JUDICIAL PROCESS IN INDIA- PECULIARITIES

AND INFLUENCES OF COMMON LAW

TRADITION

SUBMITTED BY
NAVYA LAL B
LLM IPR TWO YEAR
INTRODUCTION

Judicial process in India refers to all the matters that are related to the Judiciary. Judicial process in
other words can be understood as the process through which a Judge brings out ‘Justice’. The
Indian judicial system has many peculiarities. The history of India provides us many insights and
other information regarding the formation of the now existing Judicial system.

The British while ruling introduced the system of Judiciary in India. Even before having a written
Constitution that gives many privileges to Judiciary, the system of Supreme was established in
India. This establishment was done during the British rule and such were introduced in order to
bring British legal culture into India. Now the face of law has changed and what was introduced
during the colonial period has been replaced by legislations that are in relation to the cultural and
social background of India.

From Smritis to having legal Statutes or Act, the changes that have been brought into the Indian
Judicial system is the reflection of its common law tradition. The concept of common law is
nothing but the unwritten law or body of laws. It is the following of rules or laws that was not
directly written but how law or the decisions of court is interpreted. In India the importance of
common law tradition is very much important as the concept is closely related to the culture and
common customs of the State.

India as a State with rich cultural value should reflect those values in the laws and to make such one
much consider the common values that are shared by the people of State. But it is also important to
keep in mind that, even when cultural factors or traditional factors are given the needed important,
the Rule of Law1 has always been the core principle of legislation and the Constitution also.

Judicial process in India has many peculiarities and one of them is Alternative Dispute Resolution.
In ADR, the matters are resolved without the court procedure. This can be traced back to Indian
history when there existed no current form of judicial [Link] reflects on the moral values that
always has been part of our State.

1
Rule of Law:meaning no one is above law. One of the major principles involved in the drafting of the Indian
Constitution.
JUDICIAL PROCESS

Meaning-

Judicial process can be in general understood as the process in which a judge pursues justice. It is
the process in which matters of court are carried out in a legal procedure. The term ‘Judicial
Process’ comprises two terms i.e. judicial and process. According to Webster’s Dictionary judicial
means, pertaining to judgment in court of justice or to the administration of justice, which expresses
something that is related to court of law or judges or judiciary. ‘Process’ means systematic series of
actions directed to some end or a continuous action, operation or series of changes taking place in a
definite manner.

The judiciary performs the main indirect function i.e. maintaining order, peace and tranquility in the
society. Through the medium of activism, interpretation of Constitutional Provisions and other
creative approaches Judiciary has contributed a lot to the goal of maintaining a ‘Just’ society. These
functions are not the only important feature to be noted while talking about judicial process, but the
hierarchy through which the judicial system is structured is also an important take to understand the
judicial process. Even before having the existing order of court system, India had Supreme courts
and other important courts of law which were established or introduced by the British Government
during their colonial rule.
2

On the other hand it is also important to notice that the judicial process or the system of law that
were established by the British government were culturally and socially more related to the English
State rather than having any cultural or moral relation to our Country. It was after the enactment of
our Indian Constitution by the Constituent Assembly that we had changes in laws and regulations
that were suitable for the Indian scenario.

2
Amit Singh and Dharmendra Kumar Singh, Judicial Process (Shree Publishers & Distributors 2019)394
JUDICIAL PROCESS IN INDIA

In India, the meaning of judicial process refers to the activities done by the court of law for
enabling justice. Judiciary being one of the organs of the State, acts as the protector of rights of
each individual. This indicates the meaning that judicial process means, from making decisions or
judgments to interpreting statutes or legislation. The Indian judicial system has a hierarchy that puts
the Supreme Court as the apex and above all other courts. In this system the subordinate courts also
have various important functions that are an equivalent contribution to the Indian judicial process.

After the enactment of the Indian Constitution, the goal was to change laws in a way that will
reflect the country’s socio-cultural background. While drafting the Constitution the Constituent
Assembly made it sure that the provision in it can be changed as it requires. But the process to such
should not be misused. For each organ of the government the Constitution provided accurate
powers and functions. Not only that but the Constitution made sure through its provision that there
will be separation of power and the principle of checks and balances. The powers of judiciary
cannot be interfered with by the other two organs.

The adversarial system adopted in the Indian judicial system presumes that one is innocent until
proven guilty. This system essentially advocates a non-interventionist role by the judge who is
supposed to oversee the prosecution to prove their case beyond reasonable doubt against the
accused. That means the prosecution has the duty of providing evidence that will prove the party
accused is innocent and the Court is responsible to validate the admissibility of the evidence and
serve justice.

In the Indian Judicial system, the court has the authority to resolve disputes between individuals or
organizations or government. The Supreme Court held the final and ultimate authority in this
system. The Indian Constitution has provided such authority under its provisions. This provision of
the Constitution allows the Supreme Court to act as the protector of basic human rights in the State.
Some of the important powers of the Supreme Court is as follow:

● Original Jurisdiction-

The Indian Constitution under Article 131 gives the power of original jurisdiction of the Supreme
Court. According to this Article;
“Original jurisdiction of the Supreme Court- Subject to the provision of this Constitution, the
Supreme Court shall, to the exclusion of any other courts have original jurisdiction in any dispute
a) Between the Government of India and one or more States
b) Between the Government of India and any State or States on one side and one or more other
States on the other or
 c) Between two or more States, if and in so far as the dispute involves any question (whether
of law or fact) on which the existence or extend of a legal right depends”

Original jurisdiction means the Supreme Court has the power to resolve any issue that is between
Union and States. This power also includes the power to consider a petition that is to enforce the
Fundamental Rights. Citizens can directly file a petition in the Supreme Court. This includes PIL
(Public Interest Litigation).

● Appellate Jurisdiction-

The Supreme Court can directly hear appeals from subordinate courts. This allows the SC to review
or revise a decision that was made by the subordinate court. The SC also has a very wide appellate
jurisdiction over all Courts and Tribunals in India in as much as it may,in its discretion, grant
special leave to appeal under Article 136 of the Constitution from any judgment, decree,
determination, sentence or order in any cause or matter passed or made by any Court or Tribunal in
the territory of India.

a) Article 132- Appellate jurisdiction of Supreme Court from High Court when there exists a
question of law as to the interpretation. This is applicable to both civil and criminal.
b) Article 133- In case of civil matters, appeal from the High Court when there exists a
question to the law in general.
c) Article 134- In case of criminal case, if any order or decree declared by the High Court an
appeal can be filed in the SC.

● Advisory Jurisdiction-

Like the word suggests, advisory jurisdiction of SC refers to the power of the SC to give advice or
review on any legislation when such is requested or suggested by the President of India. The Indian
Constitution provides this power under Article 143 of it.

The Article says that “ If at any time it appears to the President that a question of law or fact has
arisen, or is likely to arise, which is of such a nature and of such public importance that it is
expedient to obtain the opinion of the Supreme Court upon it, he may after such hearing as it think
fit, report to the President its opinion thereon.”

● Writ Jurisdiction-
One of the important powers of the SC that is enabled by the Indian Constitution. Just jurisdiction is
for situations where the Fundamental Rights of an individual is violated by the Government or any
person, then such they can file a writ petition directly in the Supreme Court. This jurisdiction allows
the SC to provide fundamental securi ‖ty to the Fundamental Rights of Indian citizens.

Article 32 of the Constitution, Part III, one of the Fundamental Rights empowers this jurisdiction to
the SC. the following are the writs that is mentioned under this Article:

a) Habeas Corpus- To ensure the release of a person who has been unlawfully detained.
b) Mandamus: To direct a public official or authority to perform a duty they are legally bound
to perform.
c) Prohibition: To prevent a lower court or tribunal from exceeding its jurisdiction.
d) Certiorari: To quash an order passed by a lower court, tribunal, or authority.
e) Quo Warranto: To inquire into the legality of a person's claim to a public office.

All these provisions provided by the Indian Constitution enables the Supreme Court to fulfill its
powers in the rightful manner. While keeping the principle of “Checks and Balance”, the judiciary
makes sure that the other two organs of the government doesn't make any legislation that is
unconstitutional. This action of the Judiciary is often called ‘Judicial Encroachment’ or
‘Constitutional Encroachment’ as it is the Constitution that grants such power to the Supreme
Court.

It is also important to note that such encroachment is done in order to prevent the Legislature and
Parliament from making any threat to the democratic nature of the State. When the Parliament
makes any amendment to the Constitution, the Judiciary can interpret such amendment to make
sure that it is not unconstitutional or such amendment is done within the principle of ‘Basic
Structure’3 of the Constitution.

PECULIARITIES OF THE INDIAN JUDICIAL PROCESS

Every system has its peculiarities or features that distinguish it from other systems. Likewise, the
Indian judicial process as a system also has its own peculiarities. Peculiarities here means the key
features that make the Indian judicial process stand out from the rest of the legal systems. This
system has many factors that contribute to its feature, such as, the independent judiciary, PIL
(public interest litigation and so on.

● Public Interest Litigation-

3
The ‘Basic Structure’ is the one of the important principles that is adopted in the Indian Constitution which talks about
what can be amended by the Parliament.
Public Interest Litigation can be defined as “Litigation for the protection of public interest”. In the
case of Janata Dal v. H.S.Chaudhary4, the Supreme Court expressed the meaning of PIL as a legal
action started in a court of law for the enforcement of public/general interest where the public or a
particular class of the public have some interest that affects their legal rights or liabilities.

PIL is a system through which the general public can seek remedies to an issue or dispute that is of
concern to the public. In this system, no petition involving individual/ personal matters will be
entertained. Letter petitions for matters that are related to labor matters, neglected children,
non-payment of minimum wages, family pension and so on can be considered or filed under this
system.

In PIL, the locus standi nature differs from the traditional view. Here, a person acting bonafide and
with sufficient interest in the proceeding of PIL, will alone be considered as the locus standi. For
the filing of petition can be done under Article 325 and Article 2266 of the Indian Constitution.

● Article 141-

Another notable peculiarity of the Indian judicial system is the Article 141 of Indian Constitution.
“The law declared by the Supreme Court shall be binding on all courts within the territory of
India.”
This binding power of the Supreme Court according to the Constitution makes the judgment made
by SC as ultimate and should be followed by all the other courts of law.

● Doctrine of Basic Structure-

The Doctrine of Basic Structure is another peculiarity in the Indian judicial system. It refers that
certain fundamental aspects of the Constitution cannot be altered by amendments. If any such
amendment is made, such should be done without affecting the basic structure of the Constitution.
Supremacy of Constitution, free and fair election, independence of judiciary, balance between
Fundamental Rights and Directive Principles ... .are some of the basic structure of the Constitution.

When the Constituent Assembly enacted the Constitution such principles were not considered or
were not given as much importance as the principle now has. But it is through the process of many
amendments and historical factors that lead to the adding of this. Under Article 3687Many
provisions of the Constitution were amended, resulting in the misuse of power by the Parliament.
This was changed after the case of Golak Nath v. State of Punjab.8

4
Janata Dal vs. H.S. Chowdhary and Ors. (AIR 1993 SC 892), addressed important issues related to political party
leadership and internal party democracy in the context of the Indian political system.
5
Article 32- Remedies for enforcement of Fundamental Right.
6
Article 226- Power of High Court to issue certain writs.
7
Article 368- ‘Power of Parliament to amend the Constitution and procedure therefor’
8
Golak Nath vs State of Punjab 1967,(AIR 1967 SC 1643)
● Cases related to the Doctrine of Basic Structure-

a) Sri Shankari Prasad Singh Deo vs Union of India9-

FACTS-

● As part of abolishment of the zamindari system in India, states of Bihar, Uttar Pradesh and
Madhya Pradesh passed Zamindari Abolishment Act.
● Here the land was distributed to the local residents from the hands of the wealthy zamindars.
● The zamindars of these states filed a petition under Part III of the Constitution, Fundamental
right of right to property.
● Patna High Court considered the ACT as illegal whereas the other states had different
judgments.
● The zamindars later under article 32 filed a petition in the SC.

ISSUES-

● Whether the articles 31A and 3lB in the Constitution of India are ultra vires and
unconstitutional?
● Whether the first amendment also violated Article 13?
● whether the parliament can amend the constitution? Can the fundamental rights be
amended? And, to what extent can the constitution be amended under Article 368?

JUDGMENT-

● The court held in Shankari Prasad vs Union of India that Articles 31A and 31B are not
invalid because they pertain to land matters, which fall under the State List. These articles
are essentially constitutional amendments and only Parliament possesses the authority to
enact them.

9
Shankari Prasad v. Union of India, AIR 1951 SC 458
 b) Sajjan Singh vs State of Rajasthan 196510

FACTS-

● The Rajasthan Government passed the Land Reforms Act and later Parliament also passed
the 17th Amendment Act.
● The petitioner, Sajjan Singh was the ruler of a Princely State, which later was added to the
Indian Union.
● There was an agreement between the Indian Government and the petitioner under which he
was granted certain privileges.
● With the 17th Amendment Act, changes were made to the right to hold land.
● The petitioner challenged the Act finding it unconstitutional and violation of his Fundamental
Rights.

ISSUES-

● Whether the word 'law' in Article 13(2) of the Constitution excludes an Act of Parliament
amending the Constitution?
● Whether Parliament is competent to make any amendment at all to Part III of the
Constitution?

JUDGMENT-

The Supreme Court in this case held that this amendment is covered under the purview of
Article 368 and Parliament is empowered to amend any part of the Constitution as per Article 368.

c) Golak Nath vs State of Punjab 196711-

FACTS-

● The petitioner and his brother had 500 acres of land in possession in Jalandhar.
● Under the Punjab security and Land Tenures Act, the government held that the brothers
could only keep 30 acres each, a few to the tenants and the rest was declared as surplus.
● This was challenged by the petitioner under Article 32, challenging on the ground that the

10
Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845
11
Golak Nath v. State of Punjab, AIR 1967 SC 1643
 Punjab Act was violating their Fundamental Rights.
● The petitioner claimed that the Constitution should not be amended. It should stay as the
Constituent Assembly drafted it.

ISSUES-

● Whether the Punjab Security and Land Tenures Act infringe the Fundamental Rights?
● Whether the Parliament has the Right to Amend the Fundamental Rights ?
● Whether the Constitutional Amendment is law?

JUDGMENT-

In this case the Supreme Court held that the parliament cannot amend the Fundamental Rights. Here
the petitioner won the case.
The SC pointed out that parliament has used Article 368 to pass various laws that in some way or
another violated the fundamental rights.

d) Kesavananda Bharati vs State of Kerala, 197312

FACTS-

● Petitioner in this case belonged to a religious sect in the Kasaragod district of Kerala. The
petitioner had certain pieces of land in the sect that were purchased on his name. Making him
the owner.
● The State government introduced land reforms Amendment Act, causing the government to
acquire some of the land owned by the petitioner.
● The petitioner filed the suit in the SC under Article 32, for the enforcement of his rights.
● Here the rights include right to practice and propagate religion, right to manage religious affairs,
right to equality, freedom to acquire property, compulsory acquisition of property.

ISSUES-

● Whether the 24th Constitutional Amendment Act 1971 is constitutionally valid?

● What is the extent to which the Parliament can exercise its power to amend the Constitution?

12
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461
 JUDGMENT-

The Supreme Court held that the power to amend does not refer to the power to amend the basic
structure of the constitution. The unlimited power to amend is not applicable to changing the basic
structure of the constitution.

e) Minerva Mills vs Union of India, 198013-

FACTS-

● Minerva mills, a textile mill located in Bengaluru, was nationalized as per the report submitted by
the Central Government.

● This made the petitioner to challenge constitutional validity of the 42nd Amendment Act.
● Here the petitioner pointed out that the Amendment Act strengthened Parliament’s powers and
reduced judicial review, which is against the basic structure of the constitution.

ISSUES-

● Whether section 4 and section 55 (amendment of Article 368) of the 42nd Amendment Act of the
Indian Constitution destroy the basic structure?
● Whether Directive Principles of State Policy (DPSP) can lawfully overrule Fundamental Rights.

JUDGMENT-

The Supreme Court of India ruled that 42nd amendment to be void and unconstitutional.
The Parliament has the power to amend the Constitution but it should be done within its
framework.

13
Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789
COMMON LAW TRADITION

The common law is a body of law derived from judicial decisions known as case laws, rather than
from statutes. It is an unwritten body of laws that are based on the interpretation of courts. It was
developed in England and later introduced in India during colonial times.

The simplest definition for common law is that it’s a body of law. For example, if a court makes a
particular decision based on a specific set of facts, then the court is required to follow that decision if
they ever must make a ruling on the same or closely related issue.

This system of law includes traditions, customs and usage, fundamental principles and modes of
reasoning.

COMMON LAW TRADITION IN INDIA-

The common law tradition was introduced by the British in India. Later with the end of Colonial
rule, the common law traditions were developed in a way that will suit the Indian legal system,
considering the cultural and social values and norms.

It was during British rule that a system of court of law was introduced in India. The structure of the
Supreme Court and High Court were established on the common law model.

By the end, such a system was changed and the Supreme Court now acts as the apex court. In the
current times we have different statutes and rules or codes that govern the civil and criminal matters
separately, which is the result of common law tradition.
FEATURES OF COMMON LAW IN INDIA-

● Precedent

According to Sir John Salmond, “ A precedent is said to be a judicial decision which contains its
principles. The stated principle which thus forms its authoritative element is called the ratio
decidendi. The concrete decision is thus binding between the parties, but it is the abstract ratio
decidendi which alone has the force of law as regards the world at large.”

A precedent refers to the already existing decision by the court. It is a common law system in India
where the judicial precedents are binding on all lower courts. That means, a judicial precedent is a
legally binding rule or a decision that is given by a higher court in certain cases, which the lower
courts rely on while deciding similar cases. Precedent is one of the sources of law.

In the Indian judicial system, this practice of common law is reflected in Article 141, the binding
power of judgment of the Supreme Court over all other courts.

● Adversarial System

In this system, the concept is that innocent until proven guilty. Here the parties involved will
present their case to an impartial judge and the outcome of such a case will be decided on the basis
of facts and laws involved.

In an adversarial system, both the parties have to present their evidence before an impartial judge
and facts of the case will also be included, which plays an important role. Here the judge has to
make a decision that is clearly on the provided facts and evidence. In such a system the burden of
proof lies on the prosecution to prove that the other party is guilty. If any evidence fails to prove
such then the court can dismiss the case or petition.

In this system, the influence of trial is very much important. The parties involved in such a case will
be given the chance to present their claims and provide evidence and the court will analyze the
 raised claims and evidence then make a judgment.

● Judicial Review

One of the important features among all others. It means the judiciary has the power to step into
and guide the government to comply with constitutional provisions. Judicial review is the process
of examining the constitutionality of any law passed by the Parliament. If the law passed is found to
be violating or infringing the provisions of the Indian Constitution, then either the high courts or the
Supreme Court of India can declare them as void thereby not allowing them to be enforceable. The
Supreme Court has declared the power of judicial review as a ‘Basic Feature’ of the Constitution.

● Some of the prominent of such constitutional provisions include:

a) Article 13 provides that any law that is inconsistent with or in derogation of Fundamental
Rights shall be null and void.
b) Article 32 empowers the Supreme Court to issue writs for enforcement of the Fundamental
Rights.
c) Article 226 empowers the High Courts to issue writs for the enforcement of Fundamental
Rights as well as for any other purposes.

The Judicial Review can be categorized into several types based on the scope and nature of the

review:

a) Constitutional Judicial Review – This involves the examination of the constitutionality of

legislative acts, executive orders, and administrative decisions. Courts determine whether
these actions are in line with the Constitution.
b) Statutory Judicial Review – In this type, courts interpret and assess the validity of statutes
or regulations. This review ensures that laws are applied correctly and are consistent with
 other legal provisions.
c) Administrative Judicial Review – Courts review the decisions and actions of
administrative agencies. This type of review checks for compliance with statutory mandates,
procedural correctness, and the reasonableness of agency decisions.
d) Procedural Judicial Review – This focuses on whether the correct legal processes and
procedures were followed in making a decision. Courts ensure that due process and fair trial
principles are upheld.
e) Substantive Judicial Review – Courts evaluate the substance or content of laws and
decisions to determine their fairness, reasonableness, and adherence to principles of justice.
This review goes beyond procedural aspects to the merits of the case.
RECENT CHANGES IN JUDICIAL PROCESS OF INDIA

The recent amendment 106, there were major changes to the judicial process in india.

a) The Indian Penal Code( IPC) replaced Bharatiya Nyaya Sanhita ( BNS) . The
number of sections went from 511 to 358.
b) The Criminal Procedure Code (CrPC) was replaced with Bharatiya Nagarik
Suraksha Sanhita ( BNSS).
c) The Indian Evidence Act was replaced with Bharatiya Sakshya Adhiniyam.

Alternative Dispute Resolution

The traditional mode of dispute resolution i.e. litigation is a lengthy process leading to unnecessary
delays in dispensation of justice as well as over-burdening the Judiciary. In such a scenario,
Alternative Dispute Resolution (ADR) mechanisms like arbitration, conciliation and mediation etc.
offer better and timely solutions for resolution of a dispute. A dispute resolution method without
taking matters into court. Done mostly with impartial third parties.

In India, one of the most popular modes of ADR is arbitration, conducted as per the provisions of the
Arbitration and Conciliation Act, 1996.

The key objectives of the Arbitration and Conciliation Act, 1996 were:

a) Reducing Court intervention

b) Providing for speedy disposal of the disputes.
c) Amicable, swift and cost-efficient settlement of disputes.
d) Ensuring that arbitration proceedings are conducted in a just, fair and effective manner.
e) Comprehensively dealing with international commercial arbitration and conciliation as also
domestic arbitration and conciliation.
f) Facilitating arbitrator to resort to mediation, conciliation or other procedure during the
arbitral proceedings to encourage settlement of disputes.
g) Provide that every arbitral award is enforced in the same manner as if it were a decree of the
court.
CONCLUSION

The legal framework of India is essential to the nation's democracy because it upholds the rule of
law and protects fundamental rights. It serves as an essential tool for resolving conflicts, interpreting
the law, and preserving individual freedoms. The Indian judiciary is essential to maintaining checks
and balances within the government because of its hierarchical structure, which consists of the
Supreme Court, High Courts, and lower courts.

One of the significant strengths of the Indian judicial process is its commitment to upholding the
Constitution. The legal system does not, however, come without difficulties. Case backlogs, slow
justice delivery, and the requirement for judicial changes are all ongoing problems. These difficulties
have the potential to erode public trust and compromise the judiciary's effectiveness. It will take
coordinated efforts to improve judicial infrastructure, expedite processes, and put alternate dispute
resolution systems in place in order to address these problems.

Additionally, the judiciary's interaction with the other arms of government continues to be crucial.
For a democracy to work, the court must be independent. Maintaining impartiality and fairness in
legal proceedings requires protecting judges from outside influences and pressures.

Strong judicial systems support national stability and prosperity in addition to preserving the rule of
law.