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The first thing that the courts do is to investigate and determine facts. In the greater majority of cases coming before courts, whether civil or criminal, the law involved is clear and no legal issue is presented. The function of courts in all such cases is simply to determine facts according to the recognised procedure.

The procedure is that the parties involved in the case produce evidence. Evidence consists of oral or written statements of witnesses. With the facts determined, the next step is to apply the existing law to such facts and render decisions. To a judge it is a matter of no importance whether, in his opinion, the law is good or bad, just or unjust. He is to accept the law as it is and apply it to the ascertained facts. A judge is, therefore, the interpreter of law. But it may happen, as it does frequently, that the existing law may be ambiguous and it may be so worded that it is difficult to determine its exact meaning, or that with constantly changing conditions, issues are presented which were not considered when the laws were made or the existing laws may be inconsistent with each other and doubt may exist in respect of which two provisions or which of two laws, should govern in a particular case. It is here that the courts have the very important function of determining what law is, what its scope is and meaning, and when there is an apparent conflict between different laws, which shall prevail.

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Judges weigh the merits of the case and are guided in their decisions by the principles of justice, equity and commonsense. And in doing so, they set precedents to be applied and followed by others in similar or analogous cases. Under the doctrine of what is known as stare decisis (the matter has been decided), a legal principle enunciated in a decision made by a court, is deemed to be of a controlling force in similar or analogous cases thereafter arising. Dicey observed. “The adhesion by our judges to precedent, that is their habit of deciding one case in accordance with the principle, or supposed principle, which governed a former case, lends inevitably to the gradual formation by the courts of fixed rules for decision, which are in effect laws.” Apart from removing ambiguities in the law and filling in the gaps, the judges adopt and recognise customs, and give them the decisive support of the public power. Here the judge’s act in a quasi-legislative capacity and judge-made law is an important feature of the judicial system in Britain, the United States, India, and many other countries. The judges are, thus, interpreters of law as well as law-makers and a large volume of law is made up of ‘judge-made’ laws.

There is yet another way in which the courts can, and to a certain extent do, participate in the determination of law. This consists in the duty, which the constitution may impose upon judges of the Supreme Court of a country, to give advisory opinions. The Constitution of India confers on the President the power to refer to the Supreme Court any question of law or fact which, in his opinion, is of public importance. He may refer such a question not only where it has actually arisen, but also where it appears to the President that it is likely to arise. The President can refer to the Supreme Court whether a proposed bill will be intra vires of the legislature or not.

Similarly, the Canadian Supreme Court Act, 1906, authorises the Governor-General to refer important questions of law and fact and obtain the opinion of the Supreme Court. Some of the American States impose a duty upon Justices of their Supreme Courts to give advisory opinions on legislative proposals, whenever the legislatures may feel grave doubts concerning their constitutionality. In all such cases the judges participate in the determination of law, as the advice asked from the courts may have considerable influence in the creation of law. In some countries a more formal pronouncement of a court, known as a declaratory judgment, may become a device of lawmaking.

Here the chief purpose is to secure a clarification of the law and the courts set forth what the law requires, when parties solicit such opinions, without compelling them to go to the expense of litigation. The opinion rendered is binding, not advisory. Declaratory judgments have been used increasingly since 1900 by British Courts and in the United States since 1920.

Another function performed by courts is that of preventing infractions of law and the violation of rights. Originally, courts had no such function. But gradually courts in Britain and the United States took the position that it was not necessary that private parties should wait until their rights had been actually violated before they could appeal to the courts for protection. If such persons had sufficient reasons to believe that attempts would be made to violate their rights, they could appeal to the courts and the courts would issue orders prohibiting such attempts or at least restraining their commission until the rights of the parties were determined.

The orders so issued are known as “restraining orders” or “injunctions.” If the authority to which such orders are issued disobeyed them, the courts have the power to punish for contempt. In the beginning courts exercised this power rather arbitrarily and it had been the cause of a good deal of criticism. Now legislation determining the power of courts to issue injunctions and for punishment for contempt has been enacted in most countries. The judiciary is also the guardian of a federal constitution.

In a federation, the constitution delimits the jurisdiction of the various branches of government. Neither the Central Government nor the federating units can pass legislation which is contrary to the prescriptions of the constitution. This necessitates the presence of an agency entrusted with the function of deciding whether the ordinary legislature has transgressed the provisions of the constitution and it is prima facie a strictly judicial function. In some countries their constitutions specifically provide for such a court competent to declare a law passed by the legislature as ultra vires. In States where such a constitutional provision is not made, it is assumed that it is inherent in or incidental to the judicial power to question the validity of any law duly made by the legislature. The Constitution of India empowers the Supreme Court to interpret the Constitution (Article 132/147), declare the law (Article 141), and enforce the limitations of the rule of distribution of legislative powers between Parliament and the state legislatures, and other constitutional limitations, for instance, prohibition against enactment of laws in derogation of the Fundamental Rights as enshrined in Part III of the Constitution. This was amplified to the clearest extent in A.K.

Gopalan v. The State of Madras. There is no direct authority in the Constitution which empowers the United States Supreme Court to declare the constitutionality or otherwise of federal or states acts. Chief Justice Marshall decided in Marbury v. Madison (1803) that the courts had the inherent right to declare the actions of Congress and the executive invalid.

In 1810 the case of Fletcher v. Peck extended the power of judicial review to the acts of state legislatures, and in 1819 the Dartmouth College case put contracts anywhere in the country under federal protection. Since then judicial review has been the prerogative of all courts from the highest to the lowest. Even a Justice of the Peace may exercise this authority in proper cases, although his decision will be certainly appealed against. Judicial review is, therefore, a term to describe the power of courts to declare acts of legislature or executive of no effect and consequently, invalid if they are found to be in conflict with the Constitution. Summing up this power of the courts, Harold R. Bruce says, “Judicial review is ‘a rights protecting service’ rendered by the courts to protect personal rights against legislative and executive action, states’ rights against national action, national rights against state action, and the respective rights of executive and legislative bodies as these various rights are held to exist under the national constitution. It is a virtual necessity in governments having a written constitution, federal division of powers, agencies of limited powers, and guaranteed personal rights.

” The power of judicial review has been subjected to serious criticism. The critics maintain that the courts have expanded their authority by this process to such an extent that they have become non-elective super legislatures. Carl Friedrich says that “The institution of judicial review substitutes the judgment of judges for the judgment of elective representatives of the people whenever doubts exist regarding the full meaning of a constitutional provision.” The judges while giving decisions, and in whatever legal dress such decisions are clothed, it is contended, render political decisions. They do not confine themselves to such legal questions as the limits of the federal or state jurisdiction, or the carrying out of legal regulations which are essential to make due process of law (in the United States), but they discuss the advisability of legislation and its conformity to the law of reason. The law of reason and essential justice are what the temperaments, characteristic attitudes and views of the judges are. It is further maintained that all such decisions had come forth with five to four majority in the United States and six to five hitherto in India.

The Forty-second Amendment to the Constitution of India fixed the minimum number of seven Judges of the Supreme Court for determining any question of constitutional validity of Central and state laws. No law could be declared invalid unless two-thirds of such Judges held it to be constitutionally invalid (nullified by the Forty- third Amendment). There is much truth in the claim of Chief Justice Hughes of the Supreme Court of the United States that “we are under the Constitution but the Constitution is what the judges say it is.” Justice Frankfurter expressed it rather bluntly when he said that “The Supreme Court is the Constitution.” Despite such a severe criticism, judicial review is the “balancing wheel” of the constitution. Judicial interpretation neutralises and rationalises and, thus, balances the various interests and groups in the community.

This is a wholesome sign of the strengthening of constitutionalism. No other “constitutional jury than such a judiciary will be sufficiently neutral and detached to exercise effectively the function of the guardian of the constitution.” Justice Holmes of the United States made a beautiful statement of the deeper insight into the function of courts and judicial interpretation. He wrote in his famous treatise on the Common Law. “The life of law has not been logic; it has been experience. They felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellowmen, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.

In order to know what it is, we must know what it has been and what it tends to become.” But with the emergence of the Welfare State the role of the judiciary has become arduous. Human liberty and human progress function not in isolation or antithesis but in synthesis and the law has to reconcile the two concepts. Individual rights must, accordingly, be defined in the context of public purpose, social utility and personal and social development. At times property rights are given precedence over the public good.

The letter of the law may ordain so, but it may be flagrant violation of the spirit of the constitution. Chief Justice Gajendragadkar, of the Supreme Court of India, while delivering the Feroze Gandhi Memorial Lecture in New Delhi (1964), observed: “If the judicature is the custodian of the Fundamental Rights of the citizens, it is also the interpreter of socio-economic philosophy underlying the welfare laws.” The judges must realise that the constitution is a living document meant for the welfare of living human beings.

Its words, therefore, must not be interpreted in a static manner or in the strict dictionary sense, if the constitution is to endure long. Judges may be called upon to conduct a judicial enquiry into some serious incidents resulting from the alleged errors of commission or omission on the part of some public servants or agents of the government. A Committee or a Commission, presided over by a Judge, may also be appointed to enquire into some important and complicated matters which require thorough investigation. The Commission may even consist of a single judge as in the case of the Life Insurance Corporation of India, or the Commission, known as Das Commission, to enquire into the allegations made to the President against the Punjab Chief Minister, Pratap Singh Kairon.

A similar enquiry was held against the former Chief Minister of Jammu and Kashmir, Bakshi Ghulam Mohammad. The Sarkaria Commission enquired into the alleged charges of corruption against the former Tamil Nadu Chief Minister M. Karunanidhi and some of his other colleagues in the Government. The demand for judicial commissions of enquiry is much too frequent in India and the people are so vocal as to make the demand even on a minor affair or even when there exists no cause for it. The judiciary may also perform a variety of miscellaneous functions. Strictly speaking, these functions are not essentially judicial in character, but have been assigned to the courts as a matter of economy and convenience. In many cases where the ownership, use or rights, in property are in dispute, courts will take over the administration of such property pending the final settlement.

This occurs in the settlement of the estates of deceased persons, and where corporations have failed to live up to their financial obligations. In these cases the court appoints a receiver or administrator to take over the property and administer it subject to its orders. In the case of minors, the court appoints guardians and trustees. In a number of other ways courts at times perform functions of an administrative character, for example, granting of licences, naturalization of aliens, performance of marriage ceremonies and appointing certain officials.


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