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THINAKARAN RAJAMANI (Journalism & IT)     05 August 2013

How sc orders become law

Dear Sir/Madam,


I would like to know how Supreme court orders are considered as law. We can take more cases for example and one of which is that the recent SC verdict against criminal representatives. LAW are usually made by legislative body. Can anybody kindly expalin with the concerned section of constitution that provides power to make law/rules to SC?

Thank you,

Thinakaran Rajamani



 11 Replies

NGOKC (pm)     05 August 2013

SC cannot create laws.

SC , as a custodian of constitution provides an interpretation of law .

This interpretation can sometimes sound as a new law is being made but that is not the casse.

 

Law always existed , but in its fineprint its actual interpretation was never used

binay (advocate)     05 August 2013

Nice reply mr.NGOKC, but the fact remain behind.

Law is made by the legislature and for execution it come to executive/administrative body, when there is a flaw/contravention at that moment it come to the court, it does not matter, which court it is but how does it interpret the law according to the constitution of India, there is the part of the court to interpret and explain both the act and the constitution, if there is any contravention in the act then the court may upheld the constitution and pass an order/judgment, and according to that the govt. should change(insert/substitute) the section of the act. As per that the executive/administrative body has to work.

This is call judgment law.

arulprakash (student of constitutional law department in master of law)     05 August 2013

sir, i agree but it  is not absolute answer, when there is no law , perior presedent  and  common law principles for a case before court  at the time judges thinks themselvs  fill that cape that's we called a new principle but it is subject to constitution provisions . that  principles also a law of the land please further more see judicial activism- benjamen car dozo . and see article 141 142 and

vishaka v. state of rajasthan 1997

i.c golak nath -doctrine of prospective over ruling

and best example : menaka gandhi v. union of india 1978-that judgement gives effect that new way to protect a person liberty -44th amendment ,art:21 not suspended even during emergency

please friend you do criticaly analys article 141 and 142 then you will get your answer yourself.

if there is any worng in my answer please sir reply me


N.K.Assumi (Advocate)     06 August 2013

Nice explanantion by Arulprakash.

THINAKARAN RAJAMANI (Journalism & IT)     06 August 2013

THANK YOU VERY MUCH NGOKC, Binay & ArulPrakash Sirs...

Binay's reply : ***according to that the govt. should change(insert/substitute) the section of the act***

My query: I heard from one of the lawyer in a TV interview that if govt. will not act to change (insert/substitute) the section of the act according to court order/judgment in 6 months, it will be automatically considered as a law.  Is it correct?


(Guest)

As suggested,one must read article 141 and 142 of Constitution of India to explore the matter fully.

 

The question,further raised,in reply to 'Judgemental Law' may be answered as-

 

The apex court has power to declare a law unconstitutional and hence void if it is in contravention with the any of the rights mentioned in part III of the constitution.

The process of law making goes like-

1.The president assent to introduce the bill.

2.Presented to Lower house.If passed by majority,presented to Upper house.

3.Passed by upper house.

4.President assent required.

5.If president assent given,it becomes an act or say law.

6.If Constitutional validity is challenged by some mechanism say PIL,the act has to pass that validity test.Then only the act becomes operational in accordance with provision of the constitution. You may read the case of 'K. T. Moopil Nair v. State of Kerla' where the provisions of the Travancore Coachin Land Tax Act 1955' was challenged in view of Art 14 and Art.19(1)(f)*.

 

*repealed by 42nd constitutional amendment.

 

Coming to Art. 141,the law declared by the Supreme Court to be binding on all courts.But the supreme court is not bound by its own decisions and may overrule its previous decisions.It is vital to note the points observed by the court in the case of 'Sajjan Singh v. State of Rajasthan AIR 1965 SC 845'.

 

" It is true that the Constitution does not place any restriction on our powers to review our earlier decisions or even to depart from them and there can be no doubt that in matters relating to the decision of constitutional points which have a significant impact on the fundamental rights of citizens, we would be prepared to review our earlier decisions in the interest of public good. The doctrine of stare decisis may not strictly apply in this context and no one can dispute the position that the said doctrine should not be permitted to perpetuate erroneous decisions pronounced by this Court to the detriment of general welfare. Even so, the normal principle that judgments pronounced by this Court would be final, cannot be ignored and unless considerations of a substantial and compelling character make it necessary to do so, we should be slow to doubt ,,the correctness of previous decisions or to depart from them."

 

Further the law declared has as wider scope than a law made.Judicial activism,as earlier pointed out by members is necessary for the functioning of healthy democracy and here the word 'declared' suggests the true power of judicial activism.

 

Lastly,coming to the doubt of 6 months,there is no such provision. Legislature can amend any of provisions of any of law including fundamental rights and sometimes gives a blunt reasoning to proved themselves right if any law made by them is criticized by the Supreme court . it has already happened a few times back in history of Indian Constituion which later become a milestone for judicial activism like PIL(Introuduced by Mr. Justice P.N. Bhagwati). This is the result of Judicial activism where the Apex court devised the mechanism of basic structure to avoid the viciousness of legislatures.The case of GolakhNath as suggested is an important one where one can find the starting of war between legislature and judiciary which was ended by much infamous case of Keshvanand Bharti.One must read about the 'doctrine of basic structure' to know the matter in depth.

 

A new war has been started now between Judiciary and Legislatures. You can't miss RTI amendemnt news on Political parties after CIC decision went against them or can you afford to !!!

 

Enough Material for time being.

binay (advocate)     06 August 2013

yes thinakaran, it will be accepted as law, but not as a part of the act but as a part of the judgement, but its action (execution) will be as like part of the act. you can refer it to any govt.

and mr. arulprakash it is not only the article-141 & 142 but the whole constitution is the basic law, if we think soo, then where is natural justice, only for this till now the interpretation of fundamental rights going on.


and mr.news know, well conversesion, nice explanetion

THINAKARAN RAJAMANI (Journalism & IT)     07 August 2013

Thank you very much Mr.News & Mr.Arulprakash, Mr.Binay. I have learnt a lot from your reply & by reading 141 &142. I am extremely satisfied with every one of your reply.

Kolla Gangadhar (Practicing Advocate since 1986)     08 August 2013

Supreme court Judgement becomes law under Article 141 of the Constitution of India, it is called Judicial Legislation.and  it must be Dicta not abtari Dicta. R.P.Act, Section (4) Supreme court declared ultravirous of the Constitution of Inida. Ms. Lilly Thoms Vs. Union of India case.!! If any sitting member of Parliament or Stte Assembly is convicted of any of the offences mentiond in Sub-Section 1, 2, 3, of Section 8 of the Representation of Peoples .Act, 1951, Pronouncement of conviction will not save Section 8 (4) of the R.P. Act, 1951, which we have by this judgement declared as ultravires of the Consltitution of Inida not withstanding  he files the appeal or revision against the Conviction/or Sentence. !!  In my opion the judgement is not correct in law it violates Article 14 of the Consitution of India as other offences (Murders) M.P. or M.L.A. is convicted he is not dis qulified but for the offences mentioned in Sub-Sectioon 1, 2, 3, of Section 8 of the R.P. Act, 1951 if he is convicted by the Trial court and even appeal is pending he ( M.P.) or (M.L.A. ) is disqualified. Right to file appeal is Statutory right and fundamental Right under Article 21 of the Constitution of Inida. Unless Supreme Court of Inida confirms conviction of Trial Court or High Court  M.P. or M.L.A. disqualfication is volation of the basic stracture of the Constitution of Inida as M.P. or M.L.A. is elected for a period of 5 years.


(Guest)

Errata

 

Kindly read the statement *repealed by 42nd constitutional amendment' as 'repealed by 44th constitutional amendment act (1978).

 

Aplogize for this typing mistake.

kriti agrawal (self)     20 August 2013

Courts make law in three ways:

  • creating new principles of law where none exist
  • adapting or modifying existing common law principles to new cases
  • interpreting legislation

Law-making through the courts is a secondary role; the major function of the courts is to resolve disputes.

Law-making is a closed, judge-made process.

 

kriti


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