Shah Bano case (Mohd. Shah Bano Begum AIR 1985 SC 945) is an example of the tools and techniques of judicial creativity and precedent, in which it is interpreted that every woman has right to live with human dignity, irrespective of her cast. In 'Mohinder Singh Gill v. Legal reasoning is a method of thought and argument used by lawyers and judges when applying legal rules to specific interactions among legal persons. Legal reasoning in the case of a court's ruling is found in the ‘Discussion or Analysis' section of the judicial ruling. It is here that the court gives reason for its legal ruling, and it helps other courts, lawyers and judges to use. Different training and tools compared with physical evidence. This section incorporates a general classification system to understand types of digital evidence and techniques for extract-ing data from digital devices. Digital evidence is 'information and data of value to an investigation that is stored on, received, or transmitted by an.
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The Tools And Techniques Of Judicial Creativity And Precedent
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New techniques and tools of neuroscience now produce results purportedly indicative of the workings of cognitive processes. What precedent is there for establishing the 'neuro-cognitive' rights of the individual? These early stumbles in judicial use of fMRI have not been altogether discouraging. JUDICIAL PROCESS 1. Nature of judicial process. 1.1 Judicial process as an instrument of social ordering. 1.2 Judicial process and creativity in law common law model Legal Reasoning and growth of law change and stability. 1.3 The tools and techniques of judicial creativity and precedent. 1.4 Legal development and creativity through legal. Judges and Law Reform: Judicial Creativity or judicial activism? To judicial interpretation of legislation. Quite apart from the soundness of the precedent.
Uttarakhand Jan Morcha', AIR 1999 SUPREME COURT 2193, the Supreme Court has imposed restriction on Judicial creativity saying that, no doubt, role of the judiciary has been expanded to newer dimensions in recent past, but that is no justification for using judicial power for imposing such unbearable burden on the State which in turn would be compelled to extract money out of common man's coffers to meet such massive financial burden. Suffice it to say that the above direction issued by the High Court cannot stand judicial scrutiny and it is hereby set aside. Often a question arose for discussion that – Whether the judges are as competent as the legislators to meet out the needs, requirements and aspirations of the people? Judges have limited scope in law making. In this respect, three things need to be kept in mind. Firstly, if the judges are considered sufficiently qualified to correctly decide upon the morality of the people then there is no reason to consider them incompetent to gauge the needs of the people in law making.
Secondly, how much effort do the legislators actually expend in understanding the true needs of the people and the social implications of the law. It is not unknown that now a days bureaucrats prepares draft of the proposed legislation and without any serious discussion in the house, same are passed as usual. Thirdly, judges rarely create a law from scratch; their legislative role is largely restricted to filling up the gaps in the law. 'The Judge is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness.' - Cardozo (The Nature of the Judicial Process, page 141).
Further he went on to say that:- He is to draw his inspiration from settled principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to 'promotional necessity of order in the social life.'
According to Cardozo 'the great generalities of the Constitution'.and 'the content of which has been and continues to be supplied by courts from time to time.' He had further opined that constitutional provisions which 'have a content and a significance that vary from age to age'. Benjamin Cardozo, opined that. In Bengal Immunity Company Limited v. State of Bihar, (AIR 1955 SC 661), the Supreme Court has observed that it was not bound by its earlier judgments and possessed the freedom to overrule its judgments when it thought fit to do so to keep pace with the needs of changing times. The acceptance of this principle ensured the preservation and legitimation provided to the doctrine of binding precedent, and therefore, certainty and finality in the law, while permitting necessary scope for judicial creativity and adaptability of the law to the changing demands of society. There is no law on social disorder called Sexual harassment of a woman at work place.
The Apex Court in Vishaka V. State of Rajsthan (AIR 1977 SC 3011), created law of the land observing that the right to be free from sexual harassment is a fundamental right under Articles 14, 15 & 21 of the Constitution. It has been 10 years since the Hon'ble Supreme Court issued Vishaka guidelines regarding sexual harassments but still a draft bill on the subject is waiting for enactment. As per these guidelines, every organization, whether Government or Public, is to have an Internal Complaints Committee to investigate complaints regarding sexual harassment at workplace.
A code of conduct is prepared for all employees and that should be incorporated in the service rules/standing instructions. Sexual harassment at work place is a criminal offence and the accused would face civil as well as criminal liabilities. Articles 141 and 142 to point out that they are couched in such wide and elastic terms as to enable the Supreme Court to formulate legal doctrines to meet the ends of justice. The only limitation therein is reason, restraint and injustice. These Articles are designedly made comprehensive to enable the Supreme Court to declare law and to give such direction or pass such order as is necessary to do complete justice. This is a powerful instrument of justice placed in the hands of the highest judiciary of our country.
Former C.J.I. Anand observed that the Apex Court has given purposive liberal and creative interpretation of Article 21 of the Constitution by giving it more content, meaning and purpose. In expanding the ambit of right to life & personal liberty, the court has evolved tools and techniques of compensatory jurisprudence, implemented international conventions & treaties, and issued directions for environmental justice.
Law must keep pace with society to retain its relevance, therefore, judicial creativity is necessary for meeting with the ends of justice. The theory of basic structure of the Constitution is a result of the creative interpretation of the Supreme Court. Union of India', AIR 2007 SUPREME COURT 71, the Apex Court has held that this development is the emergence of the constitutional principles in their own right. It is not based on literal wordings. These principles are part of Constitutional law even if they are not expressly stated in the form of rules. An instance is the principle of reasonableness which connects Arts. 14, 19 and 21.
Some of these principles may be so important and fundamental, as to qualify as 'essential features' or part of the 'basic structure' of the Constitution, that is to say, they are not open to amendment. Right to livelihood, Right to go abroad, Right to privacy, Right against solitary confinement, Right to shelter, Right to legal aid & speedy Trial, Right against Bar fetters, Right against handcuffing, Right against delayed execution, Right against custodial Violence, Right to doctor's assistance, Right to water, Right to food, Right to clean air and healthy environment, Right to pollution free water. Right to free education up to the age of 14 years, and Right of every child to full development, Right against illegal arrest, are all indeed judicial creativity and the result of the creative interpretation. In 'State of T.N. Abu Kavur Bai', AIR 1984 SUPREME COURT 326, it was held that On a careful consideration of the legal and historical aspects of the directive principles and the fundamental rights, there appears to be complete unanimity of judicial opinion of the various decisions of the Supreme Court on the point that although the directive principles are not enforceable yet the Court should make a real attempt at harmonizing and reconciling the directive principles and the fundamental rights.
Reading fundamental rights in the Directive Principles is a technique of judicial creativity. For the first time the right to know about the candidate standing for election has been brought within the sweep of Art.
19(1)(a) by the Supreme Court through its creative interpretation. The Apex Court in 'Peoples Union for Civil Liberties (PUCL) v. Union of India', AIR 2003 SUPREME COURT 2363, has held that Voter's right to know about the antecedents of the candidate contesting for the election falls within the realm of freedom of speech and expression guaranteed by Art. 19(1)(a) and can be justified on good and substantial grounds.
In 'BALCO Employees Union (Regd.) v. Union of India', AIR 2002 SUPREME COURT 350, the Apex Court has cautioned that there are some of the dangers in public interest litigation which the Court has to be careful to avoid. It is also necessary for the Court to bear in mind that there is a vital distinction between locus standi and justifiability and it is not every default on the part of the State or a public authority that is justiciable. The Court must take care to see that it does not overstep the limits of its judicial function and trespass into areas which are reserved to the Executive and the Legislature by the Constitution. It is a fascinating exercise for the Court to deal with public interest litigation because it is a new jurisprudence which the Court is evolving a jurisprudence which demands judicial statesmanship and high creative ability. In 'State of Bihar v. Bal Mukund Sah', AIR 2000 SUPREME COURT 1296, the Supreme Court has emphasized its creative role in achieving the goal of socio-economic justice.
The judiciary has, therefore, a socio-economic destination and a creative function. It has to use the words of G. Austin, to become an arm of the socio-economic revolution and perform an active role calculated to bring social justice within the reach of the common man. It cannot remain content to act merely as an umpire but it must be functionally involved in the goal of socio-economic justice'. The entitlement of the accused to speedy trial has been repeatedly emphasised by the Supreme Court.
Though it is not enumerated as a fundamental right in the Constitution, the Apex Court has recognized the same to be implicit in the spectrum of Article 21. In Hussainara Khatoon v. Home Secretary, State of Bihar, (AIR 1979 SC 1360), the Court while dealing with the cases of under-trials, who had suffered long incarceration held that a procedure which keeps such large number of people behind bars without trial so long cannot possibly be regarded as reasonable, just or fair so as to be in conformity with the requirement of Article 21.
The Court laid stress upon the need for enactment of law to ensure reasonable, just and fair procedure which has creative connotation after Maneka Gandhi's case, (1978) 1 SCC 248 in the matter of criminal trials. In 'Municipal Corporation of Greater Bombay v.
Indian Oil Corporation Ltd. AIR1991 SUPREME COURT 686, has held that keeping in view the social, economic and political goal setting in which it is intended to operate, Judge is called upon the perform a creative function. He has to inject flesh and blood in the dry skeleton provided by the legislature and by a process of creative interpretation, invest it with a meaning which will harmonise the law with the prevailing concepts and values and make it an effective instrument for delivering justice.
In 'Delhi Transport Corporation v. Mazdoor Congress', AIR 1991 S C 101, SABYASACHI MUKHARJI, former CJI, said that I am definitely of the opinion that time has come for the judicial interpretation to play far more active, creative and purposeful role in deciding what is according to law. I believe that we must do away with 'the childish fiction' that law is not made by the judiciary. Austin in his Jurisprudence at page65, 4th Edn. Has described the Blackstone's principle of finding the law as 'the childish fiction'. Chief Justice K.
Subba Rao in L. Golak Nath v.
State of Punjab (AIR 1967 SC 1643 at p. 1667) has referred to these observations. The Supreme Court under Art. 141 of the Constitution is enjoined to declare law. The expression 'declared' is wider than the words 'found or made'. To declare is to announce opinion.
Indeed, the latter involves the process, while the former expresses result. Interpretation, ascertainment and evolution, are parts of the process, while that interpreted, ascertained or evolved is declared as law. The law declared by the Supreme Court is the law of the land. To deny this power to the Supreme Court on the basis of some outmoded theory that the Court only finds law but does not make it, is to make ineffective the powerful instrument of justice placed in the hands of the highest judiciary of this country. I would, therefore, plead for a more active and creative role for the Courts in declaring what the law is.
Great artistry and skill is needed to fill in the gaps because Acts of Parliament were not drafted with divine prescience and perfect clarity. It is not possible for the legislators to foresee the manifold sets of facts and controversies which may arise while giving effect to a particular provision. Indeed, the legislators do not deal with the specific controversies. When conflicting interests arise or defect appears from the language of the statute, the Court by consideration of the legislative intent must supplement the written word with 'force and life'. See, the observation of Lord Denning in Seaford Estate Ltd. Asher, (1949) 2 KB 481 at p. In Sher Singh v.
State of Punjab (1983) 2 SCR 582 the Apex Court explained that 'The horizons of Article 21 are ever widening and the final word on its conspectus shall never have been said. So long as life lasts, so long shall it be the duty and endeavour of this Court to give to the provisions of our Constitution a meaning which will prevent human suffering and degradation.
Therefore, Article 21 is as much relevant at the stage of execution of the death sentence as it is in the interregnum between the imposition of that sentence and its execution. The essence of the matter is that all procedure no matter the stage, must be fair, just and reasonable.' Article 21 thus received a creative connotation.
The Supreme Court in Jagdambika Pratap Narain Singh v. Central Board of Direct Taxes, (AIR 1975 SC 1816), dealing with the question of limitation in granting a relief, has observed that any legal system, especially one evolving in a developing country, might permit judges to play a creative role and innovate to ensure justice without doing violence to the norms set by legislation. The role of the Court is creative rather than passive, and it assumes a more positive attitude in determining facts and circumstances of each case. 'Justice Cardozo approvingly quoted President T.
Roosevelt's stress on the social philosophy of the Judges, which shakes and shapes the course of a nation and, therefore, the choice of Judges for the higher Courts which makes and declares the law of the land, must be in tune with the social philosophy of the Constitution. Not mastery of the law alone, but social vision and creative craftsmanship are important inputs in successful justicing.' 1 As quoted in 'S.
President of India', AIR 1982 S C 149. Creativity in Maneka Gandhi's case is clearly visible when the Supreme Court has took the view that Article 21 affords protection not only against executive action but also against legislation and any law which deprives a person of his life or personal liberty would be invalid unless it prescribes a procedure for such deprivation which is reasonable, fair and just. The concept of reasonableness, it was held, runs through the entire fabric of the Constitution and it is not enough for the law merely to provide some semblance of a procedure but the procedure, for depriving a person of his life or personal liberty must be reasonable, fair and just.1 'Maneka Gandhi v. Union of India', AIR 1978 S C 597.
'legislating' exactly in the way in which a Legislature legislates and he observes by reference to a few cases that the guidelines laid down by court, at times, cross the border of judicial law making in the realist sense and trench upon legislating like a Legislature. 'Directions are either issued to fill in the gaps in the legislation or to provide for matters that have not been provided by any legislation.
Statute has to be interpreted as a whole and with reference to specific context in question. If it appears to the Court any gap in the legislation, unmerited prejudice and hardship have been caused to the to the citizens, the Court may have to depend on its own creativity so that hardship is not meted out to the people. Professor S.P. Sathe, in his work (Year 2002) 'Judicial Activism in India - Transgressing Borders and Enforcing Limits', touches the topic 'Directions: A New Form of Judicial Legislation', Evaluating legitimacy of judicial activism, the learned author has cautioned against Courts not to cross the border in the name of creativity. The Court has taken over the legislative function not in the traditional interstitial sense but in an overt manner and has justified it as being an essential component of its role as a constitutional court', (p.242). In 'Delhi Transport Corporation v.
Mazdoor Congress', AIR 1991 SUPREME COURT 101, It is true that judicial jealousy of legislature in law making has long been outdrawn, but the strict construction remains still an established rule. It is generally accepted principle that Judges in interpreting statutes, should give effect to the legislators' intent. By doing so, the Courts do recognize their subordinate position and their obligation to help the legislature to achieve its purpose. But in that effort, creativity is essential. In 'State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat', AIR 2006 SUPREME COURT 212, the Apex Court has held that post Kesavananda Bharati so far as the determination of the position of Directive Principles, vis-a-vis Fundamental Rights are concerned, it has been an era of positivism and creativity.
Article 37 of the Constitution which while declaring the Directive Principles to be unenforceable by any Court, but in Kesavananda Bharati v. State of Kerala', AIR 1973 S C 1461, Court goes on to say - 'that they are nevertheless fundamental in the governance of the country.' The end part of Article 37 - 'It shall be the duty of the State to apply these principles in making laws' is not a pariah but a constitutional mandate. Supreme Court has held that, while interpreting the interplay of rights and restrictions, Part-III (Fundamental Rights) and Part-IV (Directive Principles) have to be read together. On the basis of the above discussion, it is clear that judicial creativity is not only necessary but also inevitable. The only thing is to keep in mind that Judicial creativity is permissible only in the area left open by the legislature and where it is necessary to fill up the gap in the statute so as to achieve real intent of it.
If law is available on the subject, then, judicial creativity must be restricted to 'interstitial' creation of law, otherwise it would become judicial excess in the domain of legislature. A Judge can discharge his creative role only when he has acquired sufficient knowledge, tools and techniques and interpretive skill of judicial creativity.
The Tools And Techniques Of Judicial Creativity And Precedent Study
. Alternative dispute resolution ( ADR; known in some countries, such as India, as external dispute resolution) includes processes and techniques that act as a means for disagreeing parties to come to an agreement short of. It is a collective term for the ways that parties can settle disputes, with the help of a third party. Despite historic resistance to ADR by many popular parties and their advocates, ADR has gained widespread acceptance among both the general public and the in recent years. In fact, some courts now require some parties to resort to ADR of some type, usually, before permitting the parties' cases to be tried (indeed the (2008) expressly contemplates so-called 'compulsory' mediation; this means that attendance is compulsory, not that settlement must be reached through mediation). Additionally, parties to transactions are increasingly turning to ADR to resolve post-acquisition disputes.
The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute. Some of the senior judiciary in certain jurisdictions (of which England and Wales is one) are strongly in favour of this (ADR) use of mediation to settle disputes. Contents. Salient features Alternative dispute resolution (ADR) is generally classified into at least four types:,. Sometimes, is included as a fifth category, but for simplicity may be regarded as a form of.
ADR can be used alongside existing legal systems such as courts within common law jurisdictions, such as the UK. ADR traditions vary somewhat by country and culture. There are significant common elements which justify a main topic, and each country or region's difference should be delegated to sub-pages. ADR is of two historic types.
First, methods for resolving disputes outside of the official judicial mechanisms. Second, informal methods attached to or pendant to official judicial mechanisms. There are in addition free-standing and or independent methods, such as mediation programs and ombuds offices within organizations. The methods are similar, whether or not they are pendant, and generally use similar tool or skill sets, which are basically sub-sets of the skills of negotiation. ADR includes informal tribunals, informal mediative processes, formal tribunals and formal mediative processes. The classic formal tribunal forms of ADR are arbitration (both binding and advisory or non-binding) and private judges (either sitting alone, on panels or over summary jury trials). The classic formal mediative process is referral for mediation before a court-appointed mediator or mediation panel.
Structured transformative mediation as used by the U.S. Postal Service is a formal process. Classic informal methods include social processes, referrals to non-formal authorities (such as a respected member of a trade or social group) and intercession.
The major differences between formal and informal processes are (a) pendency to a court procedure and (b) the possession or lack of a formal structure for the application of the procedure. For example, freeform negotiation is merely the use of the tools without any process.
Negotiation within a labor arbitration setting is the use of the tools within a highly formalized and controlled setting. Calling upon an organizational ombudsman's office is never, by itself, a formal procedure. (Calling upon an organizational ombudsman is always voluntary; by the International Ombudsman Association Standards of Practice, no one can be compelled to use an ombuds office.) Organizational ombuds offices refer people to all conflict management options in the organization: formal and informal, rights-based and interest-based. But, in addition, in part because they have no decision-making authority, ombuds offices can, themselves, offer a wide spectrum of informal options.
This spectrum is often overlooked in contemporary discussions of 'ADR'. 'ADR' often refers to external conflict management options that are important, but used only occasionally. An organizational ombuds office typically offers many internal options that are used in hundreds of cases a year. 6 January 2009 at the.
Retrieved on 2013-07-14. Litvak, Jeff; Miller, Brent. Transaction Advisors. From the original on 23 July 2015. Totaro, Gianna., 'Avoid court at all costs' The Australian Financial Review Nov. (April 19, 2010). Clift, Noel Rhys (3 May 2010).
– via papers.ssrn.com. Taken with permission from a presentation by Stephen R.
From the original on 4 February 2009. Retrieved 28 January 2009. CS1 maint: Archived copy as title.
Scott v Avery (1856) 5 HLCas 811, (UK). Schwartz, David S., 'Mandatory Arbitration and Fairness.' 84 Notre Dame L. 1247 (April 19, 2010). International Institute for Conflict Prevention & Resolution. 'Arbitration Appeal Procedure.'
Archived from on 8 April 2010. Retrieved 21 April 2010. CS1 maint: Archived copy as title. 'What You Need to Know about Dispute Resolution: The Guide to Dispute Resolution Processes.' American Bar Association.
(PDF) from the original on 18 May 2008. Retrieved 18 March 2008. CS1 maint: Archived copy as title. Lynch, J. 'ADR and Beyond: A Systems Approach to Conflict Management', Negotiation Journal, Volume 17, Number 3, July 2001, Volume, p. Archived from (PDF) on 20 September 2006.
from the original on 27 September 2017. Dominik Kohlhagen, ADR and Mediation: the Experience of French-Speaking Countries, Addis Abada, 2007 (on 6 August 2010 at the.). HMRC 'Tax disputes: Alternative Dispute Resolution (ADR)'. From the original on 23 September 2015. Retrieved 23 September 2015. CS1 maint: Archived copy as title accessed 23 September 2015. 12 March 2014 at the.
23 October 2009 at the. Retrieved on 2013-07-14.
The Tools And Techniques Of Judicial Creativity And Precedent Decision
1 January 2011 at the. Retrieved on 2013-07-14. 30 March 2014 at the. Retrieved on 2013-07-14. From the original on 30 March 2014.
'Best Law Schools Specialty Rankings: Dispute Resolution.' World and News Report. Archived from on 8 March 2009. Retrieved 2009-02-08. CS1 maint: Archived copy as title. ^ (PDF). Archived from (PDF) on 24 September 2007.
Further reading. Lynch, J. 'ADR and Beyond: A Systems Approach to Conflict Management', Negotiation Journal, Volume 17, Number 3, July 2001, Volume, p. 213. 'International Commercial Arbitration' (2009 Kluwer).
William Ury, Roger Fisher, Bruce Patton. Adobe photoshop cs6 extended mac free download 64-bit. 'Getting to Yes' (1981 Penguin Group). External links.
The Tools And Techniques Of Judicial Creativity And Precedent Pdf
The Tools And Techniques Of Judicial Creativity And Precedent Definition
from the original on 27 September 2017. Dominik Kohlhagen, ADR and Mediation: the Experience of French-Speaking Countries, Addis Abada, 2007 (on 6 August 2010 at the.). HMRC 'Tax disputes: Alternative Dispute Resolution (ADR)'. From the original on 23 September 2015. Retrieved 23 September 2015. CS1 maint: Archived copy as title accessed 23 September 2015. 12 March 2014 at the.
23 October 2009 at the. Retrieved on 2013-07-14.
The Tools And Techniques Of Judicial Creativity And Precedent Decision
1 January 2011 at the. Retrieved on 2013-07-14. 30 March 2014 at the. Retrieved on 2013-07-14. From the original on 30 March 2014.
'Best Law Schools Specialty Rankings: Dispute Resolution.' World and News Report. Archived from on 8 March 2009. Retrieved 2009-02-08. CS1 maint: Archived copy as title. ^ (PDF). Archived from (PDF) on 24 September 2007.
Further reading. Lynch, J. 'ADR and Beyond: A Systems Approach to Conflict Management', Negotiation Journal, Volume 17, Number 3, July 2001, Volume, p. 213. 'International Commercial Arbitration' (2009 Kluwer).
William Ury, Roger Fisher, Bruce Patton. Adobe photoshop cs6 extended mac free download 64-bit. 'Getting to Yes' (1981 Penguin Group). External links.
The Tools And Techniques Of Judicial Creativity And Precedent Pdf
The Tools And Techniques Of Judicial Creativity And Precedent Definition
by, free complete book PDF download, at the University of California (3rd Edition, posted 24 March 2014). by, free complete book download, from Internet Archive (3rd Edition, multiple file formats including PDF, EPUB, and others). an institution provides training and accreditation for ADR practitioners.: ISO-based registration and certification for ADR practitioners such as arbitrators, conflictcoaches, mediators and negotiators.
The Tools And Techniques Of Judicial Creativity And Precedent Differences
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