JUDICIAL AND LEGISLATIVE PROCESS

Unit 1: Nature of Judicial Process:

 Judicial process as an instrument of social ordering:

 Judicial process and creativity in the law-common law model- legal reasoning and growth of law change and stability,
 Stare decisis
 The Tools and techniques of judicial creativity and precedent:
 Identifying ratio decidendi and obiter decta.
 Legal development and creativity through legal reasoning under statutory and codified Systems
Unit-II: Special Dimensions

 Special Dimensions of Judicial process in the constitutional Adjudications:

 Notions of judicial review;
 Role in constitutional adjudication- various theories of judicial role
 Tools and techniques in the policy making and creativity in the constitutional adjudication;
 Variance of judicial and juristic activism.

Unit-III: Problems of Accountability and Judicial Law Making

 Judicial process in India:

 Indian debate on the role of judges and on the notion of Judicial review,
 The "independence of judiciary and the "political nature of judicial process:
 Judicial activism and creativity of the supreme court,
 The tools and a techniques of creativity, institutional liability of course and judicial activism scope and limits.
 Structural challenges.

Unit-IV: Legislation as a Source of Law:

 It’s relation with other sources of law;

 Supreme legislation law making by Indian Parliament,
 Interaction between law and public opinion;
 Drafting of Bills;
 Presentation and discussion in a Legislature Houses,
 Subordinate legislation; types of subordinate legislation.
 Major roles of interpretation of statutes
literal are plain meaning rule:
golden rule;
purposive approach:
mischief rule,
compromise approach.
 Unit V: Legislative Drafting
 Nature of Legislative drafting;
 Diseases of language to be dealt and taken care of; its history in India and England
 Components or parts of legislation and their purposes
 Role of legislation in social welfare and transformation;
 Role of draftsman; the skills, traits and abilities he should process
 Legislative draftsman's position, duties and responsibilities:
 Relation with the government legislative division, public and the society at large; Impact of constitutional values and
provisions on legislative drafting,
 Impact of the General Clauses Act upon legislative drafting
 Impact of principles of statutory interpretation upon legislative drafting;
 Steps in a legislative drafting: pre draft preparation, drafting, deliberation with others post draft refinement
 Drafting of delegated legislation- limits and cautions, drafting exercise
 UNIT I
Benjamin N.Cardoza

[Judicial Precedent
To avoid an arbitrary discretion in the courts, it is Indispensable that they should be bound down by strict
rules and precedents, which serve to define and point out their duty in every particular case that comes
before them
- Alexander Hamilton, The Federalist

Process whereby judges follow previous decided cases where the facts are of sufficient similarity.

Nature of the Judicial Process

“The Nature of the Judicial Process,” delves into the intricate ways judges make decisions. Rather than a
purely mechanical application of pre-existing rules, Cardozo argues that the judicial process is a dynamic
interplay of various factors, both conscious and unconscious.
Judging is a dynamic and creative endeavor, especially in “hard cases” where existing law is unclear or
inadequate.

1.The Judge as a Lawmaker (albeit interstitially)

Judges are not mere discoverers of law but also lawmakers, albeit within the ‘interstices’ left by statutes and
precedents.
In clear-cut cases where the law is directly applicable, the judge's role is primarily to obey.
However, in ‘hard cases’ where the law is ambiguous, silent, or outdated, judges must exercise discretion
and create new law. This law-making function is not unfettered but guided by certain principles.

2. Four main Sources- Judges turn for Guidance

The Method of Philosophy (Logic or Analogy):
This involves the application of logical reasoning and the extension of established legal principles to
new situations to maintain consistency and symmetry within the legal system. Judges seek to align their
decisions with the underlying logic of the law.
The Method of History (Evolution):
This approach looks to the historical development of legal rules and concepts. Understanding the
origins and evolution of a law can provide insights into its current meaning and application.
The Method of Custom (Tradition):
This considers the prevailing customs, habits, and social practices of the community. While not
always binding, custom can offer guidance in interpreting and applying the law, reflecting societal norms
and expectations.
 The Method of Sociology (Social Welfare):
Cardozo considered this the most important method in cases where the other methods provide no
clear answer or lead to undesirable social consequences.
Judges should consider the welfare of society, including public policy, morals, and social justice,
when making decisions. He famously said, "The final cause of law is the welfare of society."

3. The Role of Precedent (Stare Decisis):

Cardozo recognized the importance of precedent (‘stare decisis’ - to stand by things decided) for stability
and predictability in the law. Judges generally follow established rulings in similar cases.
However, he also acknowledged that precedent is not absolute. When a precedent is clearly wrong, outdated,
or leads to unjust outcomes in light of changing social conditions, judges have a responsibility to depart
from it.

4. Conscious and Subconscious Influences:

Cardozo highlighted that a judge's decision-making is influenced not only by conscious reasoning and legal
principles but also by subconscious factors. These include the judge's background, experiences, beliefs, and
even their “outlook on life” and “conception of social needs.”
He argued that acknowledging these subconscious forces is crucial for a more honest understanding of the

judicial process, even if these forces are difficult to articulate or fully control. ]

The judicial process as an instrument of social ordering.

The judicial process plays a crucial role in maintaining social order within a society. It serves as a mechanism
for resolving disputes, administering justice, and upholding the rule of law. By establishing and enforcing legal norms,
the judicial system contributes significantly to the overall stability and harmony of a community. This essay explores
the ways in which the judicial process functions as an instrument of social ordering, examining its role in shaping
behavior, resolving conflicts, and promoting a just and equitable society.

1. Establishment and Codification of Laws: The judicial process begins with the creation and codification of laws that
reflect societal values, norms, and expectations. These laws act as a framework for acceptable behavior, defining the
boundaries that individuals and institutions must adhere to in order to maintain social order. Through the legislative
process, societies articulate their collective vision of justice, fairness, and morality.
2. Norm Enforcement and Deterrence: One of the primary functions of the judicial process is to enforce established
norms and laws. The existence of a legal system with the power to adjudicate and punish serves as a deterrent,
discouraging individuals from engaging in behavior that is deemed harmful or disruptive to the social fabric. The fear
of legal consequences promotes conformity to societal expectations, contributing to the overall stability of the
community.
3. Dispute Resolution and Social Harmony: Conflicts are an inherent part of human interaction, and the judicial
process provides a structured and impartial means of resolving disputes. By offering a forum for the peaceful
 resolution of conflicts, the legal system prevents individuals from resorting to vigilante justice or other disruptive
methods of settling grievances. This contributes to the maintenance of social harmony and fosters a sense of justice
and fairness within the community.
4. Protection of Individual Rights: A well-functioning judicial system safeguards the rights and liberties of individuals.
By adjudicating cases and interpreting laws, the judiciary ensures that the rights guaranteed by the legal framework
are respected and protected. This protection of individual rights is fundamental to social ordering, as it establishes a
balance between the interests of the collective and the autonomy of the individual.
5. Social Change and Adaptation: The judicial process is not static; it evolves over time to reflect societal changes and
values. Landmark legal decisions can shape social attitudes, challenge existing norms, and contribute to the evolution
of a more just and equitable society. By adapting to the evolving needs of the community, the judicial process
becomes a dynamic instrument for social ordering.

In conclusion, the judicial process serves as a vital instrument of social ordering by establishing, enforcing,
and adapting legal norms. Through the resolution of disputes, the protection of individual rights, and the promotion of
justice, the judicial system plays a central role in maintaining social harmony and stability. As societies evolve, so too
must the judicial process, ensuring that it continues to serve as an effective instrument for shaping behavior, resolving
conflicts, and upholding the principles of justice and equity within a community.

Extra
Judicial Process as an Instrument of Social Ordering in India

The judicial process in India is fundamental to maintaining social order, resolving disputes, and upholding the rule of
law. It acts not only as a mechanism for enforcing existing laws but also as a dynamic instrument for social change
and justice.

Key Functions of the Judicial Process in Social Ordering

Dispute Resolution and Justice Administration: The judiciary provides a structured method for resolving conflicts,
ensuring that justice is delivered impartially and according to established rules and procedures.

Enforcement and Protection of Rights: Through judicial review and the enforcement of fundamental rights, the
courts protect individuals and groups from arbitrary state action and social injustices. Article 32 of the Constitution,
for example, empowers the Supreme Court to enforce fundamental rights, thereby directly contributing to social order.

Social Justice and Equity: The judiciary has played a pivotal role in addressing socio-economic imbalances and
protecting vulnerable populations. Landmark judgments have targeted social evils like caste discrimination, gender-
based violence, and economic exploitation, often innovating new legal principles to meet evolving societal needs.

Landmark Judicial Interventions Illustrating Social Ordering

Case/Area Judicial Action and Impact

Indra Sawhney v. Union of Introduced the 'creamy layer' concept to ensure reservation benefits reach the truly
India disadvantaged.
Lily Thomas v. Union of Declared second marriage after conversion without dissolving the first as void,
India upholding equality before law.
Dimple Gupta v. Rajiv
Granted maintenance to illegitimate children, protecting their rights.
Gupta
Advocated stern punishment in rape cases, showing judiciary’s role in combating crimes
State of M.P. v. Babulal
against women.
State of M.P. v. R.K. Denied anticipatory bail in atrocities against SC/ST, reinforcing statutory protections for
Balothia marginalized groups.

Judicial Process and Constitutional Mandate

The Indian Constitution envisions the judiciary as a guardian of justice and an agent of social transformation. Articles
14, 15, 16, 17, 38, 39A, and 42 to 47 collectively address various facets of social justice, and the judiciary interprets
and enforces these provisions to promote social ordering.

Role of Judicial Creativity and Precedent

Indian courts, especially the Supreme Court, have evolved new juristic principles and doctrines to address
contemporary social challenges. This adaptability ensures that the law remains relevant and effective in
maintaining social order in a rapidly changing society.

Conclusion

The judicial process in India is a cornerstone of social ordering. By interpreting and enforcing laws, protecting rights,
and innovating legal principles, the judiciary not only maintains order but also actively shapes a more just and
equitable society. As noted by Justice V.R. Krishna Iyer, law is not a "brooding omnipotence in the sky but a
pragmatic instrument of social order". The judiciary, through its processes and judgments, remains a vital force in
India's ongoing social transformation.

Double Extra

Social Ordering Through Judicial Process

Everything done by judge in the process of delivery of justice is called Judicial Process. Judicial process is
basically the path or the method of attaining “justice”. Thus, the judicial process is a set of interrelated procedures and
roles for deciding disputes by an authoritative person or persons whose decisions are regularly obeyed. The disputes
are to be decided according to a previously agreed upon set of procedures and in conformity with prescribed rules. In
this article, we shall discuss Social Ordering Through Judicial Process.

The rule of law is arguably the most basic requirement of any civilized society, and an independent judiciary, to which
access is available to all citizens, is an essential ingredient of the rule of law. In a constitutional democracy, the Judges
have a great responsibility and obligation towards the people. They ensure that cases are conducted following the rules
of court and the rules dealing with evidence that can be used. These rules do more than ensure that court proceedings
run smoothly – they also help to protect the rights of individuals before the courts and promote fairness. A judge will
help ensure that both sides get a fair opportunity to present their case and act as an independent and impartial decision-
maker. They exercise the authority of the State in public, in issues of intense importance of the parties and often to the
community at large. They decide these issues according to law, it is not the same thing as their personal preferences or
current public opinion. Indeed, they have to set public opinion aside and when the case requires, protect minorities
against it. In this judicial process, Judges are the kind of men who do not seriously question the law and its effect
because they have to serve the law and not its masters. The function of the judiciary, therefore, is to derive its
conclusions from issues before it in accordance with law and with impartiality.

Judges must provide reasons for their decisions. Sometimes judges will explain their reasons in court at the same time
they give their decision on the case. Other times judges will give their decision in court at the end of the case but
provide the reasons for their decision in a written decision at a later date. Judges may also provide oral reasons in
court and a written decision at a later time.

American Judge Benjamin Cordozo said that the Last reason for law is the welfare of society. Justice P. N. Bhagwati
and Justice V. R. Krishna Iyer, both were of the opinion that law is an instrument of social change, social justice and
social ordering. Justice Rangnath Mishra, former C.J.I., has rightly observed that ‘Law is a means to an end and
justice is the end.’ Therefore, undoubtedly we can say that Judicial Process, which operates laws, is an instrument of
social ordering.

Examples of Social Ordering Through Judicial Process:

Securing Rights of Needy in Backward Classes of the Society:

Some members of a backward class who are socially, economically as well as educationally advanced as compared to
the rest of the members of that community. They constitute the forward section of that particular backward class and
eat up all the benefits of reservations meant for that class, without allowing benefits to reach the truly backward
members. These group of people is referred as a creamy layer.

In Indra Sawhney v. Union of India, AIR 1993 SC 477,the Supreme Court has innovated concept of ‘creamy layer
test’ for securing benefit of social justice to the backward class, needy people, and excluded persons belonging to
‘creamy layer’.

In M. Nagaraj v. Union of India, 19 October, 2006 case, the Supreme Court laid down three conditions for
promotion of SCs and STs in public employment:

 Government cannot introduce quota unless it proves that the particular community is backward,
 Inadequately represented (based on quantifiable data), and
 Providing reservation in promotion would not affect the overall efficiency of public administration.

Bonded Labourers:
Bonded labour has been defined as well as addressed as a prohibited practice in several international conventions as
well as a many Indian legislations. It is a system of forced (or partly forced) labour in which a debtor enters (or
presumed to have entered) into an agreement with the creditor. Owing to this agreement, following are the end results:

 Render services to the creditor (by himself or through a family member) for a specified (or unspecified) period of
time with no wages (or nominal wages).
 Forfeit the right to move freely.
 Forfeit the right to appropriate or sell the product or property at the market value from his (or his family
members’) labour or service.

In Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802 case, the Supreme Court has tried to eliminate
socio-economic evil of bonded labour, including child labour and issued certain guide lines to be followed, so that
recurring of such incidents be eliminated.

In Neerja Chaudhury v. State of Madhya Pradesh, AIR 1984 SC 1099 case, the Supreme Court ruled that it is the
plainest requirement of Articles 21 and 23 of the Constitution that bonded labourers must be identified and released
and on release, they must be suitably rehabilitated… Any failure of action on the part of the State Government[s] in
implementing the provisions of [the Bonded Labour System (Abolition) Act] would be the clearest violation of Article
21 and Article 23 of the Constitution.

Caste System:

Article 15 of the Indian Constitution says that the State shall not discriminate against any citizen on grounds only of
religion, race, caste, sex, place of birth or any of them. But still in many regions particularly in rural area, society is
divided based on their caste status. Like each society has a different colony and colony are named after based on their
caste. Every locality is named after the particular caste based on the people living in it. Society is divided based on the
upper caste and lower caste.

In Lata Singh v. State of U. P., AIR 2006 SC 2522 case, the Apex Court has given protection to the major boy and
girl who have solemnized inter-caste or inter-religious marriage.

Prevention of Atrocity:

In Swaran Singh v. State through Standing Counsel, (2008) 8 SCC 435 case, the complainant had stated in the FIR
that he was insulted by appellants by his caste name when he stood near the car which was parked at the gate of the
premises. The Supreme Court held that this was a place within public view and would amount to an atrocity under
section 3 (1) (x) of the Act, since the gate of a house is certainly a place within public view. It held that even if the
remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also
it would be an offence since it is in the public view. The Court held that `place within public view’ should not be
confused with the expression `public place’. A place can be a private place but yet within the public view. It held that
when we interpret Section 3 (1)(x) of the Act, we have to see the purpose for which the Act was enacted, to prevent
indignities, humiliation and harassment to members of the SC/ST community.
In Patan Jamal Vali v. The State of Andhra Pradesh, 2021 SCC Online SC 343 case, the Supreme Court upheld
the acquittal of the accused under the SC/ST PoA Act, it held that the case of rape of a Dalit, blind woman should be
seen from an intersectional perspective. It held that when the identity of a woman intersects with her caste, class,
religion, disability or sexual orientation, multiple sources of oppression operate cumulatively to produce a specific
experience of subordination by the victim which cannot be segregated. It also laid down directions for training of
judges, police and prosecutors to make the criminal justice system responsive to women with disabilities facing sexual
assault.

Child Labour:

The issue of Child Labour has always persisted in some form or the other in all societies of the world. Children were
expected to accompany their parents while working in the field and to help with household works.

With regard to child labour in India, Justice Subba Rao, the former Chief Justice of India, rightly remarked; “Social
justice must start with the child. Unless a soft plant is properly sustained, it has a pocket chance of multiply into a
strong and useful tree. So, the first preference in the plate of justice should be stated to the well-being of children.

In M.C. Mehta v. State of T.N., AIR 1997 S C 699 case, the Supreme Court issued direction the State Governments
to ensure fulfilment of legislative intention behind the Child Labour (Prohibition and Regulation)Act (61 of 1986).
Tackling the seriousness of this socio-economic problem the Supreme Court has directed the Offending employer to
pay compensation, a sum of Rs. 20,000/ for every child employed.

In Peoples Union for Democratic Rights v. Union of India, AIR 1982 SC 1473 case, commonly known as ‘Asian
workers case’, where it was escorted to the notice of the Supreme Court that children under 14 years of age employed
in the construction activity. It was said that construction activity is plainly a dangerous work and it is definitely
important that the employment of children above the age of 14 years must be restricted in every kind of construction
task. Citing to Article 24, Justice P.N. Bhagavathi and Justice Bahrul have held that apart from the need of
International Labour Organization Convention No.59, we have Article 24 of the Constitution which even if not attend
up by suitable legislation, must “Proprio vigour” and construction act plainly and absolutely a hazardous employment,
it is open that by ground of constitutional prohibition no child under 14 years can be allowed to be unavailable in
construction work.

In Sheela Barse v. Union of India, (1993) 4 SCC 204 case, the Supreme Court held that child is a state blessing, and
it is the responsibility of the state to focus behind the child with a perspective to guarantee proper development of its
personality. The Apex Court also said that judicial institutions have played an essential role not only for fixing issues
but also has regularly attempt to grow and expand the law so as to answer to the desire and dreams of the people who
are looking to the judiciary to give life and fulfilled to the law.

Child Prostitution:

Following judgments make it clear that the court is aiming towards a better future for the children who are born in
brothels or are from vulnerable sections of the society and requires guidance and care to have a bright future.
In Gaurav Jain v. U.O.I. AIR 1997 SC 3021 case, the Supreme court issued directions for rescue and rehabilitation
of child prostitutes and children of the prostitutes.

In Chameli Singh v State of Uttar Pradesh, 15 December, 1995 case, the Supreme court held that right to shelter is
a guaranteed fundamental right provided under the right to life as laid down in Article 21 of the Constitution and the
right is enforceable as well. This right is absent for the children born in brothels for the economic background they are
born and brought up in. Most of them grow up on their own in the environment their mother’s work in and survive in
that environment itself. Providing the right to shelter is, therefore, an essential requirement for these children.

In Sakshi v. Union of India, 26 May, 2004 case, the Supreme Court observed that there is a necessity to amend
Sections 375 and 376 of the Indian Penal Code, 1860 in order to safeguard children who are subjected to sexual abuse.

Gender Equality:

The state or condition that affords women and men equal enjoyment of human rights, socially valued goods,
opportunities and resources, allowing both sexes the same opportunities and potential to contribute to, and benefit
from, all spheres of society (economic, political, social, and cultural).

In Madhu Kishwar v. State of Bihar, (1996) 5 SCC 148 case, Justice K Rama Swamy observed that, “Half of the
Indian population too are women. Women have always been discriminated against and are suffering discrimination in
silence. Self-sacrifice and self –denial are their nobility and fortitude and yet they have been subjected to all
inequalities, indignities, inequality and discrimination.”

In C .M. Mudaliar v. Idol of Sri S. Swaminanthaswami Thirukoil, 9 (1996) 8 SCC 525 case, the Supreme Court
has highlighted the right of women in India to eliminate gender-based discrimination particularly in respect of
property so as to attain economic empowerment.

In Associate Banks Officers’ Association v. State Bank of India, AIR 1998 SC 32 case, the Court upheld the Equal
Remuneration Act and held that, women workers are in no way inferior to their male counterparts. Hence, there
should be no discrimination on the ground of sex against women in payment of remuneration.

In Anuj Garg V/s Hotel Association of India, (2008) 3 SCC 1 case, the Apex Court declared section 30 of Punjab
Excise Act 1914, which prohibited employment of women in any part of such premises in which liquor or intoxicating
drugs were consumed by the public, as unconstitutional, holding that right to self-determination is an important off-
shoot of the gender justice discourse. Hence instead of putting curbs on women’s freedom, their empowerment would
be a more tenable and a socially wise approach. On the same analogy, the closure of Dance-bars was declared to be
affecting women’s right to earn livelihood.

In Charu Khurana and Others v. Union of India, 2015 (1) SCC 192 case, where the main grievance of the
Petitioner was that the Cine Costume Makeup Artists and Hair Dressers Association of Mumbai had refused to issue
Makeup Artist Card to the Petitioner on the ground of her gender, so that the male members were not deprived of
work as Makeup Artist. While referring to Fundamental Duties provided under Clauses (e) and (j) of Article 51-A, the
Supreme Court, held that, “it is clear as a cloudless sky that all practices derogatory to the dignity of women are to be
renounced”.
In Air India v. Nargesh Meerza, AIR 1981 SC 1829 case, a regulation provided that an air hostess would retire from
the service attaining the age of 35 years or on marriage within 4 years of service or on first pregnancy, whichever
occurred earlier. The regulation authorized the Managing Director to extend the age of retirement to 45 years at his
option if an air hostess was found medically fit. The Regulation did not contain any guidelines or the policy according
to which the discretion conferred on the Managing Director was to be exercised. The regulation conferred on the
Managing Director was unguided and uncontrolled discretion. The termination of the service of an air hostess on
pregnancy was unreasonable and arbitrary. The regulation was held to be violative of Article 14 as it was
unreasonable and arbitrary.

Female Foeticide:

Female foeticide is the process of finding out the sex of the foetus and undergoing abortion if it is a girl. Although it is
illegal, many people continue to practice it. Besides this, there are some communities which practice female
infanticide – the practice of killing the girl child once she is born. Leading to unhindered female infanticide affecting
overall sex ratio in various states causing serious disorder in the society.

In Centre for Enquiry into Health and Allied Themes (CEHAT) v. Union of India, AIR 2001 SC 2007 case, the
Supreme Court has held that despite the PNDT Act being enacted by the Parliament five years back, neither the State
Governments nor the Central Government has taken appropriate actions for its implementation. Hence, directions are
issued by the Court for the proper implementation of the PNDT Act, for eliminating this Social evil.

Judicial process and creativity in law

Judicial process and creativity in law refers to how courts interpret and apply the law, sometimes going beyond the
literal wording to address evolving societal needs and ensure justice. This involves judges using various techniques to
interpret statutes, fill gaps in the law, and develop new legal principles. It's a dynamic process where judges act as
guardians of the Constitution and ensure the law remains relevant and responsive.

Key aspects of judicial process and creativity:

Interpretation of Statutes:

Judges don't just read laws literally. They consider the intent of the legislature, the purpose of the law, and the context
of the case to arrive at a fair interpretation.

Filling Legal Gaps:

When laws are silent or ambiguous on certain issues, judges may need to create new legal rules or principles to
address the situation.

Evolving Needs of Society:

The law must adapt to changing social norms and values. Judges play a role in ensuring that the law remains relevant
and just in a dynamic society.
Constitutional Interpretation:

The Constitution is a living document, and judges have a responsibility to interpret it in a way that reflects the needs
of the present while upholding fundamental rights.

Precedent and Innovation:

While judges rely on past decisions (precedents), they are also expected to innovate and develop new legal principles
when necessary.

Examples of Judicial Creativity:

Extending Fundamental Rights:

Judges have expanded the scope of fundamental rights, such as the right to life and personal liberty, to include aspects
like privacy and access to justice.

Interpreting Laws Related to Technology:

As technology evolves, judges have creatively interpreted existing laws to address issues like online privacy, data
protection, and the legal status of AI-generated content.

Addressing Social Issues:

Judges have used their creative interpretation of the law to address social issues like gender inequality, environmental
protection, and consumer rights.

Judicial creativity is not about making new laws from scratch, but rather about using the existing legal
framework in a flexible and innovative way to ensure justice and fairness. It's a crucial aspect of the judicial process,
ensuring that the law remains a living and responsive instrument for societal well-being.

Judicial Creativity and Precedent: Tools and Techniques in Indian Law

The judiciary in India plays a pivotal role in shaping the legal landscape through its creative interpretation of
laws and reliance on judicial precedents. This article explores the tools and techniques of judicial creativity, their
application in Indian law, and the balance between innovation and restraint.

Understanding Judicial Creativity

Judicial creativity refers to the judiciary's ability to interpret laws in ways that go beyond their literal meaning. It is
particularly significant in constitutional matters, where provisions may be ambiguous or require adaptation to
contemporary challenges. Judges, as guardians of the Constitution, often employ innovative approaches to ensure that
justice aligns with evolving societal values.
Key Techniques of Judicial Creativity

The Indian judiciary employs several techniques to creatively interpret laws and address legal ambiguities. These
include:

1. Textual Interpretation

This technique involves analyzing the literal language of statutes or constitutional provisions. Judges derive meaning
from the text itself while ensuring that their interpretation aligns with legislative intent.

2. Purposive Interpretation

In cases where the literal meaning is insufficient or unclear, judges look beyond the text to understand the law's
purpose and objectives. This approach helps address gaps or ambiguities in legislation.

3. Precedent Utilization

The principle of stare decisis ensures that lower courts follow precedents established by higher courts, promoting
consistency and stability in legal interpretation. However, judges may also reinterpret existing precedents creatively to
adapt them to new societal contexts.

Balancing Creativity and Restraint

While judicial creativity is essential for addressing modern challenges, it has faced criticism for potentially
overstepping judicial boundaries. Critics argue that excessive creativity may lead to judicial activism, where courts
appear to make laws rather than interpret them.

To maintain a balance:

 - Judges must ensure their interpretations remain grounded in constitutional principles.

 - Judicial innovation should respect legislative intent while addressing societal needs.
 - Courts should avoid encroaching on legislative or executive domains.

The dynamic interplay between judicial creativity and precedent ensures that India's legal system remains responsive,
just, and relevant in an ever-changing world.

Judicial process & judicial creativity

The Constitution of India is a living document.

The judiciary the guardian of the Constitution has the responsibility of interpreting the Constitution in a manner that is
relevant, responsive and reflects the changing needs of society.

Judicial creativity refers to the approach adopted by judges in interpreting and applying the law in a manner that is not
explicitly stated in the text of the law and in a flexible and innovative way.
Judicial creativity is a critical aspect of the judicial process , it allows judges to develop new legal principles and
policies that are not explicitly stated in the Constitution or other legal texts and in a flexible and innovative way.
Throughout history, the judiciary has demonstrated a creative approach to interpret the Constitution, addressing the
evolving societal needs, protect and expand the fundamental rights of the citizens which is essential for the
development of a democratic and equitable society.

Critics of Judicial Creativity

(i) Argue that Judicial Creativity confers an enormous amount of power to the judiciary, which can lead to judicial
activism and judicial tyranny.

(ii) It can also undermine the democratic process, as unelected judges are making decisions that are within the purview
of the elected representatives of the people.

(iii) Judicial creativity is a threat to the rule of law as it allows judges to make decisions that are not based on the
law but on their own personal preferences and biases.

Despite these criticisms, judicial creativity has played a critical role in the development of the constitutional
law where the text of the Indian Constitution is often open to interpretation.

Over the years, the judiciary has interpreted constitutional provisions in innovative and creative ways to protect the
rights of citizens, sometimes departing from literal interpretations and relying on the principles of natural justice and
fairness.

Significant instances of judicial creativity in the interpretation of Part III provisions of the Constitution are as follows:
The Supreme Court has adopted a flexible and innovative approach to interpreting the Constitution, ensuring that it
remains responsive to changing societal needs and protecting the fundamental rights of Indian citizens.

Judicial Creativity Through Landmark Cases

Indian courts have demonstrated judicial creativity in several landmark cases that have shaped constitutional and legal
jurisprudence. Some notable examples include:

1. Basic Structure Doctrine

In Kesavananda Bharati v. State of Kerala (1973), the Supreme Court introduced the "basic structure doctrine,"
asserting that certain fundamental features of the Constitution cannot be altered by amendments. This doctrine
exemplifies judicial creativity in protecting democratic principles from legislative overreach.Doctrine has been used
by the judiciary to strike down laws that are deemed to be in violation of the basic structure of the Constitution & to
prevent arbitrary changes to the Constitution. This doctrine put limit to the power of the legislature to amend the
Constitution.

2. Right to Education
In Unni Krishnan v. State of Andhra Pradesh (1993), the Court expanded Article 21 (right to life) to include the
right to free education for children up to 14 years. This interpretation showcased how judicial creativity can extend
fundamental rights.

3. Judicial Review

Although not explicitly mentioned in the Constitution, judicial review has been derived from Articles 13 and 32,
among others. This power allows courts to invalidate unconstitutional laws or executive actions, demonstrating
innovative constitutional interpretation.

4. Environmental Jurisprudence

In M.C. Mehta v. Union of India, the judiciary creatively interpreted constitutional provisions to address
environmental concerns, establishing human rights-based environmental protections.

5. Maneka Gandhi v. Union of India 1978 .

SC. expanded the interpretation of Article 14 and 21 of the Constitution and paved the way for several new
fundamental rights like Right to Clean Water and Air, Right to freedom from Noise Pollution, Right to Fair
Trial, Right to Legal Aid, Right to Livelihood and right medical aid.

6. Hussainara Khatoon v. State of Bihar, 1979

SC held that the right to life and personal liberty under Article 21 of the Constitution includes the right to speedy trial.

7. Olga Tellis v. Bombay Municipal Corporation, 1986.

SC held that the right to livelihood is a fundamental right under Article 21 of the Constitution.

8. S. R. Bommai v. Union of India 1994 ( the misuse of article 356.)

The Supreme Court restricted the scope of Article 356 of Constitution and held that such proclamation of the
imposition of President rule is subject to judicial review.

9. Vishakha v. State of Rajasthan (1997):

( Supreme Court laid down guidelines for prevention sexual harassment at work place )

Held that there is a necessity of law for safety of women which led to enactment of Sexual Harassment of Women at
Workplace(Prevention, Prohibition, and Redressal) Act, 2013,in short (POSH Act).

10. D.K. Basu vs State of West Bengal 1997. ( Guidelines to be followed to arrest a person.)

SC laid down 11 guidelines to be followed by the police before proceeding to arrest an accused. This has laid to
amendment in Criminal procedure Code and enactment of New law that is BNSS.
11. K.S. Puttaswamy v. Union of India 2017.

the Supreme Court held that the right to privacy is a fundamental right under Article 21 of the Constitution.

12. The Shayara Bano vs Union of India (2017):- This judgment marked an important step toward equality by
declaring triple talaq as unconstitutional. The Supreme Court verdict on triple talaq supports gender equality and the
rights of Muslim women and promotes a more secure and just life in line with constitutional values. The Supreme
Court held that the practice of triple talaq (instant divorce) in Muslim personal law was unconstitutional and violated
the fundamental rights of Muslim women.

13. Navtej Singh Johar v. Union of India (2018):

is another important example of judicial creativity, as it struck down Section 377 of the Indian Penal Code, which
criminalized homosexuality.

The court held that criminalizing consensual sexual acts between adults of the same sex violated the fundamental
rights of equality, dignity, and privacy.

14. Joseph Shine v. Union of India (2018):

The SC decriminalized the age-old Section 497 of the Indian Penal Code, 1860 (IPC) which created discrimination
between male and female spouses.

Concept of “judicial review.” which empowers the judiciary to assess the actions of the executive and legislative
branches of government, invalidating any action that violates the Constitution is instance of creative
interpretation by the judiciary. ( derived from various provisions such as Articles 13, 32, 226, and 227)

Factors facilitating judicial creativity in India

1. Indian Constitution is a dynamic document intended to adapt to changing societal needs.

2. The judiciary possesses the power of judicial review, allowing it to invalidate laws that conflict with the
Constitution.

3. The independence of Indian judiciary is enabling it to interpret the law without bias or fear.

Through the application of judicial review, the Supreme Court of India has invalidated several legislative and
executive actions as unconstitutional. Examples of such actions include the National Judicial Appointments
Commission Act (NJAC), the Aadhaar Act, and the Prevention of Terrorism Act (POTA).

Expanding the scope of Article 21:

The judiciary has interpreted Article 21 of the Constitution in a broad manner to include within its ambit various other
rights such as the right to live with dignity, the right to privacy, and the right to clean environment, among others.
Use of precedents .

The use of precedents is another important avenue for judicial creativity in constitutional interpretation. By relying on
past judgments, the judiciary develops new legal principles and interprets the Constitution.

Indian Constitution is a dynamic document intended to adapt to changing societal needs. It includes provisions for
amendment to ensure its relevance. The judiciary possesses the power of judicial review, allowing it to invalidate laws
that conflict with the Constitution. This power safeguards citizens’ fundamental rights. the Indian judiciary is
renowned for its impartiality and independence, enabling it to interpret the law without bias or fear.

Judicial process not an answer to every social ill: SC

SC dismissed a PIL for the inclusion of moral science as a compulsory subject in the syllabus of school education.

The jurisdiction of Court under Article 32 is not a panacea for all ills but a remedy for the violation of
fundamental rights, said the Supreme Court.
Supreme Court: Judicial Process Must Not Be Allowed To Be Misused For Personal Gains

Conclusion

Judicial creativity is an essential component of constitutional interpretation in India. The judiciary has used various
means, such as textual and purposive interpretation, and the use of precedents, to develop new principles of law and
protect the rights of citizens. The doctrine of basic structure and the expansion of the scope of Article 21 are important
instances of judicial creativity in constitutional interpretation. While it has been criticized as a form of judicial
activism, it is important to recognize that judicial creativity is necessary for the development of the law.

Judicial creativity is a cornerstone of India's legal system, enabling courts to adapt laws to contemporary realities
while safeguarding fundamental rights and democratic principles. Through techniques like textual and purposive
interpretation and reliance on precedents, Indian judges have shaped landmark rulings that resonate with modern-day
challenges. However, this creativity must be exercised with caution to preserve the delicate balance between judicial
innovation and constitutional restraint.
 UNIT-II
Special Dimensions

Special Dimensions of Judicial process in the constitutional Adjudications:

Constitutional Adjudication
The process by which the Supreme Court and the High Courts interpret, apply, and uphold the
provisions of the Indian Constitution, ensuring that all legislative and executive actions comply with the
supreme law of the land.
It’s a fundamental aspect of India’s democratic system, rooted in the principles of judicial review and
constitutional supremacy.
Constitutional Supremacy- The Constitution is the highest law, and any law or governmental action
inconsistent with it is null and void.

Judicial Review -Supreme Court (Art- 32, 131-136)

High Court (Art-226-227)
Review legislative enactments: To check if laws passed by Parliament or state legislatures violate any
constitutional provision, particularly Fundamental Rights.
Review executive actions: To ensure that executive orders, policies, and administrative decisions conform to
the Constitution and existing laws.
Review constitutional amendments -Post Kesavananda Bharati’s case, the Supreme Court can even review
constitutional amendments if they violate the “Basic Structure” of the Constitution.
Judicial Activism and Public Interest Litigation
Judicial Activism
Key Aspects of Constitutional Adjudication
Interpretation of Constitutional Provisions
Evolving Nature
Harmonious Construction
Pith and Substance
Spirit vs. Letter
Role of Constitutional Benches
Under Article 145(3) of the Constitution, any case involving a “substantial question of law as to the
interpretation of the Constitution” must be heard by a Bench of at least five judges (known as a Constitution
Bench)… leading to more authoritative pronouncements.

Balancing Fundamental Rights and Directive Principles

Federal Disputes
 Protection of Minority Rights and Vulnerable Sections
Judicial Accountability and Self-Correction
The Supreme Court has the power to review its own judgments (Article 137). This allows for course
correction and evolution of legal principles based on new insights or societal changes.
While the judiciary enjoys significant independence, it also faces scrutiny and criticisms regarding judicial
overreach or delays.

Challenges/ Debates -Constitutional Adjudication

Backlog of Cases
Judicial Overreach vs. Judicial Activism
Composition of Benches-Debates arise regarding the Chief Justice's power to constitute benches and assign
cases, particularly sensitive constitutional matters.
Clarity and Consistency-While aiming for consistency, constitutional interpretations can sometimes evolve
or even appear contradictory over time, leading to legal uncertainty
Political Implications- sometimes leading to friction between the judiciary and other branches of
government.
Is a dynamic and powerful process central to its democratic governance.

Creativity in Constitutional Adjudication

Constitutional adjudication refers to the interpretation and application of constitutional law by
courts. Creativity in this context refers to the ability of judges to think innovatively and
flexibly when interpreting constitutional provisions. It involves going beyond the literal text of
the constitution to ensure its principles and values are upheld.
Some ways in which creativity is applied in constitutional adjudication include:
1. Balancing Rights: Judges may need to balance conflicting rights or interests protected by the
constitution to reach a fair and just decision.
2. Evolving Interpretation: Constitutional provisions may need to be interpreted in light of
changing societal norms, values, and circumstances.
3. Constitutional Principles: Judges may rely on broader constitutional principles, such as
equality, freedom, or human dignity, to guide their interpretation.
4. Comparative Analysis: Examining how other countries or jurisdictions have interpreted similar
constitutional provisions can provide insights and alternative perspectives.
5. Judicial Activism: In certain cases, judges may take an active role in shaping public policy
through their interpretations of the constitution.
Creativity in constitutional adjudication allows for the constitution to remain relevant and
adaptable to the evolving needs of society while upholding its fundamental principles.
Overall, both tools and techniques in policy-making and creativity in constitutional
adjudication are essential for effective governance and the protection of constitutional rights
and values.

Notion of judicial review

Judicial review is the power of courts to examine the constitutionality of laws and government
actions. It ensures that these actions align with the principles enshrined in the constitution, and if not, the
courts can declare them invalid. This mechanism helps to maintain the rule of law and prevent the abuse of
power by any branch of government.
Here's a more detailed breakdown:
Core Concepts:
Constitutional Supremacy:
Judicial review is rooted in the idea that the constitution is the supreme law of the land, and all other laws
and actions must comply with it.
Checks and Balances:
It acts as a crucial check on the legislative and executive branches, preventing them from overstepping their
constitutional boundaries.
Interpretation of the Constitution:
Courts interpret the constitution and apply its principles to specific cases, ensuring that laws and actions are
consistent with its spirit and letter.
Protection of Rights:
Judicial review can protect citizens' fundamental rights by striking down laws or actions that violate them.
Key Aspects:
Not a Power to Make Laws:
Courts do not make laws through judicial review. Their role is to assess the legality of existing laws and
actions.
Limited Scope:
Judicial review is not unlimited. Courts generally focus on legal and constitutional issues, rather than policy
or political considerations.
Potential for Controversy:
The power of judicial review can be controversial, as unelected judges can potentially overturn laws passed
by elected legislatures.
Grounds for Review:
Common grounds for judicial review include jurisdictional errors, irrationality (acting unreasonably), and
procedural impropriety (not following proper procedures).
Examples:
The landmark US Supreme Court case Marbury v. Madison (1803) established the principle of judicial
review in the United States. In essence, judicial review is a vital mechanism for maintaining a constitutional
democracy, ensuring that all branches of government operate within the bounds of the law and that citizens'
rights are protected.

Role in constitutional adjudication- various theories of judicial role

In constitutional adjudication, the judicial role can be understood through various theoretical lenses,
including judicial activism, judicial restraint, originalism, and textualism. These theories offer different
perspectives on how courts should interpret the Constitution and how actively they should engage in
reviewing the actions of other government branches.
Key Theories of Judicial Role:
Judicial Activism:
This theory suggests that courts should play a proactive role in shaping public policy and correcting
perceived social injustices through their interpretations of the Constitution. Activists may be more likely to
strike down laws they deem unconstitutional or to interpret the Constitution broadly to address
contemporary issues.
Judicial Restraint:
This theory advocates for a more limited role for the judiciary, emphasizing deference to the elected
branches of government (legislative and executive). Restraint-oriented judges are more likely to uphold laws
passed by the legislature and to avoid overturning long-standing precedents.
Originalism:
This theory emphasizes interpreting the Constitution based on the original understanding of its framers.
Originalists believe that the meaning of the Constitution should remain fixed over time and that judges
should not adapt it to modern circumstances.
Textualism:
This theory focuses on the literal meaning of the constitutional text, giving less weight to legislative history
or broader societal context. Textualists prioritize the plain language of the Constitution in their
interpretations.
Prudentialism:
This theory suggests that courts should consider the practical consequences of their decisions when
interpreting the Constitution. A prudential approach may lead judges to prioritize outcomes that are socially
beneficial or avoid creating unintended disruptions.
Structuralism:
This theory focuses on the overall structure of the Constitution and the relationships it establishes between
different branches of government. Structuralists may be concerned with maintaining the balance of power
between the branches and ensuring that no single branch becomes too dominant.
Examples of Judicial Role in Practice:
Judicial Review:
Constitutional adjudication often involves judicial review, where courts examine the constitutionality of
laws or government actions.
Constitutional Interpretation:
Courts must interpret the Constitution's provisions to apply them to specific cases, which can involve
choosing between competing interpretations.
Upholding Rights:
The judiciary plays a crucial role in protecting individual rights and liberties guaranteed by the Constitution.
Resolving Disputes:
Courts resolve disputes between different branches of government or between citizens and the government.
In essence, the judicial role in constitutional adjudication is shaped by a complex interplay of legal
theories, judicial philosophies, and the specific facts of each case.

Variance of judicial Activism and juristic activism.

Judicial activism and juristic activism, while both related to the judiciary's role, differ in their focus
and scope. Judicial activism involves judges actively interpreting and applying the law to address social
issues and protect rights, potentially going beyond strict legal interpretation. Juristic activism, on the other
hand, refers to the proactive role of legal scholars and commentators in shaping legal discourse and
influencing judicial decisions through their writings and interpretations.
Here's a more detailed breakdown:
Judicial Activism:
Definition:
Judicial activism is the practice of judges actively shaping legal and social policy through their
interpretations of the law, often involving a proactive approach to address societal problems and protect
individual rights.
Key Characteristics:
Proactive Role: Judges take an active role in shaping legal and social policy, rather than passively
interpreting existing laws.
Interpretation Beyond Literal Meaning: Judges may interpret laws in ways that go beyond the literal text to
address perceived injustices or societal needs.
Focus on Social Justice: Judicial activism often involves efforts to protect fundamental rights, promote
equality, and address social inequalities.
Examples:
Landmark cases where courts have expanded the scope of fundamental rights, such as the right to privacy or
freedom of expression.
The use of Public Interest Litigation (PIL) to address environmental concerns or social issues.
Cases where courts have struck down laws that are deemed unconstitutional or discriminatory.
Potential Concerns:
Separation of Powers: Judicial activism can be seen as overstepping the boundaries of the judiciary's role
and encroaching on the powers of the legislature or executive.
Legitimacy of Decisions: Some argue that judicial activism can undermine the legitimacy of the judiciary if
judges are perceived as making decisions based on personal opinions rather than legal principles.
Juristic Activism:
Definition:
Juristic activism refers to the proactive role of legal scholars, commentators, and academics in shaping legal
discourse and influencing judicial decisions.
Key Characteristics:
Influence on Legal Interpretation: Juristic activists engage in legal scholarship, writing articles, and
commentaries that analyze and interpret laws and legal principles.
Shaping Legal Discourse: Their work can influence how judges and other legal professionals understand and
apply the law.
Impact on Policy: Juristic activism can contribute to the development of new legal theories and arguments
that can influence future legislation and judicial decisions.
Examples:
Scholarly articles that analyze the constitutionality of certain laws or policies.
Legal commentaries that offer alternative interpretations of legal principles.
Academic research that identifies gaps in the law or proposes solutions to legal problems.
Potential Concerns:
Influence on Judicial Independence: Some argue that excessive influence of juristic activism could
potentially undermine judicial independence if judges are seen as overly influenced by academic opinions.
Potential for Bias: Juristic activism can also be influenced by the personal biases or political leanings of
legal scholars.
Key Differences Summarized:
Feature Judicial Activism Juristic Activism

Focus Judicial interpretations Legal scholarship and shaping legal

and application of law discourse

Role Active role in shaping Influence on legal interpretation and

policy policy

Primary Judges Legal scholars and commentators

Actors

Impact Direct impact on legal Indirect influence on legal outcomes and

outcomes and social policy
policy

In essence, judicial activism is the active role of judges in shaping the law, while juristic activism is
the active role of legal scholars in shaping legal discourse and influencing judges. Both play important roles
in the legal system, but they operate at different levels and with different mechanisms of influence.
 UNIT III

Judicial process in India

The judicial process in India is the mechanism by which courts interpret and apply laws to resolve
disputes and uphold justice, ensuring the rule of law and protecting individual rights. It involves a
hierarchical system with the Supreme Court at the apex, followed by High Courts and then subordinate
courts. The process includes various stages, from the initial filing of a case to the final judgment and
potential appeals.
Key aspects of the Indian judicial process:
Hierarchical Structure:
The Indian judiciary is structured as a pyramid, with the Supreme Court at the top, followed by High Courts
and then district and subordinate courts.
Common Law System:
India follows a common law system, relying on judicial precedents established through past decisions.
Adversarial System:
The judicial process in India largely follows the adversarial model, where two opposing parties present their
cases before a neutral judge.
Key Stages:
The process typically involves stages such as the filing of a First Information Report (FIR) in criminal cases,
investigation, framing of charges, evidence presentation, arguments, judgment, and potentially appeals.
Judicial Review:
The Supreme Court and High Courts have the power of judicial review, allowing them to examine and
potentially invalidate actions of the executive or legislature if they are deemed unconstitutional.
Independence of the Judiciary:
The Indian judiciary is designed to be independent of the executive and legislative branches of government,
ensuring impartiality in the delivery of justice.
Ensuring Justice:
The judicial process aims to ensure that offenders are punished, the innocent are exonerated, and the rights
of those wronged are upheld.
The role of the judge:
Judges are expected to act impartially, apply prevailing community values, and follow legal precedents
while making decisions.
Community Involvement:
The community plays a vital role by reporting incidents, providing evidence, and supporting the judicial
process.

Indian debate on the role of judges and on the notion of judicial review.

Judicial Review and Judicial activism.

Generally judicial review means the revision of the decree or sentence of an inferior court by a
superior court. Judicial review has a more technical significance ion pubic law, particularly in countries
having a written constitution which are founded on the concept of limited government. Judicial review in
this case means that Courts of law have the power of testing the validity of legislative as well as other
governmental action with reference to the provisions of the constitution. The doctrine of judicial review has
been originated and developed by the American Supreme Court, although there is no express provision in
the
American Constitution for the judicial review. The power of judicial review was first acquired by the
U.S. Supreme Court in Malbury vs. Madison case. 1803.
In U.S. Constitution the most distinctive feature of United States Supreme Court is its power of
judicial review. As guardian of the constitution, the Supreme Court has to review the laws and executive
orders to ensure that they do not violate the constitutional of the country and the valid laws passed by the
congress,
The constitution of India, in this respect, is more a kin to the U.S. Constitution than the British. In
Britain, the doctrine of Parliamentary supremacy still holds goods. In the United Kingdom, statutes cannot
be set aside under the doctrine of parliamentary sovereignty. No court of law there can declare a
parliamentary enactment invalid. On the contrary every court is constrained to enforce every provision" of
the law of parliament.
Under the constitution of India parliament is not supreme. Its powers are limited in the two ways.
First, there is the division of powers between the union and the states. Parliament is competent to pass laws
only with respect to those subjects which are guaranteed to the citizens against every form of legislative
encroachment. Being the guardian Fundamental Rights and the arbiter of-constitutional conflicts between
the union and the states with respect to the division of power between them, the Supreme Court stands in a
unique position where from it is competent to exercise the power of reviewing legislative enactments both of
parliament and the state legislatures. This is what makes the court a powerful instrument of judicial review
under the constitution. As Dr. M.P. Jain has rightly observed, "The doctrine of judicial review is thus firmly
rooted in India, and has the explicit sanction of the constitution.
In the frame work of a constitution which guarantees individual Fundamental Rights, divides power
between the union and the states and clearly defines and the limits the powers and functions of every organ
of the state including the parliament, judiciary plays a very important role under their powers of judicial
review. The power of judicial review of legislation is given to the judiciary both by the political theory and
text of the constitution. There are several specific provisions in the Indian constitution, judicial review of
legislation such as Act 13, 32,131-136,143-226,145,246,251,254 and 372 (1) establishes the judicial review
of the pre constitutional legislation similarly. Article 13 specifically declares that any law which contravenes
any of the provision of the part of Fundamental Rights shall be void. Even our Supreme Court has observed,
even without the specific provisions in Article13.
The power of judicial review is specially enumerated under the article 13 of the constitution of India.
According to Art. 13 the court would have the power to declare any enactment which violates a
Fundamental Right as invalid. The Supreme and high courts are constituted the protector and guarantor of
Fundamental Rights under Article 32 and 226. Articles 251 and 254 say that in case of in consistent if
between union and state laws, the state law shall be void.
 In Shankari Prasad vs. Union of India (1951) the first Amendment Act of 1951 was challenged
before the Supreme Court on the ground that the said Act abridged the right to property and that it could not
be done as there was a restriction on the amendment of Fundamental Rights under Article 13 (2). The
Supreme Court rejected the contention and 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 regulation made in exercise of
ordinary legislative power and 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."
In Sajan Singh's case (1964), the competence of parliament to enact 17th amendment was challenged
before the constitution Bench comprising of five judges on the ground that it violated the Fundamental
Rights under Article 31 (A).
Supreme Court reiterated its earlier stand taken in Shakari Prasad's case and held. "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 about to hold that the word law in article 13 (2)
takes in amendment Acts passed under article 368,
Thus, until 1967 the Supreme Court held that the Amendment Acts were not ordinary laws. An could
not be struck down by the application of article 13 2).
The historic case of Golaknath vs. The State of Punjab (1967) was heard by a special bench of 11
judges as the validity of three constitutional amendments (1", 4 and 17) was challenged. The Supreme Court
by a majority of 6 to 5 reverse its earlier decision and declared that parliament under article 368 has no
power to take away or abridge the Fundamental Rights contained in chapter III of the constitution.
In Minerva Mills case (1980) the Supreme Court by A majority decision has trunk down section 4 of
the 42 Amendment Act which gave preponderance to the Directive Principles over Articles 24, 19 and 31 of
part III of the constitution, on the ground that part III and part IV of the constitution are equally important
and absolute primacy of one over the other is not permissible as that would disturb the harmony of the
constitution.
Principles of Judicial Review:
In 1973, the Supreme Court in the landmark case 'Keshavananda Bharathi v. State of Kerala'
presented the basic principles of judicial review. Legislature can amend the constitution, but cannot change
the basic principles of the Constitution.
Justice V.S. Deshpande in his book propounded a thesis that Judicial Review of legislation in India
should rest merely on Article 245 (1) and not on Article 13. According to him, Article 245 (1) interpreted.
broadly would ensure the supremacy of the constitution over all kinds of laws.
Thus, a law to be valid must conform with the constitutional forms. The grave responsibility of
deciding upon the validity of laws, is laid up on the judges of the Supreme Court. If a statue isn't within the
scope of legislative authority or it offends some constitutional restriction or prohibition, that statue is
unconstitutional and hence invalid.
 A renowned author of Constitutional law H.M. Sheervai has enumerated following rules in this
regard.
(1) There is a presumption in constitutionality, and a law will not be declared unconstitutional unless the
case is so clear as to be free from doubt; and the on us to prove that it is unconstitutional lies upon the
person who challenges it.
(2) Where the validity of a statue is questioned and there are two interpretations, one of which would make
the law valid, and the other void, the former must be preferred and the validity of the law upheld.
(1) The court will not decide constitutional questions of a case are capable of being decided on other
grounds.
(2) The court will not decide a larger constitutional question than is required by the case before it.
(3) The court will not hear an objection as to the constitutionality of a law by a person whose rights are not
affected by it.
(4) Ordinarily, courts should not pronounce on the validity of an Act or part of an Act, which has not been
brought into force, because till then the question of validity would be merely academic.
Indian judiciary has been able to overcome the restrictions that were put on it by the 42nd
amendment, with the help of the 43rd and 44th amendments. Now the redeeming quality of Indian judiciary
is that no future governments could did its wings or dilute its right of Judicial Review. In fact, the Judicial
Review is considered to be the basic feature of our constitution.

Judicial Review of Legislative Enactment and ordinances:

One of the first major case A. K. Gopalan Vs. State of Madras. 1951 that came up before the
Supreme Court in which the preventive detention Act, 1950 was challenged as invalid. The court by a
unanimous decision declared section 14 of the Act invalid and thus manifested its competence to declare
void any parliamentary enactment repugnant to the provisions of the constitution.
In Champakan Dorairajan's case, the Supreme Court held that the order of the state government
fixing proportionate scales, for different communities for admission to medical colleges was
unconstitutional. The presidential order de-recognising privy purses was also challenged in the Supreme
Court which declared the order as unconstitutional and void. Between 1950-1980 parliament passed as many
as 1977 Acts and out of them, the Supreme Court invalidate laws passed on 22 occasions.

Judicial independence and the political nature of the judicial process

Judicial independence and the political nature of the judicial process are intertwined concepts. While
the judiciary is intended to be independent from other branches of government to ensure fair and impartial
justice, the judicial process itself can be influenced by political considerations and societal values.
Independence of the Judiciary:
Definition:
Judicial independence means that judges are free to make decisions based on their understanding of the law
and the facts of a case, without undue influence from the executive or legislative branches, or from other
external pressures.
Importance:
It is crucial for maintaining public trust in the judiciary and ensuring that justice is administered fairly and
impartially.
Guarantees:
Many countries, including India, have constitutional provisions and legal frameworks that aim to safeguard
judicial independence.
Examples:
This includes security of tenure for judges, fixed retirement ages, and specific procedures for their removal.
Threats:
However, judicial independence can be threatened by factors like political interference, public opinion, and
even internal pressures within the judiciary itself.
Political Nature of the Judicial Process:
Influence of Values:
Judges, despite striving for impartiality, are inevitably influenced by their own values, beliefs, and
experiences, which can reflect societal norms and political ideologies.
Interpretation of Law:
The judicial process involves interpreting laws, and this interpretation can be influenced by the prevailing
political climate and public opinion.
Policy Implications:
Judicial decisions can have significant policy implications, and therefore, the judiciary can be seen as a
political actor.
Examples:
Cases involving constitutional rights, social issues, and economic policies often have political dimensions,
and judges' decisions can have far-reaching consequences.
Balancing Act:
Need for Transparency and Accountability:
To mitigate the potential for bias and maintain public trust, it is important for the judiciary to be transparent
in its decision-making and accountable for its actions.
Internal Oversight:
Mechanisms for internal oversight and accountability are crucial to address any potential misconduct or
abuse of power within the judiciary.
External Scrutiny:
External scrutiny from the media, civil society, and the public can also help to ensure that the judiciary
remains accountable and responsive to societal needs.
 In conclusion, while judicial independence is essential for a fair and impartial legal system, the
judicial process itself is not entirely divorced from politics. Balancing the need for judicial independence
with the political realities of the judicial process is an ongoing challenge that requires constant vigilance and
a commitment to transparency, accountability, and public trust, according to Juridica International.

Judicial Activism and Creativity of the Supreme Court

Judicial Activism Creativity And Accountability – The Column ...Judicial activism, characterized by
the Supreme Court's proactive role in shaping public policy and protecting fundamental rights, is closely
linked to judicial creativity in interpreting the law and addressing societal issues. This approach involves
using innovative legal reasoning and expanding the scope of existing laws to meet contemporary challenges,
particularly in areas like social justice and human rights. While judicial activism can be a powerful tool for
positive change, it also faces criticism for potentially overstepping its boundaries and encroaching on the
powers of other government branches.
Key Aspects of Judicial Activism and Creativity:
Judicial Review:
The Supreme Court's power to review laws and executive actions, declaring them unconstitutional if
they violate fundamental rights, is a cornerstone of judicial activism.
Interpretation of the Constitution:
The court often interprets the Constitution broadly, expanding the scope of fundamental rights and
creating new legal principles to address evolving societal needs.
Public Interest Litigation (PIL):
PILs allow individuals and organizations to approach the court on behalf of those who cannot access
justice, enabling the court to address a wide range of social issues.
Creative Legal Doctrines:
The court has developed innovative legal doctrines, such as compensatory jurisprudence, to address
issues of social justice and human rights.
Accountability and Transparency:
Judicial activism, while promoting accountability of the government, also raises concerns about
judicial overreach and the need for judicial restraint.
Balancing Powers:
A key challenge is maintaining the balance of power between the judiciary, legislature, and executive
branches.
Public Perception:
The court's actions are subject to public scrutiny, and its decisions can impact the perception of the
judiciary's legitimacy and its role in society.
Examples of Judicial Activism and Creativity:
Expanding the scope of Article 21 (Right to Life and Personal Liberty):
 The Supreme Court has interpreted Article 21 to include various aspects of a dignified life, such as
the right to shelter, education, and a clean environment.
Ensuring access to justice through PILs:
The court has used PILs to address issues like pollution, public health, and the rights of marginalized
communities.
Developing new legal principles like Public Trust Doctrine:
This doctrine ensures that the government holds natural resources in trust for the public and cannot
exploit them without proper justification.
Criticisms of Judicial Activism:
Judicial Overreach:
Critics argue that the court sometimes exceeds its constitutional mandate and interferes with the
functions of the legislature and executive.
Policy Making:
Concerns are raised about the court making policy decisions that should be the prerogative of the
elected representatives.
Unpredictability:
Judicial activism can lead to uncertainty in the law, as judges may rely on their personal views and
interpretations rather than established legal principles.
Conclusion:
Judicial activism and creativity are integral to the Indian Supreme Court's role in protecting
fundamental rights and addressing societal issues. While it has been instrumental in promoting social justice
and accountability, it also requires careful consideration of the balance of power between different branches
of government and the need for judicial restraint to maintain public trust.

Tools and Techniques of Judicial Creativity:

Judicial creativity, in the context of the Supreme Court, refers to the court's ability to interpret and
apply the law in a way that goes beyond the literal meaning of the text, often adapting to evolving societal
needs and addressing gaps in existing legislation. This involves using various tools and techniques to shape
legal principles and precedents.
Tools and Techniques of Judicial Creativity:
1. Textual Interpretation:
Judges analyze the explicit language of statutes and constitutional provisions, aiming to understand
the plain meaning of the words while considering the legislative intent behind the law.
2. Purposive Interpretation:
When the text alone is unclear or insufficient, judges look to the underlying purpose and objectives
of the law to resolve ambiguities and fill in gaps in the legislation.
3. Precedent Utilization (Stare Decisis):
 While courts generally follow established precedents, judges can reinterpret existing case law
creatively to adapt to new circumstances or societal changes, ensuring the law remains relevant and just.
4. Judicial Review:
This power allows the court to examine the validity of legislative enactments and executive orders,
ensuring they align with constitutional principles. Landmark cases demonstrate this, such as the quashing of
the 39th Amendment clause that restricted election challenges, according to LHSS Collective.
5. Development of PIL:
Public Interest Litigation (PIL) has been instrumental in modifying traditional legal requirements like
locus standi (standing to sue), expanding access to justice and addressing social issues.
6. Evolving Innovative Remedies:
Courts have developed new and creative remedies to address complex social and legal problems,
including those related to environmental protection, human rights, and consumer welfare.
7. Interpretation of Fundamental Rights:
The Supreme Court has creatively interpreted fundamental rights, such as the right to life and
personal liberty under Article 21, to include the right to a speedy trial.
Balancing Creativity and Restraint:
Judicial creativity must be exercised with caution, ensuring it doesn't overstep the boundaries of
judicial power and lead to judicial activism. Courts must strive to:
Ground their interpretations in established constitutional principles.
Respect the intent of the legislature while addressing societal needs.
Avoid encroaching on the functions of other branches of government.
Examples of Judicial Creativity:
The development of basic structure doctrine in Kesavananda Bharati v. State of Kerala, which limits
the Parliament's power to amend the Constitution.
The expansion of the definition of "life" under Article 21 to include the right to a clean environment.
The recognition of new rights through judicial interpretation, such as the right to privacy.

Institutional Liability of Courts Judicial Activism: Scope and Limits

Institutional liability of courts, particularly in the context of judicial activism, raises complex questions about the
limits of judicial power and the potential for overreach. While judicial activism can be a force for positive change,
addressing governance failures and protecting fundamental rights, it also carries the risk of encroaching on the roles of
other branches of government and potentially undermining public trust in the judiciary.
Judicial Activism: Scope and Limits
Scope:
Judicial activism, broadly defined, is the willingness of courts to actively shape public policy through their rulings,
often involving interpretations of the constitution or statutes to address perceived social or political issues.
Limits:
The debate over judicial activism centers on its appropriate scope and the potential for overreach. Some argue that
courts should exercise restraint and defer to the elected branches of government, while others believe that judicial
intervention is necessary to correct injustices and protect vulnerable populations.
Examples of Judicial Activism:
In India, judicial activism has been credited with landmark decisions on issues like environmental protection, public
health, and human rights.
Concerns about Overreach:
Concerns about judicial overreach include the potential for courts to become overly involved in policy-making,
exceeding their constitutional role, and potentially politicizing the judiciary.
Institutional Liability of Courts
Accountability:
The question of institutional liability arises when courts make decisions that have significant consequences for
individuals, institutions, or the public at large.
Potential for Harm:
Judicial activism can have unintended consequences, and in some cases, may lead to outcomes that are detrimental to
the public good. For example, a court order that is difficult to implement or that creates unintended social or economic
disruption could be seen as a failure of the judiciary.
Checks and Balances:
The separation of powers and the system of checks and balances are designed to prevent any one branch of
government from becoming too powerful. In the context of judicial activism, this means that the judiciary must be
mindful of its role and avoid overstepping its bounds.
Public Trust:
The judiciary's legitimacy and effectiveness depend on public trust. If the public perceives the judiciary as being too
activist or partisan, it can erode public confidence in the courts and undermine the rule of law.
Balancing Judicial Activism and Restraint
Judicial Review:
Judicial review, the power of courts to review laws and government actions for constitutionality, is a crucial aspect of
judicial activism. However, it must be exercised judiciously, with a recognition of the limits of judicial power.
Self-Restraint:
Judicial self-restraint involves judges being mindful of the potential impact of their decisions and deferring to the
other branches of government when appropriate. This helps to maintain the balance of power among the three
branches of government.
Constitutional Framework:
Judicial activism must operate within the framework of the constitution and respect the roles and responsibilities of
other branches of government.
Striking a Balance:
The challenge lies in striking a balance between judicial activism and restraint. While judicial activism can be a
powerful tool for promoting justice and social progress, it must be tempered with a commitment to the rule of law and
the principles of democracy.
EXTRA

Institutional liability of courts refers to the accountability of the judicial system for its actions. This
includes ensuring that the courts operate within the bounds of the law and adhere to ethical standards. Courts
can be held liable for actions such as judicial misconduct, violation of due process, or failure to provide fair
and impartial decisions.
Courts can be held accountable through mechanisms such as judicial review, where higher courts
assess the decisions of lower courts, and through disciplinary actions against judges who engage in
misconduct. Additionally, courts can be subject to civil lawsuits for actions that result in harm or injustice to
individuals or groups.
Judicial Activism: Scope and Limits
Scope: Judicial activism refers to when judges are willing to interpret the law broadly and make decisions
that go beyond the literal interpretation of statutes. This can involve addressing societal issues and shaping
public policy through their rulings. The scope of judicial activism can extend to areas such as civil rights,
environmental protection, and social justice.
Limits: While judicial activism can be a tool for promoting justice, it is important for judges to respect the
separation of powers and not overstep their constitutional authority. The limits of judicial activism are often
debated, with critics arguing that it can undermine the democratic process by allowing unelected judges to
make policy decisions. However, proponents argue that it is necessary for addressing societal injustices that
may not be adequately addressed by the legislative branch.
In conclusion, while courts can be held institutionally liable for their actions, judicial activism
operates within a scope that involves interpreting the law broadly to address societal issues, but it is also
subject to limits to ensure the balance of powers within the government.

Structural Challenges
The Indian judiciary faces significant structural challenges including high pendency rates, judicial
vacancies, and inadequate infrastructure. These issues contribute to delays in justice delivery and erode
public confidence in the system. Additionally, concerns exist regarding judicial appointments, corruption,
and the need for greater transparency and accountability.
Key Structural Challenges:
High Pendency of Cases:
A major hurdle is the immense backlog of cases, particularly at the lower levels of the judiciary. This leads
to prolonged waiting periods for litigants, causing frustration and undermining the system's credibility.
Judicial Vacancies:
Shortages of judges across all court levels, especially in subordinate courts, contribute to delays and
increased workloads for existing judges.
Inadequate Infrastructure:
Insufficient funding and poor infrastructure, including outdated courtrooms and lack of basic facilities,
hinder the efficient functioning of the judiciary.
Appointment System:
The collegium system for judicial appointments has been criticized for its lack of transparency.
Corruption and Ethical Issues:
Allegations of corruption, bribery, and favoritism within the judiciary erode public trust and undermine the
principle of impartial justice.
Lack of Diversity:
Many courts lack adequate representation of women and minority groups, raising concerns about fairness
and inclusivity.
Limited Access to Justice:
Marginalized and impoverished individuals often face significant barriers to accessing the courts due to cost,
distance, and lack of awareness.
Under-Trial Prisoners:
A large number of individuals awaiting trial in Indian prisons highlights issues with the criminal justice
system.
Judicial Activism vs. Judicial Restraint:
The judiciary's role and its engagement with other branches of government are ongoing areas of discussion
and debate, particularly in relation to judicial activism.
Slow Adoption of Technology:
While there is increasing recognition of the need for technology adoption, the judiciary has been slow to
embrace digital solutions for case management and other processes.
Lack of Public Awareness:
Limited public awareness about court procedures and legal rights contributes to under-utilization of the
judicial system.

[Judicial Precedent
Precedents are past judicial decisions that serve as a source of law for future cases.
Stare Decisis (“to stand by things decided”).
Source of Law (Art 141)
Binding Precedent
Persuasive Precedent
Material Facts

Importance of Precedents
Consistency and Predictability
Stability
Efficiency
Development of Law
Filling Gaps in Legislation
Adapting Law to New Circumstances
Providing Detailed Application of Broad Principles
Hierarchy and Authority
Limitations and Flexibility

Ratio Decidendi
The term ratio decidendi is a Latin phrase which means ‘the reason for deciding’.
It refers to the essential legal principle or rule of law upon which a court's decision in a particular case is
based.

What Constitutes the Ratio Decidendi

Legal Reasoning- by the judge to reach the conclusion/ judgment on the key legal issue in the case.
Application of Law to Material Facts: emerges from the application of relevant legal principles and statutes
to the crucial facts of the case as determined by the court.
The Binding Element: the ratio decidendi is the binding part of the judgment under the doctrine of stare
decisis. Lower courts within the same hierarchy are obligated to follow the ratio decidendi of higher courts.

Key characteristics of ratio decidendi

Essential to the Decision: It must be a necessary part of the reasoning that led to the outcome of the case.
If the legal principle were different, the decision would likely have been different.
Deals with a Point of Law: The ratio decidendi addresses a disputed point of law that was central to the case.
Arises from the Material Facts: It is derived from the specific material facts (legally significant facts) of the
case.
Intended to Guide Future Cases: It lays down a principle that is meant to be applied in subsequent similar
cases.

Not the Entire Judgment: It's crucial to understand that the ratio decidendi is only a part of the judge's
written opinion.
The judgment also contains:
Statement of Facts: The court's determination of the relevant events that led to the legal dispute.
Review of Arguments: A summary of the legal arguments presented by the parties.
Obiter Dicta: Incidental remarks, hypothetical scenarios, or expressions of opinion on points not directly
necessary for the decision. These are persuasive but not binding.
The Order: The final directive of the court (e.g., judgment for the plaintiff, dismissal of the claim).

Challenges in Identifying the Ratio Decidendi:

It involves interpretation and analysis.
No Explicit Statement: Judges rarely explicitly label a specific part of their judgment as the “ratio
decidendi.” It's up to subsequent courts and legal analysts to extract it.
Multiple Reasons for a Decision: A judge might offer several lines of reasoning to support the final decision.
It can be difficult to determine which of these reasons, or combination thereof, constitutes the essential
basis.
Broad or Narrow Phrasing: The ratio decidendi can be stated in broader or narrower terms. Subsequent
courts need to determine the appropriate level of generality at which the principle should be applied to new
facts.
Concurring and Dissenting Opinions: In cases with multiple judges, different judges might agree on the
outcome but have different reasons for their decisions (concurring opinions). Dissenting opinions offer
alternative legal reasoning that is not binding but can be persuasive in future cases or influence the
development of the law. Identifying the ratio becomes more complex when the majority's reasoning isn't
entirely unified.

Distinguishing Material Facts: Determining which facts of the original case were considered “material”
(legally significant and essential to the reasoning) and which were merely “background” can be subjective
and crucial for applying the ratio to new cases with potentially different factual scenarios.
Obiter Dicta Masquerading as Ratio: Sometimes, persuasive but non-binding statements (obiter dicta) can be
difficult to distinguish from the core reasoning.

Overruling Precedent: Higher courts have the power to overrule their own previous decisions or the
decisions of lower courts. This occurs when the previous precedent is deemed to be wrongly decided or no
longer reflects current legal or social values. Overruling a case nullifies its ratio decidendi.
Conclusion: The ratio decidendi is the cornerstone of the common law system's reliance on precedent.
It represents the binding legal principle derived from a judicial decision based on its material facts.
While identifying it can be a complex process requiring careful analysis and interpretation, understanding
the ratio decidendi is essential for comprehending how legal principles are established, applied, and evolve
over time.
It ensures a degree of stability and predictability in the law while allowing for necessary adaptation to new
circumstances.
How to identify the ratio decidendi

Arthur L. Goodhart’s
RD is to be found by looking at the material facts of the case as seen by the judge, and the decision
based on those facts.
 Identify the Material Facts
 Disregard Immaterial Facts
 Focus on the Decision
 The Judge's Own Reasons are Not Necessarily the Ratio
 Hypothetical test (implied)

Criticism
 Difficulty in Identifying ‘Material’ Facts
 Role of Reasoning
 Too Narrow
 Contribution
 It provided a pragmatic and empirical approach to finding the ratio, moving away from purely abstract
pronouncements.
 It emphasized the fact-sensitive nature of common law precedent.
It significantly influenced how legal academics and practitioners analyze and apply precedents. It
highlighted the distinction between the binding ratio decidendi and the persuasive obiter dicta.
It stimulated ongoing debate about the nature of judicial decision-making and the doctrine of precedent.
Wambaugh's Test-Inversion Test
The Steps of the Inversion Test:
Frame the Supposed Proposition of Law: Carefully articulate the legal rule that you believe the judge
applied in reaching their decision.
Reverse the Meaning: Insert a word or phrase that reverses the meaning of this supposed proposition of law.
Essentially, create the opposite legal rule.
Inquire About the Outcome: Ask whether, if the court had conceived this new, reversed proposition to be
good law and had it in mind, the decision in the case could have been the same.

4. Determine the Ratio:

If the answer is affirmative (the decision could have been the same even with the reversed rule): Then the
original proposition, however excellent it may seem, is not the ratio decidendi of that case. It is likely obiter
dictum (a non-binding remark).
If the answer is negative (the decision would have been different if the reversed rule had been
applied): Then the original proposition is the ratio decidendi (or at least a crucial part of it) because it was
essential to the outcome of the case.

Purpose and Merits of Wambaugh's Test:

Identifying Essential Principles: The test helps to isolate the legal principles that were truly necessary for the
court's decision.
Distinguishing Ratio from Obiter: It provides a tool for differentiating the binding parts of a judgment from
non-binding remarks.
Focus on Outcome-Determinative Reasoning: It emphasizes that the ratio is the legal rule that directly
influenced the result of the case based on its material facts.
Limitations of Wambaugh's Test
Difficulty in Framing Propositions: Accurately framing the supposed proposition of law can be challenging
and may influence the outcome of the test.
Complex Cases: In cases with multiple issues or lines of reasoning, applying the test to each potential
proposition can become complicated.
Focus on the Rule, Less on Reasoning: Some critics argue that the test focuses more on the rule itself and
less on the judge's underlying reasoning and policy considerations, which are also important for
understanding the scope of a precedent.
Not Always Used Explicitly: Courts rarely explicitly use Wambaugh's Test in their judgments. It's more of
an analytical tool for legal scholars and practitioners.

‘Obiter dictum’
“a remark by the way” or “something said in passing.”
In legal contexts, it refers to statements or remarks made by a judge in a court opinion that are not essential
to the decision of the case.
These remarks are incidental to the main reasoning (the ratio decidendi) and do not form part of the binding
precedent.
Key Characteristics
Non-Essential to the Decision: the case could have been decided in the same way without the judge making
that particular statement.
Incidental Remarks: These are comments, observations, illustrations, or hypothetical scenarios discussed by
the judge that go beyond what is strictly necessary to resolve the legal issues before the court based on the
facts presented.
Not Binding Precedent
Persuasive Authority: Although not binding, obiter dicta can still be persuasive authority, especially if the
judge is highly respected or the reasoning is compelling. Later courts may choose to adopt the views
expressed in obiter dicta.
Variety of Forms
Hypothetical Situations
Broader Legal Principles
Historical Context or Legal Scholarship
Comments on Related Cases or Statutes
Personal Views or Policy Considerations
Importance and Use of Obiter Dicta
Providing Guidance
Influencing Future Legal Development
Clarifying the Court's Reasoning
Highlighting Potential Issues

Constitutional Adjudication
The process by which the Supreme Court and the High Courts interpret, apply, and uphold the provisions of
the Indian Constitution, ensuring that all legislative and executive actions comply with the supreme law of
the land.
It’s a fundamental aspect of India’s democratic system, rooted in the principles of judicial review and
constitutional supremacy.
Constitutional Supremacy- The Constitution is the highest law, and any law or governmental action
inconsistent with it is null and void.

Judicial Review -Supreme Court (Art- 32, 131-136)

High Court (Art-226-227)
Review legislative enactments: To check if laws passed by Parliament or state legislatures violate any
constitutional provision, particularly Fundamental Rights.
Review executive actions: To ensure that executive orders, policies, and administrative decisions conform to
the Constitution and existing laws.
Review constitutional amendments -Post Kesavananda Bharati’s case, the Supreme Court can even review
constitutional amendments if they violate the “Basic Structure” of the Constitution.
Judicial Activism and Public Interest Litigation
Judicial Activism

Key Aspects of Constitutional Adjudication

 Interpretation of Constitutional Provisions
 Evolving Nature
 Harmonious Construction
 Pith and Substance
 Spirit vs. Letter
 Role of Constitutional Benches
 Under Article 145(3) of the Constitution, any case involving a “substantial question of law as to the
interpretation of the Constitution” must be heard by a Bench of at least five judges (known as a
Constitution Bench)… leading to more authoritative pronouncements.

Balancing Fundamental Rights and Directive Principles

Federal Disputes
Protection of Minority Rights and Vulnerable Sections
Judicial Accountability and Self-Correction
The Supreme Court has the power to review its own judgments (Article 137). This allows for course
correction and evolution of legal principles based on new insights or societal changes.
While the judiciary enjoys significant independence, it also faces scrutiny and criticisms regarding judicial
overreach or delays.

Challenges/ Debates -Constitutional Adjudication

Backlog of Cases
Judicial Overreach vs. Judicial Activism
Composition of Benches-Debates arise regarding the Chief Justice's power to constitute benches and assign
cases, particularly sensitive constitutional matters.
Clarity and Consistency-While aiming for consistency, constitutional interpretations can sometimes evolve
or even appear contradictory over time, leading to legal uncertainty
Political Implications- sometimes leading to friction between the judiciary and other branches of
government.
Is a dynamic and powerful process central to its democratic governance.
Judicial Review In India
Parliament added the Ninth Schedule to the Constitution through the very first amendment in 1951 as a
means of immunizing certain laws against judicial review.
Article 31
Ninth Schedule – pertaining to acquisition of private property and compensation payable for such
acquisition -- cannot be challenged in a court of law on the ground that they violated the fundamental rights
of citizens. This protective umbrella covers more than 250 laws passed by state legislatures with the aim of
regulating the size of land holdings and abolishing various tenancy systems.

A.K.Gopalan case...
Shankari Prasad v. Union of India (AIR 1951 SC 455)
Sajjan Singh v. State Of Rajasthan 1965 AIR 845
SC rejected both arguments and upheld the power of Parliament to amend any part of the Constitution
including that which affects the fundamental rights of citizens.
GolakNath v. State of Punjab, AIR 1967 SC 1643
11 Judge Bench; 6:5
amendment under Art 368 is an ordinary ‘law’ within the meaning of Article 13(2) of the Constitution.
‘Doctrine of Prospective overruling’

CJ Subba Rao- Article 368 did not confer upon Parliament the power to amend the Constitution. The
amending power (constituent power) of Parliament arose from other provisions contained in the Constitution
(Articles 245, 246, 248) which gave it the power to make laws (plenary legislative power). Thus, the apex
court held that the amending power and legislative powers of Parliament were essentially the same.
Therefore, any amendment of the Constitution must be deemed law as understood in Article 13 (2)
The majority judgment invoked the concept of implied limitations on Parliament's power to amend the
Constitution.

Constitution gives a place of permanence to the fundamental freedoms of the citizen. In giving the
Constitution to themselves, the people had reserved the fundamental rights for themselves.
Article 13, according to the majority view, expressed this limitation on the powers of Parliament. Parliament
could not modify, restrict or impair fundamental freedoms due to this very scheme of the Constitution and
the nature of the freedoms granted under it. The judges stated that the FR were so sacrosanct and
transcendental in importance that they could not be restricted even if such a move were to receive
unanimous approval of both houses of Parliament. They observed that a Constituent Assembly might be
summoned by Parliament for the purpose of amending the fundamental rights if necessary.

SC- some features of the Constitution lay at its core and required much more than the usual procedures to
change them.
The phrase ‘Basic Structure' was introduced for the first time by M.K. Nambiar and other counsels while
arguing for the petitioners in the Golaknath case, but it was only in 1973 that the concept surfaced in the text
of the apex court's verdict.
RC Cooper v. UIO (1970) 1 SCC 248
Bank Nationalization
H.H. Maharajaadhiraja Madhavan Rao v. UIO 1971 AIR 530
Privy Purse derecognisation
FR jealously guarded by an affluent class

Keshavananda Bharti vs.State of kerela

[ 1973] AIR 1461( SC)
7:6- Basic structure theory
Overruled golaknath

Indira Nehru Gandhi vs. Raj Narayan [ 1980] AIR 1789(SC)

Judicial Activism
Keshavananda Bharti vs.State of Kerela AIR 1973 SC 1461
Basic Structure theory- 13 judges, Chief Justice S.M.Sikri, Justices J.M. Shelat, K.S.Hedge, A.N. Grover,
B. Jaganmohan Reddy, D.G. Palekar, H.R.Khanna, A.K. Mukherjee and Y.V.Chandrachud (minority opion)
A.N. Ray, K.K. Mathew, M.H. Beg and S.N. Dwivedi
Sikri, C.J. explained that the concept of basic structure included:
• Supremacy of the Constitution
• Republican and democratic form of government
• Secular character of the Constitution
• Separation of powers between the legislature, executive and the judiciary
• Federal character of the Constitution

Article 368 to 'damage', 'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the 'basic structure' or framework
of the Constitution

Shelat, J. and Grover, J. added two more basic features to this list:
• The mandate to build a welfare state contained in the Directive Principles of State Policy
• Unity and integrity of the nation
Hegde, J. and Mukherjea, J. identified a separate and shorter list of basic features:
• Sovereignty of India
• Democratic character of the polity
• Unity of the country
• Essential features of the individual freedoms secured to the citizens
• Mandate to build a welfare state

Jaganmohan Reddy, J. - elements of the basic features were to be found in the Preamble of the Constitution
and the provisions into which they translated such as:
• sovereign democratic republic
parliamentary democracy
three organs of the State
J. A.N. Ray, J.M.H. Beg, J. K.K. Mathew and J. S.N. Dwivedi
All of them agreed that Parliament could make fundamental changes in the Constitution by exercising its
power under Article 368.
the majority verdict recognised the power of Parliament to amend any or all provisions of the Constitution
provided such an act did not destroy its basic structure. But there was no unanimity of opinion about what
appoints to that basic structure.

J. H.R. Khanna, democracy is a basic feature of the Constitution and includes free and fair elections.
J. K.K. Thomas held that the power of judicial review is an essential feature.
Justice Y.V. Chandrachud listed four basic features which he considered unamendable:
sovereign democratic republic status
equality of status and opportunity of an individual
secularism and freedom of conscience and religion
‘Government of laws and not of men’ i.e. the rule of law

Indira Nehru Gandhi vs. Raj Narayan [ 1980] AIR 1789 (SC)
Electoral Mal Practice -1975 Allabhad HC upheld
Justice Krishna Iyer, granted a stay that allowed Smt. Indira Gandhi to function as Prime Minister on the
condition that she should not draw a salary and speak or vote in Parliament until the case was decided.
Thirty-ninth amendment removed the authority of the Supreme Court to adjudicate petitions regarding
elections of the President, Vice President, Prime Minister and Speaker of the Lok Sabha.
Amendments were also made to the Representation of Peoples Acts of 1951 and 1974 and placed in the
Ninth Schedule along with the Election Laws Amendment Act, 1975
Minerva Mills Ltd. v UIO (1980) 3 SCC 625.
Unlimited amending powers with the parliament.
The attempt to immunise constitutional amendments against judicial review violated the doctrine of basic
structure which had been recognised by the Supreme Court in the Kesavananda Bharati and Indira Gandhi
Election Cases.
Amended Article 31C was constitutionally bad as it violated the Preamble of the Constitution and the
fundamental rights of citizens. It also took away the power of judicial review.

Maneka Gandhi v. UOI AIR 1978 SC 597

Broader interpretation of the FR guaranteed by the Constitution
Right to life & personal liberty under Art 21 has gradually become a repository of HR & fundamental
freedoms in India.

Mohammed Ahmed Kahn v. Shah Bano Begum, AIR 1985 SC 945

Can a divorced Muslim woman claim maintenance?
Marked the beginning of an ugly era of religious fundamentalists
-Islam & right-wing Hindu groups.
Paved way for more laws, policies for women and children

Indira Sawhney v. UIO AIR 1993 SC 477

The 9 judges Bench of the by 6-3 majority :-
1. Backward class of citizen in Art 16(4) can be identified on the basis of the caste system & not only on
economic basis.
2. Art 16(4) is not an exception of Art16(1). It is an instance of the classification. Reservation can be made
under article16(1)
3. Backward classes in A-16(4) were not similar to as socially & educationally backward in article 15(4).
4.Creamy layer must be excluded from the backward classes.
5. A-16(4) permits classification of backward classes into backward & more backward classes.
6. A backward class of citizens cannot be identified only & exclusively with reference to economic criteria.
7. Reservation shall not exceed 50%.
8. Reservation can be made by the ‘EXECUTIVE ORDER’.
9. No reservation in promotion.
10. Permanent Statutory body to examine complains of over – inclusion / under – inclusion.
11. Majority held that there is no need to express any opinion on the correctness or adequacy of the exercise
done by the MONDAL COMMISSION.
12. Disputes regarding new criteria can be raised only in the Supreme Court.

Why Judicial Activism

 Failure of govt machineries or governance
 No alternative left, except judiciary
 Filling legislative vacuum
 Faith of Public on judicial system
 Authoritative

cases
 Ologa Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180
A milestone in the recognition of 2nd generation HR by courts.
Right to shelter was a FR; elevating them to the level of positive duties to be performed by the
state.
 Union Carbide Corporation v. UIO AIR 1992 SC 248
 M.C.Mehta v. UIO AIR 1987 SC 965 (oleum gas leakage case)
 Mass tort action
Principle of Absolute liability
 Nilabati Behera v. State of Orissa AIR 1993 SC 1960
 Vishaka v. State of Rajasthan AIR 1997 SC 3011
 PIL’s and Judicial Activism (environment, public safety, police actions etc)

Judicial Restraint
 Interpretation of law
 Making Law
 Technical propositions
 DPSP
 Administrative actions and Procedures
 Personal Laws
 Cultural norms, traditions (exceptions)
 Separation of powers

Judicial Overreach
 Striking down of NJAC bill
 River linking project
 Policy matters (National anthem, retirement age, paper advertisement (public money),sports body,
making new laws)
 Marriage

 Water disputes ]

UNIT IV
Legislation as a source of law and its relation with other sources of law
Legislation, the process of lawmaking by a competent authority, is a primary source of law in modern legal
systems. It encompasses the enactment, amendment, or repeal of laws by legislative bodies. Legislation interacts with
other sources of law like custom, precedent, and religious or ethical principles, sometimes supplementing, sometimes
conflicting with them.
Legislation as a Source of Law:
Definition:
Legislation is the process where a competent authority (like a parliament or council) creates laws in a formal, written
document.
Importance:
In modern times, legislation is considered the most important source of law due to its formal and organized nature,
backed by the authority of the state.
Types of Legislation:
Supreme Legislation: Laws enacted by the sovereign power (e.g., parliament) without external control.
Subordinate Legislation: Laws created by other bodies under delegated authority from the sovereign (e.g., rules made
by government ministries).
Relationship with other Sources:
Custom: Legislation can codify or modify existing customs, or it can invalidate customs that are inconsistent with
statutory law.
Precedent: Courts interpret and apply legislation, and their decisions (precedents) can clarify the meaning of the law
and influence future cases, but they cannot contradict the legislation itself.
Religion/Ethics: Legislation may reflect or be influenced by religious or ethical principles, but it is ultimately subject
to the authority of the state and its legislative processes.
Advantages of Legislation:
Clarity and Certainty: Legislation provides clear and written rules, reducing ambiguity.
Systematic and Organized: Legislation is structured and systematically arranged, making it easier to understand and
apply.
Flexibility and Adaptability: Legislation can be amended or repealed to adapt to changing social needs.
Efficiency: Legislation can be enacted relatively quickly compared to other sources like custom.
Disadvantages of Legislation:
Rigidity: Legislation can be inflexible and difficult to change quickly.
Complexity: Legislation can be complex and difficult to understand, especially subordinate legislation.
Potential for Abuse: If not properly checked, legislation can be used to create unjust or oppressive laws.
In essence, legislation is a powerful source of law that interacts with and shapes other sources, providing a
structured and adaptable framework for regulating society.

Supreme legislation
In jurisprudence, supreme legislation refers to laws enacted by the highest law-making body within a state,
which is typically the sovereign or parliament. These laws are considered supreme because they cannot be repealed,
amended, or controlled by any other authority within that jurisdiction. They are the foundational laws upon which
other subordinate laws are based.
Here's a more detailed explanation:
Key Characteristics of Supreme Legislation:
Sovereign Authority:
Supreme legislation originates from the supreme law-making body, such as the parliament in India.
No External Control:
 It is not subject to revision, alteration, or control by any other legislative body within the same legal system.
Foundation of Law:
Supreme legislation forms the basis upon which all other laws are enacted and interpreted.
Examples of Supreme Legislation:
In India, the Indian Parliament is the supreme legislative body, and laws passed by it are considered supreme
legislation.
Other examples include the laws passed by the supreme legislative bodies of other independent and sovereign states.
Contrast with Subordinate Legislation:
Subordinate legislation: is created by authorities other than the sovereign power, often under powers delegated
by the supreme legislative body.
Subordinate legislation: is subject to the control and potential repeal by the supreme legislative body.
Examples of subordinate legislation include rules and regulations made by government departments, local
authorities, or other bodies with delegated powers.

Law-making indian parliament

The Indian Parliament, composed of the Lok Sabha (House of the People) and the Rajya Sabha (Council of
States), is the supreme legislative body responsible for law-making in India. The process begins with the
introduction of a Bill in either house, and it becomes law only after passing both houses and receiving
Presidential assent.
Here's a more detailed breakdown:
1. Introduction of a Bill:
A Bill, which is a draft law, can be introduced by a Minister (Government Bill) or a Member of Parliament
who is not a Minister (Private Member's Bill).
2. Stages in Each House:
First Reading: Introduction of the Bill.
Second Reading: This involves detailed discussion on the Bill's principles and clauses. Committees may
examine the Bill and suggest amendments. Public opinion can also be sought.
Third Reading: A final vote is taken on the Bill.
3. Passage and Assent:
If a Bill is passed by one House, it is sent to the other House for consideration.
Once both Houses pass the Bill in identical form, it is sent to the President for assent.
The President can either give assent (making it a law), withhold assent, or return the Bill for reconsideration.
If the Parliament re-passes the Bill with or without amendments, the President must give assent.
4. Types of Bills:
Ordinary Bills: Cover general legislative matters.
Money Bills: Deal with financial matters like taxation and government expenditure. The Lok Sabha has
special powers regarding Money Bills.
Financial Bills: Related to financial matters but not exclusively covered by Money Bills.
Constitution Amendment Bills: Used to amend the Constitution and require special procedures.
5. Key Aspects:
Parliamentary Committees: Standing Committees examine Bills in detail and provide reports to the Houses.
Public Participation: The public can provide feedback on Bills through various mechanisms.
State Legislatures: State Legislative Assemblies and Councils (where they exist) also have law-making
powers, particularly on subjects listed in the State List and Concurrent List of the Constitution

Interaction between law and public opinion

The Indian Parliament's law-making process is a multi-stage procedure involving the introduction of a bill,
debates, committee reviews, and presidential assent. Public opinion significantly influences this process
through various channels, including consultations, media scrutiny, and post-legislative feedback.
Law Making Process in the Indian Parliament:
1. Introduction of a Bill:
A bill, which is a draft law, can be introduced by a minister (Government Bill) or a private member (Private
Member's Bill) in either house of Parliament (Lok Sabha or Rajya Sabha).
2. First Reading:
The bill is introduced, and its objectives and principles are discussed.
3. Second Reading:
Detailed scrutiny of the bill, clause by clause, takes place. Amendments can be proposed and debated.
4. Committee Stage:
The bill may be referred to a Select Committee (for one house) or a Joint Committee (for both houses) for
further examination. These committees can consult experts and public bodies and make recommendations.
5. Third Reading:
The bill, as amended by the committee (if referred), is debated and voted upon.
6. Passage in the Other House:
The bill then goes through the same process in the other house of Parliament.
7. Presidential Assent:
Once passed by both houses, the bill is presented to the President for assent, after which it becomes law.
Interaction with Public Opinion:
Pre-Legislative Consultation:
Before a bill is introduced, the government often consults with stakeholders, including experts, industry
bodies, and the public, to gather feedback on the proposed legislation.
Media and Public Discourse:
The media plays a crucial role in shaping public opinion on proposed laws. Public debates and discussions in
the media can influence public perception and exert pressure on lawmakers.
Committee Hearings:
Select and Joint Committees often invite public bodies, experts, and individuals to present their views on the
bill, allowing for public participation in the legislative process.
Post-Legislative Evaluation:
Public feedback and criticism on enacted laws are also taken into account during the post-legislative stage,
which can lead to future amendments or repeals.
Public Interest Litigation:
Public interest litigation (PIL) can be filed in courts to challenge the constitutional validity or
implementation of laws, further demonstrating the influence of public opinion on the legal framework.
In essence, while the formal law-making process in India is a structured procedure, public opinion plays a
significant role in shaping legislation from its initial stages through to its implementation and evaluation.

Drafting of bill
Drafting a bill involves creating the initial written text of a proposed law, which, after being passed by a
legislature and receiving assent, becomes an Act. The process starts with identifying a need for new
legislation or an amendment, and then the relevant ministry or department prepares the draft. This draft is
then reviewed and approved by the relevant minister before being introduced to the legislature.
Here's a more detailed breakdown:
1. Policy Formulation:
The process begins with a policy decision by the relevant ministry or department.
This policy is often documented in a cabinet paper and approved by the cabinet.
The policy should address the problem, desired outcome, and how the existing law needs to be changed.
2. Drafting Instructions:
The ministry provides detailed instructions to the Chief Parliamentary Counsel (CPC) outlining the policy
objectives and how the bill should be drafted.
These instructions should include background information, details of the existing law, and any relevant
consultations.
3. Bill Drafting:
The CPC, or a legislative drafter, translates the policy into legal language, ensuring the bill is legally sound
and practical.
This involves analyzing the instructions, developing a legislative plan, and drafting the bill.
The draft bill is then submitted to the ministry for review and approval.
4. Approval and Introduction:
The ministry reviews the draft and, if satisfied, requests the Attorney General's certificate.
After the Attorney General's approval, the bill is submitted to the cabinet for approval to be introduced in
Parliament.
The bill is then introduced in the legislature, where it undergoes various readings and debates before being
voted on.
5. Enactment:
If the bill is passed by both houses of the legislature, it is sent to the President for assent.
The bill becomes an Act of Parliament after receiving Presidential assent.
Finally, the Act is published in the official Gazette, making it operational.
Key elements of a bill's structure:
Short title: A concise and easily understandable name for the bill.
Long title: A more detailed description of the bill's purpose.
Preamble: A statement of the reasons for enacting the law, if necessary.
Enacting formula: The formal statement that declares the bill is enacted as law.
Operative sections: The core provisions of the bill that define its legal effect.
Definition clause: A section that clarifies the meaning of specific terms used in the bill.
Exceptions and exemptions: Provisions that specify situations where the law does not apply.
Procedural provisions: Rules about how the law will be implemented.
Penal clauses: Provisions that specify penalties for violating the law.
Power to delegate: Provisions that allow the government to delegate certain powers.
Saving clauses: Provisions that preserve existing rights and obligations.
Drafting a bill is a complex process involving multiple stages, consultations, and approvals. The goal is to
create a well-drafted, legally sound, and effective piece of legislation that achieves its intended purpose.

Subordinate legislation and types of Subordinate legislation

Subordinate legislation, also known as delegated legislation, refers to laws made by bodies other than the primary
legislature (like Parliament) but with the legislature's authorization. It allows the executive branch or other bodies to
create detailed rules and regulations for implementing and administering broader Acts of Parliament. Common
examples of subordinate legislation include rules, regulations, orders, schemes, and bye-laws.
Types of Subordinate Legislation:
Executive Legislation:
The most common type, where the legislature delegates rule-making power to the executive branch (e.g., government
departments).
Judicial Legislation:
Rule-making power delegated to the judiciary for regulating their own procedure.
Municipal Legislation:
Rules and bye-laws made by local authorities (municipalities) for their respective areas.
Autonomous Legislation:
Private entities like universities or corporations may be authorized to create bye-laws governing their internal affairs.
Colonial Legislation:
In the past, colonial legislatures were granted limited autonomy by the British Parliament.
Regulations made by the Governor in Council:
In some jurisdictions, the Governor in Council (or equivalent) has the power to make regulations.
Proclamations:
Proclamations may be used to bring specific provisions of an Act into force.
Local Laws:
Regulations specific to a particular locality.
Rules and By-laws:
These are commonly used instruments of subordinate legislation.

Major rules of Interpretation of statutes

The primary rules for interpreting statutes include the literal rule, the golden rule, the mischief rule, and the rule of
harmonious construction. These rules help courts determine the true meaning and intent of a law when its wording is
unclear or ambiguous.
Here's a breakdown of the key rules:
1. Literal Rule (or Plain Meaning Rule): This rule emphasizes giving words their ordinary and natural meaning as they
appear in the statute. The court's role is to apply the law as written, without adding or subtracting from its plain
meaning. This rule is favored when the language is clear and unambiguous.
2. Golden Rule: When the literal meaning leads to an absurd or unreasonable result, the golden rule allows for a
modification of the meaning to avoid such an outcome. It's a departure from the literal rule, used when the plain
meaning creates an illogical or unjust outcome.
3. Mischief Rule: This rule focuses on the "mischief" or problem that the statute was intended to address. It allows
courts to interpret the law in a way that suppresses the mischief and advances the remedy intended by the legislature.
This rule is often used when the statute's purpose is not immediately clear from the wording alone.
4. Harmonious Construction: This principle suggests that when interpreting a statute, courts should strive to reconcile
different provisions and avoid conflicts between them. The goal is to ensure that all parts of the statute work together
to create a consistent and coherent whole.
Other important concepts in statutory interpretation:
Ejusdem Generis:
This rule applies when general words follow specific words in a list. The general words are then interpreted as being
limited to the same kind or class as the specific words.
Reading Down:
This principle allows courts to interpret a statute in a way that avoids invalidity or unconstitutionality.
Noscitur a Sociis:
This Latin maxim means "it is known by the company it keeps." It suggests that the meaning of a word can be
determined by the words surrounding it.
Purposive Approach:
This approach emphasizes understanding the purpose or intent behind the statute when interpreting its provisions.
Internal and External Aids:
Courts may also use internal aids (like the preamble or headings) and external aids (like legislative history) to help
interpret statutes, according to LegalCyfle.
Literal rule
 It is the first rule of interpretation. According to this rule, the words used in this text are to be
given or interpreted in their natural or ordinary meaning. After the interpretation, if the meaning is
completely clear and unambiguous then the effect shall be given to a provision of a statute regardless of
what may be the consequences.
The basic rule is that whatever the intention legislature had while making any provision it has been
expressed through words and thus, are to be interpreted according to the rules of grammar. It is the safest
rule of interpretation of statutes because the intention of the legislature is deduced from the words and the
language used.
According to this rule, the only duty of the court is to give effect if the language of the statute is
plain and has no business to look into the consequences which might arise. The only obligation of the
court is to expound the law as it is and if any harsh consequences arise then the remedy for it shall be
sought and looked out by the legislature.
Maqbool Hussain v. State of Bombay, In this case, the appellant, a citizen of India after arriving at the
airport did not declare that he was carrying gold with him. During his search was carried on, gold was
found in his possession as it was against the notification of the government and was confiscated under
section 167(8) of Sea Customs Act.
Later on, he was also charged under section 8 of the Foreign Exchange Regulations Act, 1947. The
appellant challenged this trial to be violative under Article 20(2) of the Indian Constitution. According to
this article, no person shall be punished or prosecuted more than once for the same offence. This is
considered as double jeopardy.
It was held by the court that the Seas Act neither a court nor any judicial tribunal. Thus, accordingly, he
was not prosecuted earlier. Hence, his trial was held to be valid.
Manmohan Das versus Bishan Das, AIR 1967 SC 643
The issue in the case was regarding the interpretation of section 3(1)(c) of U.P Control of Rent and
Eviction Act, 1947. In this case, a tenant was liable for evidence if he has made addition and alternate in
the building without proper authority and unauthorized perception as materially altered the
accommodation or is likely to diminish its value. The appellant stated that only the constitution can be
covered, which diminishes the value of the property and the word 'or' should be read as land.
Code for possessing counterfeit currency. The accused contended before the court that a charge under
section 498A and 498B of Indian Penal Code can only be levied in the case of counterfeiting of Indian
currency notes and not in the case of counterfeiting of foreign currency notes. The court held that the
word currency notes or bank note cannot be prefixed. The person was held liable to be charge-sheeted.
extra
 In construing statutes the cardinal rule is to construe its provisions literally and grammatically giving
the words their ordinary and natural meaning. This rule is also known as the plain meaning rule.
 According to the primary rule, the words, phrases and sentences of a statute are to be understood in
their natural, ordinary or popular and grammatical meaning, unless such a construction leads to an
absurdity or the statute suggests a different meaning.
 The words ‘natural’, ‘ordinary’ and ‘popular’ are used interchangeably. They mean the grammatical or
literal meaning, except when there are technical words.
Some of the other basic principles of literal construction are:
 Every word in the law should be given meaning as no word is unnecessarily used.
 One should not presume any omissions and if a word is not there in the Statute, it shall not be given
any meaning.
The first and most elementary rule of constructions is that the words and phrases of technical
legislation are used in their technical meaning if they have acquired one, and otherwise in their
ordinary meaning, and the second is that the phrases and sentences are to be construed according to
the grammar rule.
If there is nothing to modify, alter or qualify the language which the statute contains, it must be
construed in the ordinary and natural meaning of the words and sentences. Nothing is to be added to
or taken from a statute unless there are adequate grounds to justify the interference.

Golden rule
It is known as the golden rule because it solves all the problems of interpretation. The rule says that
to start with we shall go by the literal rule, however, if the interpretation given through the literal rule leads
to some or any kind of ambiguity, injustice, inconvenience, hardship, inequity, then in all such events the
literal meaning shall be discarded and interpretation shall be done in such a manner that the purpose of the
legislation is fulfilled.
The literal rule follows the concept of interpreting the natural meaning of the words used in the
statute. But if interpreting natural meaning leads to any sought of repugnance, absurdity or hardship, then
the court must modify the meaning to the extent of injustice or absurdity caused and no further to prevent
the consequence.
This rule suggests that the consequences and effects of interpretation deserve a lot more important
because they are the clues of the true meaning of the words used by the legislature and its intention. At
times, while applying this rule, the interpretation done may entirely be opposite of the literal rule, but it shall
be justified because of the golden rule. The presumption here is that the legislature does not intend certain
objects. Thus, any such interpretation which leads to unintended objects shall be rejected.

Five part analysis of the golden rule of interpretation

Whenever there is a shadow of scepticism casted on the grammatical construction of any law then in
such circumstances, the golden rule of interpretation can be applied on the law in order to apply it to the
facts in a legal dispute. The external manifestation of the underlying law which is interpreted from reading
between the lines projects the true intent of the legislature for which the golden rule is used. By taking into
consideration the consequences of the judgement, the judges have the discretion to interpret the law in a
rational manner. The analysis of Golden Rule can be divided into five categories as discussed below:

WARBURTON'S CASE
Explaining the principle underlying the Golden rule, Justice Burton in the case of Warburton v.
Loveland observed that in the very first instance of application of law the grammatical sense of the wordings
of law must be paid heed. But if there is involvement of any absurdity, inconsistency, or is against the
declared purpose of the statute then in such circumstance, the grammatical sense of the law can be modified
or interpreted so far as there is no injustice caused to the parties of the case. Even though the elementary rule
of interpreting the words as it is in their grammatical sense has been upheld by the courts in numerous cases
like Madan Lal v. Changdeo Sugar Mills, the courts should still be open to various interpretations of the
law so that no injustice is caused. This well-known rule was strictly formulated by Parke B. in the case of
Becke v. Smith wherein it was held that, the wordings of the law which are unambiguous and plain nature
should be construed in their regular sense even though, if in their assessment it is absurd or promotes
injustice. We assume the function of the legislature when we deviate from the ordinary meaning of the
statute due to which from the adherence to its literal meaning we prevent the manifestation of injustice.

LORD WENSLEYDALE'S GOLDEN RULE

The term golden rule was coined by Lord Wensleydale which was later adopted in the case of Gray
v. Pearson due to which it is primarily called the Lord Wensleydale's Golden Rule of Interpretation. Lord
Wensleydale expressing this opinion of the rule, mentioned that he is deeply awestruck with the perception
of the rule which is being universally accepted by the courts all over the world in order to understand all the
written laws, construing wills and other written frameworks. He also mentioned that the ordinary derivative
and the grammatical construction of the law should be abided by in the first instance unless there is any
absurdity or repugnancy due to which it is necessary to modify the ordinary understanding of the words. In
the case of Matteson v. Hart the golden rule was elaborately discussed by Jervis CJ where he relied on the
Golden Rule of Construction in order to understand the words used by the Legislature in the Acts and also to
prevent any absurdity and injustice which may stem from the intention of the statute.

HEYDON'S RULE OF MISCHIEF

In the Heydon's Rule of Mischief, he elaborated that only in such circumstances where the intention
of the legislature appears to be unjust, only in such cases the intervention of the office of judges in
interpreting the law is reasonable. Slightly deviating from what Lord Wensleydale has opined, instead of
viewing the legislative intent as a whole and construe it all-together, the reasons for the enactment of the
laws in retrospect should be taken into consideration so that we can derive the object it plans to subserve and
the evil it plans to end. In the case of Newspaper Ltd. v. State Industrial Tribunal, the Latin maxim "ex
visceribus actus" was cited which meant that while determining the intention of the legislation, detached
sections of parts of the Act should not be taken, instead the intention of the act as a whole which construes
the constituent parts should be considered. This principle was reaffirmed in the case of Inland Revenue
Commissioners. V. Herbert where Lord Haldane interpreted a legislation which was newly enacted and he
adjudged that "Where words of general understanding are used, the common understanding of men is one
main clue to the meaning of legislature." But the Golden Rule of Interpretation laid by Lord Wensleydale
has been a principle accepted worldwide.

LITERAL GOLDEN MISCHIEF

As described by Lord Granworth LC, this is a "Cardinal Rule" which is a rule based on common
sense which is as strong as can be" In the English cases, there are three basic rules as elucidated by GW
Paton. Those are:
1. Whatever the result, if the meaning of the wordings of law is plain then they should be applied as per the
Literal Rule.

2. Unless there is any ambiguity or absurdity in the wordings of the law, the ordinary sense of the law should
be resorted to as per the Golden Rule.
3. The general policy or intention of the statute must be considered and eliminate the evil which was
directed as per the Mischief Rule.

LATTER PART OF THE RULE

There is a lot of care which must be taken with regards to the later part of the Golden Rule and in the
case of Christopher v. Lotinga, every word of the Golden Rule was subscribed to by Justice Willes. In the
case of Woodward v. Watts, Justice Crompton expressed his doubts regarding this rule and opined that the
Legislature must have enacted the legislation with a particular intent which may be destroyed if the courts
reinterpret it due to some absurdity which defeats the whole purpose of the enactment. To understand the
applicability of the three methods of judicial approach which is the literal rule, the golden rule and the
mischief that the statute is designed for in order to prevent it, the case of Vacher v. London Society of
Compositors can be referred to. In this case, the validity of Vacher v. London Society of Compositors can be
referred to. In this case, the validity of Section 4(1) of the Trade Disputes Act, 1906 was in question as to
whether any torturous acts which are committed by the trade unions are included under the protection or is it
only such are which was torturous in nature in furtherance of any trade dispute. Deciding on the former
view, the House of Lords relied on the aforementioned three judicial approaches in which Lord
Macnaughten adopted the golden rule of interpretation which is derived from the case of Grey v. Pearson,
while Lord Atkinson espoused the literal approach which is derived from the case of Cooke v. Charles A
Vageler and lastly, the history of the enactment of the stature and the application the mischief method has
been relied upon by Lord Moulton.

Applicability and usage of golden rule of interpretation

If there is a choice between two interpretations, then the interpretation which reduces the futility or
which is narrower in nature fails to incorporate the purpose of the legislation due to which such a
construction must be avoided as discussed in the case of Nokes v Doncaster Amalgamated Collieries Ltd by
Viscount Simon L.C. Instead, we should admit the bolder form of the construction which is the intention of
the Parliament to enact the legislation only for the purpose of making the result effective. The transfer of an
undertaking which includes, property, duties, liabilities and rights from the old company to a new company
is dealt with under Section 154 of the Companies Act, 1929. In the case of Luke v. R.R.C. an issue was
raised with regards to the transfer of contract of service existing between the former company and the
individual. The House of Lords adjudged that the notice of amalgamation should be provided to the
individual. The golden rule of interpretation has been used in this case where if the prima facie meaning of
the words would be taken into consideration, then no consent would be required of the employee during
amalgamation, but this would lead to injustice. But in the present case the court deviated from the wordings
of the law and decided that it is the duty of the transferor company to inform the workers about the
amalgamation.
A restricted Construction was adopted by the legislature while drafting the Central Services
(Classification, Appeal And Control) Rules, 1956 specifically Rule 11(VI) due to which it was interpreted
by the court by using the Golden Rule in the case of Nyadar Singh v. Union of India. This provision imposes
a penalty if there is any reduction in the grade post or service or the pay scale of the employee. It was
adjudged by the Supreme Court that if any person is appointed to a bigger post or pay grade, then he cannot
be abridged to a lower pay grade or post due to which this provision acquired a wider construction as
interpreted by the Court. A's per Maxwell, the applicability of Golden Rule is significant in the area which is
dedicated to the construction of legislations to adjudge consequences and also the construction of certain
provisions which eliminate injustice and inconvenience or also evasion.
To explain the applicability of the Golden rule, the case of Free Lanka Insurance Co. Ltd. v.
Panasinghe can be referred where it was held that if a prisoner escapes from prison due to fire accident, then
he did not commit a felony under the Statute as this act committed by him was not with the intention of
getting freedom but it is to save his life. Similarly, if there is any act which is done on certain justifiable
grounds then that act would not qualify as criminal in nature.
The Supreme Court and High Court in India have applied the Golden Construction of Statutes in
various judgements as previously discussed. But there is a certain confusion which is observed between the
Golden rule and the Literal Rule as even though initially the literal meaning of the statute is taken into
consideration if it is plain and logical but if there is any trace of absurdity or uncertainty then the
interpretation of the court would pay a significant role. But if there is a possibility that there is more than
one meaning of the wording in the statute, then any addition, substitution or rejection should be done by the
court modifying the language so that the intention of the legislature is expounded. Some of the landmark
Indian cases in which the Golden Rule was used was with respect to the interpretation of the provisions like
"Section 23 of the Representation of People's Act, 1951" and Section 3A of the U.P. Sales Tax Act, 1948
which were dealt with in Narendra Kiadivalapa v. Manikrao Patil and Annapurna Biscuit Manufacturing Co.
v. Commissioner of Sales Tax, U P respectively. Therefore, the applicability of the Golden Rule of
Interpretation in the Indian cases and the foreign cases has a narrow and wide approach which needs to be
observed by the courts in their working.

The judicial criticism faced on the application of golden rule

The golden rule of interpretation should be adopted with caution because of certain reasons which were
discussed by the Court in the case of Lord Moulten in Vacher & Sons v. London Society of Compositor.
There is a possibility that this rule could develop into a conventional jurisdictive critique of the legislature's
acts' legality. The statutes must be interpreted on the basis of the wordings of the law, and while the
respective resultants of two competing interpretations may occasionally direct us in our options, we can only
do so if we are in a position to convince ourselves that the words could not have been used as per the sense
of the suggested arguments by looking at the Act as a whole and comparing it to the prevailing law of the
land at the time of the enactment of the legislation. The legal rights or laws which are formulated for the
advantage of the community at large may come in struggle with the individual interest of the public due to
which it may cause injustice in the form of repugnancy or absurdity. The Apex Court in the case of State
Bank of India v. Shri N. Sundara Money has judged that the duty of the courts of justice is to take care of the
rights of the public at large instead of individual rights. If the words of the statute are absurd in their nature,
then they should even come under the term of repugnancy in order to use the Golden Rule due to which the
scope of the term is wide.

The Golden Rule is considered to be an old law which has been used since the 16th century, when
British law was the fundamental basis for law and parliamentary sovereignty had not yet been constituted. It
is contended that it gives the unelected judiciary too much jurisdiction and responsibility, which is
undemocratic in nature. The Golden Rule also clearly violates the law of the land by constructing a crime
after the occurrence of the events, as observed in in Smith v Hughes and Elliot v Grey. It encroaches on the
separation of powers by assigning judges a legislative role, and judges can bring their own opinions,
conscience, and preconceptions to a matter, as seen in the case of DPP v Bull and Smith v Hughes.

Case laws
Tirath Singh v. Bachittar Singh, AIR 1955 SC 850
In this case, there was an issue with regard to issuing of the notice under section 99 of Representation of
People's Act, 1951, with regard to corrupt practices involved in the election.
According to the rule, the notice shall be issued to all those persons who are a party to the election
petition and at the same time to those who are not a party to it. Tirath Singh contended that no such notice
was issued to him under the said provision. The notices were only issued to those who were non-parties to
the election petition. This was challenged to be invalid on this particular ground.
The court held that what is contemplated is giving of the information and the information even if it is
given twice remains the same. The party to the petition is already having the notice regarding the petition,
therefore, section 99 shall be so interpreted by applying the golden rule that notice is required against non-
parties only.
State of Madhya Pradesh v. Azad Bharat Financial Company, AIR 1967 SC 276,
Issues of the case are as follows.
 A transporting company was carrying a parcel of apples was challenged and charge-sheeted. The
truck of the transporting company was impounded as the parcel contained opium along with the apples. At
the same time, the invoice shown for the transport consisted of apples only.
Section 11 of the opium act 1878, all the vehicles which transport the contraband articles shall be
impounded and articles shall be confiscated. It was confiscated by the transport company that they were
unaware of the fact that opium was loaded along with the apples in the truck.
The court held that although the words contained in section 11 of the said act provided that the
vehicle shall be confiscated but by applying the literal rule of interpretation for this provision it is leading to
injustice and inequity and therefore, this interpretation shall be avoided. The words 'shall be confiscated'
should be interpreted as 'may be confiscated'
State of Punjab v. Quiser Jehan Begum, AIR 1963 SC 1604, a period of limitation was prescribed
for, under section 18 of land acquisition act, 1844, that an appeal shall be filed for the announcement of the
award within 6 months of the announcement of the compensation. Award was passed in the name of Quiser
Jehan. It was intimated to her after the period of six months about this by her counsel. The appeal was filed
beyond the period of six months. The appeal was rejected by the lower courts.
It was held by the court that the period of six months shall be counted from the time when Quiser
Jehan had the knowledge because the interpretation was leading to absurdity. The court by applying the
golden rule allowed the appeal.

HARMONIOUS CONSTRUCTION

According to this rule of interpretation, when two or more provisions of the same statute are
repugnant to each other, then in such a situation the court, if possible, will try to construe the provisions in
such a manner as to give effect to both the provisions by maintaining harmony between the two. The
question that the two provisions of the same statute are overlapping or mutually exclusive may be difficult to
determine.
The legislature clarifies its intention through the words used in the provision of the statute. So, here
the basic principle of harmonious construction is that the legislature could not have tried to contradict itself.
In the cases of interpretation of the Constitution, the rule of harmonious construction is applied many times.
It can be assumed that if the legislature has intended to give something by one, it would not intend to
take it away with the other hand as both the provisions have been framed by the legislature and absorbed the
equal force of law. One provision of the same act cannot make the other provision useless. Thus, in no
circumstances, the legislature can be expected to contradict itself.

Cases -
Ishwari Khaitan Sugar Mills v. State of Uttar Pradesh, in this case, the State Government
proposed to acquire sugar industries under U.P Sugar Undertakings (Acquisition) Act, 1971. This was
challenged on the ground that these sugar industries were declared to be a controlled one by the union under
Industries (Development and Regulation) Act, 1951. And accordingly, the state did not have the power of
acquisition of requisition of property which was under the control of the union. The Supreme Court held that
the power of acquisition was not occupied by Industries (Development and Regulation) Act, 1951. The state
had a separate power under Entry 42 List III.
M.S.M Sharma v. Krishna Sinha, AIR 1959 SC 395.
Facts of the case are as follows- Article 19(1)(a) of the Constitution provides for freedom of speech
and expression. Article 194(3) provides to the Parliament for punishing for its contempt and it is known as
the Parliamentary Privilege. In this case, an editor of a newspaper published the word -for- word record of
the proceedings of the Parliament including those portions which were expunged from the record. He was
called for the breach of parliamentary privilege.
He contended that he had a fundamental right to speech and expression. It was held by the court that
article 19(1)(a) itself talks about reasonable freedom and therefore freedom of speech and expression shall
pertain only to those portions which have not been expunged on the record but not beyond that.

Purposive approach
The purposive approach to statutory interpretation is a method where courts interpret laws by
considering the purpose for which they were enacted, rather than solely relying on the literal meaning of the
words. It aims to understand the "mischief" the law was intended to address and interpret the text in a way
that best achieves that purpose.
Here's a more detailed explanation:
Core Principles:
Focus on Purpose:
Instead of getting bogged down in the precise wording, this approach prioritizes understanding the
underlying reason for the law's creation.
"Mischief Rule" Evolution:
It builds upon the older "mischief rule," which focused on correcting a specific problem, but expands the
inquiry to encompass the broader purpose of the legislation.
Extrinsic Materials:
Courts may look at various materials outside the text of the law itself, such as parliamentary debates,
committee reports, or the historical context, to discern the legislative intent.
Flexibility and Context:
The purposive approach allows for a more flexible interpretation, adapting to changing circumstances and
societal needs, as long as it aligns with the original purpose.
How it Differs from Other Approaches:
Literal Rule:
The literal rule, which focuses solely on the plain meaning of the words, can sometimes lead to unjust or
unintended consequences if the words are interpreted too narrowly.
Golden Rule:
The golden rule allows for a deviation from the literal meaning to avoid an absurd result, but the purposive
approach goes further by actively seeking to achieve the law's intended purpose.
Example:
Imagine a law designed to regulate "vehicles" using public roads. If a court were to interpret
"vehicles" literally, it might exclude emerging technologies like electric scooters. However, a purposive
approach might consider the law's purpose to be regulating motorized transportation on public roads for
safety and environmental reasons. This could lead to the inclusion of electric scooters under the law's scope,
even if they weren't explicitly mentioned.
Advantages:
Aligns with Legislative Intent: Helps ensure laws are applied in a way that aligns with what lawmakers
intended.
Avoids Absurd Results: Prevents interpretations that lead to unfair or illogical outcomes.
Flexibility in Application: Allows for adaptation to new situations and evolving societal norms.
Criticisms:
Judicial Activism:
Some argue that the purposive approach gives judges too much power to rewrite laws based on their own
interpretations.
Difficulty in Ascertaining Purpose:
Determining the true legislative intent can be challenging, especially with complex or outdated laws
Mischief rule
Mischief Rule was originated in Heydon's case in 1584. It is the rule of purposive construction
because the purpose of this statute is most important while applying this rule. It is known as Heydon's
rule because it was given by Lord Poke in Heydon's case in 1584. It is called as mischief rule because
the focus is on curing the mischief.
In the Heydon's case, it was held that there are four things which have to be followed for true
and sure interpretation of all the statutes in general, which are as follows-
1. What was the common law before the making of an act.
2. What was the mischief for which the present statute was enacted.
3. What remedy did the Parliament sought or had resolved and appointed to cure the disease of the
commonwealth.
4. The true reason of the remedy.
The purpose of this rule is to suppress the mischief and advance the remedy.
Case lawsS
Smith v. Huges, 1960 WLR 830, in this case around the 1960s, the prostitutes were soliciting in the
streets of London and it was creating a huge problem in London. This was causing a great problem in
maintaining law and order. To prevent this problem, Street Offences Act, 1959 was enacted. After the
enactment of this act, the prostitutes started soliciting from windows and balconies.
 Further, the prostitutes who were carrying on to solicit from the streets and balconies were
charged under section 1(1) of the said Act. But the prostitutes pleaded that they were not solicited
from the streets.
The court held that although they were not soliciting from the streets yet the mischief rule must
be applied to prevent the soliciting by prostitutes and shall look into this issue. Thus, by applying this
rule, the court held that the windows and balconies were taken to be an extension of the word street
and charge sheet was held to be correct.

Pyare Lal v. Ram Chandra, the accused in this case, was prosecuted for selling the sweeten supari
which was sweetened with the help of an artificial sweetener. He was prosecuted under the Food
Adulteration Act. It was contended by Pyare Lal that supari is not a food item. The court held that the
dictionary meaning is not always the correct meaning, thereby, the mischief rule must be applicable,
and the interpretation which advances the remedy shall be taken into consideration. Therefore, the
court held that the word 'food' is consumable by mouth and orally. Thus, his prosecution was held to
be valid.
Kanwar Singh v. Delhi Administration, AIR 1965 SC 871.
Issues of the case were as follows- section 418 of Delhi Corporation Act, 1902 authorised the
corporation to round up the cattle grazing on the government land. The MCD rounded up the cattle
belonging to Kanwar Singh. The words used in the statute authorised the corporation to round up the
abandoned cattle. It was contended by Kanwar Singh that the word abandoned means the loss of
ownership and those cattle which were round up belonged to him and hence, was not abandoned. The
court held that the mischief rule had to be applied and the word abandoned must be interpreted to
mean let loose or left unattended and even the temporary loss of ownership would be covered as
abandoned.

Regional Provident Fund Commissioner v. Sri Krishna Manufacturing Company, AIR 1962 SC
1526, Issue, in this Case, was that the respondent concerned was running a factory where four units
were for manufacturing. Out of these four units one was for paddy mill, other three consisted of flour
mill, saw mill and copper sheet units. The number of employees there were more than 50. The RPFC
applied the provisions of Employees Provident Fund Act, 1952 thereby directing the factory to give
the benefits to the employees.

The person concerned segregated the entire factory into four separate units wherein the number
of employees had fallen below 50, and he argued that the provisions were not applicable to him
because the number is more than 50 in each unit. It was held by the court that the mischief rule has to
be applied and all the four units must be taken to be one industry, and therefore, the applicability of
PFA was upheld.
extra
The mischief rule of statutory interpretation is the oldest of the rules. The mischief rule is a
rule of statutory interpretation that attempts to determine the legislator’s intention. Its main aim is to
determine the “mischief and defect” of the statute.
The mischief rule was established in Heydon’s Case in 1584. It was held that the mischief rule
should only be applied where there is ambiguity in the statute. Under the mischief rule the Court’s
role is to suppress the mischief and advance the remedy. The Courts while applying the principle tries
to find out the real intention behind the enactment. This rule thus assists the court in identifying the
proper construction of statutory wording according to the original intention of the legislators.
As per this rule, for true interpretation of a statute, four things have to be considered:
 What was the common law before the making of the Act?
 What was the mischief and defect for which the common law did not provide?
 What remedy Parliament had resolved and appointed to cure the disease of the Commonwealth defect
of common law?
 The true reason of the remedy.
The mischief rule directs that the Courts must adopt that construction which “shall suppress the
mischief and advance the remedy”. But this does not mean that a construction should be adopted
which ignores the plain natural meaning of the words or disregard the context and the collection in
which they occur. [Umed Singh v. Raj Singh]
In Sodra Devi’s case, the Supreme Court has expressed the view that the rule in Heydon’s
case is applicable only when the words in question are ambiguous and are reasonably capable of more
than one meaning.

Conclusion
Every nation has its own judicial system, the purpose of which to grant justice to all. The court
aims to interpret the law in such a manner that every citizen is ensured justice to all. To ensure justice
to all the concept of canons of interpretation was expounded. These are the rules which are evolved
for determining the real intention of the legislature.
It is not necessary that the words used in a statute are always clear, explicit and unambiguous
and thus, in such cases it is very essential for courts to determine a clear and explicit meaning of the
words or phrases used by the legislature and at the same time remove all the doubts if any. Hence, all
the rules mentioned in the article are important for providing justice.

UNIT V
 Nature of Legislative drafting
Legislative drafting is the process of transforming public policy into legally binding rules and
regulations. It's a technical and creative endeavor, often described as both a science and an art, that involves
translating policy goals into clear, concise, and unambiguous legal language.
Key aspects of legislative drafting:
Translation of Policy:
Legislative drafting is fundamentally about converting policy ideas into concrete legal texts. This involves
understanding the policy intent, identifying the legal issues, and crafting language that effectively achieves
the desired outcome.
Precision and Clarity:
Drafting requires meticulous attention to detail and the use of precise language to avoid ambiguity and
ensure the law is interpreted as intended.
Technical Skill:
Legislative drafters must possess a strong understanding of legal principles, statutory interpretation, and the
structure of legislation.
Contextual Understanding:
Drafters need to consider the existing legal framework, potential impacts on various stakeholders, and
practical implications for implementation.
Creative Process:
While rooted in legal principles, drafting also involves creativity in finding the most effective way to
express the policy intent within the constraints of legal language and existing law.
Influence on Policy:
While drafters are not meant to be policymakers, they can significantly influence policy through their choice
of words and the structure of the legislation.
Role in the Legislative Process:
Legislative drafting is a crucial step in the legislative cycle, preceding the formal enactment of laws. It
involves collaboration between drafters, policymakers, and other stakeholders.
Differentiation from other Legal Drafting:
Legislative drafting is distinct from other forms of legal drafting, such as litigation drafting (pleadings, legal
notices) or policy drafting (organizational guidelines).

Diseases of language to be dealt and taken care of

In legislative drafting, "diseases of language" refer to common flaws or negative characteristics that
can hinder clarity and precision, leading to misinterpretations and legal disputes. These include ambiguity,
over-vagueness, over-precision, over- and under-generality, and obesity (excessively wordy language).
Here's a breakdown of these "diseases":
Ambiguity:
When a word, phrase, or sentence has multiple possible meanings, making it unclear which interpretation
was intended.
Over-vagueness:
Using terms that are too broad or ill-defined, leaving room for subjective interpretation and inconsistent
application.
Over-precision:
Being overly specific and detailed, potentially overlooking unforeseen circumstances or creating unintended
loopholes.
Over-generality:
Using broad language that encompasses too much, potentially including things that should not be covered.
Under-generality:
Using language that is too narrow, potentially excluding things that should be included.
Obesity:
Using unnecessarily long sentences and complex phrasing, making the text difficult to understand.
These issues can be exacerbated by factors like:
The use of archaic or technical terms:
Terms that are unfamiliar to the average reader can create confusion and impede understanding.
Lack of clarity in sentence structure:
Poorly constructed sentences can lead to misinterpretations of the intended meaning.
Failure to consider the intended audience:
Drafting legal documents without considering the audience's level of understanding can lead to accessibility
issues.
Cultural and linguistic differences:
In multilingual contexts, translation errors and the lack of direct equivalents for legal terms can create
ambiguity.
Addressing these issues is crucial for ensuring that laws are clear, accessible, and effective. Efforts to
promote plain language in legislative drafting aim to mitigate these problems and make the law more
understandable for all citizens.

Diseases of language in drafting: its history in India and England

In both India and England, legislative drafting has grappled with the "diseases" of language,
including ambiguity, vagueness, and obscurity, leading to the development of plain language drafting
movements. These movements aim to make laws more accessible and understandable to the public by
addressing issues like complex sentence structures, technical jargon, and archaic language.
In England:
 The English Parliament has addressed language issues in legislation since the 14th century, with
attempts to replace French with English in legal proceedings, according to a 1985-1986 Adelaide Law
Review article.
The Statute Law Society criticized the use of "legalese" and called for clearer language in legislation,
according to a 1985-1986 Adelaide Law Review article.
The Plain Language Movement in the UK has promoted the use of plain English in legal documents,
including consumer contracts and legislation, according to a plain language drafting manual.
Efforts to simplify language in legislation are ongoing, with a focus on making laws more accessible
and understandable to the public, according to a plain language drafting manual.
In India:
India's Constitution provides for the use of regional languages, Hindi, and English in state
legislatures.
The Official Languages Act, 1963 mandates the publication of authorized translations of central acts
and other legal instruments in Hindi.
India is also actively working on standardizing legal terminology in all official languages, according to a
legislative department manual.
The SARAL Manual on plain language drafting emphasizes the need for an India-centric
understanding of plain language in the context of the Indian legal system.
The use of plain language in India's legal system is seen as crucial for effective communication and
understanding of laws, especially for the common citizen.
According to a 1985-1986 Adelaide Law Review article, legislative drafting in India also faces
challenges related to ambiguity, vagueness, and over-specificity in language.
Common "Diseases" of Language in Legislative Drafting:
Ambiguity:
Words or phrases with multiple possible meanings, leading to confusion and misinterpretation.
Vagueness:
Lack of precision and clarity, making it difficult to determine the exact scope of a legal provision.

Components or parts of legislation and their purposes

Legislation, or a law, generally has four main parts: the title, the introductory part, the body, and the
final part or footer. The body, which is the main part of the legislation, is often divided into sections and
may include definitions, substantive provisions, and enforcement mechanisms. Subordinate legislation, like
rules and regulations, is made by authorities subordinate to the legislature and operates within the
framework delegated by the legislature.
Here's a more detailed breakdown:
1. Title: This is the name of the legislation, giving a brief indication of its subject matter.
2. Introductory Part: This section typically includes:
 Preamble: Sets out the reasons for enacting the law and its objectives.
 Interpretation Clause: Defines key terms used in the legislation.
 Commencement Clause: Specifies when the law will come into effect.
3. Body: This is the core of the legislation and can be further divided into:
 Definitions: Clarifies the meaning of specific terms used in the legislation.
 Substantive Provisions: These are the main rules and regulations that the law establishes.
 Enforcement Mechanisms: Details how the law will be enforced, including penalties for violations.
4. Final Part/Footer: This section may include:
 Repeal Clause: If applicable, this clause repeals or amends any existing legislation.
 Transitional Provisions: Addresses how the new law will affect existing situations or cases.
 Saving Clause: Protects certain existing rights or actions from being affected by the new law.
 Delegation Clause: Grants power to other bodies to make rules and regulations under the law.
Subordinate Legislation:
Subordinate legislation, such as regulations, rules, and by-laws, is created by authorities subordinate
to the legislature, like government departments or local authorities. It operates within the powers delegated
to them by the main legislation.
Examples of Subordinate Legislation:
 Delegated Legislation: Rules and regulations made by a minister or government department to
implement the provisions of a specific Act of Parliament.
 Bylaws: Laws made by local authorities, such as municipalities, for their specific areas.
 Judicial Rules: Rules made by superior courts for the regulation of their own procedure.
Key Points:
Legislation is a formal written document that outlines the rules and regulations of a society.
The structure of legislation is designed to be clear, consistent, and effective in achieving its objectives.
Subordinate legislation plays a crucial role in implementing and administering the main laws passed by the
legislature.
Understanding the different parts of legislation is essential for anyone who needs to interpret or apply the
law.

EXTRA

Legislation, the process of creating laws, involves several key components with distinct purposes.
These components include the short title, long title, preamble (if needed), enacting formula, and various
sections addressing specific aspects like definitions, operative provisions, exceptions, procedures, and penal
clauses. The overarching purpose of legislation is to regulate, authorize, outlaw, provide, sanction, grant,
declare, or restrict actions and behaviors within a society or jurisdiction.
Here's a breakdown of the components and their purposes:
1. Short Title: This is a concise and easily identifiable name for the legislation, used for quick reference.
2. Long Title: A more detailed description of the legislation's purpose and scope, providing context and
clarity.
3. Preamble (if needed): A statement explaining the reasons for enacting the legislation, often outlining the
problems it addresses or the principles it upholds.
4. Enacting Formula: A formal statement that establishes the legal authority behind the legislation, declaring
it to be enacted by the relevant legislative body.
5. Sections: These are the core building blocks of legislation, containing specific provisions that establish
rights, duties, prohibitions, and powers. Each section typically focuses on a single topic or aspect of the law.
6. Definitions: These clarify the meaning of key terms used in the legislation, avoiding ambiguity and
ensuring consistent interpretation.
7. Operative Provisions: These sections outline the core actions and requirements of the legislation, detailing
what is permitted, prohibited, or required.
8. Exceptions and Exemptions: These sections specify situations where the general rules of the legislation
may not apply, providing clarity and preventing unintended consequences.
9. Procedural Provisions: These sections outline the steps and processes involved in implementing and
enforcing the legislation, such as how to apply for a license or file a complaint.
10. Penal Clauses: These sections detail the consequences of violating the legislation, including fines,
imprisonment, or other penalties.
11. Power to Delegate: This section may grant certain powers to other bodies or authorities to make further
rules or regulations related to the legislation.
12. Removal of Doubts: This section clarifies any potential ambiguities or uncertainties in the legislation.
13. Saving Clauses: These sections address how the new legislation interacts with existing laws, ensuring
continuity and preventing unintended conflicts.
14. Coming into Force: This section specifies the date or circumstances under which the legislation will
become effective.
The overall purpose of these components is to create clear, comprehensive, and enforceable laws that
address specific needs, regulate behavior, and promote the well-being of society.

Role of legislation in social welfare and transformation

Legislation plays a crucial role in social welfare and transformation by providing a framework for
addressing social problems, protecting vulnerable groups, and promoting equality and justice. It establishes
legal standards, creates social programs, and sets the stage for cultural and behavioral changes that
contribute to a more just and equitable society.
Here's a more detailed look at the role of legislation:
Protection of Rights and Welfare:
 Social legislation aims to protect the rights of all citizens, particularly vulnerable groups like women,
children, the elderly, and people with disabilities. Laws are enacted to prevent discrimination, ensure access
to basic necessities, and provide social security.
Addressing Social Problems:
Legislation tackles various social issues through specific laws. For example, laws against child
marriage, dowry, and domestic violence aim to eradicate harmful social practices. Similarly, laws addressing
environmental protection, consumer rights, and public health contribute to a better quality of life.
Promoting Equality and Justice:
Social legislation strives to create a more equitable society by removing barriers and promoting equal
opportunities for all. This includes addressing issues like discrimination based on caste, religion, gender, and
class.
Driving Social Change:
Legislation can be a powerful tool for social transformation by shaping social norms, behaviors, and
institutions. It can promote new values and practices by codifying them into law and providing a framework
for their implementation.
Supporting Social Work and Welfare Programs:
Social legislation provides the legal basis for social work and welfare programs. It creates the
framework for social security systems, public assistance programs, and other initiatives designed to support
vulnerable individuals and families.
Enforcing Standards and Regulations:
Legislation establishes standards and regulations for various aspects of social life, ensuring that they
are followed. This includes workplace safety, environmental protection, and consumer protection.
Facilitating Social Development:
By addressing social problems, protecting rights, and promoting equality, legislation plays a crucial
role in social development. It helps create a more stable, prosperous, and inclusive society.
In essence, social legislation acts as a catalyst for positive social change by providing the legal
framework, resources, and guidelines for building a more just and equitable society.

Role of legislative draftsman

OR
Skills, traits and abilities of legislative draftsman
A legislative draftsman plays a crucial role in translating policy ideas into clear, legally sound, and
effective legislation. They are responsible for the technical aspects of drafting, ensuring the language is
precise, unambiguous, and consistent with existing laws and the constitution.
Role of a Legislative Draftsman:
Converting Policy into Law:
Draftsmen transform policy proposals into legally binding text, ensuring the legislation accurately reflects
the intended policy outcomes.
Ensuring Legal Soundness:
They analyze and interpret existing laws, identify potential legal issues, and ensure the new legislation
complies with constitutional principles and other relevant laws.
Providing Legal Advice:
Draftsmen offer legal advice throughout the legislative process, helping to refine policy and address
potential legal challenges.
Maintaining Clarity and Precision:
They focus on using clear, concise, and unambiguous language to ensure the law is easily understood and
applied.
Collaborating and Consulting:
Draftsmen work closely with policymakers, legal experts, and other stakeholders to gather information,
clarify policy intent, and refine drafts.
Supporting the Legislative Process:
They attend parliamentary proceedings, provide expert input, and help navigate the complexities of the
legislative process.
Skills and Abilities of a Legislative Draftsman:
Legal Knowledge:
A strong understanding of constitutional law, substantive laws, and legal precedents is essential.
Analytical Skills:
The ability to analyze complex legal issues, identify potential problems, and develop effective solutions.
Communication Skills:
Excellent written and oral communication skills are crucial for effectively conveying legal concepts and
policy intentions.
Attention to Detail:
Meticulous attention to detail is necessary to ensure accuracy and precision in legal drafting.
Problem-Solving Skills:
The ability to identify and resolve drafting challenges, anticipate potential issues, and adapt to changing
circumstances.
Interpersonal Skills:
The ability to work effectively with diverse groups of people, including policymakers, legal experts, and
other stakeholders.
Research Skills:
The ability to conduct thorough legal research and stay updated on relevant laws and regulations.
Adaptability:
The ability to learn new methods, adapt to changing project requirements, and incorporate feedback.
Technical Skills:
Proficiency in using legal drafting software and other relevant tools.

Legislative draftsman’s position, duties and responsibilities

A legislative draftsman's primary role is to translate policy ideas into clear, precise, and legally
sound legislation. They draft and review bills, regulations, and other legal documents, ensuring compliance
with constitutional and legal requirements. Drafters work closely with lawmakers, legal experts, and other
stakeholders throughout the legislative process.
Key Duties and Responsibilities:
Drafting Legal Documents:
This includes writing and editing new legislation, amendments to existing laws, and other legal instruments
like regulations and statutory instruments.
Reviewing and Vetting:
Legislative drafters examine drafts prepared by others, ensuring accuracy, clarity, and consistency with
existing laws and policies.
Interpreting Legislation:
They analyze and clarify the meaning of existing laws and regulations, providing guidance to policymakers
and other stakeholders.
Research and Analysis:
Drafters conduct research on legal issues, analyze policy proposals, and identify potential legal implications.
Collaboration and Consultation:
They work with a range of stakeholders, including government officials, legal experts, and interest groups,
to gather information and ensure that the legislation reflects policy objectives.
Ensuring Legal Compliance:
Drafters ensure that all legislation adheres to constitutional principles, relevant laws, and established legal
precedents.
Technical Accuracy and Clarity:
They strive to write clear, concise, and unambiguous legal language that is easily understood by the intended
audience.
Staying Updated:
Legislative drafters must keep abreast of changes in legislation, legal principles, and government policies.

Legislative draftsman's Relationship with the Government Legislative Division

A legislative draftsman's role is crucial in bridging the gap between government policy and public
understanding. They translate government intentions into clear, effective, and legally sound legislation,
ensuring that laws are understandable and accessible to the public. This involves working closely with the
government's legislative division, engaging with public input, and ultimately shaping laws that impact
society at large.
Here's a breakdown of the relationship:
1. Relationship with the Government Legislative Division:
Core Function:
Draftsmen are integral to the legislative process, directly working with the legislative division to formulate
bills and other legal instruments.
Translating Policy:
They translate policy decisions into legally sound and practical language, ensuring the legislation is clear,
concise, and enforceable.
Maintaining Consistency:
They ensure that new legislation aligns with existing laws and constitutional principles.
2. Relationship with the Public:
Accessibility and Clarity:
Draftsmen strive to make laws understandable and accessible to the general public.
Public Consultation:
They may participate in public consultations, incorporating public feedback into the drafting process.
Ensuring Fairness:
By ensuring clarity and avoiding ambiguity, draftsmen help prevent potential misinterpretations and unfair
application of the law.
3. Relationship with Society at Large:
Impactful Role:
Legislative draftsmen play a significant role in shaping the legal framework within which society operates.
Promoting Justice:
Well-drafted laws contribute to a fair and just society by providing clear guidelines for behavior and
establishing clear legal recourse.
Enabling Participation:
Accessible laws empower citizens to understand their rights and responsibilities, fostering greater
participation in civic life.
Maintaining Trust:
By ensuring transparency and clarity in the legislative process, draftsmen help build public trust in the
government and the legal system.
In essence, a legislative draftsman acts as a vital link between the government's policy goals and the
public's understanding and application of the law.

Impact of Constitutional values and provisions on legislative drafting

 Constitutional values and provisions significantly shape legislative drafting by setting boundaries,
defining fundamental rights, and establishing the framework for governance. These elements ensure that
laws are aligned with the nation's foundational principles and protect citizens' rights.
Here's a more detailed look:
1. Setting the Constitutional Framework:
Defining the Scope of Legislation:
The constitution outlines the powers of different branches of government (legislative, executive, and
judicial), which directly impacts what laws can be created and how they can be implemented.
Establishing Fundamental Rights:
Constitutions typically include a bill of rights that guarantees certain fundamental rights to citizens, such as
freedom of speech, religion, and the right to equality.
Guaranteeing Equality and Non-discrimination:
Many constitutions explicitly prohibit discrimination based on various grounds like religion, race, sex, or
caste, which drafters must consider when crafting legislation.
Promoting Social Justice:
Constitutional provisions may aim to promote social justice and equality by ensuring access to resources and
opportunities for all citizens.
2. Impact on Legislative Drafting:
Ensuring Compliance:
Legislative drafters must ensure that all laws comply with the constitution, meaning that they should not
infringe upon fundamental rights or exceed the powers granted to the legislature.
Promoting Clarity and Precision:
Constitutional values often guide the language and structure of legislation to ensure clarity, avoid ambiguity,
and minimize the potential for misinterpretation or abuse.
Balancing Interests:
Drafters must often balance competing interests and constitutional values when crafting legislation. For
example, a law regulating freedom of speech may need to balance the right to free expression with the need
to prevent hate speech or defamation.
Upholding the Rule of Law:
Constitutional principles like the rule of law require that laws are applied fairly and consistently, which
drafters must consider when creating provisions for enforcement and dispute resolution.
Avoiding Unconstitutional Provisions:
Legislative drafters must be aware of potential constitutional challenges to proposed laws and ensure that
they are drafted in a way that minimizes the risk of being struck down by courts.
3. Specific Examples:
Freedom of Speech:
Legislation regulating speech must be carefully drafted to avoid overly broad restrictions that could infringe
on protected expression.
Property Rights:
Laws affecting property rights must be drafted with due process and just compensation requirements in
mind.
Criminal Law:
Criminal laws must adhere to principles of due process, ensuring fair trials, and avoiding cruel and unusual
punishments.
In essence, constitutional values and provisions serve as a foundational framework for legislative
drafting, guiding the process from the initial idea to the final enactment of a law. They ensure that legislation
is not only effective in achieving its goals but also adheres to the fundamental principles of justice, fairness,
and the rule of law.

The impact of General Clauses Act on legislative drafting

The General Clauses Act has a significant impact on legislative drafting by providing a standardized
set of definitions, rules of interpretation, and general provisions that apply across all central acts and
regulations. This helps to streamline the drafting process, ensure consistency in legal language, and reduce
the need for redundant clauses in individual pieces of legislation.
Here's a more detailed look at the impact:
1. Streamlining Legislative Drafting:
Reduced Redundancy:
The Act avoids the repetition of common definitions and provisions in every new law. For example, instead
of defining "month" or "person" in each act, the General Clauses Act provides a standard definition, making
the drafting process more concise.
Uniformity of Expression:
By providing standard definitions and rules of interpretation, the Act promotes consistency in how legal
terms are used and understood across different central acts.
2. Ensuring Clarity and Consistency:
Interpretation Rules:
The Act provides rules for interpreting various legal terms and provisions. These rules help ensure that
courts and other authorities consistently interpret laws in the same way, regardless of the specific act.
Addressing Ambiguity:
When a specific act is silent or unclear on a particular point, the General Clauses Act can be used to clarify
the meaning or provide a default rule, helping to avoid ambiguity and potential litigation.
3. Facilitating Legal Interpretation:
Applicability to All Central Acts:
The Act's provisions apply to all central acts and regulations, making it a crucial tool for understanding and
interpreting the law.
Interpretation of the Constitution:
The Supreme Court has even held that the General Clauses Act is applicable to the interpretation of the
Constitution itself, further highlighting its importance.
4. Specific Examples:
Commencement and Repeal of Acts:
The Act provides rules for the commencement and repeal of laws, clarifying what happens when a law
comes into effect or is removed from the statute books.
Rules of Construction:
The Act includes rules for how to interpret words, phrases, and clauses in legal documents, ensuring
consistency in how laws are understood.
In essence, the General Clauses Act acts as a foundational piece of legislation that underpins the
entire framework of central laws in India. It streamlines the legislative drafting process, promotes clarity and
consistency in legal language, and provides a framework for interpreting laws, thereby contributing to a
more efficient and predictable legal system.

Impact of principles of statutory interpretation upon legislative drafting

The principles of statutory interpretation significantly impact how laws are drafted by influencing
drafters to prioritize clarity, precision, and consistency in language. Clear and well-defined statutes,
informed by these principles, are more likely to be interpreted as intended by the legislature, reducing
ambiguity and potential for disputes.
Here's a breakdown of the impact:
1. Clarity and Precision:
Plain Language:
Drafters are encouraged to use clear, concise, and unambiguous language to minimize the need for extensive
interpretation by the courts.
Consistent Terminology:
Using the same words or phrases throughout a statute to convey the same meaning (where appropriate) helps
ensure consistent application and interpretation.
Avoiding Ambiguity:
Drafters strive to avoid vague or open-ended language that could lead to multiple interpretations, promoting
predictability and fairness.
2. Consideration of Legislative Intent:
Intention of the Legislature:
Courts often try to discern the legislature's intent when interpreting a statute. This understanding informs
drafting practices, pushing drafters to consider how their language might be understood in the context of the
law's purpose.
Contextual Interpretation:
Drafters are mindful that statutes are interpreted within their broader context. They consider how different
sections of a law might interact and how the law fits within the existing legal framework.
3. Use of Internal Aids:
Internal Aids to Construction:
Drafters incorporate internal aids like definitions sections, headings, and punctuation to guide interpretation.
This helps the judiciary understand the intended meaning of specific provisions within the broader statute.
Avoiding Ambiguity:
Internal aids are used to clarify the meaning of specific terms or provisions, reducing the likelihood of
misinterpretations.
4. Impact on Litigation:
Reduced Litigation:
Well-drafted laws, informed by principles of statutory interpretation, can lead to fewer disputes and less
litigation, as the meaning and application of the law are clearer.
Efficient Legal Processes:
Clearer laws streamline the legal process, making it easier for individuals and businesses to understand their
rights and obligations.
5. Influence on Judicial Interpretation:
Principles as Guidelines:
Courts rely on established principles of statutory interpretation to guide their decisions. Drafting practices
that align with these principles help ensure that the intended meaning of the law is upheld.
Influence of Canons of Construction:
The canons of statutory construction (rules of interpretation) shape how courts approach the interpretation of
statutes, influencing how drafters formulate the law.
In essence, the principles of statutory interpretation act as a feedback loop, informing how laws are drafted
and how they are subsequently interpreted by the courts.

Steps in a legislative drafting

Legislative drafting involves a structured process to create clear, effective, and legally sound
legislation. This process typically includes understanding the proposal, analyzing its implications, designing
the law, drafting the text, and finally, scrutinizing and testing the draft.
Here's a more detailed breakdown of the key steps:
1. Understanding the Proposal:
Identify the need:
Determine the specific problem the proposed legislation aims to address and the objectives it seeks to
achieve.
Analyze the context:
Consider the relevant legal, social, economic, and political factors surrounding the issue.
Consult stakeholders:
Engage with relevant government departments, agencies, experts, and the public to gather diverse
perspectives and ensure broader acceptance.
2. Designing the Law:
Formulate policy options:
Explore various policy options to address the identified problem and select the most appropriate one.
Determine the legislative instrument:
Decide on the specific type of legal instrument needed (e.g., Act, regulation, by-law).
Define the scope:
Clearly outline the intended scope of the legislation, including its coverage, limitations, and exceptions.
Develop the structure:
Plan the overall structure of the legislation, including its parts, sections, and subsections, ensuring a logical
and coherent arrangement.
3. Drafting the Text:
Prepare drafting instructions:
Compile all relevant information and instructions for the legislative drafter.
Write the text:
Draft the legislation in clear, concise, and unambiguous language, adhering to established legal drafting
principles and techniques.
Consider constitutional and legal implications:
Ensure the draft aligns with the constitution and existing laws, consulting with legal experts as needed.
Incorporate feedback:
Revise the draft based on feedback from stakeholders and legal review.
4. Scrutiny and Testing:
Internal review:
Conduct thorough internal reviews by legal experts and other relevant stakeholders to identify any potential
issues or ambiguities.
External review:
Seek feedback from external experts and stakeholders to ensure the draft is practical and effective.
Test the draft:
Conduct tests to assess the practical application and potential impact of the legislation.
Revise and finalize:
Incorporate necessary revisions based on the scrutiny and testing process, finalizing the draft for submission.
Key Principles in Legislative Drafting:
Clarity and Precision: Use language that is clear, unambiguous, and easily understood.
Consistency and Coherence: Ensure the legislation is consistent with existing laws and policies.
Effectiveness and Enforceability: Design the legislation to be effective in achieving its intended goals and
easily enforceable.
Constitutional Compliance: Ensure the legislation is consistent with the constitution and does not infringe
upon fundamental rights.
By following these steps and adhering to these principles, legislative drafters can produce high-
quality legislation that effectively addresses societal needs and promotes the rule of law.

Drafting of Delegated legislation: Limits and Cautions

Delegated legislation, which allows the executive branch to create laws under the authority of a
parent act, has limitations and cautions to ensure it remains within the bounds of the separation of powers
and democratic principles. These include ensuring it doesn't exceed the powers granted by the parent act,
doesn't infringe on fundamental rights, and is subject to appropriate oversight. Failure to adhere to these
limits can lead to judicial review and invalidation of the delegated legislation.
Limits and Cautions in Drafting Delegated Legislation:
Ultra Vires:
Delegated legislation must stay within the scope of the enabling act. If it exceeds the powers conferred, it is
considered ultra vires (beyond one's legal power) and can be struck down by courts.
Constitutional Compatibility:
Even if the parent act is constitutional, delegated legislation can be challenged if it violates fundamental
rights or other constitutional provisions.
Essential Legislative Function:
The legislature cannot delegate its core legislative functions. For example, the power to levy taxes or
determine fundamental policy cannot be delegated.
Lack of Transparency and Accountability:
Delegated legislation may lack the public scrutiny and debate associated with primary legislation, potentially
leading to a lack of transparency and accountability.
Potential for Abuse of Power:
Excessive delegation of power to the executive can lead to a concentration of power, potentially
undermining the principle of separation of powers.
Lack of Parliamentary Control:
Effective parliamentary oversight is crucial to ensure delegated legislation stays within limits. This includes
mechanisms for laying legislation before parliament, scrutiny committees, and the ability to amend or repeal
delegated legislation.
Consultation:
It's crucial to consult with affected parties during the drafting process to ensure the delegated legislation is
practical and fair.
Clarity and Precision:
Delegated legislation should be drafted clearly and precisely to avoid ambiguity and potential for
misinterpretation.
Reasonableness and Proportionality:
Delegated legislation should be reasonable and proportionate to the objectives it seeks to achieve.
Due Process:
Delegated legislation should not violate principles of natural justice, such as the right to a fair hearing,
unless specifically excluded by the enabling act.
Examples of Concerns:
Excessive detail in delegated legislation:
If the parent act delegates too much detail, it can be argued that the legislature is abdicating its
responsibility.
Unclear or ambiguous language:
This can lead to uncertainty about the scope and application of the law.
Lack of public awareness:
If delegated legislation is not adequately publicized, it can be difficult for citizens to understand their rights
and obligations.
Inordinate delay in making rules:
Excessive delays in making rules can hinder the implementation of the parent act.
Vague or broad powers:
Delegated legislation should not grant overly broad or vague powers to the executive, potentially leading to
arbitrary decisions.
In conclusion, while delegated legislation offers flexibility and efficiency, it's vital to ensure it's
subject to appropriate limits and safeguards to maintain the rule of law and democratic principles.

Drafting exercise
Legislative drafting is the process of formulating laws in a clear, concise, and legally sound manner.
It involves converting policy objectives into written legislation, ensuring it's understandable, enforceable,
and avoids ambiguity. This process is crucial for effective governance and the rule of law.
Here's a breakdown of key aspects:
1. Understanding the Legislative Process:
Policy Prioritization: Identifying societal problems and developing policy solutions.
Drafting: Converting policy ideas into precise legal language.
Enactment: Passing the drafted legislation through the legislative body.
Implementation: Applying the law and ensuring its effectiveness.
2. Key Principles of Legislative Drafting:
Clarity and Precision: Using language that is easy to understand and interpret.
Conciseness: Avoiding unnecessary words and phrases.
Legal Soundness: Ensuring the law is consistent with existing laws and the Constitution.
Effectiveness: Ensuring the law achieves its intended purpose.
Enforceability: Making sure the law can be applied and upheld by the courts.
3. Responsibilities of Legislative Counsel:
Advising on legal and policy matters.
Drafting legislation in accordance with legal principles and drafting conventions.
Ensuring consistency with existing laws and the Constitution.
Working with relevant stakeholders to ensure the legislation is effective and implementable.
4. Stages of Drafting Legislation:
Initial Stage: Gathering information, identifying the problem, and defining objectives.
Drafting Stage: Writing the actual text of the law, including definitions, provisions, and schedules.
Review and Revision: Ensuring accuracy, clarity, and consistency.
Finalization and Presentation: Preparing the final draft for legislative consideration.
5. Challenges in Legislative Drafting:
Balancing clarity with legal precision.
Addressing potential ambiguities and loopholes.
Ensuring the law is implementable and enforceable.
Adapting to evolving societal needs and technological advancements.
6. Importance of Pre-legislative Consultation:
Gathering feedback from stakeholders on the proposed legislation.
Identifying potential issues and challenges before the law is enacted.
Promoting transparency and public engagement in the legislative process.
7. The Role of Technology:
Utilizing technology to improve accessibility and transparency of legislation.
Developing online platforms for accessing and researching laws.
Using technology to facilitate public engagement in the legislative process.