RESEARCH PROPOSAL

ON

STUDY ON THE CONTOURS OF JUDICIAL

PROCESS IN INDIA: LEEWAYS AND
CHALLENGES

BY
JAYESH SUBHAS RATHOR

UNDER THE GUIDANCE OF

DR. BHAVESH H BHARAD
STUDY ON THE CONTOURS OF JUDICIAL PROCESS IN
INDIA: LEEWAYS AND CHALLENGES
1. Introduction

It is a widely accepted idea that the primary function of apex courts in any system is to
make decisions on "what the law is." Any legal system must be built on the capability of
judicial control and judgment. However, legal and political academic intellectuals have
long been astonished by the procedures used by court officials to reach their decisions
and judgment. It has led to many efforts to regulate and balance judicial discretion and
judicial fairness. Nevertheless, this judicial imperative supremacy must fulfill the purpose
for which it was founded and given the authority to issue any decree or order that may be
required in order to provide full justice.

In India, the role of the judicial system in regulating society has so far received little
support and a lot of criticism. The court has frequently been accused of impeding the
swift and efficient execution of top-priority social and economic development
programmes. The critique, while occasionally legitimate, merely highlights the necessity
for a reevaluation of the prior instruments and procedures of the legal process. This
intellectual endeavor would require more focus on the study of judicial procedure. In
order to emphasize different aspects of the judicial system in the nation, an effort has
been made to study a representative sample of cases determined during the year in terms
of their societal effects.

In view of their function in the administration of justice, the judicial process ensures
importance and substance. Article 32 of the Constitution protected a legal right for
everybody in the form of a right to petition the Supreme Court for the preservation and
execution of basic rights. This was a benefit of the Constitution. Comparatively, Article
226 of the Constitution required the high court’s to offer comparable treatment, with the
 sole caveat that the Supreme Court's decision should stand as the only binding legal
precedent.1

The Indian Constitution's judicial system employs a method of adjusting the law to meet
shifting societal requirements and ensuring total justice by correctly recognizing the
constitutionally mandated limitations on the state's authority that lie within its purview
when a legal gap exists.2 In order to fill in the gaps in the law, the courts are obliged to
resolve the conflicting interests of the contending parties. 3

A crucial instrument in applying and carrying out justice, the judicial process is a good
way to get close to what "is" and what "ought" to be.4 Ensuring justice to a society of
more than two billion people seems difficult and never will be. However, in a place like
India, it gets progressively more challenging. The many different cultures, environments,
languages, and faiths of the people in this country are delicately balanced; one incorrect
step might cause chaos throughout the entire nation. In this sense, apparent overlaps in
the authorities of the country might be quite problematic.

Each of the constitutional organs should act independently of one another, according to
the rigorous formulation of the theory of separation of powers, which states that there
should be no overlap in their respective responsibilities. Thus, even when these organs
perform within the limits of their respective authority, overlapping tasks frequently
occur.5 The authors of the Indian Constitution never meant to accept this theory in its
entirety; instead, they favoured the American theory of limited government over the
British theory of unrestricted parliamentary power.6

1
Julius Stone, Human Law and Human Justice 3 (Universal Law Publishing Co., New Delhi, Third Indian Reprint
2008).
2
Rousseau A. Brush, “The Nature of the Judicial Process by Benjamin N. Cardozo” 31(6) The Yale Law Journal 677-
681 (1992)
3
Max Radin, “The Nature of the Judicial Process by Benjamin N. Cardozo” 10(4) California Law Review 367-369
(1992).
4
R. Raghnnadha Reddy, “From Jurisprudence to Jurimetrics: A Critical Evaluation of the Emerging Tools in the
Judicial Process” 51(1) Journal of the Indian Law Institute 92-101 (2009)
5
M.J.C Vile, Constitutionalism and Separation of Powers 2 (1967).
6
D.D.Basu, Introduction to the Constitution of India (1987) pp 36-37.
 2. Significance of the Problem

In a Rule of Law country like India, the role of government is divided in the three organs
like legislative, executive and judiciary is very much vital. Lord Montesquieu in his book
“Spirit of Laws” has introduced the idea of Separation of powers between all the organs
of the government. The main objective of the separation of power is to have checks and
balances between the organs of the government. Independence over the functioning of the
organs of the governments is very much important for a democracy like India, but India is
not rigidly following the doctrine of Separation of Power. Judiciary is considered as the
guardian of the fundamental rights of the citizens of India in safeguarding the social,
economic and political justice as laid down under the Preamble of the Indian
Constitution.

Of late the judiciary has assumed the role of the legislature and functions of the
executive. Today judicial decisions are characterized along the dichotomy of activism
and self restraint. The judges are labeled as liberal or conservative. The real questions
arise as to what are the function of law and the role of judiciary along with the role of
judges. The answer to this are the functions of the law is to establish order in the society
so as to render justice. The role of the judiciary is to adjudicate and dispense litigation.
The role of the judge is to find the law and apply law to the facts and declare the law i.e.
the role of the judge is to expound the law and not to expand the law. But in recent time
the role of the judiciary and the role of the judge have departed from the above stated
function. The question is whether the new role assumed by the judiciary and the judge in
particular to expand the law justifiable. Endeavour has been made to justifying the same
for the good governance of the society of which the judiciary is also an important part of
the governance.

Judicial process means the work of the courts in administering rules and principles of
law, in adapting and modifying these rules and principles as the circumstances of society
changes and in announcing new rules and principles as the occasion may require. 7

7
Arthur Taylor Vow Mehren, The Judicial Process with particular reference to the United State and India, 5, JILI
 Further, the judiciary has been often alleged by a section of society, questioning its
independence, particularly appointment of judges. In this backdrop, the researcher will
try to find out the contours of Judicial process in India analyzing the three important tools
of Judiciary especially Judicial Activism, Judicial Review and Judicial Restraint as well
as judicial independence for good governance.

3. OBJECTIVES OF THE RESEARCH

This research work is undertaken with the following objectives within the framework of
the thesis.
1. To evaluate and assess the role of Judiciary in defending the Constitutional
Values.
2. To examine the Doctrine of Separation of Power vis-à-vis judicial process in
India.
3. To examine the role of judiciary in expanding the fundamental rights through
judicial activism.
4. To examine judicial law making power by the Judiciary.
5. To evaluate the scope of Judicial Review in India.
6. To examine the Judicial Independence and its conflict with Judicial
appointments.
4. RESEARCH QUESTIONS

1. What is the role of Judiciary as the Custodian of Fundamental Rights in Indian

Constitution?
2. To what extent Judiciary has fulfilled the aspirations of citizen in expanding
Fundamental Rights?
3. To what extent Judiciary has encroached the Legislative and Executive functions?
4. To what extent Judiciary can extend its jurisdiction in Law making process?
5. Whether the Judicial appointments maintain the Judicial Independence in India?

5. HYPOTHESIS

1. The Judicial Process in India has lived upto the expectation of the Constitutional
values.
2. The Judiciary has played an important role in protecting, upholding and expanding the
Fundamental Rights of citizens of India through Judicial Activism.
3. Judiciary is protected from interference from the other two constitutional organs by its
independence.

6. SCOPE

The study seeks to analyze the function of the judiciary in the contemporary environment
and provide answers to some crucial issues. In accordance with legal philosophy, judges
must take into account the social and economic implications. Whether the judiciary's
creativity and judicial activism does not occasionally breach the fine invisible line of the
separation of powers and usurp the authority of the other two governmental organs,
namely the legislative and the executive.
7. LIMITATIONS

Every study has inherent limitations, and the lack of time and other resources also
contributes to these limitations. Any attempt to give a thorough analysis will be prevented
by the swiftly changing legal landscape and continuing judicial rulings. The nature of this
subject makes it difficult for a scholar to fully explore it. The study investigates the
judiciary's ever-evolving role in promoting the socio-economic well being of society.
Because it is challenging for the researcher to gather primary data for the study,
researcher had to rely heavily on secondary data. The records of the parliament and other
legislative bodies, as well as journals, magazines, articles, and books, have all been
heavily relied upon. The researcher has concentrated the study on the basis of case laws,
books, and journals under the aforementioned situations and within the aforementioned
constraints. Sincere efforts have been undertaken to get over these restrictions and deliver
a study that is timely and substantive.

8. METHODOLOGY

The research is generally doctrinal and focuses on the analysis of judicial trends and
legislative actions with particular regard to the judicial process as there is a plethora of
information available on the issue about the Indian Constitution. In proposed research
work the researcher will apply both the Doctrinal and the Empirical method. Since the
problem identified is universal in nature, a macro level understanding of the problem the
researcher will rely on Secondary data. Accordingly, the process required reading
through pertinent literature and studying the theoretical, practical, legislative, and judicial
issues critically and analytically.
9. TENTATIVE CHAPTERIZATION
The researcher to give justice to the research problem has decided the thesis under the
following major heads:
Chapter 1: Introduction
Chapter 2:
Chapter 3:
Chapter 4:
Chapter 5: Conclusion and Suggestions