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mile extra in deciding cases as the judges supervising the cases are
independent and are bound by law to direct thier inquiries either in
favour or against the guilt of any suspect and play an active role
while deciding cases.
Accountability of Judges:
In India, the judiciary is separate and independent organ of the state.
The legislature and the executive are not allowed by the constitution
to interference in the functioning of the judiciary. The functioning of
the judiciary is independent but it doesn‘t mean that it is not
accountable to anyone. In a democracy the power lies with the
people. The judiciary must concern with this fact while functioning.
The high courts have the power of control over the subordinate
courts under article 235 of the constitution of India. The high courts
have the power of control over the subordinate courts under Article
235 of the Constitution of India. The SC has no such power over
High court. The CJ of High courts/ India have no power to control or
make accountable other judges of the Court.
Reluctant approach of Supreme Court to accept petition under
Article 32:
The rule made by SC under article 145 laying down the procedure to
be followed by the SC in performing its functions involves lot of
technicalities. It is the duty of the SC to grant relief under Article 32
and it is mandatory as it is obvious from the word ―the Supreme
Court shall‖ in Article 32. But the SC is reluctant to perform its
functions.
To conclude one can say that whatever may be the system the
procedural laws must be minimum, simple and must be litigant
friendly

1.4 Judicial process as an instrument of social ordering

Article 32: Instrument of Social Ordering

Article 32 of the Constitution empowers the Supreme Court to issue
directions or orders or writs for enforcement of any right conferred

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under the Constitution for securing social justice. The Supreme

Court has granted great relief in cases of social injustice to the
affected groups of the society under this provision. Article 32 is an
important instrument of judicial process to enforce social ordering.
Article 32 of the Constitution of India itself is a fundamental right,
which accorded free hand to the Judicial Process enable the
Supreme Court to take suitable action for the enforcement of social
order. Deprivation of the fundamental rights often results in to social
disorder. The Supreme Court is a sentinel of all fundamental rights,
and we are satisfied to see that the Apex Court has taken recourse
of judicial process effectively in every area of social disorder to set it
right and granted relief for each type of evil prevailing in the society.
The Supreme Court has played positive role in implementing social
order.
Now it will be appropriate to examine the areas in which judicial
process played a vital role in eliminating social dis-order:-
Backward Classes of the Society
In "Indra Sawhney v. Union of India", AIR 1993 SUPREME COURT
477, the Apex Court has innovated concept of 'creamy layer test' for
securing benefit of social justice to the backward class, needy
people, and excluded persons belonging to 'creamy layer .'
BIGAMY
Bigamy is a social evil which often creates social disorder. The Apex
Court has tightened the noose over those avoiding punishment by
taking plea of conversion to Islam. In "Lily Thomas v. Union of India",
AIR 2000 S C 1650, it was held by the Apex Court that the second
marriage of a Hindu husband after conversion to Islam without
having his first marriage dissolved under law, would be invalid, the
second marriage would be void in terms of the provisions of Section
494, IPC and the apostate-husband would be guilty of the offence
punishable under Section 494, IPC. This verdict of the Apex Court
would certainly be helpful in eliminating social evil of bigamy.
Bride Burning

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In "Paniben v. State of Gujarat", AIR 1992 S C 1817, the Apex Court

held that it would be a travesty of justice if sympathy is shown when
cruel act like bride burning is committed. Undue sympathy would be
harmful to the cause of justice. The Apex Court directed that in such
cases heavy punishment should be awarded.
Bonded Labourers
Bandhua Mukti Morcha v. Union of India", AIR 1984 S C 802, is a
good example of social ordering by way of judicial process. The
Apex Court has tried to eliminate socio-economic evil of bonded
labour, including child labour and issued certain guide lines to be
followed, so that recurring of such incidents be eliminated.
Caste system and Judicial Process
In "Lata Singh v. State of U. P.", AIR 2006 SC 2522, the Apex Court
has given protection to the major boy and girl who have solemnized
inter-caste or inter-religious marriage.
Child Labour
In "M.C. Mehta v. State of T.N.", AIR 1997 S C 699, the Supreme
Court has issued direction the State Governments to ensure
fulfillment of legislative intention behind the Child Labour (Prohibition
and Regulation) Act (61 of 1986). Tackling the seriousness of this
socio-economic problem the Supreme Court has directed the
Offending employer to pay compensation, a sum of Rs. 20,000/ for
every child employed.
Child Prostitution
In Gaurav Jain v. U.O.I. AIR 1997 SC 3021, the Apex court issued
directions for rescue and rehabilitation of child prostitutes and
children of the prostitutes.
Dowry Death
Dowry death is perhaps one of the worst social disorders prevailing
in the society, which demands heavy hand of Judicial Process to
root-out this social evil. In "Raja Lal Singh v. State of Jharkhand", the
Supreme Court has laid down that there is a clear nexus between
the death of Gayatri and the dowry related harassment inflicted on

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her, therefore, even if Gayatri committed suicide, S. 304-B of the I.

P. C. can still be attracted.
Equality: Man and Woman
In AIR India v. Nargesh Meerza, AIR 1981 SC 1829, the Apex Court
declared that – ―the provision of AIR India Service Regulation 46 (i)
(c)‖ or on first pregnancy whichever occurs earlier‖ is UN-
constitutional, and is violative of Article 14 of the constitution.
Female Foeticide and Judicial Process.
Leading to unhindered female infanticide affecting overall sex ratio in
various states causing serious disorder in the society. In "Centre for
Enquiry into Health and Allied Themes (CEHAT) v. Union of India",
AIR 2001 S C 2007, the Apex Court has held that despite the PNDT
Act being enacted by the Parliament five years back, neither the
State Governments nor the Central Government has taken
appropriate actions for its implementation. Hence, directions are
issued by the Court for the proper implementation of the PNDT Act,
for eliminating this Social evil.
Goal of Judicial Process
Ultimate goal of Judicial Process , undoubtedly, is to ensure social
order and to make the society safer for its people. Law cannot be
effective and useful without taking recourse of judicial process in
maintaining social order. Justice P. N. Bhagwati and Justice V. R.
Krishna Iyer, both were of the opinion that law is an instrument of
social change, social justice and social ordering. Justice Rangnath
Mishra, former C.J.I., has rightly observed that ' Law is a means to
an end and justice is the end.' Therefore, undoubtedly we can say
that Judicial Process, which operate laws, is an instrument of social
ordering.
Harassment of Woman
The Apex Court in Vishaka v. State of Rajsthan (AIR 1997 SC 3011)
created law of the land holding that the right to be free from sexual
harassment is fundamental right guaranteed under Articles 14, 15
and 21 of the Constitution. The Court has issued guidelines to be

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followed by employer for controlling harassment of woman at her

work place.
Immoral trafficking
Immoral trafficking has now become a widespread social disorder.
This is a deep rooted social evil has to be controlled. The Apec
Court is of the opinion that accused persons are to be dealt with
heavy hands of the Judicial Process in such cases. In "State of
Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain", AIR 2008
SUPREME COURT 155 , the Court has rejected application for
anticipatory bail, in a case where a minor girl was driven to flesh
trade by accused persons , comprised of police officers, politicians
and all were absconding for long time.
Judicial Process and Social Order
It is satisfying to see that achievements of Judicial Process in
respect of social ordering has been significant . Judiciary has not
shied away from its responsibility of enforcing social order. Looking
to the need of hour and demands of the changing society, the
Supreme Court has innovated various tools and techniques, for
securing social order. One can see how the Supreme Court of India
has innovated, case after case, various juristic principles and
doctrines, for upgrading social order. Needless to say that ,
Articles14, 15, 16, 17, 38, 39A and 42 to 47 of the Constitution of
India deal with facets of social justice. Courts have played very wide
role in interpreting the Connection for achievements of social justice.
Maintenance
In Mohd. Ahmed Khan v. Shah Bano, AIR 1985 SC 945, the Apex
Court , for the first time, granted maintenance to divorced Muslim
woman under section 125 Cr. P. C., ignoring her personal law,
keeping in view essence of equality before law.
In "Dimple Gupta v. Rajiv Gupta", AIR 2008 S C 239, the Apex Court
has granted Maintenance to illegitimate child under S. 125 Cr. P.C.
This path breaking judgment has given breath to the innocent
children who were victim of no fault of their own. These verdicts are
judicial instruments of social ordering.
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Need of Judicial Process

Noble preamble of our Constitution promises citizens of India to
secure Justice, – inter alia , social justice, transforming social order.
Judicial Process has played a significant role in order to deliver
social justice, by eliminating socio-economic imbalance and social
injustice from the society.
Outraging Modesty of Woman
Outraging the modesty of a woman is a serious social disorder has
to be taken seriously by courts during the course of Judicial Process.
In "Kanwar Pal S. Gill v. State (Admn. U. T. Chandigarh)", the
accused slapped on the posterior of the prosecutrix, Mrs. Rupan
Deol Bajaj, an I. A. S. officer , in the presence of other guests. The
accused, who was then the D.G.P. of the State of Punjab. The CJM
convicted him under Sections 354 and 509 IPC.Appeal filed by the
accused was dismissed by the Apex Court. That by itself is setting a
model for others and it is a good example in connection to social
ordering.
Prevention of Atrocity
When members of the S. C. and S. T. assert their rights and demand
statutory protection, vested interest try to cow them down. In these
circumstances, anticipatory bail is not maintainable to persons who
commit such offences, such a denial cannot be considered as
violative of Article 14 as held in "State of M.P. v. R. K. Balothia", AIR
1995 S C 1198.

Rape
In "State of M.P. v. Babulal", AIR 2008 SUPREME COURT 582, the
Court has laid down the principle that rape cases need to be dealt
with sternly and severely. A socially sensitized Judge is a better
armour in cases of crime against women. Once a person is
convicted for an offence of rape, he should be treated with a heavy
hand and must be imposed adequate sentence. This goes to show
that how the Supreme Court is keen in eliminating social disorder by
the heavy hands of judicial process.
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Conclusion
Justice V. R. Krishna Iyer, has rightly observed that ― Law is not a
brooding omnipotence in the sky but a pragmatic instrument of social
order. Judicial Process is a means of enforcing law. In the light of the
above discussion certainly it it would be perfectly right to say that
Judicial Process is an instrument of social ordering. The prominent
work of Indian Courts today may be seen as prosecuting poor
people for petty crime. The main Role of courts continues to be, as
in colonial times to (i) enforce law against (mostly poor) citizens; (ii)
protect property rights(state and private) and (iii) uphold and protect
the authority of state. On the other hand, in the immortal words of
Supreme Court in S.P.Gupta Case THE CONSTITUTION has made
a revolutionary change in the role of Indian Courts –from being an
arm of the RAJ to being an instrument of SWARAJ, an ―arm of social
revolution‖.

1.5 The tools and techniques of creativity and precedents

The Importance of Precedent

To understand how to make legal arguments, it is important to have
an understanding of our court system. This section focuses on the
Federal Court system. Every state has its own state court system,
which is separate from the federal system.
1. The Federal Court System
The federal court system is not separated by state, but rather by
―districts‖ and ―circuits.‖ A federal suit begins in a United States
District Court. The District Court is the trial court of the federal
system. In total there are 94 U.S. District Courts. Some states, such
as Alaska, only have one district. Others have several. New York, for
example, is composed of four districts: the Northern, Western,
Eastern, and Southern Districts. District Courts all have the name of
a state in them, like the ―Eastern District of New York.‖
Someone who loses in the District Court has a legal right to appeal
to the United States Circuit Court of Appeals. The Court of Appeals

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