THEORIZING JUDICIAL

PROCESS: REFLECTION ON
PRECEDENT AS A SOURCE OF
LAW

SUBMITTED BY:

Shubham Tanwar

ROLL NO: 18020

SUBMITTED TO:

MR. SACHIN SHARMA

FACULTY OF LAW

RAJIV GANDHI NATIONAL UNIVERSITY OF LAW

PATIALA, PUNJAB
 ACKNOWLEDGEMENT
I would like to convey my gratitude to Mr. Sachin Sharma who
helped me understand and research properly throughout the course
of this entire project.

His guidance has helped me comprehend the nature of each sub topic
and aided my understanding of the subject.

Shubham Tanwar
RESEARCH QUESTION- ARE PRECEDENTS, EFFECTIVE AND RELIABLE AS A
SOURCE OF LAW?

The significance attached in multiple parts of life to the notion of' precedents' is deeply
connected with the power of habit and is essentially rooted in human nature. The role of
judicial precedents in social order in India has been flakier than appreciated, and the
judiciary has often been criticized for preventing the rapid and smooth execution of social
and economic policies program for growth. While this criticism is sometimes justified, it
focuses on the dire need to revalue past instruments and methods used in the Indian court
system. This essay focuses on the nature, significance and role of precedents in the legal
process, which is mainly worried with the Indian judiciary

In most locations, judges are mainly inclined towards what was accomplished by
themselves or their predecessors, but the theories explaining and regulating such impact
were varied and they did not affect the growth of law.

However, it must be borne in mind that, in the practical context, the tasks of the judiciary
are not limited to the choice of specific instances. Either by authority expressly delegated,
or of their own motion, courts have undertaken to legislate with regard to the conduct of
litigation before themselves; they have published general rules Specify the way in which
they will continue in the form of a command or authorization. The most striking example
is the edict of the Roman praetor, which became a chief instrument in the development of
the Roman law. Doubtless special cases gave rise to many of its provisions, but none the
less it was in form a legislative, not a judicial act. In its Sederunt Acts, the Scotch Court of
Sessions presumed comprehensive jurisdiction to enact legislation, and in our days
governments have often entrusted a broad power to the judiciary to make rules of
procedure. All this lies outside of our present limits. Such rules are not Legal precedents.1

The presence of the previous law can be well understood by thinking that every one of us
has an intrinsic philosophy of life, even those whose names and meanings are unknown to
their concepts. It is this philosophy that gives coherence and direction to one's ideas and

1
Gray, John Chipman. “Judicial Precedents. A Short Study in Comparative Jurisprudence.” Harvard Law
Review, vol. 9, no. 1, 1895, pp. 27–41. JSTOR, JSTOR, www.jstor.org/stable/1322312.
actions. This presence, like any other individual, influences judges in their decision-making
process. Therefore, it is correct to say that the concept of precedents is rooted in human
nature.

The issue of the beginning of the law must be considered for two reasons. "So the main
problem must be: where is the judge finding in his judgment the law he uses? There are a
few minutes when the source is free. A constitution or rule may give you the right to do
so." As long as this is true, the judge need look no further. With established
correspondence, his duty is to fulfill. " The constitution annuls the resolution, but the rule
annuls the right of judges if it is in conformity with the constitution. Judge - it seemed good
to go, is optional and subordinate to the law in the form of the legislator. Nevertheless,
codes and laws do not render the judge useless, nor does he make his activities mechanical
and reckless. There are holes to fill. Questions and uncertainties must be resolved. If
strategic distance is not maintained, there are difficulties and errors in moderating.

Interpretation is often considered to be nothing but the search and discovery of a meaning
which, however obscure and covert, in the mind of the legislator had nothing less than a
real and ascertainable pre-existence. In fact, the method is sometimes that, but it's often
something more. The determination of intention may be the least of the difficulties of a
judge in making a statute meaningful.

"The reality is," states Gray on the ' Nature and Sources of Law, ' "that the so-called
interpretation problems occur when the legislature had no significance whatsoever ; when
the issue raised on the statute never arose” ; When it comes to what the judges have to do,
not to determine what the legislature meant on a point that was in their minds, but to
imagine what it meant to do on a point that was not in their minds, if the point had been
present..

“Similarly, according to Brütt, "One of the weighty tasks of the law enforcement scheme
is to deepen the discovery of positive law's latent significance. However, much more
essential is the second function that the scheme serves, namely to fill the gaps that are
discovered in more or less measure in every positive law”.2 This essentially shows the fact

2
“Die Kunst der Rechtsanwendung,” p. 72.
that the judiciary, entrusted with the assignment of interpreting legislation, has two main
tasks to fulfill-first, to emphasize the latent significance of legislation in moments of
ambiguity. And second, when the same is questioned, to fill the logical and interpretive
gaps in some laws. This can be called "process law" and lawyers around the globe are
rooting for an even wider freedom to adapt and build. The statute is often fragmentary,
unconsidered and unjust according to them. The judge, who is the appointed interpreter of
any law's "community sense," must have the authority to provide omissions, resolve
uncertainties and harmonize results with justice through a free decision-making mechanism
advocated by Gény and Ehrlich and Gmelin and others.3

The judgment of the supreme court in Navtej Singh Johar vs. Union of India, while
debating the notion of Jural postulates in the transitional Indian society, shows the vital
role of the judicial process in achieving value inclusion in a transitional and plural society.
The Indian society stands as a complicated phenomenon at its present point of
development. While traditional values continue, legal and political procedures promote a
fresh set of values, although not very consistent.

In such situations, the task of arbitrating between traditional and modern values requires
the highest consideration of judicial statesmanship. Any rash choice may in itself influence
the efficacy of the judicial process, while the "play secure" policy may hinder growth in
the desirable direction. The absence of an operational agreement on target values
contributes to the situation's complication. This lack makes it highly hard to choose
between traditional and contemporary, or even religious and secular, when religious, social,
or cultural sensitivities are engaged, as was the case in Navtej Singh Johar, particularly in
the form of a majority-minority conflict.

These method issues, of letter-spirit contrasts, are living issues in our own legal and social
system. The technique of free choice has appeared today, especially in the field of
constitutional law. India's Supreme Court has always used precedents in civil, criminal and
constitutional matters as very prominent instruments of law making. Cases such as
Vishakha vs. Rajasthan State, Golaknath vs. Punjab State, Keshavananda Bharati vs.

3
“Science of Legal Method,” 9 Modern Legal Philosophy Series, pp. 4, 45, 65, 72, 124, 130, 159.
Kerala State are some excellent examples of precedents used to determine and formulate
land legislation, now to be joined by instances such as Navtej Johar vs. Union of India and
K.S Puttaswamy (Retd.) vs. Union of India and Ors.

As Gény stated in "Methode d'Interprétation et Sources en droit privé positif, the courts are
to" seek light among the social elements of all kinds that are the living force behind the
facts they are dealing with. "Thus, the power entrusted to the courts is very great and, like
all powers, subject to abuse, but no society can afford to flinch from granting such powers
in the long run, “There is no guarantee of justice, except for the judge's character.”4
Thus, in times of uncertainty, in Blackstone's view, the system looks to the judge who is a
"living pillar of law." And this judge has a range of instruments to use to carry out the
statutes ' best significance. Although precedents are not the ultimate sources of the law,
they are certainly "the postulates of judicial reasoning and, further back, the habits of life,
the institutions of society in which those conceptions originated and which, through a
process of interaction, changed in turn.”5
“Nevertheless, precedents have covered the floor in schemes as extremely developed as
ours to the extent that they determine the point of departure from which the judge's work
starts. Stare Decisis, therefore, can be called our law's day-to-day working rule”.
In Redlich's words, each precedent has a "directive force for future cases of the same or
similar nature." It was still in equilibrium until the sentence was pronounced. It was vague
in its form and content. Any of the many values could keep it up and shape it.
It's a fresh stock of descent once declared. It's full of essential energy. It is the source from
which to form phrases afterwards, fresh principles or norms may emerge. Despite its roots
in psychological tendencies to adhere to previous concepts and deductions, however, not
all progeny of values developed by a judgement survive to maturity. Those who by the test
of time and experience fail to prove their worth and strength are mercilessly sacrificed and
thrown into the void. Common law does not work on pre-established universal and
inflexible validity truths in order to draw findings from the same deductively. Its technique

4
Cf. Gnaeus Flavius (Kantorowicz), “Der Kampf um Rechtswissenschaft,” p. 48: “Von der Kultur des
Richters hängt im letzten Grunde aller Fortschritt der Rechtsentwicklung ab.”
5
Saleilles, “De la Personnalité Juridique,” p. 45; Ehrlich, “Grundlegung der Soziologie des
Rechts,” pp. 34, 35; Pound, “Proceedings of American Bar Assn. 1919,” p. 455.
is inductive, drawing its generalizations from particulars — making it an indispensable tool
for the judiciary to efficiently exercise its vast powers and duties towards its positions and
the system that trusts its reasonableness and prudence.
In conclusion, it is obvious that no single source of law or instrument of interpretation can
be hailed as superior or the most efficient, as conditions dictate the effectiveness of each.
However, it is evident that they are all stages of the same technique at the bottom and in
their fundamental motives. They are influenced by the same desire for consistency,
certainty and schedule uniformity and structure. They have their roots in the constant
striving of the mind for a greater and more inclusive unity in which differences will be
reconciled, and abnormalities will vanish, and we must realize that Jural postulates can not
be formulated and completed with the single stroke of a pen. But any chance missed to
create progress in this direction is as beneficial setback to the creation of an Indian society's
judicial theory and precedents, acting as both a source of law and a tool for fair
interpretation, as indispensable to it.