Week 1 - Judges interpret the law based on codes; limited discretion.

FRANZ KAFKA - Focus on systematic and exhaustive coverage of all legal

Kafka’s parable, Before the Law, portrays a man seeking access to matters.
"the Law" but is denied by a doorkeeper. The man waits for years,
hoping for permission to enter, though the doorkeeper tells him it is - Common Law:
impossible now. Despite his efforts and bribes, the man grows old - Based on judge-made law and case-by-case development.
without gaining admittance. Before dying, the man learns that the - Statutes cover specific areas, less comprehensive compared to
entrance was meant solely for him, and it is now being closed. The civil codes.
story reflects themes of bureaucracy, existential struggle, and - Flexibility in judicial discretion and adaptation to societal
unattainable justice. changes.

Compressed Notes: 3. Challenges for Civil Lawyers in Understanding Common Law:

1. Setting: A man from the country seeks access to the Law. - Statutes:
2. Conflict: Denied entry by the doorkeeper, he waits for years. - Civil lawyers expect comprehensive, systematic codes.
3. Key Moments: - Common law statutes address specific areas, lack the complete
- Doorkeeper tells him he cannot enter yet. overview found in civil law.
- The man persists, offering bribes, to no avail. - Civil lawyers must adjust to using statutes alongside case law
- Near death, the man asks why no one else tried to enter. and other materials.
- The doorkeeper reveals that the gate was only for him and closes - Jurisprudence:
it as the man dies. - Judges in common law play a pivotal role in shaping the law,
4. Themes: Bureaucracy, powerlessness, existentialism, unattainable unlike civil law where they only interpret.
truth, futility. - Stare decisis (precedent) is essential but challenging for civil
lawyers due to complex, lengthy judgments.
Themes in Before the Law by Franz Kafka: - Civil lawyers may find common law’s flexibility unsettling, as they
1. Bureaucracy: The doorkeeper symbolizes bureaucratic obstacles, value predictability and certainty in legal outcomes.
creating an endless, confusing process that prevents the man from
accessing the Law. 4. Shared Values:
2. Existential Struggle: Man’s wait reflects the human search for - Both systems aim to regulate society, resolve disputes, and
meaning, justice, or truth, often met with frustration and futility. administer justice.
3. Power and Control: The doorkeeper holds power over the man, - Despite structural differences, civil and common law share similar
representing systems of authority that are unyielding and goals, particularly in statutory interpretation where both favor
indifferent. purposive approaches.
4. Unattainable Justice: The Law remains inaccessible, suggesting
that true justice or understanding may always be out of reach. 5. Increasing Convergence:
- Globalization and legal exchanges are reducing differences
Common and Civil Law Traditions:1. Common Law: - between the two systems.
Origin: England, Middle Ages. - Common law judges now refer to civil law codes, and there is
- Basis: Precedent and case law (judicial decisions). increased movement of lawyers across jurisdictions.
- Function: Adversarial system, judge moderates, jury decides facts,
judge applies law. 6. Key Concepts:
- Flexibility: No comprehensive codification; relies on interpretation - Stare Decisis: Binding precedent central to common law.
of precedents. - Purposive Approach: Favored in both systems for statutory
- Key Feature: Judges have significant power in shaping the law interpretation.
through case rulings.
- Example: U.S., U.K., Canada. Manto's "The New Constitution"
Key Themes:
2. Civil Law: 1. Disillusionment with Political Change:
- Origin: Roman law (Corpus iuris Civilis, 6th century). - The story centers on Ustad Mangu, a Tonga driver in British India,
- Basis: Codified statutes and legal codes. who hears about the new constitution and mistakenly believes it will
- Function: Judges apply the law strictly based on written codes; bring significant changes to the lives of ordinary people. His
less interpretation. excitement reflects the common man's hope that political reforms
- Structure: Comprehensive, continually updated codes will lead to personal empowerment and freedom.
(substantive, procedural, penal).
- Key Feature: Legislative decisions hold more importance than 2. Misperceptions of Freedom:
judicial decisions. - Ustad Mangu initially misinterprets the new constitution as a
- Example: France (Napoleonic Code), Germany, Japan, Spain. radical change that will immediately grant rights and equality to the
colonized Indians. His naive enthusiasm highlights how the common
3. Historical Development: public often misunderstood the actual implications of political
- Civil Law: reforms during colonial times.
- Derived from ius civile (Roman law for citizens).
- Rediscovered in medieval Europe, adapted into canon and civil 3. Clash with Reality:
law. - Ustad Mangu, confident that the new constitution has changed
- Notable Code Models: Napoleonic Code (1804), Prussia’s the power dynamics, gets into a confrontation with a British soldier,
Territorial Code (1794). believing that the new laws protect him. However, this leads to his
- Common Law: arrest, showing that the changes in governance did not translate
- Evolved post-Norman conquest, centralized royal power. into immediate empowerment or equality for the common people.
- Introduced writs for specific legal remedies.
- Equity courts were established to address rigid application of 4. Satire on Colonial Governance:
writs. - Manto critiques the hollow nature of colonial reforms that claim to
provide autonomy and rights but maintain the same oppressive
4. Key Differences: systems. The "new constitution" becomes symbolic of superficial
- Common Law: Uncodified, precedent-driven, judges shape law. political reforms that do not affect the lived realities of the
- Civil Law: Codified, statutes-driven, judges apply written law. oppressed.

5. American Legal System: 5. Representation of the Common Man:

- Primarily common law tradition but influenced by civil law (e.g., - Mangu represents the disillusioned, uninformed masses, who are
Louisiana’s legal system). initially hopeful about change but remain trapped in the same cycles
- Historical figures like Thomas Jefferson were familiar with both of oppression and powerlessness.
traditions.
Compressed Notes:
6. Notable Examples: - Ustad Mangu’s Naivety: Believes the new constitution will
- Pierson v. Post (1805): Cited Roman law in resolving property transform his life.
disputes. - Misunderstanding of Political Reform: Thinks political changes will
- United States v. Robbins (1925): Community property laws bring personal empowerment.
influenced by civil law traditions. - Colonial Reality: Realizes through his arrest that nothing has
changed for common Indians despite the new constitution.
Comparative Legal Traditions: - Manto’s Satire: Critique of the gap between political promises and
actual governance under British rule.
1. Introduction: - Themes: Disillusionment, satire on colonialism, and the naive
- Common law and civil law are the two dominant legal systems. optimism of the oppressed.
- Common law prevalent in British-colonized countries (India,
Malaysia, Singapore). "Judicial Architecture and Capacity"
- Civil law introduced by French, Dutch colonizers (Indochina,
Indonesia) and adopted by countries like China, Japan, and Thailand. Key Themes:
1. Judicial Structure:
2. Differences Between Civil and Common Law: - India’s judiciary is hierarchical, consisting of the Supreme Court,
- Civil Law: High Courts, and subordinate courts. The system appears unified but
- Codified, comprehensive written legal codes.
varies across states due to differences in funding, legal culture, and Conclusion:
litigant profiles. The court upheld the validity of Section 53(1)(vii) as constitutional,
finding it neither arbitrary nor violative of Articles 14, 19(1)(d), or 21.
2. Top-Heaviness: The isolation of AIDS patients was considered a necessary public
- The Indian judiciary is disproportionately reliant on the upper health measure, balancing the rights of individuals with the need to
judiciary (Supreme Court and High Courts). This top-heavy structure prevent the spread of a serious infectious disease. The petitions
slows decision-making and leads to an enormous backlog of cases. were dismissed.
Litigants often bypass the subordinate courts, increasing the
workload on higher courts.
Parsi matrimonial courts:
3. Supreme Court's Role:
- The Supreme Court has a polyvocal structure with multiple 1. Unique Jury System:
benches delivering different interpretations of the law. It hears - The Parsi matrimonial courts are the only surviving jury trials in
numerous cases, including many that could be resolved in lower India.
courts. However, this creates challenges with precedent and - While India abolished jury trials in 1959, these courts continue a
consistency in rulings. 150-year-old tradition where juries of co-religionists decide
matrimonial disputes.
4. Judicial Independence and Appointment:
- Independence is safeguarded by the judiciary’s role in its own 2. Jury Composition:
appointments, handled by a collegium system. However, there are - Five-member juries are drawn from a pool of 20 jurors nominated
criticisms of this process as insular and lacking transparency, by the community council for a decade.
leading to attempts at reform, such as the National Judicial - The jury members are usually retired professionals such as
Appointments Commission (NJAC), which was struck down. teachers, doctors, or bank officers.
5. Backlog and Judicial Capacity: - Jurors receive a daily allowance for travel and lunch.
- Chronic backlog is attributed to the shortage of judges, poor case
management, procedural complexity, and a high appeal rate. The 3. Role of the Courts:
Supreme Court has become overburdened, contributing to delays in - These courts handle divorce cases within the Parsi community.
case resolution. - The jurors spend several days listening to matrimonial disputes
and convey their verdict to the presiding judge.
6. Reforms: - Divorce grounds include traditional reasons like adultery, bigamy,
- There have been calls for reforms, such as the creation of an All- and desertion, but modern issues like incompatibility are becoming
India Judicial Service to improve the quality and professionalism of more common.
the judiciary. Additionally, empowering subordinate courts by
allowing them to hear more constitutional matters could help ease 4. Women as Plaintiffs:
the burden on the upper judiciary. - Historically, women have been the majority of plaintiffs in Parsi
matrimonial cases.
7. Challenges with Precedent: - This reflects a more progressive stance on women’s rights within
- Smaller benches in the Supreme Court often issue conflicting the Parsi community.
judgments, leading to confusion. Larger constitutional benches are
meant to resolve these conflicts, but such benches are rarely 5. Changing Marriage Norms:
constituted, leading to inconsistency in legal interpretations. - Parsi women are now more assertive and educated, leading to an
increase in divorce cases initiated by women.
8. Public Interest Litigation (PIL): - There is a growing trend of divorces based on “mental cruelty”
- The Supreme Court has been active in public interest litigation, and other modern issues like lack of compatibility.
addressing wide-ranging social issues. Judges on smaller benches
have played a key role in expanding the scope of PIL. 6. Community Challenges:
- The Parsi community is rapidly dwindling, with low birth rates and
a high number of out-marriages, which can lead to cultural tensions.
- Marriage rates are low, and many Parsis live in subsidized
community housing.

7. Criticism:
- The courts have been criticized for delays due to their limited
number of sessions each year, which results in a backlog of cases.

K.M. Nanavati vs. State of Maharashtra (1961)

1. Facts:
- K.M. Nanavati, a naval officer, killed Prem Ahuja, a
businessperson, after discovering an affair between Ahuja and
Nanavati’s wife, Sylvia.
- On April 27, 1959, Sylvia confessed the affair to Nanavati.
Enraged, Nanavati confronted Ahuja at his residence and shot him.
- Nanavati claimed he intended to talk to Ahuja but shot him
Lucy R. D'Souza and Ors. vs. State of Goa and Ors., accidentally during a struggle.
Issue: - Nanavati surrendered to the police afterward and was charged
The primary issue was whether Section 53(1)(vii) of the Goa, Daman, with murder under Section 302 of the Indian Penal Code.
and Diu Public Health Act, 1985, which allows for the isolation of
individuals testing positive for HIV/AIDS, violated Articles 14 2. Issue:
(equality), 19(1)(d) (freedom of movement), and 21 (right to life) of - Whether the killing of Ahuja by Nanavati was murder under
the Indian Constitution. The petitioners challenged the Section 302 or culpable homicide not amounting to murder under
constitutionality of the provision, arguing that it was unscientific, Section 304, considering provocation and the claim of accidental
procedurally unjust, and infringed upon individual rights without shooting.
adequate legal safeguards.
3. Rule:
Rule: - Section 302 IPC: Murder is defined as an intentional act that leads
- Article 14: Equality before the law. to death.
- Article 19(1)(d): Freedom of movement within India. - Section 304 IPC: Culpable homicide not amounting to murder,
- Article 21: Right to life and personal liberty. considering the role of grave and sudden provocation.
- Section 53(1)(vii) of the Goa Public Health Act empowers the state - Section 307 CrPC: Allows the High Court to interfere with a jury
to isolate individuals with infectious diseases, including AIDS, in the verdict if it believes no reasonable body of men could have arrived
interest of public health. at the same verdict based on the evidence.
4. Application:
Application: - The Sessions Court found Nanavati guilty based on the facts and
The Bombay High Court found that the isolation of AIDS patients was evidence presented, but the jury acquitted him by an 8:1 verdict,
a valid exercise of state power to protect public health. The court believing his version of accidental firing during a struggle.
acknowledged the serious public health threat posed by AIDS and - The Sessions Judge disagreed with the jury, submitting the case to
held that individual rights must sometimes yield to broader public the Bombay High Court, claiming the jury’s decision was
interest. The isolation provision was deemed reasonable because: unreasonable.
1. It was based on scientific evidence regarding the contagious - The High Court reviewed the case, considered the evidence, and
nature of HIV/AIDS. found that the jury's verdict was perverse and not supported by the
2. Public health is a legitimate state interest, and isolating those with evidence. They found Nanavati guilty of murder.
communicable diseases like AIDS was a necessary measure. - The High Court ruled that the provocation Sylvia’s confession
3. The absence of a pre-decisional hearing was not deemed gave was not grave and sudden enough to mitigate the crime, and
procedurally unjust, but the court implied a right to a post-decisional the shooting was premeditated rather than accidental.
representation.
4. The court also pointed out that similar provisions had been upheld 5. Conclusion:
in the past, balancing public health and individual liberty.
 - Nanavati was convicted of murder under Section 302 IPC and Article 19 (Right to Freedom): Specifically, Article 19(1)(g) protects
sentenced to life imprisonment by the Bombay High Court. the right of individuals to practice any profession or to carry out any
- The Supreme Court upheld the conviction, emphasizing that grave occupation, trade, or business. The court ruled that sexual
and sudden provocation should be considered within legal harassment at the workplace violates this right, as it hinders
boundaries and rejected the accidental defense due to women's ability to work in a safe environment and can lead to
inconsistencies in Nanavati's actions. humiliation and disadvantage in employment.

An Introduction to the Indian Criminal Justice System - Article 21 (Right to Life and Personal Liberty): This article ensures
the right to live with dignity. The court found that the right to work in
1. Indian Legal System: an environment free from sexual harassment is essential to
- India has a federal system with legislative powers divided upholding the dignity of women, which is a part of the right to life
between the Union, States, and Concurrent Lists. Criminal law and under Article 21.
criminal procedure are listed in the Concurrent List, meaning both
the Parliament and state legislatures can legislate on them. By invoking the Golden Triangle, the court in Vishaka emphasized
- The Indian judiciary is unitary. The Supreme Court is at the apex, the interconnection of these fundamental rights and used them as a
followed by High Courts in each state, and District (Sessions) Courts basis to frame guidelines for the protection of women from sexual
as the lowest tier. India does not follow the jury system, which was harassment.
abolished in 1959.
Application:
2. Legislative Framework: The court found that sexual harassment violated women's
- Two main codes govern criminal law in India: Indian Penal Code constitutional rights, leading to the creation of the Vishaka
(IPC) 1860 for substantive law and Code of Criminal Procedure Guidelines:
(CrPC) 1973 for procedural law. 1. Employers must prevent sexual harassment.
- The Indian Evidence Act 1872 governs evidence. Specialized laws 2. A clear definition of sexual harassment was provided.
like Narcotic Drugs Act, Prevention of Corruption Act, and Unlawful 3. Employers must set up complaint mechanisms and disciplinary
Activities Act supplement the IPC and CrPC. processes.
4. Committees must have a majority of women and include NGO
3. Criminal Courts: representatives.
- The hierarchy of criminal courts includes Magistrate Courts (First
and Second Class) and Sessions Courts. Conclusion:
- Sessions Courts try more serious offenses like murder, rape, etc. The court made the Vishaka Guidelines binding under Article 141 of
Trials are conducted based on the territorial jurisdiction where the the Constitution until legislation was enacted. These guidelines are
offense occurred. enforceable as law to protect women's rights at work

4. Criminal Process:
- The criminal process begins with a First Information Report (FIR) Chapter 1 of The Persistence of Caste by Anand Teltumbde
for cognizable offenses.
- Investigations include police questioning, searches, and arrests. Key Facts:
The investigation leads to a charge sheet filed before a magistrate, - Caste System's Historical Resilience: Despite India's modernization,
who decides whether the case should proceed to trial. from British colonialism to neoliberal globalization, caste remains
deeply entrenched, especially in rural India. Economic reforms and
5. Arrest and Bail: constitutional measures like Article 17 (abolishing untouchability)
- Arrests can occur with or without a warrant. For serious offenses have failed to dismantle caste-based oppression, particularly against
like rape or murder, suspects can be detained without a warrant. Dalits.
- Bail is categorized as bailable (right to bail) and non-bailable
(discretionary). Serious offenses are non-bailable, and bail can be Central Issue:
denied based on severity or criminal history. - The persistence of caste-based discrimination, which has adapted
across different political and economic systems (feudalism to
6. Trial Process: capitalism), raises the question of why caste remains resilient
- Trials start with framing charges, followed by prosecution despite reforms and globalization.
presenting evidence and witnesses.
- The defense cross-examines witnesses, and both sides present Rules/Explanations:
their arguments. If the court finds sufficient evidence, it frames - Ambedkar's Critique: Caste, deeply tied to religious and social
charges and proceeds with the trial. customs, cannot be easily reformed. Modernization, constitutional
- Sentencing is a separate phase after conviction, where the court rights, and legal reforms (such as affirmative action) have only
determines the appropriate punishment. partially alleviated caste inequalities.
- Varna and Jati: Varna refers to broader classes in Hinduism, while
7. Appeal Process: Jati consists of thousands of subcastes, dictating social interactions
- Criminal appeals are provided as a matter of right for conviction. and hierarchies.
Appeals against acquittals can also be filed. - Manu smriti codified caste laws, reinforcing Brahmin dominance
- Appeals from Sessions Courts go to High Courts, and from High over Shudras and Dalits.
Courts, they can proceed to the Supreme Court.
Application:
Filing of FIR 1. British Colonialism undermined some traditional caste practices
Investigation and Charge Sheet but did not eradicate the system.
Magistrate's Role 2. Post-independence, affirmative action policies gave some Dalits
Trial Process opportunities, but atrocities against them continue, especially in
Judgment (Conviction or Acquittal) rural areas.
Sentencing Phase (if convicted) 3. Under neoliberal globalization, caste has adapted; while upper
Appeal Process (if applicable) castes consolidate power, Dalits face deepened social and economic
exclusion.
Vishaka v. State of Rajasthan
Facts: Conclusion:
In Vishaka v. State of Rajasthan (1997), social activists and NGOs Caste remains a resilient social structure in India, surviving
filed a public interest petition after a gang rape of a social worker in economic and legal reforms. While Dalit movements, led by figures
Rajasthan. The case sought the protection of women's fundamental like Ambedkar, have challenged caste, their progress is limited by
rights under Articles 14, 19, and 21 of the Constitution, pointing to internal fragmentation and the persistence of caste ideologies, even
the absence of laws preventing workplace sexual harassment. under global capitalism. A deeper social transformation is necessary
to dismantle caste oppression effectively.
Issue:
The court had to decide whether it could establish guidelines for Chapter 5 of Teltumbde’s "The Persistence of Caste"
preventing sexual harassment in the workplace due to the legislative Facts:
gap. The chapter examines the Khairlanji massacre of 2006, where a Dalit
family, the Bhotmanges, were brutally murdered by a mob of Other
Rule: Backward Classes (OBC) villagers. The Bhotmange family,
The court focused on Articles 14 (Equality), 19(1)(g) (Right to work), particularly Surekha Bhotmange, had resisted caste-based
and 21 (Right to life with dignity), emphasizing gender equality and oppression and land disputes. This led to mounting tensions that
workplace dignity. It relied on international conventions like CEDAW culminated in the violent attack, where the family members were
to guide judicial interpretation in the absence of domestic laws. tortured, mutilated, and killed.
The Golden Triangle—Articles 14, 19, and 21—was pivotal in
interpreting these rights: Issue:
The chapter delves into the caste-based violence and systemic
- Article 14 (Right to Equality): This article prohibits discrimination on failures that allowed the massacre to happen and the state's failure
various grounds, including gender. The court recognized that sexual to provide justice. It highlights how caste atrocities continue despite
harassment at the workplace is a violation of gender equality and constitutional safeguards, raising the issue of why caste violence
discriminates against women by creating an unsafe and hostile work persists with impunity.
environment.
Rule:
Teltumbde applies Ambedkarite thought, arguing that caste violence without trial, highlighted the judiciary's struggle to maintain its
is rooted in the deep-seated social hierarchy of Indian society. independence during this turbulent period.
Despite legal measures like the Prevention of Atrocities Act, such
laws are often ignored or under-enforced when Dalits face Central Issue:
oppression, showing the limitations of legal frameworks in curbing - The primary debate surrounding judicial activism focuses on
caste violence. whether the judiciary is overstepping its bounds by intervening in
policy areas traditionally reserved for the executive and legislative
Application: branches. Critics argue that this may lead to judicial overreach,
The analysis focuses on how the police and local authorities failed to while supporters assert that such activism is essential to safeguard
prevent the Khairlanji massacre, despite prior warnings and public interest, especially in the face of government inaction or
complaints by the Bhotmange family. The complicity of local abuse.
officials, slow legal proceedings, and the lack of accountability are Rule:
examined as evidence of systemic caste-based discrimination in law - Under Article 13 of the Indian Constitution, the judiciary possesses
enforcement and governance. the power of judicial review, allowing it to invalidate laws and
executive actions that contravene fundamental rights. This authority
Conclusion: serves as the foundation for judicial activism in India, enabling
Teltumbde concludes that the Khairlanji massacre is not an isolated courts to interpret constitutional provisions dynamically.
event but rather symptomatic of India's broader "hidden apartheid", - The landmark Kesava Nanda Bharati case (1973) established the
where caste-based violence is tolerated and even facilitated by state basic structure doctrine, which restricts Parliament's ability to
structures. The chapter underscores the need for a radical overhaul amend the Constitution in a manner that alters its fundamental
of social and political systems to effectively combat caste-based framework, thus empowering the judiciary to uphold core
oppression. constitutional values.
ADM Jabalpur v. Shivkant Shukla (1976) Application:
Facts: 1. A.K. Gopalan v. State of Madras (1950): In this case, the Supreme
During the Emergency (1975-1977) in India, civil liberties were Court adopted a strict, positive approach, interpreting Article 21
severely restricted under government-imposed measures. (right to life and personal liberty) narrowly. The court held that
Thousands of individuals, including Shivkant Shukla, were detained personal liberty could only be restricted through a valid law, without
under the Maintenance of Internal Security Act (MISA), which allowed considering the broader implications of individual rights. This set a
preventive detention without trial. Following a Presidential Order precedent for limiting judicial intervention in matters of personal
issued under Article 359, the enforcement of certain fundamental liberty.
rights, including the right to life and personal liberty (Article 21) and
rights against arbitrary detention (Article 22), was suspended. 2. Maneka Gandhi v. Union of India (1978): This landmark case
Several detainees challenged their detention by filing writ petitions marked a significant shift in judicial activism. Maneka Gandhi
of habeas corpus in various High Courts. These courts ruled that, challenged the impounding of her passport without a hearing,
despite the Presidential Order, individuals could still challenge the arguing it violated her right to personal liberty under Article 21. The
validity of their detention under MISA on grounds such as mala fide Supreme Court expanded the interpretation of Article 21 to include
actions or failure to follow statutory procedures. The government, procedural due process, stating that any law depriving a person of
represented by the Additional District Magistrate of Jabalpur, personal liberty must not only be valid but also fair and reasonable.
appealed these rulings in the Supreme Court. This ruling established that personal liberty encompasses various
Issue: rights and reinforced the judiciary's role in safeguarding
The primary issue was whether, during the Emergency, individuals fundamental rights.
had the right to file habeas corpus petitions challenging their
detention under MISA, despite the suspension of the right to life and 3. Public Interest Litigation (PIL): The introduction of PILs in the
personal liberty under Article 21 and procedural protections under 1980s transformed access to justice in India, allowing individuals
Article 22 of the Constitution. The question was whether the courts and organizations to file petitions on behalf of marginalized groups.
could entertain such challenges when a Presidential Order under This facilitated judicial interventions in cases involving
Article 359 suspended the enforcement of these rights. environmental degradation, human rights violations, and issues
Rule: affecting public welfare, demonstrating the judiciary's commitment
Article 359 of the Indian Constitution allows the President to suspend to addressing societal injustices.
the enforcement of certain fundamental rights during an Emergency.
The Presidential Order issued on June 27, 1975, suspended the 4. Vishaka v. State of Rajasthan (1997): The Supreme Court's
enforcement of fundamental rights under Articles 14, 21, and 22. decision in this case exemplified judicial activism in addressing
Article 21 guarantees the right to life and personal liberty, and sexual harassment at the workplace. The court laid down
Article 22 provides safeguards against arbitrary arrest and comprehensive guidelines to combat sexual harassment, filling a
detention. The government argued that the suspension of these legislative vacuum and demonstrating the judiciary's role as a
rights meant that detainees could not approach the courts for relief protector of women's rights.
through habeas corpus petitions, as their right to challenge
detention had been legally suspended. Conclusion:
Application: Post-Emergency judicial activism in India has been instrumental in
In this case, the Supreme Court majority agreed with the expanding constitutional protections and reinforcing the judiciary's
government's position, ruling that the Presidential Order suspended role as a guardian of individual rights. While this activism has
the right to move the courts for enforcement of fundamental rights, empowered the courts to hold the government accountable, it has
including habeas corpus petitions. The court reasoned that, during also raised concerns about the potential for judicial overreach and
an Emergency, national security and state interests outweigh the need to maintain a balance of power among the branches of
individual liberties, and therefore, the government’s actions, government. The judiciary’s evolving role continues to be pivotal in
including preventive detention, could not be questioned in courts. safeguarding democracy and promoting social justice, although it
The court rejected the argument that detainees could still challenge faces ongoing challenges in ensuring equitable access to justice for
the detention on procedural grounds, emphasizing that the all citizens.
suspension applied to all forms of judicial scrutiny of detention.
Ideas of India - Chapter 6 from India After Gandhi by
However, Justice H.R. Khanna, in a famous dissenting opinion, Ramachandra Guha
argued that even during an Emergency, the right to life and personal 1. Constitution Formation Process (Articles 79-123)
liberty should remain inviolable. He contended that the Constitution - The Indian Constitution, with 395 articles and 12 schedules, was
does not explicitly authorize the suspension of the right to life itself, framed over three years (1946-1949) and came into effect on
and the courts should always have the power to protect personal January 26, 1950. It was debated extensively in the Constituent
liberty from executive overreach Assembly, incorporating diverse views on national unity, social
justice, and governance systems.
Conclusion: - Article 79: Establishes the Parliament, which was framed in line
The Supreme Court, in a 4-1 majority, ruled that during the with Western models but tailored to Indian conditions, with the aim
Emergency, no citizen could approach the courts for relief through of representing the diversity of the nation.
habeas corpus petitions to challenge their detention. The decision
effectively gave the government unfettered power to detain 2. Constituent Assembly's Diversity (Articles 325, 330-342)
individuals without judicial oversight, as long as the Emergency was - Article 330: The Assembly included representatives from various
in effect. This ruling was later widely criticized for undermining groups, such as women, religious minorities, low-caste communities,
constitutional protections and personal liberties, and it is viewed as and legal experts. Congress dominated the Assembly, but it
one of the darkest moments in India's judicial history. Justice reflected broad Indian public opinion.
Khanna’s dissent remains significant, symbolizing a stand for the - Articles 330-342: Ensured representation of Scheduled Castes (SCs)
protection of civil liberties even in times of national crisis. and Scheduled Tribes (STs) in Parliament and other legislative
bodies. Public submissions addressed issues of caste, religion, and
S.P. Sathe's "Judicial Activism: language.
Key Facts:
- Judicial Activism in India signifies the judiciary’s proactive role in 3. Key Figures and Contributions (Articles 74-75)
interpreting laws to protect citizens' rights and influence public - Articles 74-75: The roles of key leaders like Jawaharlal Nehru (Prime
policy. This movement gained prominence after the Emergency of Minister) and Vallabhbhai Patel (Deputy Prime Minister) were
1975, which led to significant curtailment of civil liberties. The instrumental in shaping the Constitution. Patel helped resolve
Supreme Court's decision in ADM Jabalpur v. Shivkant Shukla (1976), disputes within the Assembly, and Nehru’s speeches defined the
which upheld the government's authority to detain individuals national and social vision of the Constitution.
- B.R. Ambedkar, the chairman of the Drafting Committee, - Legal Proceedings: After their rescue, the survivors were charged
emphasized Articles 14-18 (Right to Equality), particularly the with the murder of Whetmore under the law that clearly states,
abolition of untouchability and safeguarding individual rights over "Whoever shall willfully take the life of another shall be punished by
localism and village governance. death."

4. Constitutional Vision: National and Social Revolution (Articles 14- 2. Judicial Opinions The case was brought before the Supreme Court
21, 38-51) of Newgarth, and each of the five judges offered a distinct
- Articles 14-18: The Constitution aimed to balance democracy and perspective on the legal and moral issues raised by the case
liberty with equality and justice. Ambedkar rejected Gandhi’s vision
of a village-based political structure, opting for a more centralized Opinion of Chief Justice Truepenny -
system focused on individual rights and modern governance. Summary: Chief Justice Truepenny agreed that the law had been
- Articles 38-51: These Directive Principles of State Policy were violated and that the defendants were guilty of murder under the
designed to guide the government in promoting social justice, statute.
improving the welfare of marginalized groups, and addressing
economic disparities. - Application of the Law: He pointed out that the law is clear and
absolute: "Whoever shall willfully take the life of another shall be
5. Federalism and Centralization (Articles 246, 256-263) punished by death." In this case, there was no provision in the law
- Article 246: Established a federal structure, dividing powers for exceptions, no matter how extreme the circumstances. -
between the Union and the states, but with a strong bias toward
centralization to maintain national unity. Plea for Clemency: Truepenny proposed that the appropriate course
- Articles 256-263: Gave the central government the authority to of action was for the court to uphold the conviction but to
intervene in state matters of the national interest. The Constitution recommend that the Chief Executive grant clemency. He believed
centralized fiscal powers (e.g., income tax, customs duties), ensuring that the law should be upheld to preserve its integrity, but the
the Union controlled key resources, though some taxes were shared executive branch could mitigate the harshness of the law by
with states. commuting the sentence to a lesser punishment or even pardoning
the defendants.
6. Minority and Women’s Rights (Articles 25-30, 325-326)
- Articles 25-28: Guaranteed freedom of religion while balancing this Opinion of Justice Foster
with social reforms (e.g., uniform civil code). - State of Nature Argument: Justice Foster took a different approach,
- Articles 325-326: Addressed universal adult suffrage, eliminating arguing that the law of Newgarth was inapplicable in this case
separate electorates for Muslims, which were seen as divisive. because the defendants were in a "state of nature." Foster believed
Instead, the Constitution emphasized unity and equal political that the law assumes that people can coexist peacefully within
participation for all. society. However, in this situation, survival was impossible without
taking a life. According to Foster, once men are placed in such
Article 15: Prohibited discrimination based on gender, leading to extreme conditions, the normal rules of society cease to apply, and a
debates where women, particularly Hansa Mehta, rejected new set of natural laws governs. -
reservations, advocating for equality and justice instead of special
privileges. Natural Law: Foster argued that the men had created a “new social
contract” in their dire circumstances, whereby Whetmore’s life could
7. Language Controversy (Articles 343-351) be justifiably taken according to the rules they established (casting
- Article 343: Declared Hindi as the official language, with English to lots). He believed that they were innocent because they acted
continue for 15 years for official purposes. This was a major according to the laws of necessity, which supersede positive law. -
compromise after intense debates between northern leaders
pushing for Hindi and southern states to resist, fearing domination Purpose of the Law: Additionally, Foster argued that the purpose of
and cultural erasure. criminal law is to deter wrongdoing. In this case, the threat of legal
- Articles 344-351: Provided safeguards for the development of punishment could not have influenced the man’s decision to survive.
regional languages, acknowledging India’s linguistic diversity while Therefore, the law should not apply in this case because it could not
maintaining national unity. have functioned as a deterrent.

8. Reservations for Lower Castes and Tribals (Articles 15(4), 330- Opinion of Justice Tatting
342) - Emotional Conflict: Justice Tatting expressed great difficulty in
- Articles 330-342: Provided for the reservation of seats in deciding the case due to the moral and legal complexities. He was
legislatures and jobs in government for Scheduled Castes (Dalits) torn between his emotional revulsion at the idea of cannibalism and
and Scheduled Tribes (Adivasis). These provisions were aimed at the legal principles that should govern the case. -
addressing centuries of social discrimination and ensuring
representation for marginalized groups. Rejection of Foster’s Natural Law Argument: Tatting criticized
- Article 15(4): Allowed the state to make special provisions for the Foster’s argument that the men were in a "state of nature." He
advancement of socially and educationally backward classes. found it ambiguous and difficult to apply consistently. For example,
when exactly did they transition to this "state of nature"? Was it
9. Ambedkar’s Final Address and Warnings (Article 32) when they were trapped, or only when they decided to kill
- Article 32: Emphasized the importance of constitutional methods Whetmore? He also questioned whether the new rules they created
for redress and the protection of fundamental rights, cautioning could be valid, especially given that Whetmore had withdrawn from
against revolutionary methods like satyagraha (civil disobedience) in the agreement before his death. -
a democracy.
- Ambedkar warned against hero-worship and urged the focus on Dilemma: Tatting struggled with whether the men’s actions, though
Articles 14-18 (equality) and Articles 38-39 (economic and social understandable, should be excused under the law. He found himself
justice), as political democracy without social and economic equality unable to resolve the conflict between his emotional and intellectual
would lead to instability. responses and chose to withdraw from the case rather than render a
decision.
Conclusion: A Monumental Achievement
- The Indian Constitution was a monumental achievement, blending Opinion of Justice Keen -
Western democratic ideals with Indian realities. It sought to unite a Strict Interpretation of the Law:
diverse nation, ensuring equality, justice, and representation Justice Keen was a strong proponent of legal positivism, meaning
through provisions like Articles 14-21 (Fundamental Rights), Articles that the law must be applied as written, without regard to personal
38-51 (Directive Principles), and Articles 330-342 (Reservations for morality or public opinion. Keen argued that the law is clear: the
SC/ST). The Constitution aimed to create a strong central defendants willfully took the life of another person, and the
government while addressing the needs of marginalized groups, punishment for murder under the statute is death. -
ensuring a balance between unity and diversity.
Separation of Law and Morality: Keen sharply criticized his fellow
judges for allowing their moral judgments to interfere with the clear
The Case of the Speluncean Explorers application of the law. He believed a judge's role is to apply the law
1. Facts of the Case as it is written, not to make moral evaluations. Whether the
- The Incident: defendants acted in a morally justifiable way, in his view, was
Five explorers, members of the Speluncean Society, became trapped irrelevant. -
in a cave due to a landslide. Efforts to rescue them took 32 days
(about 1 month), during which they communicated via a wireless Executive Clemency: Keen also rejected Truepenny’s suggestion that
machine with the rescue team. After 20 days (about 3 weeks), they the court should ask the Chief Executive for clemency. He believed
realized they would not survive the rescue without food. - that the judiciary should not involve itself in matters of executive
discretion and should focus solely on the legal issues at hand.
Whetmore's Proposal: Roger Whetmore, one of the trapped men,
proposed that they should cast lots to determine who would be Opinion of Justice Handy -
sacrificed and eaten so that the others could survive. Initially, the Practical Wisdom: Justice Handy took a pragmatic approach, arguing
group agreed to the plan. However, when it came time to cast lots, that the case should be decided based on common sense and public
Whetmore withdrew from the agreement. Despite this, the others opinion. He emphasized that law should be in line with the
proceeded and cast lots on his behalf. He lost, was killed, and eaten sentiments of the people, and in this case, public opinion was
by his companions. overwhelmingly in favor of pardoning the men. -
Realism and Public Opinion: Handy criticized his fellow judges for
being too absorbed in abstract legal theories. He believed the
judiciary's role is to serve the people and that in this case, the clear
wishes of the public should guide the decision. He pointed out that
the case had received extensive media coverage, and public opinion
polls showed that 90% of people believed the men should be
pardoned or given a light punishment. -

Flexibility of the Law: Handy argued that the law should be flexible
and should serve the interests of justice and practicality. He believed
the court should find a way to acquit the defendants without getting
caught up in legal formalism

3. Key Issues in the Case

- Letter vs. Spirit of the Law: The main issue was whether the law
should be applied strictly (as Keen argued) or interpreted in a way
that considers extraordinary circumstances (as Foster and Handy
suggested). -

Natural Law vs. Positive Law: Foster’s argument rested on the idea
that natural law supersedes positive law when people are in extreme
situations. The other judges, particularly Keen, rejected this,
maintaining that only the written law applies.

- Role of the Judiciary: The judges also debated the proper role of the
judiciary. Keen believed judges should apply the law as written,
while Foster and Handy argued that judges should consider broader
moral and practical considerations. -

Executive Clemency: Truepenny and Keen both believed that

clemency from the Chief Executive was the appropriate solution to
the case, while Handy argued that the court should acquit the
defendants without waiting for the executive branch to intervene.

4. Conclusion - The case presents a rich debate on the application of

law in extreme circumstances. It explores fundamental legal
questions about how far the law should be interpreted or bent in
situations that defy ordinary moral and legal rules. The opinions of
the judges reflect a spectrum of legal philosophies, from strict
adherence to written law (Keen) to pragmatic solutions based on
public opinion and morality (Handy).