1

GOVERNMENT LAW COLLEGE

TIRUNELVELI
In Partial fulfilment of the requirements for the award of the
degree of

MASTER OF LAW (L.L.M)

IN
BUSINESS LAW

SUBJECT
JUDICIAL PROCESS
IN
ANALAYSIS OF SELECTED CASES OF SUPREME
COURT- WHERE THE JUDICIAL PROCESS CAN BE
SEEN AS INFLUENCED BY THEORIES OF JUSTICE.

BY
PRIYA .A
REGISTER No : PG 240518
 2

Legal Educational and Research Methodology

in
Discussion method and its suitability at postgraduate level teaching
TABLE OF CONTENT

S.No. Topic Page Number

1. Introduction 1
2. Influences of Theories of Justice 4
3. Theories of Justice and Indian Judiciary 7
4. Theories of Justice and Constitution of India 9

5. Judicial process-Theories of Justice Influences and its 11

related supreme court cases

a)Basic Structure Theories and its judicial pronouncement

b) John Rawls Theories its judicial pronouncement

c) Distributive Theories its judicial pronouncement

d) Other Theories of Justice its judicial pronouncement

i. Libertarianism theories
ii. Ulititarian theories
iii. Amartya Sen’s theories

6. Conclusion 15
7. Reference
 3

INTRODUCTION:

The judicial process is a fundamental aspect of any legal system and plays a crucial role
in upholding the rule of law. It encompasses a series of steps and procedures that aim to resolve
disputes and administer justice in a fair and impartial manner. The term “judicial process” refers
to everything a judge does in the pursuit of justice. It basically confines itself to the study of the
law. The judicial process is basically the whole complex phenomenon of the court, and finding
the lacunae in the midst of the process is the object of this project. Right from the 1Golaknath
case to the Justice 2K.S.Puttaswamy case (Aadhar Judgment), some fundamental rights were
affected in some way or another despite the studious and calibrated judicial interpretation of
Article 21 through various landmark case laws. One of the famous judges of the Supreme Court
stated that humans were not infallible and subjected to error. If an error is done accidentally, it is
a mistake, and if an error persists for a long time, it is called injustice. This process is meant to
determine a person’s guilt. A judge can straighten out the case with the primary evidence and
witnesses, but there is a procedure for making it fair without any bias. It plays a crucial role in
maintaining law and order, upholding justice, and ensuring that individuals and institutions
adhere to the norms and rules established by the legal system. The judicial process is a
cornerstone of a well-functioning legal system. norms, it contributes significantly to maintaining
social order and stability within a society. In India from the very old period itself Justice was
followed and it was even considered to be the very embodiment of God itself where its sole
mission was to uphold justice, truth and righteousness. Vedas also demonstrated its deep
commitment towards justice. Manu, Yajnavakya etc also shed light on the nature and quality of
justice which was followed in the ancient India. With the advent of the Britishers, they followed
the status qou and didn't go for much alteration to the laws enacted by Hindus and Muslims. But
in fact it was during the colonial period, the Britisher's drafted laws embodying substantial and
procedural justice where ideas of rule of law, freedom of persons, civil liberties, natural justice,
and equality were reflected. Later with the enactment of the Constitution, these became law of
the land which is evident from the Preamble, Part III and IV of the Constitution.

2
landmark 2017 Supreme Court of India case that established the right to privacy as a fundamental right in the
Constitution of India
 4

WHERE THE JUDICIAL PROCESS CAN BE SEEN AS INFLUENCED BY

THEORIES OF JUSTICE
BRIFLY VIEW:

The judicial process can be influenced by theories of justice in several ways, including:

The Indian Constitution

The Indian Constitution's concerns with justice, liberty, equality, integrity, and dignity
are interpreted to provide social, economic, and legal justice. The Constitution's Articles 14
and 21, which address "equality before Law" and "Right to live with dignity", are considered
the soul of the Constitution's governance.

John Rawls' Theory of Justice

The essence of Rawls' theory of justice can be seen in the Indian judicial system, even
though the Indian Constitution came into force before Rawls' theory was developed.

Two guiding principles stated by John Rawl are:

 First principle; "Each person has the same indefeasible claim to a fully adequate
scheme of equal basic liberties, which scheme is compatible with the same scheme of
liberties for all"

 Second Principle: "Social and economic inequalities are to satisfy two conditions:

a. They are to be attached to offices and positions open to all under conditions of
fair equality of opportunity;

b. They are to be to the greatest benefit of the least-advantaged members of

society.

The first principle guarantees as much liberty as possible to individuals as long as their
freedom does not hinder the fundamental liberty of others, they should be free to act as they
choose.
 5

The second principle has two parts, the first part explains that we can have economic and
class differences even if the most disadvantaged individuals in a society are benefited in some
way. The second part explains that socio economic inequalities must be such that everyone has
a fair and equal opportunity of obtaining them. Rawls theory of justice has influenced a lot of
current political states and the way they function. India is one among the countries that have
been influenced by Rawls theory of justice, India too also has similar aims to safeguard and
provide justice for all. The values of justice, liberty, equality, and fraternity were appropriately
included into the Constitution of India's provisions starting with the preamble, basic rights,
guiding principles of state policy, and other sections as well while considering the needs of the
future society.

Starting with the preamble of the Constitution, preamble too lays down key principles of the
constitution. India is said to pursue social, economic, and political justice among other things
to guarantee equality for all of its residents. In this context, the term "justice" refers to the lack
of arbitrary behavior, the significance of the rule of law, and a framework that guarantees
everyone in Indian society the same rights, freedoms, and opportunities. vii The preamble's
principles of justice serve as the basic foundation of John Rawls' theory of justice. The articles
of the constitution has also influenced Rawls theory of justice. In accordance with Article 14 of
the Indian Constitution, everyone living on Indian soil has the same access to legal protection.
It ensures equality for all people, including locals, businesses, and travelers. One of the
positive ideas of equality is the equal protection of the laws. It places a positive duty on the
state to stop rights violations. Socioeconomic changes can do this. Since everyone has access
to justice, equality before the law is viewed as the converse of equality. The right to equality
also stops the state from acting arbitrarily. This article opposes the idea of arbitrariness and
states the equal protection of the laws. Every governmental body is subject to a number of
limitations to prevent arbitrary action. To stop the state's organs from making arbitrary
decisions, this is a crucial step. The term equality therefore refers to both social and economic
equality. This social and economic fairness should be upheld by the state at their own costs.
The socially disadvantaged members of society must get special attention in order to put them
on level with the privileged members of society in order to attain equality. With his difference
principle, John Rawls aims to do just this.
 6

3
Rational choice theory

This theory is the dominant decision-making process in the judicial industry. However,
it only accounts for part of the decision-making process, as non-doctrinal considerations are
disregarded.
4
Classical sociological theory
This theory accepts the idea that law and society interact with one another. Early
sociologists such as Marx, Durkheim, and Weber theorized that law is influenced by society
and changes in accordance with those influences.
Distributive justice

The Constitution of India is linked to the theory of distributive justice, which states that
the law should change with the values of society and human justice. The Constitution provides
justice based on social needs and the societal environment.

Realist theory

Realists believe that judges are influenced by extralegal factors, such as policy
perspectives and personal feelings, when making judgments. They argue that a judge's
personality and external environmental factors are the primary basis for their decision, not
legal precedent.

Judge-made law
Judges may make law when existing laws don't provide justice, or when there is a legal
vacuum. This can create a sense of reliability and credibility among the people, but it can also
create uncertainty and strife between the organs of the state governance.

Theories of Justice and Indian Judiciary

3
Amartya sen’s theory called
4
Marx, Durkheim,
 7

As Cardozo has rightly stated in his book Nature of Judicial Process that a judge may
be influenced by his conscious and subconscious factors in arriving a judgment. And he may
even refer to various theories of justice as propounded by western philosophers during the same.

Judiciary which is said to be the independent organ of the government has indeed taken
effective efforts to reflect various theories of justice as propounded by various jurists in their
judgments. Such theories of justice includes Bentham's Utilitarian theory of justice, Hebert
Spencer's and Immanuel Kant's theory of liberty of individual, Dwarkin's Rights Thesis, Rawl's
Theory of Justice, Amartya Sen's Idea of Justice, and also Socialist, Gandhian and natural
principles of Justice etc. Hence a brief analysis of the same is stated below.

In contrast to an equal distribution, Rawl also provided economic and social disparities,
with the condition that this arrangement should aid the most disadvantaged in becoming better
off in society. Lastly Rawl believed that the goal behind such inequality should be to help those
without resources to get a position of power in the public domain. Using a hypothetical idea of
original position, Rawl elaborates on his views on justice. The original position has certain
characteristics with social contract theory in terms of how nature is. When members of a society
are in their original positions, it is assumed that the parties are unaware of their conceptions of
the goal or their unique psychological characteristics. This idea holds all individuals within a
society in this "hypothetical device" known as the original position. Rawl referred to that as
keeping individuals behind a veil of ignorance.

Veil of ignorance assumes that people do not know or they become ignorant of
themselves in matters of their social standing, for instance they would not know if they are rich
or poor, young or old, class and position etc. People who are behind this veil are unaware of how
their fortune will be determined by the allocation of their natural resources and skills. But Rawl
thinks in a society this philosophy would help in preventing advantages from being adjusted to
one's own preference. Which then results in the distribution of benefits that are equitable to
everyone because, if a person does not know how he will function in his own imagined society,
he is unlikely to favor or grant privilege to any one class of people but, rather, will develop a
justice system that treats everyone equally.

I. Theories of Justice and Constitution of India:

 8

The Indian Constitution is based on a combination of multiple theories of justice,

including social justice, economic justice, and legal justice:

a. Social justice

The idea that all citizens should be treated equally, regardless of caste, creed, race, religion, or
sex.

b. Economic justice

The idea that people should not be discriminated against based on economic factors, such as
wealth, income, or property.

c. Legal justice
The idea that everyone should be treated fairly under the law, including citizens, businesses,
and immigrants.
The Indian Constitution also includes the following provisions that reflect these
theories of justice:
i. Article 14: Ensures equality before the law
ii. Article 15, 16, and 21: Examples of Rawlsian justice
iii. Article 38: Directs the government to promote the welfare of the people by securing and
protecting a social order based on social, economic, and political justice
iv. Article 39: Seeks to create justice for everyone by allocating resources equitably and
evenly sharing rights and obligations
v. Article 39A: Enshrines provisions relating to "Equal Justice and Free Legal Aid"

The Indian Constitution is not based on a single theory of justice, but rather on a combination of
multiple theories.
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Judicial pronouncement of Indian Constitutional Law and the Theories of

Justice:

India’s most influential judgement is the verdict in Maneka Gandhi vs Union of India.
In 1977, the passport of Maneka Gandhi (the women and child development minister) was
impounded by the ruling Janata Party government. In response, she filed a petition in the
Supreme Court challenging the government’s order. While the court did not reverse the
government order, the observations in their judgement had far-reaching ramifications.

The seven-judge bench asserted the right to personal liberty as enshrined in Article 21 of
the Constitution, making it an important precedent for cases related to fundamental rights. Since
then, it has been cited 215 times by other Supreme Court judgements.

I. Basic Structure Theory

After the enactment of 24 th, 25th, 26th and 29th amendments of the
Constitution, their validity was challenged on authority of Golak Nath[22] Judgment
in 5Keshavanda Bharathi v. State of Kerala[23].

But Golak Nath was overruled and the basic structure doctrine was upheld by the judiciary
where the basic structure has not been still defined and is enlarged to include many of the rights
of the individuals which cannot be abrogated by the Parliament.

Indira Nehru Gandhi v. Raj Narain6 [24] upheld the independence of judiciary in dispensing
justice and held that judicial review is a basic feature of the constitution.Consequently after
1976, Supreme Court took considerable efforts to bring a new egalitarian order in furtherance of
Directive Principles of State Policy. Thus in Minerva Mills[25], court underlined that Part III and
IV of the constitution is like a twin formula for achieving the social revolution.

5
(1973) 4 SCC 225
6
1975 AIR 865
 10

II. John Rawls' Theory of Justice:

John Rawls theories of Justice Published in 1971, ‘A Theory of Justice’ is a work on ethical
values and political philosophy by John Rawls, the philosopher. The book portrays the attempts
made by the author to represent an alternative moral theory to utilitarianism as well as discusses
the major challenges and problems of distributive justice.

John Rawls' theory of justice is a political philosophy that aims to reconcile the ideas of freedom
and equality in a well-ordered society. Rawls' theory of justice is based on the idea that justice is
fairness, and that citizens are free and equal. He believed that justice should be achieved by:

 Equal rights and liberties: Each person should have the same rights and liberties as everyone
else, to the fullest extent possible.

 Socio-economic inequality: Socio-economic inequality is only acceptable if it benefits the least

well off in society and is attached to offices that are open to all.

 Prioritizing basic liberties: Basic liberties should be prioritized over the demands of equality.

Rawls believed that his theory of justice could help citizens understand how to act justly and
reconcile themselves to institutions. He also believed that his theory could help resolve tensions
between the ideas of freedom and equality.

Rawls' theory of justice is based on a fair choice situation called the original position, where
parties choose principles of justice under a veil of ignorance. Rawls believed that everyone
would reach the same conclusions about what justice is in this situation.

The Two Principles of Justice

John Rawls presented two principles of justice that self-interested and rational individuals would
choose when separated by the veil of ignorance. The principles include:

1. Principle of Equal Liberty

The principle of equal liberty is the first principle of justice to be derived from the original
position. It states that all citizens have an equal right to basic liberties, which, according to
Rawls, entails freedom of conscience, expression, association, and democratic rights.
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Rawls added the right of personal property as one of the basic liberties that individuals should
have, and that cannot be infringed or amended by the government. He, however, excluded an
absolute right to unlimited personal properties as part of the basic liberties that people should
have.

2. Principle of Equality

The principle of equality holds that economic principles should be arranged in a way that they
meet two requirements. First, the least advantaged in society should receive a greater number of
benefits.

Second, the economic inequalities should be arranged in a way that no individual is blocked from
occupying any position or office, regardless of their ethnicity, sex, or social background. Rawls
argued that all individuals in the society should have fair equality of opportunities and an equal
chance as everybody else of similar natural ability.

Judicial Pronouncement of John Rawls’ Theories of Justice:

Rawl's has propounded the influences social contract theory and he

points out that Justice is the first virtue of social institution. Rawls theory of justice which
inculcates the issues of liberty, social equality, democracy etc can be evidently witnessed in
Indian judgments.

7
State of Madras v. Champakam Dwarairaja[1] was the main case on this point, after which
the first amendment to the Constitution followed.

8
Indira Sawhney v. Union of India [2] was the then landmark judgment where by reservation
of jobs for the backward classes was upheld. The ideas of equality through protective
discrimination for ensuring justice was further followed in a number of judgments even in the
judgments of Nagaraj v. Union of India9[3] and Jurnail Singh v. State of Gujarat pronounced
in the recent past.

7
AIR 1951 SC 226
8
AIR 1993 SC 477
9
(2006) 8 SCC 212
 12

The principle of distributive justice, which dates back its origin to Aristotle and as emphasized
by John Rawl has been enshrined in the Indian Constitution, Articles 142 and 144 along with
Part III and IV of the Constitution. Various judgments discussing environmental issues
highlighted the principles of distributive justice.

III. Distributive Theories of Justice Influences of Judicial Process:

Distributive justice is a moral philosophy that involves the fair distribution of resources, goods,
and opportunities in a society. It's based on moral norms, entitlements, efficiency, and other
relevant considerations.

Here are some ways that distributive justice can influence the judicial process:

Egalitarianism

This theory emphasizes equal treatment and equality across gender, race, religion, economic
status, and political beliefs.

Fairness

Distributive justice assumes that equal work should result in equal outcomes in terms of goods
acquired.

Utilitarianism
This theory suggests that resources should be distributed to maximize overall happiness or
utility.
In India, the government has implemented policies and programs to promote distributive justice,
including the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA), the
National Food Security Act (NFSA), and the Pradhan Mantri Jan Dhan Yojana (PMJDY)

Other Theories of Justice And Indian Judiciary:

As Cardozo has rightly stated in his book Nature of Judicial

Process that a judge may be influenced by his conscious and subconscious factors in arriving a
judgment. And he may even refer to various theories of justice as propounded by western
philosophers during the same.
Judiciary which is said to be the independent organ of the government has indeed taken effective
 13

efforts to reflect various theories of justice as propounded by various jurists in their judgments.
Such theories of justice includes Bentham's Utilitarian theory of justice, Hebert Spencer's and
Immanuel Kant's theory of liberty of individual, Dwarkin's Rights Thesis, Rawl's Theory of
Justice, Amartya Sen's Idea of Justice, and also Socialist, Gandhian and natural principles of
Justice etc. Hence a brief analysis of the same is stated below.

a) Libertarianism And Justice

Libertarianism strongly value for individual liberty and freedom and relates to the classical
liberal traditions of John Locke, David Hume, and Kant etc. In NALSA[14] judgment, the court
referred to Kant's 225 year old principle of free will and hedonist utilitarianism by Bentham and
stated that in the present case there exists no dichotomy between individual freedoms as against
public good and hence upheld the rights of the third gender persons. It was followed in Navtej
Singh Johar v. Union of India, striking away the draconian law of section 377 of Indian Penal
Code.In Shayara Bano v. Union of India10[15], enforcing equality the instant triple talaq was
strucked down by the court and also in Joseph Shine v. Union of India[16], the Supreme Court
of India in its landmark judgment held that adultery would no longer be a criminal offence under
Indian law, outstripping 158 year old law of section 497 of Indian Penal Code.

b) Ulititarian Theory Of Justice

Jeremy Bentham propounded his famous utilitarian theory where he

claims that a law should be enacted with the prime object of providing maximum justice to the
maximum number of people. Public utility is thereby determined through the hedonisticcalculus.
This was portrayed in 11Olga Tellis v. Bombay Muncipal Corporation[17], where
Chandrachud. J. applied this doctrine and explained the concept in the brief statement:

10
(2017) 9 SCC 1
11
1985 SCC (3) 545
 14

The court ruled though the eviction order is valid under Article 14 and 19 of the
Constitution, right to life was enlarged to engulf the right to livelihood as being part of
liberty of an individual.

Court thereby focused upon the concept of welfare state.Referring to the Hume's theory of
justice, in Union of India v. Tulsiram Pat12e[18]l, the court underlined that public utility is the
sole origin of legal justice and for a useful legal system, it must adhere to such rules, even though
it may cause injustice in particular cases.

c) .Amartya Sen's Theory Of Justice

Amartya Sen propounded the Social Choice theory, whereby he states that a law should be
enacted understanding the needs of the society and should be based on demand of justice. Recent
landmark judgment of Puttuswamy v. Union of India, apart from dealing with privacy it also
dealt with many other aspects. It invoked the writings of Amartya Sen's Idea of Justice and
stated that Political liberties and democratic rights are the constituent components of
development. Chandrachud .J. even overruled his father's judgment in ADM Jabalpur v.
Shivakanth Shukla[20] and thereby upheld the dissent of Khanna J. and thereby the recognition
of right to life and personal liberty under the Constitution.

In 2010, Pradeshiya Jan Jati Vikas Manch and Others v. State of UP and Others[1321],
referred to Part IV of the Amartya Sen's Idea of Justice- Public Reasoning and Democracy in
ensuring the civil and political rights of the Scheduled Tribes and person's right to representation
at the grass root level. B.K. Pavitre v. Union of India referred to Amartya Sen's Merit and
Justice in understanding merit as an instrument in achieving social ordering and in lessening
economic inequality. Court thereby ruled that providing reservations to SC's and SCT's is not at
odds with the principle of meritocracy. Court ruled that merit must not be limited to inflexible
criteria's such as ranks in exams but seek to provide equality in the society.

Conclusion:

12
1997 (3) SCC 398
13
AIR 2011 ALL 1
 15

Ronald Dwarkin in his book- Rights Thesis, emphasises the importance of the rights of
the individuals. Upholding the common citizen's right and liberty to hold public meetings on
streets and the extent to which the state could regulate it, Himat Lal K. Shah v. Commissioner of
Police[9], marked an important decision in upholding liberty ideals of justice.

The individual's right to dignity was reinforced in:

1. Kharak Singh[10],

2. Satwan Singh[11]

3. Cooper cases[12] and

was the judgment which marked the paradigm shift towards ensuring individual dignity even in
cases where the right of a person is affected by a procedure established by law. The judgment
also reflected the principles of dharma and ancient theories of justice of neethi and nyaya.
Judgment thereby also included substantial justice along with procedural justice. Principles of
Due process of Law of U.S Constitution, was thereby interpreted to the Constitution, under
Article 21.

So in fact there may exist, no society without justice. And the concept pf social
conditioning and individual responsibility plays an important role in theories of justice. Along
with the analysis of these judgments where we can observe the reflections of various judgments,
in addition we have seen the judicial activism of the court many a times, and this law making
function of the court can be traced back to the realist school of jurisprudence which can be said
in line with the Austanian concept of command over the sovereign, whereby here judge is
considered to be supreme in setting law in a legal right. PIL's have proved to be effective due to
the very reason that the judges have evolved laws through directions. Thus it can be said that
judgments are the very embodiment of justice were we can observe various theories been
reflected there.
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1. Judicial Process

Dr.Sheetal Kanwal

2.Judicial Process and precedent

A.Lakshminath

3. Ipleaders.com

4.Byjus.com

5. Judicial process by justice

6. https;//qauhat law of judicial.com

7.Hullabaloo in the Quota Orchard" Affirmative Action: The Contentious Case of

India, FLAX, last visited (Oct. 17, 2021, 12:41 PM),

8. Adv. Shreelakshmi Sayajirao Raje Bhonsle, Justice For All: John Rawls’
Theory Of Justice And Its Relevance In Indian Judicial System

9. Ira Chadha-Sridhar et al Sachi Shah, Caste and Justice in the Rawlsian

Theoretical Framework: Dilemma as on the ‘Creamy Layer’ and Reservations in
Promotions, 10(2) NUJS L. Rev. 171, 171-176 (Apr.-Jun. 2017).