Judicial process and precedent/
Lakshminath, A.
- Lucknow: Eastern Book Company, 2016.
- 567 p.
1. Judicial Process: A Prologue 2. Precedent: A Prognosis 3. "Stare Decisis" in the Indian Courts: Institutional Aspects 4. "Stare Decidendi": A Sociological Perspective 5. "Ratio Decidendi" and the Structure of Judgments 6. Supreme Court and Overruling of Precedent . . . . 7. Judicial Law-Making and Prospective Overruling 8. Basic Structure Doctrine: Judicial Dynamics . . . . 9. Lavs' Declared by the Supreme Court under Article 141 10. Judicial Process and the Right to Life 11. Death Sentence: Judicial Ambivalence 12. Judicial Process and Personal Liberty 13. Epilogue: Future of the Past Bibliography Subject Index XX JUDIC:iAl. PROC.'HSS AND I'RIX:!'DI N T Precedent: A Prognosis (contJ.) Difference between the doctrine of precedent and the doctrine of "res judicata" Background of the case Distinction between precedent and "res judicata' Nature of the jurisdiction under Article 14^ 3. Stare Decisis" in the Indian Courts: Institutional Aspects Introduction Influence of the decisions of the Privy Ciouncil on the evolution of precedents in Indian judicial practice Federal Court and the (jovernmcnt of India Act Precedent in post-independent India: Cionstitutional context Stare decisis" in India: Pre-Bengal immunity phase Judicial development of case law Precedents: Binding nature of "guidelines and norms" . . . • issuing guidelines: Comparison with "Vishaka v. State of Rajasthan" Shah Bano case": The Supreme C'ourt's interpretation of religious texts is binding precedent Directions as law ("Jain Hawala case") Selvi v. State of Karnataka Inconsistency between the "Vishaka case" and the "Selvi case" verdict Judicial directions cannot he annulled by an Act Binding effect Duty f the High Courts to assist the Supreme Court Judicial discipline Binding nature of improper order Directions and contempt of court Binding on tribunals Judicial power to expand statutory power "Resjud.cata" and binding nature ot directions Supreme Court opinions, Rhetoric perspective C k k k k Reporting a case as precedent Two decisions by equal Benches " ^ ^ ^ ^ Jtidgments and representation Breach of judicial propriety .... "Stare Decisis" in the Indian Courts (etc.) (contd.) Precedent and "stare decisis" High Courts cannot overrule the Supreme Court's decisions 4. "Stare Decisis"; A Sociological Perspective Sociology of "stare decisis" Ratio analysis "Waman Rao" and "stare decisis" Conclusion 5. "Ratio Decidendi" and the Structure of Judgments Introduction: General observations "Ratio decidendi" as formulated by Lord Dunedin "Ratio" distinguished from "obiter" What is ratio "Rajasthan State Electricity Board v. Mohan Lai and the material fact method of ascertaining the "ratio decidendi" Sabhajit Tewary v. Union of India Authority of a decision for which no reasons are given What is an "authority" Complexities of the notion of "ratio decidendi Ratio of the "Delhi Laws case" as interpreted in the "Shama Rao case" Ratio of the "Delhi Laws case" restated: What is binding in a decision Theory of judicial decision and structure of judgment—general observations — the complexities of "Kesavananda Bharati" . . Precedential value of the "Kesavananda Bharati case" Status of the summary of "Kesavananda Bharati" "Indira Gandhi case": Ratio —How it is clarified by later decisions Amartnder Singh v. Punjab Vidhan Sabha (Privileges case) Clarification of the ratio of "Raja Ram Pal v. Lok Sabha" "Narrowing" the ratio: The lesbian, gay, bisexual and transgender (LGBT) verdict and its dilution "Stare decisis" and international law XXII JUDICIAL PROCESS AND PREC:EDEN I "Ratio Decidendi" and the Structure of Judgments (coiitd.) Material facts method of ascertaining "ratio decidendi" and judicial creativity: A critique CBSE V. Aditya BandopadhvLiy {RTI Clisc) "Maharashtra State Board" distinguished and its ratio clarified in the "RTI case" Comment State of Maharashtra v. Sangharaj Daniodar Rupawatc Julius Stone: Ratio of the "ratio decidendi" 6. Supreme Court and Overruling of Precedent Judicial process and development of law What determines the quality of judicial process in any given society? Concept of social change Prof. Dworkin's framework: Arguments of principle and arguments of policy as a basis for rationalising judicial creativity Circumstances which favour overruling Overruling of precedent—Indian judicial experience: An overview "Gopalan case" overruled? State of Gujarat V. Vora Fiddali Badritddin Mithiharivala . . Director of Rationing and Distribution v. Corpn. of Calcutta overruled in "Supt. and Remembrancer of Legal Affairs V. Corpn. of Calcutta" "Basheshar Nath r;. CIT", "Deep Chand V. siate of U.P.", Jagannath v. Authorised Officer, Land Reforms" and "State of Gujarat v. Shri Ambica Mills Ltd." "Peninsular & Oriental Steam Navigation Co. v. Secy, of ^^^te or India , State of Rajasthan v. Vidhyawati" and Kasturi Lai Ralia Ram Jain v. State of U.P." Recent trends in the concept of tortious liability of the State . Compensation Delegated legislation: "Gwalior Rayon Silk Mfg. (Wvg.) Co. K r cri "M.K. Papiah & Sons v. Excise Commr." Kerala SEB v. Indian Aluminium Co. Ltd "Kesavananda Bharati case" and overruling of Golak Nath" . Supreme Court and Overruling of Precedent (contd.) "Golak Nath" decision and the overruling of a judicial precedent Samsher Singh v. State of Punjab Maganlal Chhaganlal (P) Ltd. v. Municipal Corpn. of Greater Bombay V. Tulasamma v. Sesha Reddy 1978 overrulings "Bangalore Water Supply case": Industrial Disputes Act, 1947 "Nandini Satpathy v. P.L. Dani": The thrust of the judicial activism Conclusion Overruling of precedent: "Supreme Court Advocates-on-Record Assn. case" Scope of convention Judicial appointments: The "Collegium vs. Commission" debate 7. Judicial Law-Making and Prospective Overruling Prospective declaration of law "Golak Nath case" and the doctrine of prospective overruling Subbarao CJ's defence of the doctrine in the Indian context . . . Prospective overruling: Some theoretical considerations Prospective overruling m the American Constitution Cases in which the doctrine has been invoked in the American law and the theoretical justification therefore Objections to the prospective overruling Blackstonian theory: Separation of powers rationale and prospective overruling: Their relevance for an assessment of the judicial functions: Merits of prospective overruling Seervai on prospective overruling Prospective overruling in the Indian Constitution: Some criticisms answered P. Rajendran v. State of Madras Are judicial decisions hit by "Deep C.hand doctrine? XXIV JUDICIAL proc;e.ss and prf.cldhn r Judicial Law-Making and Prospective Overruling {contd.) Prospective overruling, "stare decisis" and acquiescence: An evaluation of their comparative merits in the context of the "Golak Nath case" Prospective overruling in non-constitutional context: "State of Kerala v. Alasserry Mohammed" Doctrine of prospective overruling Limits of retroactivity of law Prospective overruling: A modus vivendi: Ideological-cum-social policy facets of the problem in the setting of the "Golak Nath case" Prospective overruling and doctrine of moulding the relief: Article 142 Equity as a necessary element or component of complete justice Restrictions on the exercise of powers under Article 142(1) of the Constitution of India Conclusion Article 142: Complete justice: "Ashok Kumar Gupta v. State of U.P." 'K. Madhava Reddy i.. State of A.P.": Summing up the lan judicial approach to prospective overruling . . , Facts of the case P" tive overruling; Avoiding a harsh and unfair result . 8. Basic Structure Doctrine: Judicial Dynamics Conceptualising constitutionalism Contextualising a cross-cultural perspective . . . . ^ ^ ^ ^ ^ . To'ablXtr'' judicial reviewabsolute judicial supremacy Indian experience and experiment Judicial abdication "Cash for query" dash Basic structure doctrine reaffirmed 9. Law Declared by the Supreme Court Under Article 141 Interpretation of Article 141 "State"; Precedential expansion Public enterprise Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi Statutory character Expansion of concept Major grounds of complaint against expansion Private enterprise as State Functional difference Functional theory Control test Human rights jurisprudence Societies as State Tekraj Vasandi v. Union of India Absence of "lis" "Other authorities" as "State Constitutional grounds Consequential grounds Conceptual grounds An appraisal Law declared under Article 141 and "ratio decidendi" of a case: Scope of Article 141 in its application to judicial precedents Multiple opinions and "ratio decidendi Haji Mohammed Din v. Narain Dass Binding effect of "obiter dictum" Status of "obiter dicta" under Article 141 Legal position of "obiter dicta under Article 141: Case law considered Cases decided on concession, conflicting decisions and decisions "per incuriam Per incuriam Effect of a decision prospectively overruling a precedent under Article 141 Advisory opinions XXVI JUDICIAL PR0C:KSS and I'RHCF.DI-N r Law Declared by the Supreme Court under Article 141 (contd.) Opinion of the Supreme Cioiirt in presidential reference cases and binding effect Natural Resources Allocation, re. Special Reference No. i of 1011 {Natural Resources case) Judgment rendered under Article 14U Whether precedent under Article 141? Nuances of Article 14^ of the Cionstitution President cannot refer a decided case Foreign decisions Decisions on questions of fact and decisions which involve judicial pronouncements about criminal sentence: A critique of Dalbir Singh v. State of Punjab" Sentencing jurisprudence in capital cases: American background and its relevance to India No jurisdictional embargo 10. Judicial Process and the Right to Life Article 21 of Indian Constitution 44th Amendment and Article 21 Judicial activism Creation of various rights Right to livelihood Right to health without adequate protection to the workers pu ic are violative of Fundamental Rights Right to ecology and environment T U- ^ Fundamental Right under Article 21 la an euthanasia: The poignant "Aruna Shanbaug Case" . . Right to education Judicial pronouncements Right of Children n Judicial interpretationTr f Act, aoo9 transfotnta.iveconstrtnt.tm'atsm" Introduction 11. Death Sentence: Judicial Ambivalence Existential debate: Death penalty and its constitutionality "Jagmohan" jurisprudence Article 19(1) Essential legislative powers argument Equality argument "Procedure established by law" argument "Rajendra Prasad case" and "conditional constitutionality" of the death penalty "Mithu case" and the "constitutionality of mandatory death sentence" "Bachan Singh case": Deliberative debate in the court Majority opinion: Sarkaria vie Bhagwati doctrine: Unconstitutional death sentence Caging the death sentence: The Supreme Court and its views on "standardisation of death penalty "Rajendra Prasad case" and the judicial restraint "Bachan Singh case" and the unanimity on non-acceptance of standards "Swamy Shraddananda case", "Sangeet case" and the observations against the "Machhi Singh" standardisation . . . Delay, inordinate delay and death penalty "Devender Bhullar" and "Shatrughan Chauhan case": Terrorism and commutation of death sentence "Audi alteram partem" and death penalty: Oral hearing vis-a-vis written submissions in review proceedings Conclusion 12. Judicial Process and Personal Liberty Impact of judicial process on personal liberty Preventive detention and Article 21 after "Maneka Gandhi" . Due process of law XXVIII JUDICIAL PROCESS AND PRECEDENT Judicial Process and Personal Liberty {coutd.) Bail and personal liberty Right to free legal aid ^ Right against solitary confinement Right to speedy trial Compensatory jurisprudence Power to award compensation under Article 32 mpact of judicial process on right to privacy "in India Right to know . 13. Epilogue: Future of the Past Overruling of recent precedent Freedom and flag Privacy rights Planned Parenthood of "Casey" Right to die Power to ov'er^rX^""^ Judicial discipline and propriety . Lack of precedent consciousness Precedent and legal theory Bibliography Subject Index