Basics of Case Laws

Notes
Question: What are the steps involved in reading a Case Law? Point out the
Ratio of the annexed case. [VISHAKA & ORS.Vs STATE OF RAJASTHAN
(1997)]
Answer: There are following steps in reading a case -
1) What is the background of a case?
a) From where is the case come and where it is decided (whether
Supreme Court, High Court or Lower Court)
b) When was it decided
c) Legal doctrine or Legal maxims
2) What are the facts of a case?
a) Plaintiff
i) Who is the Plaintiff
ii) What did the Plaintiff claims his damages
iii) What kind of remedy is plaintiff seeking from the Court
b) Defendant
i) Who is the defendant
ii) What kind of defense did he present against the plaintiff’s claim
c) What side did the Court seems to be more convinced even if the
Court’s explanation of the facts seems relatively neutral. Can you
identify points at which a close question of factual interpretation as
one way or another.
3) What is legal question in the case and how does the Court answer it?
a) Around what legal question does the Court seem to be centering its
analysis
b) What legal question is the key determining factor in the Court’s
decision about the outcome of the case and how does the Court
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 answers these legal questions whether with yes or no answer or with
an elaborate test that it suggest to future Courts to used
c) Does the legal question and answer fit together convincingly
4) What reasoning supports the Court’s decision?
a) What at bottom does the case rarely seems to be about
b) What arguments does the Court used to justify its answer to the legal
question, you have identified
c) What other cases does the Court cites for support
5) Are there any separate (Majority, Concurring & Dissenting) opinion?
a) For concurrence, how is the concurring judge’s view different from
the majority view and what facts and legal issues give rise to
disagreement
b) Also for concurrence, where are the area of agreement and why does
the judge still agree with outcome of the judge.
c) For dissent, does the dissenter interpret the facts in the same way as
the majority does, the dissenter identify the legal question in the same
way as the majority does
d) Also for dissent, how does the dissenter’s legal reasoning differ from
that of majority
e) Also for dissent, what response does the dissenter have for the
majority’s reasoning and does the majority address the dissenter’s
reasoning
6) How does the decision fit in with other cases?
a) In what way does this case address the issue that I have seen before I
identified or what cases does the fact in this case extent or modify
legal reasoning that was employed in earlier cases
b) What issue does this case left unresolved, what kind of question do I
expect to arise in the next case dealing with this doctrinal area

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Question: Discuss Advisory Jurisdiction of the Supreme Court of India.
Substantiate your answer with articles of the Constitution and mention cases
relating to it. (2017)

Answer: Article 143 of the Constitution confers Advisory Jurisdiction to the

Supreme Court of India. This provision finds its origin in Section 213 of the
Government of India Act, 1935, which conferred upon the Governor General
the discretion to pose questions of public importance to the Federal Court.

Similarly, as per Article 143 the President has the power to address questions to
the Supreme Court, which he deems important for public welfare. The Supreme
Court advises the President by answering the query put before it.

Till date this mechanism has been put to use only twelve times. However, it is
pertinent to note that this is not binding on the President, nor is it “law declared
by the Supreme Court”, hence not binding on subordinate courts.”

INTRODUCTION

Supreme Court of India is the highest court established by Part V, Chapter IV of

the Indian Constitution. The Supreme Court of India came into being on 28
January 1950. It replaced both the Federal Court of India and the Judicial
Committee of the Privy Council which were at the apex of the Indian court
system. It is the highest appellate court which takes up appeals against the
verdicts of the High Courts and other courts of the states and territories. As
originally enacted, the Constitution of India provided for a Supreme Court with
a Chief Justice and seven lower-ranking judges – leaving it to Indian Parliament
to increase this number. Parliament increased the number of judges from the
original eight in 1950 to eleven in 1956, fourteen in 1960, eighteen in 1978,
twenty-six in 1986 and thirty one in 2008.

3
Articles 124 to 147 of the Constitution of India lay down the composition and
jurisdiction of the Supreme Court of India. The Jurisdiction of the Supreme
Court of India can broadly be categorised into three parts:

1) Appellate Jurisdiction
2) Original Jurisdiction
3) Advisory Jurisdiction

The Supreme Court has special advisory jurisdiction in matters which may
specifically be referred to it by the President of India under Article 143 of the
Constitution.

BACKGROUND

The Advisory jurisdiction of the Supreme Court in constitution has its source in
Government of India Act, 1935. It adopts the provision of Section 213(1) of the
Government of India Act, 1935, to confer an advisory function upon the
Supreme Court as was possessed by the Federal Court.

Section 213 of the Government of India Act, 1935 laid down on the lines of the
White Paper proposals that if at any time it appears to the Governor-General
that a question of law has arisen, or is likely to arise, which is of such a nature
and of such public importance that it is expedient to obtain the opinion of the
Federal Court upon it, he may, in his discretion, refer the question to that court
for consideration and the court may, after such hearing as it thinks fit, report to
the Governor-General thereon.

On clause 101 of his 30 October, 1947 first Draft Constitution, the

Constitutional Advisor very largely reproduced the provision of the 1935 Act
after substituting “President’ for ‘Governor-General’ and ‘Supreme Court’ for
‘Federal Court’.

4
Article 119 of the Draft Constitution prepared by Drafting Committee (21
February, 1948), replaced clause (2) of the Constitutional Advisor’s draft. On
27 May, 1949 when the draft article came up for discussion in the Constituent
Assembly, H.V. Kamath moved an amendment to the effect that in clause (2)
for the word ‘decision’ the word ‘opinion’ and for the words ‘decide the same
and report the fact to the president’ the words ‘submit its opinion and report to
the President’ be substituted. At the revision stage, draft Article 119 was
renumbered as Article 143 of the Constitution.

ADVISORY JURISDICTION
Article 143 of the Indian Constitution confers upon the Supreme Court advisory
jurisdiction. The President may seek the opinion of the Supreme Court on any
question of law or fact of public importance on which he thinks it expedient to
obtain such an opinion. On such reference from the President, the Supreme
Court, after giving it such hearing as it deems fit, may report to the President its
opinion thereon. The opinion is only advisory, which the President is free to
follow or not to follow. (Keshav Singh’s Case, 1965). However, even if the
opinion given in the exercise of advisory jurisdiction may not be binding, it is
entitled to great weight.

The first reference under Article 143 was made in the Delhi Laws case, (1951)
SCR 747. In almost sixty years, only twelve references have been made under
Article 143 of the Constitution by the President for the opinion of the Supreme
Court:

1) In re the Delhi Law Act, 1951

2) In re the Kerala Education Bill, 1958
3) In re New India Motors Ltd. v. Morris, 1960
4) In re Berubari (Indo-Pakistan Agreements), 1960
5) In re the Sea Customs Act, 1963

5
6) In re Keshav Sing’s Case, 1965
7) In re Presidential Poll, 1974
8) In re Special Courts Bill, 1979
9) Re in the matter of Cauvery Water Dispute Tribunal, 1992
10) Re in the matter of Ram Janamabhoomi, 1993
11) Re on Principles and Procedure regarding appointment of Supreme Court
and High Court Judges, 1999
12) Gujarat Assembly Election Matter, 2003

In August 2002, the then President Dr. Abdul Kalam sought advice of the
Supreme Court under Article 143 in connection with the controversy between
the Election Commission and the Government on elections in Gujarat. The
issues related to the limits on the powers of the Election Commission under
Article 324, the impact of Article 174 on the jurisdiction and powers of the
Commission and whether the Commission could recommend promulgation of
President’s rule in a state.

The Supreme Court may decline to give its opinion under Article 143 in cases it
does not consider proper or not amenable to such exercise. It was, however,
held by the Supreme Court in M. Ismail Faruqui v. Union of India (1995) that in
that case, reasons must be indicated.

JUDICIAL INTERPRETATION

Article 143 is not part of administration of justice. It is part of an advisory

machinery designed to assist the President (the Executive). Article 143(1) is
couched in broad terms which provide that any question of law or fact may be
referred by the President for the consideration of the Supreme Court.

Article 143. Power of President to consult Supreme Court. – (1) If at any time it
appears to the President that a question of law or fact has arisen, or is likely to
arise, which is of such a nature and of such public importance that it is
6
expedient to obtain the opinion of the Supreme Court upon it, he may refer the
question to that Court for consideration and the Court may, after such hearing as
it thinks fit, report to the President its opinion thereon.

(2) The President may, notwithstanding anything in the proviso to article 131,
refer a dispute of the kind mentioned in the [said proviso] to the Supreme Court
for opinion and the Supreme Court shall, after such hearing as it thinks fit,
report to the President its opinion thereon.

The Supreme Court has held in In re the Kerala Education Bill, 1957 that the
use of the word “may” in Article 143(1), in contradiction to the use of the word
“shall” in Article 143(2) shows that whereas in a reference under Article 143(2)
the Supreme Court is under an obligation to answer the questions put to it,
under Article 143(1) it is discretionary for the Supreme Court to answer or not
to answer the questions put to it.

The President’s reference under Article 143(1) to the Supreme Court in In re

The Special Courts Bill, 1978 (the special courts reference) raised important
questions of constitutional law. The facts giving rise to the Special Courts
Reference were briefly these:

When the former Prime Minister, Mrs. Indira Gandhi revoked the emergency
after her defeat in the 1977 Parliamentary elections, the overwhelming demand
arose in the country for the punishment of Mrs. Gandhi, her son Sanjay and
other guilty men. The investigations of the Shah Commission left no doubt that
there had been grave abuse of power during the emergency. Justice to countless
victims of the Emergency demanded that the guilty should be brought to trial.
However, the ordinary process of law are dilatory and Mrs. Gandhi’s party
made no secret that the weapon of delay would be used to prevent the “guilty
men” from being brought to speedy trial. Consequently, a private member, Mr.
Ram Jethmalani, introduced in the House of the People (Lok Sabha) a Bill for

7
the setting up of Special Courts. On 1 August, 1978 the President acting under
Article 143, referred the following questions for the opinion of the Supreme
Court.

(1) Whether the Bill or any of the provisions thereof, if enacted, would be
constitutionally invalid.

(2) The nature of the Supreme Court’s power under Article 143(1) and whether
the law laid down in the opinions is “the law laid down by the Supreme Court”
under Article 141.

While dealing the above question, CHANDRACHUD C.J. said that the question
whether the law laid down in the opinions was “law declared by the Supreme
Court” would require to be considered more fully on a future occasion. He
observed that:

“It would be strange that a decision given by this Court on a question of law in
a dispute between two private parties should be binding on all courts in this
country but the advisory opinion should bind no one at all, even if, as in the
instant case, it is given after issuing notice to all interested parties, after
hearing everyone concerned.”

He was aware that Supreme Court decisions had held that it was not law within
Article 141, but he supported the need for future consideration.

Article 143 does not deal with ‘jurisdiction’ of Supreme Court but with the
‘power’ of the President. It does not refer to any adjudication at all, but with
consultation. There is to be no judgement, decree or order; there is to be
Opinion to be forwarded to the President in a report to him. The Supreme Court
itself would however remain free to re-examine and if necessary to overrule the
view taken in an opinion under Article 143(1). It was held in Cauvery Water
Disputes Tribunal 1992, that the jurisdiction under Article 143(1) cannot be

8
used to reconsider any of its earlier decisions. This can be done only under
Article 137 of the Constitution.

REFERENCES MADE TO SUPREME COURT

In the matter of Cauvery Dispute Tribunal (AIR 1992 SC 522), a tribunal was
appointed by the central government to decide the question of waters of river
Cauvery which flows through the states of Karnataka and Tamil Nadu. The
Tribunal gave an interim order in June 1991 directing the State of Karnataka to
release a particular quantity of water for the state of Tamil Nadu. The Karnataka
government resented the decision of the Tribunal and promulgated an
Ordinance empowering the government not to honour the interim Order of the
Tribunal. The Tamil Nadu government protested against the action of the
Karnataka government. Hence the President made a reference to the Supreme
Court under Article 143 of the Constitution. The Court held that the Karnataka
Ordinance was unconstitutional as it nullifies the decision of the Tribunal
appointed under the Central Act (Inter Sate Water Dispute Act, 1956) which has
been enacted under Article 262 of the Constitution. The Ordinance is also
against the principles of the rule of law as it has assumed the role of a Judge in
its own cause.

In a landmark judgement in Ismail Faruqui v. Union of India [(1994) 6 SCC

360], the five judge bench of the Supreme Court held that the Presidential
reference seeking the Supreme Court’s opinion on whether a temple originally
existed at the site where the Babari Masjid subsequently stood was superfluous
and unnecessary and opposed to secularism and favoured one religious
community and therefore, does not required to be answered.

In Delhi Laws Act case, the Court considered the validity of the Act with regard
to delegated legislation. In Re Kerala Education Bill, the Bill was reserved for

9
consideration of the President who referred to the Supreme Court to give its
opinion on its validity.

In re Berubari Union (1960), opinion of the court was sought to find out the
manner in which the territory of India could be transferred to the Pakistan. In Re
Sea Customs Act (1962), to consider the validity of the Sea Customs Bill with
reference to Article 288 of the Constitution. The Special Court reference
case (1978), also known as Keshav Singh’s case, the reference was made to
consider the extent of the privileges of the legislature and the power of the
Judicial reviews in relation to it. In re Presidential Bill (1974), consideration of
certain doubts in regard to Presidential election was sought. In all these cases
the Supreme Court came with various interpretations of Article 143 of the
Constitution.

CONCLUSION

From all these cases interpreted by the Apex Court, we came to conclusion that
Article 143 empowers the President to make references to Supreme Court on
any matters but it cannot be said as the Jurisdiction of Supreme Court. Now it is
on court to examine whether it should be answered or not, if not with valid
reasons. However, the views taken by the Court is not binding on the President.
Till now, the twelve references have been made by the President, some of them
have been discussed through this paper.

It was also held by the Supreme Court that the references made under this
Article are not the “law declared by the Supreme Court” under Article 141 of
the Constitution. So it is not binding on inferior courts, even though have high
persuasive value.

10
 Law Reporting
Question: Write a detail note on the history of law reporting in India? (2017)
(2016)
Answer: In 1813, Dorin (judge of Sadar Diwani Adalat, Calcutta) advocated
the statutory recognition should be given to the Doctrine of precedent, so that
the decision of the higher Court will be binding on the Lower Courts.
Mata Parsad vs Nageshar Sahai (1925)
Privy Council decided that it is not open to the Courts in India to question any
principle laid down by this Council. Although they have a right of examining
the facts of any case before them, to see whether and how far principles on
which stress is laid applies to the facts of the particular case nor it is open to
them whether on account of judicial dignity or otherwise to question its decision
on any particular issue of fact.
It was recognized in Section 212 of The Government of India Act, 1935.
Law Commission, 1958
It concluded that doctrine of precedent should be continued. It cited some of its
advantages such as the doctrine makes uniformity and certainty in
administration of law, it tends to provide of convenience and avoid confusion or
delay. Apart from this the commission said that if the decisions of the Supreme
Court or even if the same Court are not being regarded as binding on judge, it
will be impossible for individuals to regulate their future conduct relying on any
particular view of law. The man will cease to be certain and will not know
where they stand as regards to their legal rights and obligation.
NIL Act, 1843
This act directed the Sadar Diwani Adalat to record their judgements in English.
Sadar Diwani Adalat of Calcutta was the first to come out with Law report.
Bengal Sadar Diwani Adalat Reports was started in 1845. After the

11
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.’

12
Mohammad Ali v Meer Nazar Ali
In this case Chief Justice of Bengal Justice Maclean said that the act does not
prevent the court from looking at an unreported judgements of other judges of
the same Court. This always has been done and ought to be done. A judgement
is none the less an authority because it has not been reported, otherwise the
question of whether such a judgement could or could not be so regarded, would
depend upon the mere whims of the reporters.
14th Law Report of Law Commission
Law Commission in its 14th Law Report have said that the Indian Law Report
Act will have to be repealed by reason perhaps of the delay in the publication of
the Indian Law Report Series. The provision of Section 3 have not been
observed by the Court, indeed the judgements of all Courts including those of
judicial committee of the Privy Council and the Supreme Court, have referred to
decisions published in private series as authentic and binding.
Again Law Commission in its 96th Law Report said that the Indian Law Report
Act should be repealed as it creates a lot of confusion. (But it has not been
repealed till date)
Council of Law Reporting was set up in all High Courts. Chief Justice of a
particular High Court nominated or himself became the head of the committee.
All the High Court published their Law Report series on the monthly bases.
Example: Indian Law Reports-Madras, ILR-Calcutta etc.
Official Law Reports have many shortcomings like a lot of delay has been taken
place in coming out of these official law reports and they are quite expensive
also. Apart from this, all the cases are not reported in these official law reports.
That’s why there was need of non-official law reports and judges were also
relied on the non-official law reporting, this was the main reason that
authenticity of non-official law reporting was not declining.
After that there were many private law reports had been published on regular
basis. Example: Madras Law Journal 1891, Allahabad Law Reports, All India
13
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.

14
 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

15
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.

16
 Evolution of Legal Profession in India
For any good legal administrative system, there should be a good legal profession.
In ancient India, the families dominated by males. The society was patriarchal. The decision
given by head of the family or tribe was accepted by everyone. The legal system was
decentralized. Panchayats worked as arbitrator between the parties which were in the disputes
and decision given by the Panchayat was accepted by everyone. There was no centralized
legal system.
In Medieval India, Mughals introduced their own criminal legal system in which Qazis
worked as judge and Pandits & Mawlawis were allowed to work as a vakil on behalf of their
respective parties. But that legal system was based on religion. Religion and State were not
separated. They were interlinked with each other.
In British India, British East India Company introduced some principles through which they
were tried to regulate the India and Indian legal system.
The history of legal profession in India can be traced back to the establishment of first British
Court in Bombay in 1667 by Governor Aungier. The admission of Attorneys was placed in
the hands of the Governor-in-Council and not with the Court.
Prior to the establishment of the Mayor’s Courts in 1726 in Madras and Calcutta, there were
no legal practitioners. The Mayor’s Courts, established in three presidency towns, were
Crown Courts with of right of appeal first to the Governor-in-Council and a right of second
appeal to the Privy Council. In 1791, Judges felt the need of experience and thus the role of
an attorney to protect the rights of his client was upheld in each of the Mayor’s Courts. This
was done in spite of opposition from Council members of Governor. A second principle was
also established during the period of the Mayor’s Courts: the right to dismiss an attorney
guilty of misconduct. The first example of dismissal was recorded by the Mayor’s Court at
Madras which dismissed attorney Jones.
Regulating Act, 1773
There was a need of uniform legal system to regulate the Indian Sub-continent. The
Regulating Act of 1773 was the first Act to bring in major changes in the administration and
justice system. It was the first direct interference of the British Government in regulation of
the affairs of the East India Company.
 Give the power to the Courts to enroll a person as an Advocate.
 Indian Advocates were not allowed to appear before the Courts.

17
The Supreme Court of Judicature at Fort Williams
The Supreme Court of Judicature was established by a Royal Charter in 1774 in Calcutta. The
Supreme Court was established as there was dissatisfaction with the weakness of the Court of
the Mayor. The Supreme Court of Judicature at Fort William had jurisdiction over Calcutta,
Bombay and Madras presidency. It was a Court of Record and its powers extended to try both
Civil and Criminal Cases as well as it had jurisdiction over admiralty cases. Similar Supreme
Courts were established in Madras in 1801 and Bombay in 1823.
Clause 11 of the Royal Charter act 1774, empowers the Court to approve, admit and enroll
such and so many advocates as it may deem fit.
It also made English as a working language of the Courts.
Indian advocates were not allowed to appear the Courts.
The first barristers appeared in India after the opening of the Supreme Court in Calcutta in
1774. As barristers began to come into the Courts on work as advocates, the attorneys gave
up pleading and worked as solicitors. The two grades of legal practice gradually became
distinct and separate as they were in England.
Thus, establishment of the Supreme Court brought recognition, wealth and prestige to the
legal profession in India.
Bengal Regulation Act, 1793
 For Local Judiciary or Sadar Diwani Adalat (civil court).
 For the first time regular legal profession was created for the Company Courts.
 It was started by Lord Cornwallis.
 Sadar Diwani Adalat were empowered to approve, admit and enroll a person as an
Advocate.
 Indians were also allowed to appear before the Courts.
 Only Hindus and Muslims were allowed to appear before the Court.
 Educational Qualification was not prescribed for legal profession.
 No uniformity in practice
Bengal Regulation Act, 1833
 For Sadar Diwani Adalat or Local Judiciary, only in Bengal.
 Any person can practice in Sadar Diwani Adalat regardless of their religion and
nationality.
Legal Practitioners Act, 1846

18
 For Sadar Diwani Adalat or Local Judiciary, throughout the India.
 Office of pleaders was thrown open to all person of whatever nationality or religion, duly
certified by the Sadar Diwani Adalat (Sadar Courts).
 The pleaders were permitted to enter into an agreement with their clients for their fees for
professional services.
 The Barristers of any of her Majesty’s Courts in India, were made eligible to plead in any
of the Sadar Courts.
Indian Courts Act, 1961
 The High Court of Calcutta, Bombay and Madras were established under the Indian
Courts Act 1961.
 It is on the High Courts to decide who can appear before the Court as an Advocate.
 An advocated who practiced in the High Court and wanted to appear before any other
High Court, for that he had to permission of that High Court where he had enrolled himself.
For example: An advocate who practiced in the Calcutta High Court and wanted to appear
before the Bombay High Court, for that he had to take permission of the Calcutta High
Court before appearing in Bombay High Court.
Legal Practitioners Act, 1879
 Purpose of the Act: To consolidate and amend the law relating to legal practitioners.
 To bring some sort of uniformity in legal profession in India.
 It divided the legal profession into two categories:
1. Advocates, Attorneys and Barristers fell into first category and can practice in the
High Courts or in the subordinate Courts.
2. Pleaders, Mukhtars and revenue agent fell into second category and can practice in
subordinate Courts and lower Courts.
 The High Court was empowered to make rules regarding their (Advocates or Attorneys)
qualifications, fees, suspension and dismissal.
 Disciplinary actions against the legal practitioners were left on the discretion the Courts.
 The women were also allowed to practice before the Courts (as pleaders).
 Legal professional can sue his own client for breach of contract or to recover his fee.
 The client can also sue his Advocate on the ground of negligence and breach of contact.
 A person enrolled in any High Court can practice any High Court throughout the country,
with the permission of that High Court in which he was enrolled.

19
All India Bar Committee, 1923
It was headed by Sir Edward Chammer. It recommended c
 There should be All India Bar Council.
 Distinction between Advocates and Barristers should be done away with.
Based on the recommendation of the All India Bar Committee 1923, Indian Bar Councils Act
was passed in 1926.
India Bar Councils Act, 1926
 Single All India Bar Council was not formed.
 Every High Court will have their own Bar Council, consisting of 15 members, headed by
Advocate-General of respective High Courts. (Advocate-General + l4 members nominated
by the High Court + 10 members were elected)
 It could give only advice to the High Court to take disciplinary action against the
Advocates or to approve, admit or enroll the Advocates. (Advisory in nature)
 Advice given by the Bar Council was not binding on the High Court.
All India Bar Committee, 1951
 Under the chairmanship of Justice S.R. Das. (Supreme Court Judge)
 The All India Bar Committee submitted its detailed report in 1953.
 The report contained the proposals for constituting a Bar Council for each State and an All
India Bar Council at the national level as the apex body for regulating the legal profession as
well as to supervise the standard of legal education in India.
 All barristers, Attorneys, pleaders, vakils and Mukhtars will be known as Advocates.
 Every State Bar Council should maintain a register of all existing Advocates entitled to
practice in their respective High Courts.
 All Vakils and Pleaders are entitled to practice in District Courts and other subordinate
Courts.
 Vakils and Pleaders who are law graduates should be entitled to be included in the roll of
Advocates, maintained by the State Bar Council on the payment of certain fee.
 Vakils and Pleaders who are not law graduates but under the existing rules are entitled to
be enrolled as Advocate should also be entitled to be placed in that register.
 The State Bar Council should then send copies of such registers to the All India Bar
Council who are to compile a common role of Advocates in the order of seniority according

20
 to the original enrolment of the Advocates in their respective High Courts or the Supreme
Court if they are not enrolled in any High Court.
 There should be no further recruitment of non-graduates pleaders or Mukhtars.
 If an Advocate is enrolled in a State Bar Council then he will be entitled to practice in any
Court of India.
 It recommended that the All India Bar Council and all State Bar Council should be unified
and autonomous.
 It recommended that disciplinary action against any Advocate should be taken by the State
Bar Council or by the All India Bar Council, as the case may be.
14th Law Commission Report on Judicial Reforms, 1958
 14th Law report on reforms of Judicial Administration.
 It endorsed to take into consideration of the All India Bar Committee’s recommendations.
 It reiterated and backed the recommendations given by the All India Bar Committee.

To implement the recommendations of the All India Bar Committee and taking into account
the 14th Law Commission’s recommendations related to legal profession, a comprehensive
Advocates Bill was introduced in the Parliament which resulted in the Advocates Act, 1961.

Advocates Act, 1961

 Objective: To have a unified legal profession throughout the India (by the name of
Advocate) & to make autonomous Bar Councils and an All India Bar Council.
 An Act to amend and consolidate the law relating to legal practitioners and to provide for
the constitution of the Bar Councils and an All-India Bar.
Section 35: Punishment of Advocates for Misconduct
Where on receipt of a complaint or otherwise a State Bar Council has reason to
believe that any advocate on its roll has been guilty of professional or other
misconduct, it shall refer the case for disposal to its disciplinary committee.

21
 Contempt of Court
Contempt of court is the offense of being disobedient to or discourteous toward
a court of law and its officers in the form of behaviour that opposes or defies the
authority, justice and dignity of the court. It manifests itself in wilful disregard
of or disrespect for the authority of a court of law, which is often behaviour that
is illegal because it does not obey or respect the rules of a law court.

The power to punish contempt of court by strangers, those not parties to the
proceedings nor present in court, was established in 1765 in the case of R. v
Almon. In this case, the opinion prepared by Justice Wilmot of King's Bench is
the foundation of the modern doctrine of contempt for scandalizing the court.
R. v Almon 1765
Almon published a pamphlet in 1764 in England, whose anonymous author
accused the Lord Chief Justice, Lord Mansfield, of acting officiously and
arbitrarily. It questioned his honesty, impartiality, and respect for precedent and
suggested he was politically biased.
In this case Justice Wilmot said that the power of contempt of court is necessary
to maintain the dignity and majesty of the judges.
AG v BBB 1981
Lord Salmon said that, “The description Contempt of Court no doubt has a
historical basis, but it is nevertheless misleading. Its object is not to protect the
dignity of the court, but to protect the administration of justice.”
R. v Commissioner of Police (1968)
Lord Denning observed, “Let me say at once that we will never use this
jurisdiction to uphold our own dignity. That must rest on surer foundations. Nor
will we use it to suppress those who speak against us, we do not fear criticism,
nor do we resent it. For there is something far more important at stake, it is no
less than freedom of speech itself.
NCH v USA 1919

22
The Supreme Court of United States said that US law traditionally regards
freedom of speech as enshrined in the 1st Amendment as the paramount right
that prevails over all others in case of conflict unless there is a clear & present
danger that will bring about the substantive evils that congress has a right to
prevent.
In Re: Vinay Chandra Mishra (1995)
In this case an advocate was found guilty of criminal contempt of Court and he
was sentenced to undergo simple imprisonment for a period of six years and
suspended from practising as an advocate for a period of three years. The
punishment of imprisonment was suspended for a period of four years and was
to be activated in case of his conviction for any other offence of contempt of
Court within the said period.
The Supreme Court took suo moto cognizance in this matter.
The Supreme Court is vested with the right to punish those guilty of contempt
of Court under Article 129 read with Article 142 of the Constitution of India.
The power to punish contemnors is also vested with the High Courts under
Article 215 of the Constitution and the Contempt of Courts Act, 1971 also
governs the punishments given by the High Court. This act in no way controls
the jurisdiction of the Apex Court. The Court in In Re: Vinay Mishra
misconstrued Article 129 read with 142 and robbed the Bar to of all powers to
try and punish those for professional misconduct. It even assumed jurisdiction
when Section 38 of the Advocates Act, 1961 explicitly provides only appellate
jurisdiction to the Apex Court. The Court punished Shri Mishra by suspending
him thus the petition arose in the 1998 case, Supreme Court Bar Association v.
Union of India.
The Court overruled the Mishra case and recognized the Bar Council's power to
try and punish all those guilty of professional misconduct. It is well settled that
contempt proceedings are brought about to protect the majesty of law and
uphold the judiciary's position, the central pillar in Indian democracy, among

23
the public and give them reason to keep their faith in the administration of
justice. Contempt proceedings are not brought about to restore the pride of the
Judge in who's Court or against whose order their was contempt.
In the Mishra case the Court instead of protecting the image of the Judiciary, the
upholder of the law, knowingly or un-knowingly, tried to restore the pride of the
Judge by suspending the advocate Mishra who might have been influenced by
his high position in the Bar, and felt that appropriate punishment might not be
meted out to him.

In the Supreme Court Bar Association case the court took a very objective view
and taking the help of law and construing it in the right way came to the
conclusion that the power to punish for any professional misconduct rests with
the Bar, whereas to punish for contempt only it has jurisdiction for itself and
subordinate courts. No statute can take contempt jurisdiction away from the
Supreme as well as the High Court.

 Once a British newspaper ran a banner headline calling the majority

judges of the House of Lords who decided the Spy catcher case (Attorney
General vs. Guardian Newspaper, 1987) “YOU FOOLS”. Fali Nariman,
who was present in England at that time, asked Lord Templeman, who
was one of the majority, why the Judges did not take contempt action.
Lord Templeman smiled, and said that judges in England took no notice
of personal insults.
 The law of contempt in India, is uncertain. Nariman described it in a
speech as ‘Dog’s Law’.
 He quoted Bentham, who said that when a dog does something nasty we
beat him for it. Similarly, the laws in England become known only when
someone is punished by the courts. The same is true about the law of
contempt in India, and thus it is a standing threat to freedom of speech.

24
  In our Constitution, we have two provisions: first, Article 19(1) (a) which
gives citizens freedom of speech, and Second, Articles 129 and 215
which give the Supreme Court and High Court the power of contempt.
 Since Article 19(1) (a) is the right of the people who are supreme in a
democracy, while Articles 129 and 215 are powers of judges, who are
servants of the people, the reconciliation can only be done by holding that
freedom of speech is primary, while the contempt power is only
secondary.
 THE CONTEMPT OF COURTS ACT, 1971

 Till 10 April, 2018, the Supreme Court of India has around 638 cases of
civil contempt and 15 criminal contempt. While the High Courts in India
have 96,310 civil contempt cases and 568 criminal contempt cases.
Conclusion
The contempt power should be exercised because people are criticizing a judge.
It can only be exercised if someone makes the functioning of the judge
impossible e.g. if while a judge is hearing a case someone jumps on to the Dias
and tries to run away with the court file, or if he attacks or threatens a witness.

If someone calls a judge a fool inside the courtroom and goes away, in my
opinion it is not contempt, for he has not stopped the functioning of the court.

But if he keeps shouting in court the whole day, and despite warning does not
stop, he is obviously not letting the court function, and this would be contempt.
After all disputes in society have to be adjudicated, and judges must decide
cases to justify payment of salaries to them.

25
 Judges
Committed Judiciary
The Judiciary which is committed to the policies of Government and does not
go against the policies which are made by the legislature or executive is called
committed judiciary. In this kind of judiciary it is considered that policies of
Government should be respected by the Judiciary because the Government is
the representative of the people and policies which are made by Legislature and
executive, are on the behalf of the people.
During the days of Emergency, then Prime Minister Indira Gandhi had called
for a “Committed Judiciary.” In January 1977, Justice MH Beg superseded
Justice HR Khanna as the chief Justice of India. Khanna had paid the price for
being the only dissenter in the case of A.D.M. Jabalpur v Shivkant Shukla,
where the majority bench ruled that the fundamental rights could be suspended
during the Emergency.
In the U.S. after the Great Depression, then President Roosevelt was trying to
bring economic as well as judicial reforms and introduced a bill Judicial
Procedures Reform Bill 1937. By this bill he was trying to increase the number
of judges in the Supreme Court and trying to appoint those judges who were
committed to the policies of the Government. But later on Supreme Court of the
US had struck down the bill and made it unconstitutional.
Independent Judiciary
The Judiciary which is independent from the other branches of Government and
can go against the policies of the Government is called Independent Judiciary.
Judicial Independence is important to the idea of separation of powers.
Independence of Judiciary means that the judges are in a position to make
justice in accordance with the Constitution and their promise of office, without
any kind of pressure or influence from executive or legislature. Independence of
Judiciary depends on some certain conditions like mode of appointment of the

26
judges, security of their tenure in the office and adequate remuneration and
privileges.
Note-
 The basic function of the judiciary is to adjudicate.
 Appointment of judges is an administrative function.
 Article 124 – Appointment of the judges of the Supreme Court.
 Article 217 – Appointment of the judges of the High Courts.

Appointment of Judges
Article 124(2) and Article 217(1) of the Constitution of India provides the
provisions regarding the appointment of the judges to the Supreme Court and
High Court respectively. The President of India is required to ‘consult’ with the
Chief Justice of India and in case of High Court appointments, to consult the
Governor and the Chief Justice of the respective High Court. However the
Supreme Court in the case of Supreme Court Advocates-on-Record Association
v. Union of India1 in dealing with Article 124(2) and 217(1) of the Constitution
interpreted the word “consultation” to mean “concurrence”.
In 2013, two Bills were introduced to reform the process of judicial
appointments in the Supreme Court and the High Courts. The 120th
Constitutional (Amendment) Bill, 2013 and the Judicial Appointments
Commission Bill, 2013. These bills seek to establish a National Judicial
Appointments Commission (NJAC) to appoint judges to the Supreme Court and
the High Court.

Discussion in Constituent Assembly

In the constituent assembly, three views were presented regarding the
appointment of judges:
1) The judges of the Supreme Court should be appointed with the concurrence
of Chief Justice. (Executive-Judiciary model)

27
2) The appointment made by the president should be subject to the 2/3rd vote of
the Parliament. (Executive-legislative model)
3) The judges of the Supreme Court should be appointed in consultation with
the Council of States. (Rajya Sabha) (Legislative-Judiciary model)
In the course of the Constituent Assembly debates, Dr. B.R. Ambedkar said that
“It seems to me in the circumstances in which we live today where the sense of
responsibility has not grown to the same extent to which we find it in United
States. It would be dangerous to leave the appointments to be made by the
President without any kind of limitation or reservation that is to say merely on
the advice of executive of the day. Similarly it seems to me that to make every
appointment which the executive wishes to make subject to the concurrence of
the legislature, is also not a very suitable provision. It is also unfavorable to
subject the appointment of judges to the concurrence of the Chief Justice of
India because CJI is also a human being, after all and liable to make mistakes
and vesting such a power on him would not be desirable.”

Evolution of Collegium System

S.P. Gupta v Union of India, 1982 (First Judges Case)
The Supreme Court held that consultation does not mean concurrence and it
implies only exchange of views.
Supreme Court Advocates-On-Record Association v Union of India,
1993 (Second Judges Case)
The Supreme Court reversed its earlier ruling and changed the meaning of the
word consultation to concurrence. Hence, it ruled that the advice tendered by
the Chief Justice of India is binding on the President in the matters of
appointment of the judges of the Supreme Court. But, the Chief Justice would
tender his advice on the matter after consulting two of his senior most judges.
Third Judges Case, 1998

28
In 1998, the President of India exercised his power under Article 143 invoking
the advisory jurisdiction of the Supreme Court to clarify the appointment
process. In this judgement, the hon’ble Supreme Court opined that the
consultation process to be adopted by the CJI requires ‘consultation of plurality
judges.’ The sole opinion of the CJI does not constitute the consultation process.
He should consult a Collegium of four seniormost judges of the Supreme
Court and even if two judges give an adverse opinion, he should not send the
recommendation to the Government. The Court held that the recommendation
made by the CJI without complying with the norms and requirements of the
consultation process are not binding on the Government.
Criticism of Collegium System –
India is the only constitutional democracy where the judiciary appoints its own
judges. The criticism of current process of appointment i.e. Collegium system is
that:
1) Lack of accountability
2) Lack of a clear merit-based criteria and the norm of seniority has become
a proxy criterion for judging merit.
3) Lacks of diversity in composition.
4) The process is not open to public scrutiny
5) Neither the executive nor the legislature has any say in the appointment
of judges.
6) Appointment of judges by the Collegium increases the burden of work on
judiciary.
7) Collegium system leads to the nepotism.
8) Collegium is an extra Constitutional device, devised by Supreme Court.
While NJAC is a Constitutional device which was replaced by an extra
constitutional device.

29
 Law Commission Report, 1987: Recommended the structure of committee for
the appointment of judges which includes Chief Justice of India, 3 Seniormost
judges, Attorney-General of India, 1 Academician, Union Law Minister.
 Government tried to bring 67th Constitution (Amendment), 1990, but not

passed.
 Venkatachaliah Commission 2002: The National Commission to review the
working of the Constitution (NRCWC), also known as Venkatachaliah
Commission, was set up by a resolution of the NDA Government led by Atal
Bihari Vajpayee in 2000 for suggesting possible amendments to
the Constitution of India. It submitted its report in 2002. Justice M.N. Rao
Venkatachaliah was the chairperson of the commission. The commission
recommended that a National Judicial Commission under the Constitution
should be established for the appointment of judges. It said that in the matter of
appointment of Judges of the Supreme Court, it would be worthwhile to have a
participatory mode with the participation of both the executive and the judiciary
in making recommendations.
Difference between NDA & UPA regime
 UPA Regime: There was no mention of veto power in JAC Bill, 2013. NDA
Regime: Veto power can be used if two persons of the NJAC oppose on the
appointment or transfer of judges, and the name will be dropped.
 JAC Bill, 2013 (UPA regime) – Parliament will decide the composition and
the functions of the committee. While JAC Bill, 2014 (NDA regime) -
 UPA Regime: The Constitution (120th Amendment) Bill, 2013 cleared by the
UPA cabinet suggests that the composition of the JAC will be determined by an
ordinary law. NDA Regime: The Modi government aims to incorporate the
composition and functions of the JAC in the Constitution itself (by inserting
Article 124(A) to define composition and 124(B) to define functions of the
panel). The terms of the JAC and its composition cannot be altered by an
ordinary law and would require a Constitutional amendment.

30
 UPA Regime: This provision was not there in the UPA Bill, 2013. NDA
Regime: Bill may incorporate a provision making the JAC decision binding on
the President and in case the President rejects any name, it should be open to
judicial review.

 Other function of JAC was same in both the bills.

National Judicial Appointment Commission (NJAC)

National Judicial Appointments Commission (NJAC) was a proposed body
which would have been responsible for the appointment and transfer of judges
to the higher judiciary in India. The Commission was established by amending
the Constitution of India through the ninety-ninth constitution amendment with
the Constitution (Ninety-Ninth Amendment) Act, 2014 or 99th Constitutional
Amendment Act-2014. The NJAC would have replaced the collegium
system for the appointment of judges as invoked by the Supreme Court via
judicial fiat by a new system. Along with the Constitution Amendment Act, the
National Judicial Appointments Commission Act, 2014, was also passed by
the Parliament of India to regulate the functions of the National Judicial
Appointments Commission.
A new article, Article 124A, (which provides for the composition of the NJAC)
has been inserted into the Constitution.
Composition
The National Judicial Appointment Commission would have consisted of the
following six persons:

 Chief Justice of India (Chairperson, ex officio)

 Two other seniormost judges of the Supreme Court next to the Chief
Justice of India - ex officio
 The Union Minister of Law and Justice, ex-officio
 Two eminent persons

These (two) eminent persons would have been nominated by a committee

consisting of:

31
  Chief Justice of India,
 Prime Minister of India, and
 Leader of Opposition in the Lok Sabha
 The two eminent persons, one person would be from the Scheduled Castes or
Scheduled Tribes or OBC or minority communities or a woman.
 The eminent persons shall be nominated for a period of three years and shall
not be eligible for re-nomination.

Supreme Court Advocates-on-Record Association v Union of

India 2015 (Fourth Judges Case)
On 16 October 2015, the Constitution Bench of Supreme Court by 4:1 Majority
upheld the collegium system and struck down the NJAC as unconstitutional.
Justices J. S. Khehar, Madan Lokur, Kurian Joseph and Adarsh Kumar Goel had
declared the 99th Constitutional Amendment and NJAC Act unconstitutional
while Justice Chelameswar upheld it.

Criticism of NJAC
 Predominant Rule to executive
 Federal structure has not been taken into account.
1) Governor is not present in the appointment of High Court judges.
2) Law minister of the state in the appointment of High Court judges.
 It violates judicial independence and hence the basic structure of the
Constitution.

Memorandum of Procedures
MoP for SC

MoP for HC

32
 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

 Excluding Public from Courtroom

 Excluding Media from Courtroom

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

33
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 Shaw said that ‘Publicity in the administration of justice is one of the
surest guarantee of our liberties’.
Offutt v United States

34
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.

35
 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.

Article 6: Fair Trial

1. In the determination of his civil rights and obligations or of any criminal
charge against him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law.
Judgment shall be pronounced publicly but the press and public may be
excluded from all or part of the trial in the interest of morals, public order or
national security in a democratic society, where the interests of juveniles or the
protection of the private life of the parties so require, or the extent strictly
necessary in the opinion of the court in special circumstances where publicity
would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until
proved guilty according to law.

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.

Code of Civil Procedures, 1908

Section 153(b)
Place of trial to be deemed to be open Court?
The place in which any Civil Court is held for the purpose of trying any suit
shall be deemed to be an open Court, to which the public generally may have

36
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
publication of proceeding is facet of the power to hold a trial in camera. The

37
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.

Juvenile Justice (Care and Protection of Children) Act, 2015

Section 3 (11): Principle of right to privacy and confidentiality

Every child shall have a right to protection of his privacy and confidentiality, by
all means and throughout the judicial process.

Section 4: Juvenile Justice Board

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
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.

38
 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.

39
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

 In general English, the term precedent means, “A previous instance or case

which is, or may be taken as an example of rule for subsequent cases, or by
which some similar act or circumstances may be supported or justified.”
 According to Gray, “A precedent covers everything said or done, which
furnishes a rule for subsequent practice.”
 According to Salmond, the doctrine of precedent has two meanings:
1. In loose sense, it includes merely reported case law which may be cited &
followed by the courts.
2. In strict sense, that case law which not only has a great binding authority
but must also be followed.
 According to Bentham, “precedents are Judge made Law.”
 According to Austin, “precedents are Judiciary’s Law.”

40
 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

Binding precedents or Authoritative Precedents

Binding precedent (also authoritative precedent or mandatory precedent) is

precedent which must be followed by all lower courts under common law legal
systems. In India it is created by the decision of a higher court such as Supreme
Court of India.

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.

There are three elements needed for a precedent to work.

1) The hierarchy of the courts needs to be accepted, and an efficient system

of law reporting should be there.
2) A balance must be struck between the need on one side for the legal
certainty resulting from the binding effect of previous decisions, and
3) On the other side the avoidance of undue restriction on the proper
development of the law.

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.

41
 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

A lower court’s opinion may be considered as persuasive authority if the judge

believes they have applied the correct legal principle and reasoning.

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.

Statements made in Obiter dicta or judicial dicta

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.

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

42
obiter and rationale. However, the judge can only opt to overturn the holding of
a court lower or equivalent in the hierarchy.

Treatises, Restatements, Law Review Articles

Courts may consider the writings of eminent legal scholars in treatises,

restatements of the law, and law reviews. The extent to which judges find these
types of writings will vary widely with elements such as the reputation of the
author and the relevance of the argument.

Courts in other countries (foreign cases)

An Indian court might cite judgments from countries that share the common law
system.

Bengal Immunity Ltd v State of Bihar 1955

The Hon’ble Supreme Court of India held that the Supreme Court is not bound
by its own decision.

Somwanti v State of Punjab 1963

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.

Merits of the Doctrine of Precedents

1) It brings certainty, continuity and predictability.
2) Practical laws based on a problem. (while parliamentary law generally
hypothetical)
3) Certain and easy to understand law by court (also practical applicability)
4) Useful guidelines for advocates and judges
5) Saves time of judiciary (as lower follows higher judiciary’ guidelines)
6) Flexibility of law
7) It shows respect to one ancestors’ opinion. Eminent jurists like Coke and
Blackstone have supported the doctrine on this ground. The say that there are
always some reasons behind these opinions, we may or may not understand
them.
8) Precedents are based on customs, and therefore, they should be followed.
Courts follow them because these judicial decisions are the principal and most

43
authoritative evidence that can be given of the existence of such a custom as
shall form a part of the common law.
9) As a matter of great convenience it is necessary that a question once decided
should be settled and should not be subject to re-argument in every case in
which it arises. It will save labour of the judges and the lawyers.
10) Precedents bring certainty in law. If the courts do not follow precedents and
the judges start deciding and determining issues every time afresh without
having regard to the previous decisions on the point, the law would become the
most uncertain.
11) Precedents bring flexibility to law. Judges in giving their decisions are
influenced by social, economic and many other values of their age. They mould
and shape the law according to the changed conditions and thus bring flexibility
to law.
12) Precedents are Judge made law. Therefore, they are more practical. They
are based on cases. It is not like statue law which is based on a priori theory.
The law develops through precedents according to actual cases.
13) Precedents bring scientific development to law. In a case Baron Parke
observed ‘It appears to me to be great importance to keep the principle of
decision steadily in view, not merely for the determination of the particular
case, but for the interest of law as a science.’
14) Precedents guide judges and consequently, they are prevented from
committing errors which they would have committed in the absence of
precedents. Following precedents judges are prevented from any prejudice and
partially because precedents are binding on them. By deciding cases on
established principles, the confidence of the people on the judiciary is
strengthened.
15) As a matter of policy, decisions, once made on principal should not be
departed from in ordinary course.

Demerits of the Doctrine of Precedents

1) There is always a possibility of overlooking authorities. The vastly increasing
number of the cases has an overwhelming effect on the judge and the lawyer. It
is very difficult to trace out all the relevant authorities on the very point.
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.”

44
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

1. Abrogated decisions – A decision ceases to be binding if a statute or

statutory rule inconsistent with it is subsequently enacted, or if it is reversed or
overruled by a higher court.
2. Same decision on appeal is reversed by the appellate court. –
24th amendment of Indian Constitution was passed to nullify the decision of the
SC in the case of Golaknath.
3. Affirmation and Reversal on a Different Ground – A decision is
affirmed or reversed on appeal on a different point.
4. Ignorance of Statute – A precedent is not binding if it was rendered in
ignorance of a statute or a rule having the force of statute i.e. delegated
legislation. A court may know of existence of the statute or rule and yet not
appreciate in the matter in hand. Such a mistake also vitiates the decision. Even
a lower court can refuse to follow a precedent on this ground.
5. Inconsistency with Earlier Decision of Higher Court – A precedent is
not binding if the court that decided it overlooked an inconsistent decision of a
high court. High courts cannot ignore decision of Supreme Court of India.
6. Inconsistency with Earlier Decision of Same Rank – A court is not
bound by its own previous decisions that are in conflict with one another. The
court of appeal and other courts are free to choose between conflicting
decisions, even though this might amount to preferring an earlier decision to a
later decision.
7. Precedent sub silentio or not fully argued – When a point is not
involved in a decision is not taken notice of and is not argued by a counsel, the
court may decide in favour of one party, whereas if all the points had been put
forth, the decision in favour of one party. Hence, such a rule is not an authority
on the point which had not been argued and this point is said to pass sub
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.

45
 Circumstances which increase the authority of a precedent

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.

46
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.

Fertilizer Corporation Kamgar Union v. Union of India (1980)

Justice Krishna Iyer in this case observed that procedure should be relaxed to
meet the end of justice. He enumerated the following principles on Public
Interest Litigation such as:

 The exercise of State power to eradicate corruption may result in unrelated

interference’s of individuals’ right.
 Social justice want’s liberal judicial review administrative action

47
 Restrictive rules of standing are an antithesis to an effective system of
administration.
 Activism is essential for participative public justice.

S.P. Gupta v Union of India (1981)

Justice P. N. Bhagwati in this case articulated the concept of PIL. He held that
“Where a legal wrong or a legal injury is caused to a person or to a determinate
class of persons by reason of violation of any constitutional or legal right or any
burden is imposed in contravention of any constitutional or legal provision or
without authority of law or any such legal wrong or legal injury or illegal
burden is threatened and such person or determinate class of persons by reasons
of poverty, helplessness or disability or socially or economically disadvantaged
position unable to approach the court for relief, any member of public can
maintain an application for an appropriate direction, order or writ in the High
Court under Article 226 and in case any breach of fundamental rights of such
persons or determinate class of persons, in this court under Article 32 seeking
judicial redress for the legal wrong or legal injury caused to such person or
determinate class of persons.

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.

Indian Banks' Association, Bombay and Ors v. Ms Devkala

Consultancy Service and Ors
The hon’ble Supreme Court in this case held that in an appropriate case, where
the petitioner might have moved a court in her private interest and for redressal
of the personal grievance, the court in furtherance of Public Interest may treat it
a necessity to enquire into the state of affairs of the subject of litigation in the
interest of justice. Thus a private interest case can also be treated as public
interest case.
There are a lot of other cases which involved public participation or Public
Interest Litigation as one of the main causes for the case and its judgment.

48
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.

“Taking suffering seriously – Social Action Litigation in Supreme Court of

India” Article by Upendra Bakhshi in 1980s

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)

Different Phases or Stages of PIL

I Stage: 1970s – 80s
 Individuals initiated the filing of PIL.
 Right of unprivileged had been recognised by the judiciary. (Positive
Response)
 Rarely misused
II Stage: 1990s

49
 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.

Factors contributing to PIL

 Constitutional framework
 Power of Supreme Court (under Article 32, 141, 142) and Power of High
Court (Under Article 226)
 PIL corresponded with Judicial Activism. (Former is an element of latter)
 After Indira Gandhi, no strong executive was present nor legislature, so a
vacuum was created, hence felt back on judiciary.
 Civil society find it as a quick way of getting things done, result oriented,
efficient, inexpensive and getting rights recognized.
Advantages or Merits of PIL
1) Helped disadvantaged people & brought justice to their doorstep.
2) Expand human rights jurisprudence in India. (Education, food, privacy)
3) Helped in strengthening constitutionalism (Rule of law, fighting for
corruption)
4) Helped in important legislative reforms (Vishakha Guidelines)
5) Cooling effect on controversial matters. (Narmada Bachao Andolan,
Reservation)
6) Helped the judiciary to improve its image.
7) Trans-judicial inference- other countries (mainly in Asia) have relied upon
Indian PIL decisions.
8) Vigilant citizens can find an inexpensive remedy because there is only a
nominal rate of court fees.

50
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)

Inefficient use of limited judicial resources

If properly managed, the PIL has the potential to contribute to an efficient
disposal of people’s grievances. But considering that the number of per capita
judges in India is much lower than many other countries and given that the
Indian Supreme Court as well as High Court are facing a huge backlog of cases,
it is puzzling why the courts have not done enough to stop non-genuine PIL
cases. In fact, by allowing frivolous PIL plaintiffs to waste the time and energy
of the courts, the judiciary might be violating the right to speedy trial of those
who are waiting for the vindication of their private interests through

51
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.”

It is submitted that courts should refrain from perceiving themselves as

crusaders constitutionally obliged to redress all failures of democracy. Neither
they have this authority nor could they achieve this goal.

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
it seems that the judicial intervention in these cases have made little progress in

52
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.

Disturbing the constitutional balance of power

Although the Indian Constitution does not follow any strict separation of power,
it still embodies the doctrine of checks and balances, which even the judiciary
should respect. However, the judiciary on several occasions did not exercise
self-restraint and moved on to legislate, settle policy questions, take over
governance, or monitor executive agencies. Jain cautions against such tendency:

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

It is also suspect if the judiciary has been (or would be) able to enhance the

53
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.

How can it be checked?

The hon’ble Supreme Court made guidelines regarding PIL in 1998. According
to the Supreme Court’s guidelines regarding the filing of Public Interest
Litigation, it complies of the following letter petitions such as:
1) Bonded labour matters
2) Neglected children
3) Non-payment of minimum wages to workers and their exploitation
4) Petitions from jails complaining of harassments, release on personal bond,
speedy trial as a fundamental right
5) Petition against police for refusing to register a case, harassment at police
station
6) Petition on harassment of women, rape, kidnapping or murder
7) Petitions on harassment of scheduled caste, scheduled tribe and other
economically backward classes.
8) Petitions pertaining to environmental pollution, disturbance of ecological
balance, maintenance of heritage and culture, forest and wildlife etc.
9) Petitions from riot victims
10) Family pensions.
No PIL can be filled regarding the following matters:

54
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:

(i) Richard Gere’s public kissing of an Indian actress, Ms Shilpa Shetty;

(ii) An alleged indecent live stage show on New Year’s Eve; and

55
(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

Public Interest Litigation is working as an important instrument of social

change. It is working for the welfare of every section of society. It's the sword
of every one used only for taking the justice. The innovation of this legitimate
instrument proved beneficial for the developing country like India. Amendment
which was made in 2003, makes it mandatory to submit an affidavit that what
you are saying is true, apart from letter. Fine for senseless PIL. It is the
responsibility of judiciary to strike a balance between actual and personal PILs.
PIL cell for screening petitions & applications.

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
government accountable. Last but not least, PIL enables civil society to play an

56
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.

57
 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:

1) Name of the Case (Plaintiff v Defendant or Appellant v Respondent)

2) Name of the Court (Where the case decided)
3) Date of decision
4) Page no. (Where case has been reported)

Steps 3: Statement of facts

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.
58
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:

1. A one-sentence description of the nature of the case, to serve as an

introduction and whether it comes under Original Jurisdiction (Plaintiff and
Defendant) or Appellate Jurisdiction (Appellant and Respondent).
2. A statement of the relevant facts and law, with quotation marks or
underlining to draw attention to the key words or phrases that are in dispute.
3. A summary of the complaint (in a civil case) or the indictment (in a criminal
case) plus relevant evidence and arguments presented in court to explain who
did what to whom and why the case was thought to involve illegal conduct.
4. A summary of actions taken by the lower courts. Example: defendant
convicted; conviction upheld by appellate court; Supreme Court granted
certiorari.

Steps 4: Issues before the trial Court

The issues or questions of law raised by the facts peculiar to the case are often
stated explicitly by the court.

Constitutional cases frequently involve multiple issues, some of interest only to

litigants and lawyers, others of broader and enduring significant to citizens and
officials alike.

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.”

59
Example: The famous case of Brown v. Board of Education involved the
applicability of a provision of the 14th Amendment to the U.S. Constitution to a
school board’s practice of excluding black pupils from certain public schools
solely due to their race. The precise wording of the Amendment is “no state
shall... deny to any person within its jurisdiction the equal protection of the
laws.” The careful student would begin by identifying the key phrases from this
amendment and deciding which of them were really at issue in this case.
Assuming that there was no doubt that the school board was acting as the State,
and that Miss Brown was a “person within its jurisdiction,” then the key
issue would be “Does the exclusion of students from a public school solely on
the basis of race amount to a denial of ‘equal protection of the laws’?”

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
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.

60
Steps 5: Judgement

The decision, or holding, is the court’s answer to a question presented to it for

answer by the parties involved or raised by the court itself in its own reading of
the case. There are narrow procedural holdings, for example, “case reversed and
remanded,” broader substantive holdings which deal with the interpretation of
the Constitution, statutes, or judicial doctrines. If the issues have been drawn
precisely, the holdings can be stated in simple “yes” or “no” answers or in short
statements taken from the language used by the court.

Steps 6: The Rule of Law and Legal Principles applied

In this section, we try to find out the books, articles, quotations or scholar’s
view which are cited by the judges to render his or her judgement.

Steps 7: Ratio Decidendi

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.

Steps 8: Concurring opinion, Dissenting opinion, Minority opinion (If any)

Minority, Concurring and Dissenting opinions should be subjected to the same

depth of analysis to bring out the major points of agreement or disagreement
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

61
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.

Case Brief or Case Note

Kesavananda Bharati v State of Kerala
Case Name: His Holiness Kesavananda Bharati Sripadagalvaru and Ors v State
of Kerala and Anr.
Court: Supreme Court of India
Judges: S.M. Sikri, J.M. Shelat, K.S. Hegde, A.N. Grover, A.N. Ray, P.J.
Reddy, D.G. Palekar, H.R. Khanna, K.K. Mathew, M.H. Beg, S.N. Divedi, B.K.
Mukherjee and Y.V. Chandrachud.
Date: 24 April 1973
Citation: AIR 1973 SC 1461
Statement of Facts
His Holiness Kesavananda Bharati, the head of ‘Edneer Mutt’ (Hindu Mutt
situated in Edneer, a village in Kasaragod District of Kerala) challenged the
amendments in Kerala Land Reforms Act, 1963 which imposed the restrictions
on the management of its property. The state invoked its authority under Article
21 of the Constitution. Nanabhoy Palkhivala, an Indian Jurist, convinced the
Kesavananda Bharati to file a petition under Article 26, concerning the right to
manage religiously owned property without government interference. During
the case, major amendments to the Constitution (24th, 25th, 26th and 29th) had
been enacted by Indira Gandhi’s government through Parliament to get over the
judgments of the Supreme Court in R.C. Cooper (1970) in which the Supreme
Court struck down bank nationalisation, Madhavrao Scindia (1970) in which the
Supreme Court annulled the abolition of privy purses of former rulers and
Golak Nath (1967) in which the Supreme Court held that the amending power
of Parliament could not touch the Fundamental Rights. All these amendments
were under challenge in Kesavananda Bharati case. Since Golak Nath was
decided by 11 judges, a larger bench was required to test its correctness and so,
13 judges bench was constituted in the case of Kesavananda Bharti.

Issue

62
  What was the extent of amending power conferred by the Article 368 of
the Indian Constitution?
 Whether 24th amendment act 1971 is valid?
 Whether section 2(a), 2(b) and 3 of 25th amendment act 1971 is valid?
 Whether 29th amendment act 1971 is valid?

Argument from the Petitioner side

The petitioner in the landmark case, inter alia, mainly contended that the
Parliament’s power to amend the Constitution is limited and restricted. This
argument of restrictive competence with the Parliament was based on the Basic
Structure theory propounded by Justice Mudholkar in Sajjan Singh. The
petitioner through his counsel pleaded before the historic 13 judge bench to
protect his Fundamental Right to Property violated by the enactment of 24th &
25th Constitutional Amendment. The petitioners also submitted that it was the
Constitution of India which granted the citizens freedom from tyranny which
they have suffered at the hands of Colonialism. The various features of this
freedom will gradually wither away if not protected from the Parliament’s
recent course.

Argument from the Respondent side

The respondent i.e. the State contended the same arguments which it has been
contending since Shankari Prasad i.e. the power of parliament with respect to
amending the Constitution is absolute, unlimited and unfettered. This argument
of state was based on the basic principle of Indian Legal System i.e. Supremacy
of Parliament. Further, the state pleaded that in order to fulfill its socio-
economic obligations guaranteed to the citizens by the union in Preamble, it is
of immense importance that there is no limitation upon the authority of the
Parliament. The essence of State’s arguments was that if what Golaknath &
petitioner is contending becomes the law then all the social and egalitarian
obligations bestowed on the Parliament by the highest law i.e. Constitution will
come in direct serious conflict with the rights under Part III. The Respondents
submitted before the courts that even democracy can be turned into one party
rule, if need be, by the Parliament.

Judgement
The Supreme Court reviewed the decision in Golaknath v. State of Punjab, and
considered the validity of the 24th, 25th, 26th and 29th amendments. The case

63
was heard by the largest ever Constitutional Bench of 13 Judges. The Bench
gave eleven separate judgements, which agreed on some points and differed on
others.

The court by a majority of 7:6 held that Parliament can amend any and every
provision of the constitution subject to condition that such amendment does not
violate Basic Structure of the constitution. The majority decision was delivered
by S.M. Sikri CJI, K.S. Hegde, B.K. Mukherjea, J.M. Shelat, A.N. Grover, P.
Jagmohan Reddy jj. & Khanna J. concurring with the majority. Whereas the
minority opinions were written by A.N. Ray, D.G. Palekar, K.K. Mathew, M.H.
Beg, S.N. Dwivedi & Y.V. Chandrachud jj. The minority bench though writing
separate opinions, didn’t conceded to the fact that there are some provisions
which are fundamental. They were reluctant to grant complete and unfettered
authority to Parliament with respect to power of amendment.

The 13 judges bench gave this landmark decision on 24 April, 1973 (on the day
when the then CJI S.M. Sikri was to retire). The court upheld entire
24th Constitutional (Amendment) Act, 1971 whereas it found 1st part of
25thConstitutional (Amendment) Act, 1972 intra vires &2nd part of the act ultra
vires. The court adopting social engineering & balancing the interests of both
litigants held that neither the Parliament possesses power to emasculate Basic
Structure of Constitution nor it can revoke the mandate to build welfare state
and an egalitarian society. The court found the answer to the question left
unanswered in Golak Nath viz. the extent of amending power with the
Parliament. The answer which the court deduced was DOCTRINE OF BASIC
STRUCTURE. This doctrine implies that though Parliament has the prerogative
to amend the entire Constitution but subject to the condition that they cannot in
any manner interfere with the features so fundamental to this Constitution that
without them it would be spiritless. To understand the essence of this doctrine it
is of importance to understand Hegde & Mukherjea jj. who in their opinion have
very beautifully explained this Doctrine. In their opinion Indian Constitution is
not a mere political document rather it is a social document based on a social
philosophy. Every philosophy like religion contains features that are basic and
circumstantial. While the former cannot be altered the latter can have changes
just like the core values of a religion cannot change but the practices associated
with it may change as per needs & requirements. The list of what constitutes
basic structure is not exhaustive & the majority bench has left it to the courts to
determine these fundamental elements. It is upon the courts to see that a

64
particular amendment violates Basic structure or not. This question has to be
considered in each case in the context of a concrete problem.

The major findings of the court are as follows:

1. The court upon a great discussion and analyzing the matter at length
found the power of Amendment as contended by the respondent in the
impugned Article 368. After this judgment the court made explicit what
was implicit pre-Golaknath.
2. The court after hearing both sides came to the conclusion that in reality
there do liesa difference between an ordinary law and an amendment.

The Kesavananda Bharati case, to the extent of above two findings, overruled
the Golaknath case.

1. The judgment though overruling Golaknath didn’t conceded absolute or

unfettered power to parliament with respect to Amendment in the
Constitution. They held that though parliament can amend any & every
provision of the Constitution subject to non-interference and non-
violation of Basic Structure {Theory of Basic Structure}.
2. The bench also answered the question left unanswered
by Golaknath about the extent of the word “Amendment”. The court
found that the word “amend” in the provision of Article 368 stands for a
restrictive connotation and could not ascribe to a fundamental change. To
understand it simply; the parliament in order to pass a constitutionally
valid amendment, the particular amendment is subject to the application
of Basic Structure test and has to pass it.
3. Since the majority ruled that Parliament can amend any & every
provision of Constitution subject to Basic Structure test, it also had the
effect of allowing Parliament to amend even FR’s as long as they are in
consonance with the Basic Structure theory.
4. The court suggested few basic structures that they could locate such as
Free & Fair Elections, Supremacy of Constitution, Independent judiciary,
Secularism, Federal Character of Nation, Separation of Power, Republic
& Democratic form of Government etc. However, the list they prepared is
not exhaustive and future courts on interpretation can add features they
find as Basic Structures.
5. The majority bench upheld the entire 24th Amendment Act valid whereas
regarding 25th Amendment; it upheld 25th Amendment’s 1st limb and

65
 struck down the 2nd However, this validation of 25th Amendment was
subject to two conditions i.e.
I. Although the court accepted that the literal meaning of the word
“amount” is not equivalent to compensation and though courts can’t go
on deciding on adequacy of amount but it cannot be unreasonable and
arbitrary. Neither the amount has to be the market value but it should be
reasonably related to the market value.
II. The 1st part of the Amendment was though upheld (delinking of
Article 19(1) (f) from Article 31) but 2nd part which barred judicial reach
was struck down. Khanna J. on this point opined that no law can bar the
litigant to reach the courts for the enforcement of their rights.
6. The court thereby upholding the 1st limb of 25th Amendment gave the
required prerogative to Parliament to fulfill their socio-economic
legislation guaranteed under Preamble as well as in certain provisions of
Constitution and at the same time saved the citizens from Parliamentary
Totalitarianism by striking down 2ndlimb of the said amendment since it
barred the fundamental, legal and constitutional right of legal remedy.
7. The judgment of Kesavananda was an improvement over Golaknath in
two terms:
i. The decision in Golaknath was restricted only to the protection
of Fundamental Rights from the autonomy of Parliament;
however, Kesavananda broadened its cover over all the
provisions that are fundamental to the Constitution. In this way
the court in Kesavananda increased the ambit of protection of
Constitution and limitation on Parliament’s power.
ii. The majority bench of Golaknath was of the opinion that the
Parliament has no authority to amend the Fundamental Rights
and also they were of the opinion that to have an amendment, it
has to come from the Constituent Assembly. This made
Amendment too rigid formulation and unknowingly made the
Constitution too slow to change.
Fortunately, Kesavananda overruled Golaknath to this extent
and granted the sufficient necessary flexibility to the
Constitution.

Analysis
The decision of the Kesavananda Bharati case was a thought-provoking
judgment. The bench in this decision after putting a lot of thought into it had
66
came up with a very unique. The decision running into more than 700 pages has
devised a solution applying which neither Parliament’s obligations are hindered
& nor is there any possibility of violation of citizens’ Fundamental
Right. Kesavananda is a classic example of judicial policy where due to
inherent conflict and ambiguity the Constitutional Machinery was failing. This
inherent conflict and ambiguity was resolved when the majority bench came up
with Doctrine of Basic Structure. This 13 judge bench decision corrected wrong
precedents (Shankari Prasad, Sajjan Singh, Golaknath) made in the past and
presented the Indian Democracy where all the institutions borne through
Constitution can perform their respective obligations harmoniously. After the
application of this decision Judiciary, as given by the Constitution, has become
final arbiter to check violation of constitutional provisions. Since Kesavananda
Bharati case overruled Golaknath case it cleared the Parliament’s way to fulfill
their obligations to create a welfare state and an egalitarian society. Along with
this it has also put a cap of restriction on the Parliament to keep its autocracy in
check and to ascertain that there is no further violation of Fundamental rights.

Kesavananda Bharati Case reflects judicial creativity of very high order. The
majority bench’s decision to protect the fundamental features of the
Constitution was based on sound & rational reasoning. The bench was fearful
that if the Parliament is given unrestricted amending power then a political party
with a two-third majority in Parliament, for a few years, could make any change
in the Constitution even to the extent of repealing it to suit its own preferences.
However, the bench was also conscious of the poverty and social backwardness
lurking in the nation & to eradicate this state of poverty and social
backwardness the Parliament would need some sort of tool. Therefore, keeping
both extreme contentions in its mind, the court propounded Basic Structure
theory through which a honest Parliament can bring all the required changes
needed and at the same time check a malicious & power greedy conglomerate
of politicians.

Conclusion
The Supreme Court reading implied limitation on Parliament’s amending power
was a very bold & brave move. The Constitution of India deriving strength from
national consensus and enacted in the name of “People of India” cannot be
amended by a mere 2/3rd majority when in reality 2/3rd majority does not
represent the entire populous of nation, further it should be also kept in mind
that not entire population cast their respective votes in General Election. The

67
procedure of Amendment requires the bill to pass from both the houses and
Rajya Sabha does not represent people of India i.e. it is not a popular house
therefore, it is not entirely correct to say that an Amendment passed by the
houses actually represent “People of India”.

Eminent Jurist, legendary advocate and co-counsel in Kesavananda Bharati

Case, Nani Palkhiwala and the seven judges at majority bench were of the
opinion that through this judgment they have saved Indian democracy which
our respected ancestors fought so hard for. India after over 150 years of struggle
got Independence from colonial rule of Great Britain. The most important
product of this independence was Democracy which gave common people (who
were the most oppressed) power and rights. If, the bench had ruled otherwise,
these rights and power for which our respected freedom fighters fought so hard
would have withered away. Therefore, this precious judgment had restored the
faith of common people in Judiciary as well as in Democracy.

The Supreme Court reading implied limitation on Parliament’s amending power

was a very bold & brave move. The Constitution of India deriving strength from
national consensus and enacted in the name of “People of India” cannot be
amended by a mere 2/3rd majority when in reality 2/3rd majority does not
represent the entire populous of nation, further it should be also kept in mind
that not entire population cast their respective votes in General Election. The
procedure of Amendment requires the bill to pass from both the houses and
Rajya Sabha does not represent people of India i.e. it is not a popular house
therefore, it is not entirely correct to say that an Amendment passed by the
houses actually represent “People of India”.

68
Eminent Jurist, legendary advocate and co-counsel in Kesavananda Bharati
Case, Nani Palkhiwala and the seven judges at majority bench were of the
opinion that through this judgment they have saved Indian democracy which
our respected ancestors fought so hard for. India after over 150 years of struggle
got Independence from colonial rule of Great Britain. The most important
product of this independence was Democracy which gave common people (who
were the most oppressed) power and rights. If, the bench had ruled otherwise,
these rights and power for which our respected freedom fighters fought so hard
would have withered away. Therefore, this precious judgment had restored the
faith of common people in Judiciary as well as in Democracy.

Question: Highlight the significance of minority judgements. How is a

concurring judgement different from the minority judgement? Can there be a
judgement of the court, wherein, for different issues there are different majority
and minority opinion of judges? Give suitable illustrations in support of your
answer. (2015)
Or
What is a 'Decree? How is a ‘Decree’ different from an 'Order'? (2013)

69
Answer: Decree
Section 2 (2) of CPC
‘Decree’ means the formal expression of an adjudication which, so far as
regards the Court expressing it, conclusively determines the rights of the parties
with regard to all or any of the matters in controversy in the suit and may be
either preliminary or final. It shall be deemed to include the rejection of a plaint
and the determination of any question within section 144, but shall not include
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default
 Adjudication must be done in a suit or plaint
 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

70
 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.

Ratio & Dicta

Ratio Decidendi

71
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
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:

1) Rank of the court

2) Number of issues decided in the case
3) Authority or respect of the judges
4) Number of concurring and dissenting judges
5) New applicable statutes
6) Similarity of the environment as opposed to the age of the holding

72
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 Doorkin, “Doctrine of precedent enables citizens to plan their conduct

in the expectations that past decisions were to be honoured in future - certainty
predictability and continuity, are not only the objective of law, but they are
important because people can foresee how courts will respond to certain types
of conduct and behaviour.”

Professor Goodhart, “Ratio is nothing more than the decision based on the
material facts of the case.”

Criticism

 Judges can interpret facts differently

 Too much emphasis on material facts.

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.

Bridge v Hawkeworth 1851 HoL

South Standard Water Company v Scharman 1896 HoL

Obiter Dictum

73
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.

Significance of Obiter Dicta

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.

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.

Determining the Obiter Dicta

The Wambaugh's Inversion Test provides that to determine whether a judicial

statement is ratio or obiter, you should invert the argument, that is to say, ask
whether the decision would have been different, had the statement been omitted.
If so, the statement is crucial and is ratio; whereas if it is not crucial, it is obiter.

Obiter Dicta: Jurisdiction and Dissenting Opinion

74
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.

The arguments and reasoning of a dissenting judgment (UK) or dissenting

opinion (US) also constitute obiter dicta.

 Persuasive not binding on the court.

 Support the ratio.

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
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.

75
Question: Importance of Dissenting Opinion of Judges. (2017)
Or
Write a short note on Concurring Opinion. (2016)
Or
Importance of Minority Opinion in a judgement. (2016) (2014)
Or
Differentiate between Majority, Minority and concurring opinion in a
judgement. Discuss their importance with the help of decided cases. (2013)
Answer: In a case there can be many opinions such as minority, dissenting or
concurring.
Majority Opinion
The majority opinion, also known as the opinion of the court, represents the
view of the majority of the justices hearing the case. The legal reasoning that
forms the opinion explains the law and its application to a specific case and
gives guidance on the interpretation and application of laws.

Minority Opinion
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.

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 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%
 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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 Reasons of not dissenting
1. Ist and IInd decade: democracy, much more comfortable, freedom of
expression.
2. Indirectly do not appreciate dissenting opinions.
3. CJI has a lot of administrative power which may be used to construct a
bench where dissent won’t be there.
4. If you dissent, you might not be promoted.

Naresh Sridhar v State of Maharashtra

Justice Hidayatullah in this case, said that fundamental rights may be taken
away by judiciary, writ against judiciary may be filed.

Sajjan Singh v State of Rajasthan

Justice Mudholkar (dissenting opinion) in this case talks about Doctrine of
Basic Structure which was later upheld in the case of Kesavananda Bharati.

Recent cases of dissenting opinion with CJI in the bench:

 Sabarimala case (Indu Malhotra: dissenting opinion)

 Aadhar case (D.Y.V. Chandrachud: dissenting opinion)
 Triple Talaq (Abdul Nazeer and then CJI J.S. Khehar himself)

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Question: Define the Doctrine of Basic Structure. (2017)
Answer: The basic structure doctrine is an Indian judicial principle that
the Constitution of India has certain basic features that cannot be altered or
destroyed through amendments by the parliament. Key among these basic
features (as expounded by its most prominent proponent Justice Hans Raj
Khanna) are the fundamental rights granted to individuals by the constitution.
The doctrine thus forms the basis of a power of the Supreme Court to review
and strike down constitutional amendments enacted by the Parliament which
conflict with the ‘basic structure’ of the Constitution. The basic features of the
Constitution have not been explicitly defined by the Judiciary, and the claim of
any particular feature of the Constitution to be a "basic" feature is determined
by the Court in each case that comes before it. The basic structure doctrine does
not apply to ordinary Acts of Parliament, which must itself be in conformity
with the Constitution. The basic structure doctrine applies only to constitutional
amendments.
Background
The ‘basic features’ principle was first expounded in 1964, by Justice J.R.
Mudholkar in his dissent, in the case of Sajjan Singh v. State of Rajasthan.

Shankari Prasad v Union of India 1951

The hon’ble Supreme Court unanimously held, "The terms of article 368 are
perfectly general and empower Parliament to amend the Constitution without
any exception whatever. In the context of article 13, “law” must be taken to
mean rules or regulations made in exercise of ordinary legislative power and not
amendments to the Constitution made in exercise of constituent power, with the
result that article 13 (2) does not affect amendments made under article 368.

Sajjan Singh v State of Rajasthan 1965

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The Supreme Court by a majority of 3-2 held that, “When article 368 confers on
Parliament the right to amend the Constitution, the power in question can be
exercised over all the provisions of the Constitution. It would be unreasonable
to hold that the word ‘Law’ in article 13 (2) takes in Constitution Amendment
Acts passed under article 368.”In both cases, the power to amend the rights had
been upheld on the basis of Article 368.

Golaknath v State of Punjab 1967

In this case the Supreme Court by a majority of 6-5 reversed its earlier decisions
in case of Shankari Prasad and of Sajjan Singh, and held that, “Fundamental
Rights included in Part III of the Constitution are given a "transcendental
position" and are beyond the reach of Parliament.” It also declared any
amendment that ‘takes away or abridges’ a Fundamental Right conferred by
Part III as unconstitutional.

Kesavananda Bharati v State of Kerala 1973

In this case the hon’ble Supreme Court by a majority of 7-6 overruled its earlier
decision of Golaknath case and held that, “No part of the constitution, including
fundamental rights, was beyond the amending power of Parliament, however
the basic structure of the Constitution could not be abrogated even by a
constitutional amendment.”

Defining the Basic Structure

The majority had differing opinions on what the "basic structure" of the
Constitution comprised

Chief Justice S.M. Sikri, writing for the majority, indicated that the basic
structure consists of the following:

 The supremacy of the constitution.

 A republican and democratic form of government.

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 The secular character of the Constitution.
 Separation of powers.
 The federal character of the Constitution.

Justices Shelat and Grover in their opinion added three features to the Chief
Justice's list:

 The mandate to build a welfare state contained in the Directive Principles of

State Policy.
 Maintenance of the unity and integrity of India.
 The sovereignty of the country.

Justices Hegde and Mukherjea, in their opinion, provided a separate and shorter
list:

 The sovereignty of India.

 The democratic character of the polity.
 The unity of the country.
 Essential features of individual freedoms.
 The mandate to build a welfare state.

Justice Jaganmohan Reddy preferred to look at the preamble, stating that the
basic features of the constitution were laid out by that part of the document, and
thus could be represented by:

 A sovereign democratic republic.

 The provision of social, economic and political justice.
 Liberty of thought, expression, belief, faith and worship.
 Equality of status and opportunity.

Influence over foreign Jurisdictions

The influence extends to Commonwealth Countries sharing the judicial
system with India.

The basic structure doctrine was adopted by the Supreme Court of

Bangladesh in 1989, by expressly relying on the reasoning in the Kesavananda
case, in its ruling on Anwar Hossain Chowdhary v. Bangladesh.

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In Malaysia, the federal court of Malaysia also adopted the concept of Basic
Structure. The Federal Court held that the judicial power of the Federation in
the civil courts formed part of the basic structure of the Constitution, and could
not be removed even by constitutional amendment.

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Question: Write a short note on Doctrine of Stare Decisis and Doctrine of
Prospective Overruling.

Answer: Doctrine of Stare Decisis

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.

 Literally the meaning of Stare Decisis is ‘to stand by it’.

 To make it work, one thing that should exist is reporting of cases.

Supreme Court Advocate-on-Record Association v Union of India

1994
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
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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.

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."

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The basic objective of prospective overruling is to overrule a precedent without
having a retrospective effect. According to Cardozo J. if this doctrine is not
given effect it will wash away the whole dynamic nature of law, it will be
against the concept of judicial activism. Cardozo J. was of the view that the law
should keep up with the changes occurring in the society, the law has to be
dynamic and not static. If in a new and changed society, the citizens are bound
by an old law it will lead to grave injustice. The citizens whose lives are bound
by the law of land should be given laws according to changed needs. Therefore
the doctrine of Prospective Overruling is an important tool in the hand of
judiciary to give fair and timely justice to its citizens.

Prospective Overruling in India

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.

It is very important in this context to analyze the holding of the Judiciary in

Golaknath’s case. The doctrine is defined as

“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

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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."

Propositions laid down in Golak Nath’s Case

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

(1) The doctrine of prospective overruling can be invoked only in matters

arising under our Constitution;

(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.

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.

Prospective Overruling: as defined by the Courts

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

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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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