TY  - BOOK
TI  - Judicial process and precedent
SN  - 9789351452935
U1  - 347 
PY  - 2016///
CY  - Lucknow
PB  - Eastern Book Company
N1  - 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
ER  -