Judicial and Legislative Process Notes | LL.M. (Two Years) Semester 2 | KSLU | munotes

Contents

Unit I

1. Judicial and Legislative Process: What This Paper Covers, and How to Read This Book 1
2. What the Judicial Process Is 4
3. The Judicial Process as an Instrument of Social Ordering 9
4. Cardozo and the Nature of the Judicial Process 14
5. The Declaratory Theory and the Living Oracle 18
6. Judicial Reasoning, not Calculation 22
7. The Final Cause of Law Is the Welfare of Society 26
8. The Gap in the Law 30
9. Creation, not Discovery 34
10. The Method of Philosophy: The Rule of Logic 39
11. The Method of History 43
12. The Method of Tradition and Custom 47
13. The Method of Sociology 51
14. Judicial Creativity and the Growth of Law 56
15. Legal Reasoning and the Growth of Law: Change and Stability 60
16. The Tools and Techniques of Judicial Creativity 65
17. The Limits of Judicial Creativity 70
18. The Doctrine of Precedent 75
19. Ratio Decidendi and Obiter Dicta 79
20. When a Precedent Binds, and When It Does Not 83
21. The Merits and the Demerits of Precedent 87
22. Distinguishing and Overruling: Precedent as Creativity 91
23. Article 141 and Stare Decisis in India 95
24. When the Supreme Court Departs from Itself 99
25. Legal Development through Codification 103

Unit II

1. The Special Dimensions of the Judicial Process 107
2. What Judicial Review Is 111
3. The Constitutional Basis of Judicial Review in India 115
4. The Grounds of Judicial Review 119
5. Judicial Review as a Basic Feature of the Constitution 123
6. The Philosophy of Judicial Review and Limited Government 128
7. The Role of the Courts in Constitutional Adjudication 132
8. Tools and Techniques of Policy-Making and Creativity in Constitutional Adjudication 136
9. Judicial Review as a Check on Power 141
10. What Judicial Activism Is 145
11. The Varieties of Judicial Activism 149
12. The Scope and the Necessity of Judicial Activism 153
13. The Limits of Judicial Activism and the Charge of Overreach 157
14. Judicial Activism and Judicial Restraint 162

Unit III

1. Judicial Accountability 166
2. The Institutional Liability of the Courts: Scope and Limits 170
3. The Accountability of the Executive 174
4. The Judicial Process in India 178
5. The Indian Debate on the Role of Judges and on Judicial Review 182
6. The Independence of the Judiciary 187
7. The Constitutional Guarantees of Independence 191
8. The Appointment of Judges 195
9. The First Judges Case 199
10. The Second Judges Case 202
11. The Third Judges Case 205
12. The National Judicial Appointments Commission 209
13. The Political Nature of the Judicial Process 213
14. Structural Vulnerability and the Political Executive 217
15. The Judicial Creativity of the Supreme Court of India 221
16. The Judicial Process in Pursuit of Constitutional Goals and Values 225
17. New Dimensions of Judicial Activism, and the Structural Challenges 229
18. Constitutional Jurisprudence Built through Judicial Activism 233
19. What Public Interest Litigation Is 237
20. Locus Standi and Epistolary Jurisdiction 241
21. PIL as a Judicial Arm Creating New Dimensions for Achieving Justice 245
22. The Misuse of PIL, and the Remedies 249
23. The Constitution as a Living Document 253
24. Creative Law-Making and the New Socio-Economic Rights 257
25. Substance over Technicality: Articles 14 and 21 261
26. Individual Freedom and Collective Welfare 265
27. Judicial Activism for the Marginalised 269
28. The Prison Cases and the Dignity of the Individual 273

Unit IV

1. What Legislation Is 277
2. Legislation, Precedent and Custom: A Comparative Study 281
3. The Merits and Demerits of Legislation 286
4. Supreme Legislation 290
5. How an Ordinary Bill Is Passed 293
6. The Four Kinds of Bill Compared 298
7. Law and Public Opinion 301
8. How a Bill Becomes Law: Parliament and the Karnataka Legislature 306
9. Bills in the House: Introduction, Committees, Debate and Passing 311
10. Subordinate and Delegated Legislation 317
11. Forms and Types of Delegated Legislation 321
12. What Interpretation Is, and Why It Is Needed 326
13. The Literal Rule 330
14. The Golden Rule 336
15. The Mischief Rule, or the Rule in Heydon's Case 342
16. The Purposive Approach 350
17. The Compromise Approach: Text and Context Together 355

Unit V Legislative Drafting

1. What Legislative Drafting Is 359
2. The History of Legislative Drafting in England and India 363
3. The Diseases of Language, and How a Draftsman Treats Them 368
4. The Anatomy of a Bill, Part by Part, and the Papers That Travel With It 373
5. Law as an Instrument of Social Change 378
6. The Directive Principles and the Welfare State 384
7. The Legislative Draftsman: Role, Skills, Position and Duties 390
8. The Draftsman's Rules: Words, Definitions, Provisos, Explanations, and the General Clauses Act 395
9. Constitutional Values and Provisions, and the Draftsman 400
10. General Rules of Construction under the General Clauses Act 405
11. Statutory Interpretation and the Draftsman 413
12. The Steps in Legislative Drafting 418
13. Drafting Delegated Legislation: Limits and Cautions 423
14. A Complete Bill: a Model State Bill With Its Statement of Objects and Reasons 429
15. Amendment Bills: Substitute, Insert, Omit, and the Principal Act 437
16. A Complete Amendment Bill 441