
conversion of DPs into FRs and thus making them justiciable. Not much is
gained by recognizing rights which cannot be enforced devalues the very notion
of rights as trump. Singh aptly notes that, “a judge may talk of right to life as
including right to food, education, health, shelter and a horde of social rights
without exactly determining who has the duty and how such duty to provide
positive social benefits could be enforced.”
So, the PIL project might dupe disadvantaged sections of society in believing
that justice has been done to them, but without making a real difference to their
situation.
PIL is a weapon which must be used with great care and circumspection; the
courts need to keep in view that under the guise of redressing a public grievance
PIL does not encroach upon the sphere reserved by the Constitution to the
executive and the legislature.95
Moreover, there has been a lack of consistency as well in that in some cases, the
Supreme Court did not hesitate to intrude on policy questions but in other cases
it hid behind the shield of policy questions.96 Just to illustrate, the judiciary
intervened to tackle sexual harassment as well as custodial torture and to
regulate the adoption of children by foreigners, but it did not intervene to
introduce a uniform civil code, to combat ragging in educational institutions, to
adjust the height of the Narmada dam and to provide a humane face to
liberalisation-disinvestment polices. No clear or sound theoretical basis for such
selective intervention is discernable from judicial decisions.97
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It is also suspect if the judiciary has been (or would be) able to enhance the
accountability of the other two wings of the government through PIL. In fact,
the reverse might be true: the judicial usurpation of executive and legislative
functions might make these institutions more unaccountable, for they know that
judiciary is always there to step in should they fail to act.
Overuse-induced non-seriousness
PIL should not be the first step in redressing all kinds of grievances even if they
involve public interest. In order to remain effective, PIL should not be allowed
to become a routine affair which is not taken seriously by the Bench, the Bar,
and most importantly by the masses:
The overuse of PIL for every conceivable public interest might dilute the
original commitment to use this remedy only for enforcing human rights of the
victimised and the disadvantaged groups.98
If civil society and disadvantaged groups lose faith in the efficacy of PIL, that
would sound a death knell for it.
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No PIL can be filled regarding the following matters:
1) Admission in educational institutions
2) Landlord & tenant
3) Service Matters
● A private member bill “PIL(Regulation) Bill, 1996”was introduced in
Rajya Sabha in 1996 by the Suresh Pachauri (MP from Madhya Pradesh),
which was lapsed because no party supported the bill.
Cases in which PIL is misused
PIL has also led to new problem such as an unanticipated increase in the
workload of the superior courts, lack of judicial infrastructure to determine
factual matter, gap between the promise and reality, abuse of power,
confrontation with fellow organs of the government, and dangerous inherent in
judicial populism.
In the last three decades, the Indian Supreme Court and High Courts have been
approached through PIL to redress a variety of issues, not all of which related to
alleged violation of Fundamental Rights.
The judiciary, for instance, has addressed issues such as60: the constitutionality
of the Government’s privatization61 and disinvestment policies,62 defacing of
rocks by painted advertisements,63the danger to the Taj Mahal from a
refinery,65 relocation of industries out of Delhi.
There have been instances of more blatant misuse of the process of PIL. For
instance, the courts were approached to call back the Indian cricket team from
Australia after the controversial Sydney test match.82 PILs were initiated to
regulate the treatment of wild monkeys in Delhi and the practice of private
schools to conduct admission interviews for very young children.83
A PIL was also filed in the Supreme Court to seek ban on the publication of
allegedly obscene and nude photographs in newspapers.84 Some so-called
public-spirited lawyers knocked at the door of the courts against:
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(ii) An alleged indecent live stage show on New Year’s Eve; and
(iii) The marriage of former Miss World, Ms Aishwarya Rai, with a tree to
overcome certain astrological obstacles in her marriage.
More recently, the PIL discourse was employed to request the Indian
government to send technical experts to work with the Nepal government in
strengthening the Bhimnagar barrage to prevent recurrence of flood86 and to
challenge the constitutional validity of the Indo–US civil nuclear agreement.87
● Delhi Science Forum v Union of India 1996
● Balco Employees Union vs Union Of India 2001
● State of Punjab v Divans Modern Ltd
Declared the government decision of socialism as the policy matter. (Out of
ambit of the court)
Conclusion
PIL has an important role to play in the civil justice system in that it affords a
ladder to justice to disadvantaged sections of society, some of which might not
even be well-informed about their rights. Furthermore, it provides an avenue to
enforce diffused rights for which either it is difficult to identify an aggrieved
person or where aggrieved persons have no incentives to knock at the doors of
the courts. PIL could also contribute to good governance by keeping the
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government accountable. Last but not least, PIL enables civil society to play an
active role in spreading social awareness about human rights, in providing voice
to the marginalized sections of society, and in allowing their participation in
government decision making.
As I have tried to show, with reference to the Indian experience, that PIL could
achieve all or many of these important policy objectives. However, the Indian
PIL experience also shows us that it is critical to ensure that PIL does not
become a back-door to enter the temple of justice to fulfill private interests,
settle political scores or simply to gain easy publicity. Courts should also not
use PIL as a device to run the country on a day-to-day basis or enter the
legitimate domain of the executive and legislature.
Also, a number of criticisms of PIL have been voiced in recent years, including
concerns related to separation of powers, judicial capacity, and inequality.
While critics have been persuasive when pointing to particular cases, the sheer
number of cases, as well as the variation in tendencies over time and among
court benches, have made reaching a general conclusion difficult. This paper
has argued that complaints related to separation of powers concerns are better
understood as criticisms of the impact of judicial interventions on sectoral
governance, and that structured case studies of sectoral governance are
necessary to assess those criticisms. On the issue of inequality, this paper
contributes to an overall assessment by systematically examining the relative
magnitude, case composition, and geographical origins of, as well as legal
representation and the claimant’s social class in, PIL and Fundamental Rights
cases that reached the Indian Supreme Court.
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Unit-IV
Case Brief (Case Note)
Question: How to prepare a brief of a case? Point out in detail all the steps of
briefing. (2017)
Or
Discuss all steps involved in briefing of a case with the help of a case law.
(2014)
Answer:The case brief or case note has to contain all of the information that
enables the case to be used.A comprehensive brief includes the following
elements:
Steps 1: To go through the entire judgement
The first step of briefing the case is to go through the case carefully and note
down all important information. One should not brief the case until one have
read the case at least once.
Steps 2: Citation
The title of the case shows who is opposing whom. The name of the person who
initiated legal action in that particular court will always appear
first.The citation tells how to locate the reporter of a particular case. The
following things should be there in a citation of a case:
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A good brief will include a summary of the pertinent facts and legal points
raised in the case. It will show the nature of the litigation, who sued whom,
based on what occurrences, and what happened in the lower court.
The facts are often conveniently summarized at the beginning of the court’s
published opinion. Sometimes, the best statement of the facts will be found in a
dissenting or concurring opinion.
The fact section of a good brief will include the following elements:
The issues or questions of law raised by the facts peculiar to the case are often
stated explicitly by the court.
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With rare exceptions, the outcome of an appellate case will turn on the meaning
of a provision of the Constitution, a law, or a judicial doctrine. Capture that
provision or debated point in your restatement of the issue. Set it off with
quotation marks or underline it. When noting issues, it may help to phrase them
in terms of questions that can be answered with a precise “yes” or “no.”
Of course the implications of this case went far beyond the situation of Miss
Brown, the Topeka School Board, or even public education. They cast doubt on
the continuing validity of prior decisions in which the Supreme Court had held
that restriction of Black Americans to “separate but equal” facilities did not
deny them “equal protection of the laws.” Make note of any such implications
in your statement of issues at the end of the brief, in which you set out your
observations and comments.
NOTE: Many students misread cases because they fail to see the issues in terms
of the applicable law or judicial doctrine than for any other reason. There is no
substitute for taking the time to frame carefully the questions, so that they
actually incorporate the key provisions of the law in terms capable of being
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given precise answers. It may also help to label the issues, for example,
“procedural issues,” “substantive issues,” “legal issue,” and so on. Remember
too, that the same case may be used by instructors for different purposes, so part
of the challenge of briefing is to identify those issues in the case which are of
central importance to the topic under discussion in class.
Steps 5: Judgement
In this section, we try to find out the reasoning of the court behind the
judgement and final law laid down by the court. The reasoning or rationale, is
the chain of argument which led the judges in either a majority or a dissenting
opinion to rule as they did.
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with the majority opinion. Make a note of how each justice voted and how they
lined up.
Steps 9: Analysis
Here we need to evaluate the significance of the case, its relationship to other
cases, its place in history, and what it shows about the Court, its members, its
decision-making processes, or the impact it has on litigants, government, or
society. It is here that the implicit assumptions and values of the Justices should
be probed, the “rightness” of the decision debated, and the logic of the
reasoning considered.
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● It must be determined the rights of the parties with regard to the
controversy of the question.
● Such determination must be conclusive in nature.
● Must be formal expression of such adjudication.
● Execution of judgement.
● Decree can be appealed.
Judgement
Section 2 (9) of CPC
‘Judgment’ means the statement given by the judge on the grounds of a decree
or order.
● Ratio of the case.
● Affects society at large.
● Binding under Article 141.
Four things required:
1) Facts
2) Points of determination
3) Decision
4) Reason for decision
Order
Section 2 (14) of CPC
‘Order’ means the formal expression of any decision of a Civil Court which is
not a decree.
● There can be many orders during the proceeding
● Order is not appealable unless court gives circumstances.
● Order can be given in a plaint suit or application.
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Ratio & Dicta
Ratio Decidendi
Ratio decidendi is a Latin phrase meaning ‘the rationale for the decision’.
The ratio decidendi is ‘the point in a case that determines the judgement’ or ‘the
principle that the case establishes’.
In other words, Ratio decidendi is a legal rule derived from those parts of legal
reasoning within a judgment on which the outcome of the case depends.
It is a legal phrase which refers to the legal, moral, political and social
principles used by a court to compose the rationale of a particular judgment.
Unlike obiter dicta, the ratio decidendi is binding on lower courts through the
doctrine of stare decisis.
The process of determining the ratio decidendi is a thought analysis of what the
court actually decided based on the legal points about which the parties in the
case actually fought. All other statements about the law in the text of a court
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opinion that do not form a part of the court's rulings on the issues actually
decided in that particular case are obiter dicta, and are not rules for which that
particular case stands.
Ratio decidendi also involves the holding of a particular case, thereby allowing
future cases to build upon such cases by citing precedent. However, not all
holdings are given equal merit; factors that can strengthen or weaken the
strength of the holding include:
Salmond defined the Ratio Decidendi, “It is the law applied by and acted upon
by the court or rule which the court regards as governing the case.”
Professor Goodhart, “Ratio is nothing more than the decision based on the
material facts of the case.”
Criticism
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House of Lords in 1966, Judicial Practice Statement – the use of precedent is an
indispensable foundation upon which is to decide what is the low in its
application to individual cases. It provides at least some degree of certainty
upon which individuals can rely on the conduct of their affairs as well as the
basis of orderly development of legal rules. Their Lordship further rule that to
rigid adherence to precedent may lead to injustice in a particular case and may
also unduly restrict the proper development if law. They therefore modify the
existing practice and while treating former decisions of the house as normally
binding, departs from the previous decision when it appears right to do so.
Obiter Dictum
Obiter dictum is Latin phrase meaning "by the way". It is a concept derived
from English common law, whereby a judgment comprises only two
elements: ratio decidendi and obiter dicta. For the purposes of judicial
precedent, ratio decidendi is binding, whereas obiter dicta are persuasive only.
A judicial statement can be ratio decidendi only if it refers to the crucial facts
and law of the case. Statements that are not crucial, or which refer to
hypothetical facts or to unrelated law issues, are obiter dicta. Obiter dicta (often
simply dicta) are remarks or observations made by a judge that, although
included in the body of the court's opinion, do not form a necessary part of the
court's decision. In a court opinion, obiter dicta include, but are not limited to,
words ‘introduced by way of illustration, or analogy or argument’. Unlike ratio
decidendi, obiter dicta are not the subject of the judicial decision, even if they
happen to be correct statements of law.
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Under the doctrine of stare decisis, statements constituting obiter dicta are not
binding, although in some jurisdictions, such as England and Wales, they can be
strongly persuasive.In other instances, obiter dicta can suggest an interpretation
of law that has no bearing on the case at hand but might be useful in future
cases.
If a court rules that it lacks jurisdiction to hear a case or dismisses the case on a
technicality, but still goes on to offer opinions on the merits of the case, such
opinions may constitute obiter dicta.
Mohan Das Ishar Das v A.N. Sanathan (1954) (Bombay High Court)
The Chief Justice of Bombay High Court Justice Chagla made a distinction
between ratio and obiter dicta. He opined that obiter dicta is an expression of
opinion on a point which is not necessary for the decision of a case. This very
definition draws a clear distinction between a point which is necessary for the
determination of a case and a point which is not, but in both cases, points must
arise for the determination of a tribunal. Two questions may arise before a court
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for its determination. The court may determine both although one of them may
be necessary for the ultimate decision of the case. The question which was
necessary for the determination of the case would be the ratio, and the opinion
of the court on the question which was not necessary to decide the case would
be on the obiter.
Judicial Dictum
Judicial dictum is an opinion by a court on a question that is not essential to its
decision even though it may be directly involved. It is not binding value rather
has only persuasive value.
Minority Opinion
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A minority opinion is an opinion by one or more judges in a legal case who
disagree with the decision reached by the majority.
Concurring Opinion
A concurring opinion agrees with the outcome of the majority opinion but not
necessarily the reasoning found in the majority opinion. The concurring opinion
gives a concurring justice an opportunity to further explain the legal reasoning
of a case or to offer a completely different legal reasoning for the decision.
Dissenting Opinion
A dissenting opinion is an opinion written by a justice who voted in the
minority. The dissenting opinion explains why the dissenting justice disagrees
with the outcome and reasoning of the majority of the court. Since the
dissenting opinion represents the minority position, the reasoning is not binding
precedent. However, the dissenting opinion offers valuable insight into the
deliberative process behind a case and articulates reasoning that future court
cases could revisit.
● Justice S.B. Sinha (Supreme Court) said that, “Dissent means existence of
democracy own opinion of judge I does not affect the judgment if dissent is not
allowed then it means judiciary is not free.”
● Sound reasoning is necessary for dissenting opinion.
● Not compulsion, but usually happens that the judges giving dissenting
opinions.
● Sound reasoning
● Owe it to fellow judges
● Self-justification
● Dissenting opinion may change the court’s future opinion.
● Study of Dissenting Opinion in Supreme Court from Independence to
2014.
● First decade to second decade: large no. of dissenting opinions (1950-70),
because of quality of judges.
● Third decade (1970-80), no. of dissenting opinions reduced, because of
external factors (like Indira Gandhi Government). Another reason was because
of two judges’ bench.
⮚ First decade (1950-60) – 10.97% (the ratio was much higher)
⮚ Second decade (1960-70) – 10.60%
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⮚ Third decade (1970-80) – 4.22% (Sharply declined)
⮚ Fourth decade (1980-90) – 4.07%
⮚ Fifth decade (1990-2000) – 1.72%
⮚ Sixth decade (2000-2010) – 2.70%
● Lot of workload, just want to dispose of cases, no focus on quality.
● Study of benches with Chief Justice of India:
● Rate of dissent is much lower.
● No Chief Justice of India till 2014 has given a dissenting opinion
(Probably the first would be triple Talaq case)
● In 1996, 2001, 2006, 2009, 2010, 2011-14: No dissent opinion when CJI
was there in a bench.
● Justice H.R. Khanna rendered dissenting opinion in the case of A.D.M.
Jabalpur. (because of which he did not become CJI)
● Justice A.K. Sarkar rendered 49 dissenting opinions.
● Justice Fazal Ali rendered dissenting opinion in the case of A.K. Gopalan
and Ramesh Thappar.
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Recent cases of dissenting opinion with CJI in the bench:
Stare decisis is the legal principle by which judges are obliged to respect the
precedents established by prior decisions. The words originate from the
phrasing of the principle in the Latin maxim Stare decisis et non quieta movere:
“to stand by decisions and not disturb the undisturbed.” In a legal context, this is
understood to mean that courts should generally abide by precedents and not
disturb settled matters.
This doctrine is basically a requirement that a Court must follow the rules
established by a Court above it.
The doctrine that holdings have binding precedence value is not valid within
most civil law jurisdictions as it is generally understood that this principle
interferes with the right of judges to interpret law and the right of
the legislature to make law. Most such systems, however, recognize the concept
of jurisprudence constante, which argues that even though judges are
independent, they should judge in a predictable and non-chaotic manner.
Therefore, judges’ right to interpret law does not preclude the adoption of a
small number of selected binding case laws.
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There is no doubt that the rule of Stare Decisis bring about consistency and
uniformity but at the same time in exercising its inherent power, the Supreme
Court should ask itself whether in the interest of public good or any other valid
reason it is necessary that its earlier decisions should be revised.
Krishnaswamy v Union of India 1998
Justice Ramaswamy opined that the decision of this court is the last word on the
interpretation of the constitution and the law of the land under Article 141. The
justice is the living he oracle working in the dry light of realism pouring life and
force into the dry bones of law to articulate the felt necessity of the time. Law
laid down by this court operates as a precedent and thus needed stability,
continuity and certainty. Adherence to precedent i.e. Stare Decisis is usually a
wise policy for rule of law unless there are compelling and substantial reasons
for its reconsideration in larger public interest.
Prospective Overruling
Doctrine of Prospective Overruling originated in the American Judicial System.
The literal meaning of the term ‘overruling’ is to overturn or set aside a
precedent by expressly deciding that it should no longer be controlling law.
There are two views on the doctrine of Prospective Overruling. The first view is
by Blackstone who believes that the Doctrine of Stare Decisis should be
followed the courts in the administration of justice. Thus a precedent once set
should be adopted by the lower courts also in their judicial processes and it must
be left to the judges to decide which decision shall be applied retrospectively
and which shall be applied prospectively. Thus it can be interpreted that there is
no such requirement of this doctrine as the judges can decide accordingly
keeping in view the question in hand. This view is totally against the doctrine of
Prospective Overruling.
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The second view is that of Cardozo J. who is known as the originator and
propounder of Prospective overruling. He laid down this doctrine in the case of
Northern Railway v. Sunburst Oil and Refining Co. – where he refused to make
the ruling retroactive. He has specifically mentioned that
“This is not a case where a court, in overruling an earlier decision, has given to
the new ruling a retroactive bearing, and thereby has made invalid what was
valid in the doing."
The doctrine of prospective overruling was for the first time adopted in the case
of Golak Nath v. State of Punjab. Since then it has been applied in many case
laws and has also been a point of debate of many jurists. Through this article, an
attempt is made at briefly analyzing the stand of the Indian Judiciary on
adopting the doctrine of Prospective overruling.
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“The doctrine of ‘prospective overruling’ is a modern doctrine suitable for a fast
moving society. It does not do away with the doctrine of state decision but
confines it to past transactions. While in Strict theory it may be said that the
doctrine 'involves the making of law, what the court really does is to declare the
law but refuse to give retroactivity to it. It is really a pragmatic solution
reconciling the two conflicting doctrines, namely, that a court finds the law and
that it does make law and it finds law but restricts its operation to the future. It
enables the court to bring about a smooth transition by correcting, its errors
without disturbing the impact of those errors on past transactions. By the
application of this doctrine the past may be preserved and the future protected.
Our Constitution does not expressly of by necessary implication speak against
the doctrine of prospective overruling."
Because it was the first time that the Court was applying a doctrine which had
evolved in a different system of law so the Court laid down certain provisions
restricting the application of the doctrine in the Indian system. It was laid down
that
(2) It can be applied only by highest court of the country, ie. The Supreme
Court as it has the constitutional jurisdiction to declare law binding on all the
Courts as it has India;
(3) The scope of the retrospective operation of the law declared by the Supreme
Court superseding its earlier decisions is left to its discretion to be moulded in
accordance with- the justice of the cause or matter before it.
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In light of the above principles laid down for adopting the doctrine into our
legal system, we see that the American idea of Prospective overruling differs
from what is adopted by the Indian Legal system.
Further in the case of Sarwan Kumar v. Madan Lal Aggarwal, the Court defined
prospective overruling as
“Under the doctrine of "prospective overruling" the law declared by the Court
applies to the cases arising in future only and its applicability to the cases which
have attained finality is saved because the repeal would otherwise work
hardship to those who had trusted to its existence."
Furthermore, it has been laid down that the prospective declaration of law is a
device innovated by the apex court to avoid reopening of the settled issues and
to prevent multiplicity of proceedings. It is also a device adopted to avoid
uncertainty and avoidable litigation. By the very object of the prospective
declaration of law, it is deemed that all actions taken contrary to the declaration
of law prior to its date of declaration are validated. This is done in the larger
public interest. Therefore, the subordinate forums which are legally bound to
apply the declaration of law made by this Court are also duty bound to apply
such cases which would arise in future only.
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