Monday, January 10, 2011


‘Judicial process’ is the method of attaining justice[1] which seeks to achieve the desirables[2], and prohibit   undesirables[3].  ‘Justice’ [4], is  itself an irrational concept [5] , However in a layman word justice means  absence of fear which is possible only when there is - lack of arbitrariness , freedom of liberty,  and equal access to the quick, affordable, satisfactory, credible dispute settlement forum . The essence of justice lies in rule of law which requires that law of land is stable and not arbitrary that is to say- law is not ruled by the changing government rather the government and its instrumentalities are ruled by the law . In the modern times there are two interpretations of the Rule of law - the first the more traditional view is that of the plenary adhering to the rules of the laws while the second view allows the encompassing of the ideal rules based on criteria of morality and justice within its  province. Modern states follow the second principle of the rule of law because a law which is stable becomes oppressive after some time, due to its failure to satisfy the needs of the progressive society.

The ideal notion of the rule of law can be traced in ancient Indian legal system which laid greater emphasis on the duty, by making the king as the head of administration. Dharma in ancient India did not denote any kind of religion or right but only the performance of the duties[6] . Everyone  had to perform his  assigned  Dharmas (Duties) .The duties assigned to the king was known as Rajadharma which was a combination of several Dharmas , hence it  was considered as very pious and supreme Dharma. Although the king was the fountain head of the administration of justice, his powers were limited by the norms of Rajadharma . He neither could impose arbitrary taxes nor could favour his relatives, and if he dares to deviate from the performance of the norms of Rajadharma , the  punishment prescribed for him was thousands times more than an ordinary individual . There was no distinction between weaker and stronger and the weaker was able to prevail over stronger with the assistance of the king if his rights or liberty was encroached. This duty approach setup of Rajadharma was distorted with the coming of the Moughals and subsequently after the coming of Britishers.

Power is like a river, if controlled, it brings happiness and prosperity otherwise destruction and curse . Justice[7] without power[8] is inefficient and power without justice is tyranny.So in order to make power of the government purposive, efficient and in interest of the people, India adopted a normative written constitution[9] on 26th day of November 1949 demarcating the power arrangement between the three organs of the state namely executive, judiciary, and legislature . The constitution also kept few most cherished values of the humankind beyond the reach of these three organs[10]. Constitution seeks to remove three kind of disparity namely social, economic and political , so that weaker can prevail over stronger with the help of law if his right is violated and, each organ of the state is required to work in this context without violating the power arrangement of the constitution .

Indian Judiciary has done commendable job if we analyse Indian Judicial Process from socialogical perpectives considering PIL in center of discussion. However the author in this paper seeks to deal with the critical analysis of Indian judicial process by analysing its present and past scenario, keeping in mind constitution of India as the Grundnorm of country. This Article  is based on pure normative understanding of laws while ignoring any practical or moral difficulties and solely devoted for academic purposes.