1.

Judicial Process:
Judicial process refers to the system by which courts interpret and apply the law to resolve disputes
and administer justice. It involves legal reasoning, interpretation of statutes, application of
precedents, and the exercise of judicial discretion. The judicial process is connected with the
dispensation of justice by any court of competent authority and jurisdiction. It has certain steps like:

 Filing the case

 Check the jurisdiction of the court where the case is filed
 Pleading
 Discovery of evidences and investigation process
 Trial
 Verdict
 Appeal done if needed
 Enforcement of the decision

Thus, judicial process aims to provide a fair and unbiased form of resolving legal disputes and
properly hold accountable the people who have done the wrong. This principle also promotes
transparency in the entire proceeding. However, it might have some loopholes or weakness like that
of lengthy, complicated, strict, inconsistent, etc.

2. Social Ordering:
Social ordering refers to the structured and organized system in society that governs the behaviour of
individuals, institutions, and communities. It is an activating instrument of the judicial process. Social
ordering is essential to maintain stability and provide a strong social system. Social order is
maintained by the people who are in power. Certain tools to maintain social order are:

 Ratio Decidendi
 PIL
 ADR – Arbitration, Mediation, Negotiation and Conciliation
 Precedents
 Judicial reviews
 Independence of the judiciary
 Legal Aid Services
 Lok Adalat

3. Law as an Instrument of Social Ordering:

Law functions as a powerful instrument for creating and maintaining social order by establishing
rules, norms, and procedures that govern behaviour in the society. It balances people’s freedoms
with societal interests, aiming to ensure peace, stability, and harmony.

Law promotes social ordering in several ways:

 Supremacy of Law is equally applied and no one is above the law. Everyone is equal in the
eyes of law. Article 14 of the Indian Constitution provides equality before law and equal
protection of law and thus provides protection to both constitutional and statutory rights.
 Art 14 r/w Art 256 makes it obligatory upon the executive of every state to ensure
compliance with the law made by the Parliament.
 The Union Executive is empowered to keep the directions to a state as main necessary to
ensure the compliance of law by State executives. So as per Article 256 it is the duty of the
executive to ensure compliance with the laws and that too, in a manner which satisfies the
mandate of Article 14.
 Judiciary while resolving any dispute it also ensures the proper implementation of the law
and so, the provisions perform a function which is administrative in nature.
4. Definition of Law by Jurists:
 John Austin: Law is the command of the sovereign, backed by sanctions, designed to regulate
the behaviour of individuals in society.
 H.L.A. Hart: Law is a system of rules that guide human behaviour, distinguishing between
primary rules which are obligatory in nature and secondary rules (rules of recognition and
adjudication).
 Roscoe Pound: Law is a tool for social engineering, balancing competing interests to achieve
societal stability.
 Lon Fuller: Law is the enterprise of subjecting human conduct to the governance of rules; it
must be clear, coherent, and publicly accessible.

5. Law and Justice:

The relationship between law and justice is complex but essential, as law must align with the broader
objectives of justice to maintain social order. In India’s common law system inherited from British
rule, laws are developed through precedents and statutes enacted by the legislature. Judges
interpret laws based on past judgments, making the system dynamic and adaptive to changing
societal values.

There are two major systems of justice:

Adversarial System: This system, followed in India, relies on two parties presenting their cases before
a neutral judge, who acts as a referee. The judge ensures fair procedures and delivers a judgment
based on the arguments presented. The adversarial system values the independence of both parties
and the judge, allowing a fair contest to achieve justice.

Inquisitorial System: The inquisitorial system involves the judge playing an active role in investigating
the facts of the case. Here, the judge is not a passive arbitrator but takes part in the collection and
examination of evidence. This system aims to find the truth more directly but may compromise the
neutrality seen in adversarial systems.

6. Legal Reasoning and Growth of Law:

Legal reasoning is the process used to interpret laws and apply them to other cases. It helps to the
growth of law, as each case offers an opportunity for the judiciary to develop legal principles, clarify
ambiguities, and set new precedents.
  D.K. Basu v. State of West Bengal (1997), the Supreme Court laid down guidelines to prevent
custodial torture, thereby evolving the interpretation of Article 21 (Right to Life) to include
protection from state violence.
 Vishakha v. State of Rajasthan (1997), the judiciary addressed sexual harassment at the
workplace by laying down guidelines in the absence of specific legislation.
 Shah Bano case (1985) expanded Muslim women’s rights, where the court interpreted
maintenance laws to align with constitutional principles of equality and justice, even in
personal law matters.

All these aforementioned cases have laid down guidelines which helps the society to grow and often
these guidelines help to create more stringent laws.

7. Judicial Activism:
Judicial activism refers to the judiciary's role in protecting rights and addressing social issues, often
through broad interpretations of laws and the Constitution. PIL is a legal mechanism that allows
individuals or groups to seek justice in matters of public concern, even if they are not directly
affected by the issue. This has democratized access to justice in India, particularly benefiting
marginalized groups. PILs have been instrumental in addressing environmental issues, labour rights,
women's rights, and corruption. In MC Mehta v. Union of India (1986), a PIL that was filed, led to the
judiciary playing a significant role in addressing environmental pollution and laying down
environmental law principles. Judicial review allows the courts to examine the constitutionality of
legislative and executive actions. Through judicial review, the judiciary can strike down laws or
government actions that violate constitutional principles. This safeguard ensures that the legislature
and executive do not overstep their powers. Judicial review in India has been critical in protecting
fundamental rights and ensuring the rule of law.

Judicial activism, especially through Public Interest Litigation (PIL) and Judicial review, is deeply
interlinked with the judiciary's role in addressing gaps in governance, legislation, and the protection
of rights. Both mechanisms have empowered the judiciary to step beyond traditional case resolution
and take a more assertive role in promoting social justice and reform. Judicial activism through these
tools addresses societal issues that are often neglected by the legislative or executive branches,
ensuring that laws and policies evolve to protect rights, maintain accountability, and promote social
reform. However, it also raises concerns about judicial overreach, as the judiciary may sometimes
encroach upon the roles of other governmental branches.

8. Accountability and Judicial Law-Making:

Judges play a key role in law-making through interpretation and precedents, but they are also
accountable for ensuring impartiality and adherence to the law. Judicial accountability means that
judges should be responsible for the decisions, ensuring they act fairly. Just like other branches of
government, the judiciary needs to be transparent and open to scrutiny to maintain public trust.
Accountability ensures that judges don’t misuse their power, remain impartial, and make decisions
based on justice rather than personal or political preferences. Main points are:
  Interpreting Laws

Judges ensure that the laws are interpreted properly and fairly. Judges follow Literal rule, Liberal rule,
Golden rule, Mischief rule and Harmonious construction to check which of the laws to apply in which
certain ways.

- Literal rule gives the words their plain and ordinary meaning without any contest.
- Liberal rule gives the words a broad and expanded meaning to achieve a proper social
outcome.
- Mischief rule determines the wrong that the law was intended to right. The court must
envision and comprehend the social issues that led to the need for a specific statute by using
the mischief rule.
- Harmonious construction stipulates that all the clauses are to be read harmoniously in order
to give them all significant.

 Correction of errors in the legal system

Judges in higher courts have the authority to correct erroneous decisions made by lower
courts. They can also declare laws or actions unconstitutional, thereby rectifying legislative
errors. Judges can overturn precedents that are no longer valid in society, while granting
relief to individuals affected by outdated legal doctrines. In doing so, they guide legal
professionals, helping to prevent future errors. Additionally, judges play a crucial role in
developing legal doctrines to ensure that justice is properly served.

 Judicial process
Judges and courts apply the law to resolve the disputes and administrator justice and this
process is called judicial activity. This process includes hearing, interpreting laws, applying
legal principles, making decisions, conducting trials, collecting evidence, giving orders,
sanctioning etc. All of it is to be done in a fair manner which must provide justice.

 Conducting mediation proceedings

9. Factors Leading to Judicial Unaccountability:

While the judiciary plays a crucial role in maintaining social order and upholding justice, issues
related to judicial unaccountability have become significant in India. Some of the major factors
leading to judicial unaccountability are:

 Lack of Transparent Appointments: The process of appointing judges, has been a subject of
controversy. The collegium system, where the senior judges or ex judges appoint other
judges, is often criticized for being opaque and lacking accountability. There are no clear
mechanism for ensuring merit-based appointments, which raises concerns about favouritism
and nepotism.
  Lack of Transparent Proceedings: Judicial proceedings are not conducted with full
transparency. While the judiciary is open to public observation, some proceedings, especially
in sensitive or high-profile cases, lack transparency. Decisions are sometimes made behind
closed doors, and the reasoning behind certain judgments may not be fully disclosed. This
opacity can lead to questions about judicial fairness, impartiality, and accountability, further
contributing to a sense of mistrust within the legal system.
 Delay in Justice Delivery: One of the major problems in the Indian judicial system is the
backlog of cases, leading to significant delays in justice delivery. While this is partly due to an
overburdened judiciary, it also raises questions about judicial efficiency and accountability.
 Overreach and Lack of Clear Boundaries: Judicial overreach, where the judiciary extends its
powers beyond its constitutional mandate, can contribute to a sense of unaccountability. In
some cases, courts have been criticized for encroaching on the legislative or executive
domains, making decisions on policy matters where they may not have the expertise.

10. Suggestive Reforms:

To address judicial unaccountability, reforms such as:

 Establishing a transparent judicial appointments commission,

 Creating a robust judicial complaints mechanism,
 Promoting the timely delivery of judgments,
 Enhancing judicial training and ethics,

are necessary. These reforms can improve the credibility of the judiciary and ensure that it remains a
trustworthy pillar of democracy.