JUDICIAL PROCESS AN INSTRUMENT OF SOCIAL ORDERING

                                                                                                  RK. GAYATHIRI DEVI[1]

 

 

INTRODUCTION

Judicial process is any inter- related procedure adopted by judge to deliver justice to people. It is the process in which what all procedure judges is following to give justice to people[2]. Social ordering is the activating instrument of judicial process in setting right the wrong done or eliminating injustice from society. It the process in which by using judicial process eliminates the injustice and giving justice to people.[3] Court plays a vital role in judicial process an instrument of social ordering by applying new principles. The role of judge is one that is paramount. They are instruments par excellence in handling and deciding cases with guidance of existing legal order.

CONSTITUTIONAL PROVISIONS FOR ROLE OF JUDGES AND THE JUDICIARY

Makes SC as protector and guarantor of the fundamental right through writs.[4] Confers wide power of judicial review to courts. In the exercise of judicial review it can examine the constitutionality of an executive or legislative act.[5] Indicates that power of SC is to declare the law and not to enact it, but in the course of its function to interpret the law, it alters the law.[6] Enables the SC in exercise of its jurisdiction to pass such order as is necessary for doing complete justice in any cause or matter pending before it.[7]

 

 

INSTRUMENT OF SOCIAL ORDERING

To secure social justice constitution is having article in that supreme court have right to issue directions or order or writs for enforcement of any right. Supreme court have given great relief by social ordering.[8]

Now it will be appropriate to examine areas in which judicial process played a vital role in eliminating social ordering. The following are the case laws in which supreme court played a vital role in ordering social disorder.

  1. BACKWARD CLASSES OF THE SOCIETY

In Indra Sawbney v Union of India[9], the kerala government passed an act reserving certain quota for backward classes in government jobs without excluding the creamy layer in the backward classes. This is much against the judgment of the supreme court in mandal case that creamy layer in backward classes must be excluded for reservation in government jobs.

The kerala act was challenged again in the supreme court which held that the act was discriminatory, violative of art. 14, 16(1) and 16(4) and hence unconstitutional. The creamy layer in backward classes has to be treated on par with the forward classes and hence are not entitled to the benefits of reservation.

  1. BIGAMY

In Lilly Thomas v Union of India[10], Lily had filed the petition in the Supreme Court on status of the earlier marriage regarding a case when a non-Muslim gets converted to the ‘Muslim’ faith without any real change or belief without divorcing first wife. On May 5, 2000, the bench of S. Saghir Ahmed and RP Sethi, JJ held that change of religion does not dissolve the marriage performed under the Hindu Marriage Act between two Hindus. The Court had further held that mere conversion does not bring to an end the marital ties unless a decree for divorce on that ground is obtained from the court. Till a decree is passed, the marriage subsists. Any other marriage, during the subsistence of the first marriage would constitute an offence under Section 494 read with Section 17 of the Hindu Marriage Act, 1955 and the person, in spite of his conversion to some other religion, would be liable to be prosecuted for the offence of bigamy.

  1. BRIDE BURNING

In Paniben v State of Gujarat[11],  it was held that the prosecution had failed to prove that the deceased was burnt alive by the accused, and the accused was acquitted.The state appealed to the High Court, and a Division Bench considered the circumstances under which the dying declarations were recorded.

  1. BONDED LABOURERS

In Bandhua Mukti Morcha v Union of India[12], it is good example of social ordering by way of judicial process. Supreme court, tried to eliminate social- economic evil of bonded labour, including child labour and issue certain guidelines to be followed.

  1. CASTE SYSTEM AND JUDICIAL PROCESS

In Lata Singh v State of Uttarpradesh[13], This case reveals a shocking state of affairs. There is no dispute that the petitioner is a major and was at all relevant times a major. Hence she is free to marry anyone she likes or live with anyone she likes. There is no bar to an inter-caste marriage under the Hindu Marriage Act or any other law.

  1. CHILD LABOUR

In Bachpan Bachan Andolan is an India-based movement campaigning for the rights of children. It was started in 1980 by Nobel Laureate Mr. Kailash Satyarthi. Its focus has centred on ending bonded labourchild labour and human trafficking, as well as demanding the right to education for all children. It has so far freed more than 88,000 children from the servitude, including bonded labourers, and helped in their successful re-integration, rehabilitation and education.[14] In MC.Mehta v State of Tamilnadu[15] SC, issued direction to state government to ensure fulfilment of legislation intention behind child labour ( prohibition and regulation act 61 of 1986). Tackling the seriousness of this socio-economic problem of SC has directed offending employer to pay compensation, sum of 20,000 for every child employed.

 

  1. CHILD PROSTITUTION

In Gaurav Jain v Union of India[16] SC issued directions for rescue and rehabilitation of child prostitutes and children of prostitutes.

  1. DOWRY DEATH

In Raja Lal Singh v State of Jharkhand[17] SC, clear nexus between death of gayatri and dowry related harassment inflicted on her, therefore, even if gayatri committed suicide, s- 304B of IPC can still be attracted.

  1. EQUALITY OF MEN AND WOMEN

In Air India v Nargesh Meerza[18] it was held the provision of Air india service regulation 46(i)(c), or first pregnancy whichever occurs earlier is unconstitutional and is violative of art- 14 of constitution.

  1. HARRASMENT OF WOMAN

In Vishaka v State of Rajasthan[19], it was held that sexual harassment of working women amounts to violation of gender equality under article 14 and also violation of right to practice any profession, occupation and trade under article 19. Hence the affected person is entitled to remedy by way of writ under article 32 to the supreme court for violation of fundamental rights.

  1. MAINTENANCE

            In Mohd. Ahmed Khan v Shan Bano[20],commonly referred to as the Shah Bano case, was a controversial maintenance lawsuit in India, in which the Supreme Court delivered a judgment favouring maintenance given to an aggrieved divorced Muslim woman.

  1. EDUCATION RIGHTS

In Mohini Jain v state of Karnataka[21] in this case, SC held that the right to education is a fundamental right under art 21 of the constitution. The charging of higher fees in the form of capitation fees affects the fundamental right to education, which is closely linked to right to life under art 21. Further, the denial of citizen’s right to education is violative of art 14 of the constitution.

In Unni Krishnan JP v state of Andhra Pradesh[22] through article 21 is expressed in a negative language “no person shall be deprived of his life or personal liberty except according to procedure established by law”. It guarantees many positive rights to life and liberty of individuals. Right to life and liberty exists in every man and it is not a fundamental right but relate to every man and it is not a fundamental right but relate to the whole domain of social and economic fact.

  1. LIVING TOGETHER

In Kushboo v Kaniammal[23] The Indecent Representation of Women (Prohibition) Act, 1986 (in short 'Act'). As a matter of fact, nothing has been stated about the women of Tamil Nadu in particular .we really have it when it comes to freedom of expression” said actor Khushboo. It is virtually live in relationship.

  1. ENVIRONMENT PROTECTION

In MC. Mehta v Union of India[24], The petitioners sought a direction for closure of the various units of Shriram Foods & Fertilizers Industries on the ground that they were hazardous to the community. During the pendency of the petition, there was escape of oleum gas from one of the units of Shriram.

ROLE OF JUDGES IN BRINGING ABOUT SOCIAL ORDER

The judges has the role to bring social ordering, they are having many process and procedure to fulfil this ordering. The some of the steps to follow to ordering social.

  1. Interpretation

  2. Filling up of blanks

  3. Recommendations

  4. Mediation proceedings.

 

 

CONCLUSION

Justice V.R. Krishna Iyer- law is not boarding omnipotent in the sky but a pragmatic instrument of social order. Judicial process means of enforcing law, in the light of above discussion certainly it would be perfectly right to say that judicial process is an instrument of social ordering.

 REFERENCE

  1. B.N. Cardozo, The nature of the judicial process, (Universal, New Delhi,6th Edition,

  2. Henry J. Abraham, The judicial process, (1998, Oxford).

  3. P. Ishwara Bhar, Law and social transformation, (Eastern book company 2014).

  4. MP. Jain, Indian Constitutional Law, (LexisNexis, 8th edition, 2018)

  5. Dr. Durga Das Basu, Introduction to constitution of india, (LexisNexis, 21st edition, 2018).

 

 

 

 

[1] M.SC- APPLIED PSYCHOLOGY, PONDICHERRY UNIVERSITY, LL.M- LABOUR AND ADMINISTRATIVE LAW, PGDFL- POST GRADUATE DIPLOMA IN FRENCH LAW- DR. BR. AMBEDKAR GOVERNMENT LAW COLLEGE- ADVOCATE, PUDUCHERRY.

[2] Judicial process

[3] Social ordering

[4] Article 32 and 226

[5] Article- 13

[6] Article- 141

[7] Article- 142

[8] Article- 32

[9] AIR 1993 SC 477

[10] AIR 2000 SC 1650

[11] AIR 1992 SC 1817

[12] AIR 1984 SC 802

[13] AIR 2006 SC 2522

[14] BBA- save childhood movement- 2013

[15] AIR 1997 SC 699

[16] AIR 1997 SC 3021

[17] 8th may 2007

[18] AIR 1981 SC 1829

[19] AIR 1997 SC 3011

[20] AIR 1985 SC 945

[21] AIR 1992 SC 1858

[22] 1993 SCC (1) 645

[23] 2010 SCC 600

[24] AIR 1987 SCR (1) 819

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