Everything done by judge in the process of delivery of justice is called Judicial Process. Judicial process is basically the path or the method of attaining “justice”. Thus, the judicial process is a set of interrelated procedures and roles for deciding disputes by an authoritative person or persons whose decisions are regularly obeyed. The disputes are to be decided according to a previously agreed upon set of procedures and in conformity with prescribed rules. In this article, we shall discuss Social Ordering Through Judicial Process.

The rule of law is arguably the most basic requirement of any civilized society, and an independent judiciary, to which access is available to all citizens, is an essential ingredient of the rule of law. In a constitutional democracy, the Judges have a great responsibility and obligation towards the people. They ensure that cases are conducted following the rules of court and the rules dealing with evidence that can be used. These rules do more than ensure that court proceedings run smoothly – they also help to protect the rights of individuals before the courts and promote fairness. A judge will help ensure that both sides get a fair opportunity to present their case and act as an independent and impartial decision-maker. They exercise the authority of the State in public, in issues of intense importance of the parties and often to the community at large. They decide these issues according to law, it is not the same thing as their personal preferences or current public opinion. Indeed, they have to set public opinion aside and when the case requires, protect minorities against it. In this judicial process, Judges are the kind of men who do not seriously question the law and its effect because they have to serve the law and not its masters. The function of the judiciary, therefore, is to derive its conclusions from issues before it in accordance with law and with impartiality.

Judges must provide reasons for their decisions. Sometimes judges will explain their reasons in court at the same time they give their decision on the case. Other times judges will give their decision in court at the end of the case but provide the reasons for their decision in a written decision at a later date. Judges may also provide oral reasons in court and a written decision at a later time.

American Judge Benjamin Cordozo said that the Last reason for law is the welfare of society. 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 operates laws, is an instrument of social ordering.

Examples of Social Ordering Through Judicial Process:

Securing Rights of Needy in Backward Classes of the Society:

Some members of a backward class who are socially, economically as well as educationally advanced as compared to the rest of the members of that community. They constitute the forward section of that particular backward class and eat up all the benefits of reservations meant for that class, without allowing benefits to reach the truly backward members. These group of people is referred as a creamy layer.

In Indra Sawhney v. Union of India, AIR 1993 SC 477,the Supreme 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’.

In M. Nagaraj v. Union of India, 19 October, 2006 case, the Supreme Court laid down three conditions for promotion of SCs and STs in public employment:

• Government cannot introduce quota unless it proves that the particular community is backward,
• Inadequately represented (based on quantifiable data), and
• Providing reservation in promotion would not affect the overall efficiency of public administration.

Bonded Labourers:

Bonded labour has been defined as well as addressed as a prohibited practice in several international conventions as well as a many Indian legislations. It is a system of forced (or partly forced) labour in which a debtor enters (or presumed to have entered) into an agreement with the creditor. Owing to this agreement, following are the end results:

• Render services to the creditor (by himself or through a family member) for a specified (or unspecified) period of time with no wages (or nominal wages).
• Forfeit the right to move freely.
• Forfeit the right to appropriate or sell the product or property at the market value from his (or his family members’) labour or service.

In Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802 case, the Supreme 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.

In Neerja Chaudhury v. State of Madhya Pradesh, AIR 1984 SC 1099 case, the Supreme Court ruled that it is the plainest requirement of Articles 21 and 23 of the Constitution that bonded labourers must be identified and released and on release, they must be suitably rehabilitated… Any failure of action on the part of the State Government[s] in implementing the provisions of [the Bonded Labour System (Abolition) Act] would be the clearest violation of Article 21 and Article 23 of the Constitution.

Caste System:

Article 15 of the Indian Constitution says that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. But still in many regions particularly in rural area, society is divided based on their caste status. Like each society has a different colony and colony are named after based on their caste. Every locality is named after the particular caste based on the people living in it. Society is divided based on the upper caste and lower caste. 

In Lata Singh v. State of U. P., AIR 2006 SC 2522 case, the Apex Court has given protection to the major boy and girl who have solemnized inter-caste or inter-religious marriage.

Prevention of Atrocity:

In Swaran Singh v. State through Standing Counsel, (2008) 8 SCC 435 case, the complainant had stated in the FIR that he was insulted by appellants by his caste name when he stood near the car which was parked at the gate of the premises. The Supreme Court held that this was a place within public view and would amount to an atrocity under section 3 (1) (x) of the Act, since the gate of a house is certainly a place within public view. It held that even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view. The Court held that `place within public view’ should not be confused with the expression `public place’. A place can be a private place but yet within the public view. It held that when we interpret Section 3 (1)(x) of the Act, we have to see the purpose for which the Act was enacted, to prevent indignities, humiliation and harassment to members of the SC/ST community.

In Patan Jamal Vali v. The State of Andhra Pradesh, 2021 SCC Online SC 343 case, the Supreme Court upheld the acquittal of the accused under the SC/ST PoA Act, it held that the case of rape of a Dalit, blind woman should be seen from an intersectional perspective. It held that when the identity of a woman intersects with her caste, class, religion, disability or sexual orientation, multiple sources of oppression operate cumulatively to produce a specific experience of subordination by the victim which cannot be segregated. It also laid down directions for training of judges, police and prosecutors to make the criminal justice system responsive to women with disabilities facing sexual assault.

Child Labour:

The issue of Child Labour has always persisted in some form or the other in all societies of the world. Children were expected to accompany their parents while working in the field and to help with household works. 

With regard to child labour in India, Justice Subba Rao, the former Chief Justice of India, rightly remarked; “Social justice must start with the child. Unless a soft plant is properly sustained, it has a pocket chance of multiply into a strong and useful tree. So, the first preference in the plate of justice should be stated to the well-being of children.

In M.C. Mehta v. State of T.N., AIR 1997 S C 699 case, the Supreme Court issued direction the State Governments to ensure fulfilment 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.

In Peoples Union for Democratic Rights v. Union of India, AIR 1982 SC 1473 case, commonly known as ‘Asian workers case’, where it was escorted to the notice of the Supreme Court that children under 14 years of age employed in the construction activity. It was said that construction activity is plainly a dangerous work and it is definitely important that the employment of children above the age of 14 years must be restricted in every kind of construction task. Citing to Article 24, Justice P.N. Bhagavathi and Justice Bahrul have held that apart from the need of International Labour Organization Convention No.59, we have Article 24 of the Constitution which even if not attend up by suitable legislation, must “Proprio vigour” and construction act plainly and absolutely a hazardous employment, it is open that by ground of constitutional prohibition no child under 14 years can be allowed to be unavailable in construction work.

In Sheela Barse v. Union of India, (1993) 4 SCC 204 case, the Supreme Court held that child is a state blessing, and it is the responsibility of the state to focus behind the child with a perspective to guarantee proper development of its personality. The Apex Court also said that judicial institutions have played an essential role not only for fixing issues but also has regularly attempt to grow and expand the law so as to answer to the desire and dreams of the people who are looking to the judiciary to give life and fulfilled to the law.

Child Prostitution:

Following judgments make it clear that the court is aiming towards a better future for the children who are born in brothels or are from vulnerable sections of the society and requires guidance and care to have a bright future.

In Gaurav Jain v. U.O.I. AIR 1997 SC 3021 case, the Supreme court issued directions for rescue and rehabilitation of child prostitutes and children of the prostitutes.

In Chameli Singh v State of Uttar Pradesh, 15 December, 1995 case, the Supreme court held that right to shelter is a guaranteed fundamental right provided under the right to life as laid down in Article 21 of the Constitution and the right is enforceable as well. This right is absent for the children born in brothels for the economic background they are born and brought up in. Most of them grow up on their own in the environment their mother’s work in and survive in that environment itself. Providing the right to shelter is, therefore, an essential requirement for these children.

In Sakshi v. Union of India, 26 May, 2004 case, the Supreme Court observed that there is a necessity to amend Sections 375 and 376 of the Indian Penal Code, 1860 in order to safeguard children who are subjected to sexual abuse.

Gender Equality:

The state or condition that affords women and men equal enjoyment of human rights, socially valued goods, opportunities and resources, allowing both sexes the same opportunities and potential to contribute to, and benefit from, all spheres of society (economic, political, social, and cultural).

In Madhu Kishwar v. State of Bihar, (1996) 5 SCC 148 case, Justice K Rama Swamy observed that, “Half of the Indian population too are women. Women have always been discriminated against and are suffering discrimination in silence. Self-sacrifice and self –denial are their nobility and fortitude and yet they have been subjected to all inequalities, indignities, inequality and discrimination.”

In C .M. Mudaliar v. Idol of Sri S. Swaminanthaswami Thirukoil, 9 (1996) 8 SCC 525 case, the Supreme Court has highlighted the right of women in India to eliminate gender-based discrimination particularly in respect of property so as to attain economic empowerment.

In Associate Banks Officers’ Association v. State Bank of India, AIR 1998 SC 32 case, the Court upheld the Equal Remuneration Act and held that, women workers are in no way inferior to their male counterparts. Hence, there should be no discrimination on the ground of sex against women in payment of remuneration.

In Anuj Garg V/s Hotel Association of India, (2008) 3 SCC 1 case, the Apex Court declared section 30 of Punjab Excise Act 1914, which prohibited employment of women in any part of such premises in which liquor or intoxicating drugs were consumed by the public, as unconstitutional, holding that right to self-determination is an important off-shoot of the gender justice discourse. Hence instead of putting curbs on women’s freedom, their empowerment would be a more tenable and a socially wise approach. On the same analogy, the closure of Dance-bars was declared to be affecting women’s right to earn livelihood.

In Charu Khurana and Others v. Union of India, 2015 (1) SCC 192 case, where the main grievance of the Petitioner was that the Cine Costume Makeup Artists and Hair Dressers Association of Mumbai had refused to issue Makeup Artist Card to the Petitioner on the ground of her gender, so that the male members were not deprived of work as Makeup Artist. While referring to Fundamental Duties provided under Clauses (e) and (j) of Article 51-A, the Supreme Court, held that, “it is clear as a cloudless sky that all practices derogatory to the dignity of women are to be renounced”.

In Air India v. Nargesh Meerza, AIR 1981 SC 1829 case, a regulation provided that an air hostess would retire from the service attaining the age of 35 years or on marriage within 4 years of service or on first pregnancy, whichever occurred earlier. The regulation authorized the Managing Director to extend the age of retirement to 45 years at his option if an air hostess was found medically fit. The Regulation did not contain any guidelines or the policy according to which the discretion conferred on the Managing Director was to be exercised. The regulation conferred on the Managing Director was unguided and uncontrolled discretion. The termination of the service of an air hostess on pregnancy was unreasonable and arbitrary. The regulation was held to be violative of Article 14 as it was unreasonable and arbitrary.

Female Foeticide:

Female foeticide is the process of finding out the sex of the foetus and undergoing abortion if it is a girl. Although it is illegal, many people continue to practice it. Besides this, there are some communities which practice female infanticide – the practice of killing the girl child once she is born. 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 SC 2007 case, the Supreme 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.

In Voluntary Health Association of Punjab v. Union of India, 8 November, 2016 case Hon’ble Justice Dipak Misra observed that all involved in female foeticide deliberately forget to realize that when the foetus of a girl child is destroyed, a woman of the future is crucified. To put it differently, the present generation invites the sufferings on its own and also sows the seeds of suffering for the future generation, as in the ultimate eventuate, the sex ratio gets affected and leads to manifold social problems.

Bigamy:

Bigamy is a marriage in which one of the parties is already legally married. Bigamy is the practice which involves having two spouses at the same time. The second marriage to someone who is already legally married is void and may be annulled, while there is no effect on the first marriage. However, if the first marriage is declared void due to any reason, then such two individuals have the freedom to marry any person of their choice. 

In Lily Thomas v. Union of India, AIR 2000 SC 1650 case, the Supreme Court held 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 Supreme Court would certainly be helpful in eliminating social evil of bigamy.

In Radhika Sameena v. SHO Habeeb Nagar Police Station, 1997 CriLJ 1655 case, the Andhra High Court held that a Muslim male married under the Special Marriage Act, 1956 would be guilty under Section 494 of the IPC if he enters into another marriage as per the Muslim Law. Since his previous marriage was done as per the Special Marriage Act and not under Muslim Law, the provisions of the Special Marriage Act shall be applicable and not of the Muslim Law, thus the respondent’s marriage was held void.

In Sarla Mudgal v Union of India, AIR 1995 SC 1531 case, the Supreme Court established that by merely converting to another religion, no person can escape the liability for committing the offence of bigamy and the conversion itself does not free such person from the tenets of their first lawful marriage.

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 Kamesh Panjiyar v. State of Bihar, 1 February, 2005 case involves a dowry death where the husband and his relatives demanded a she-buffalo as additional dowry and abused the deceased when the demand was not met. The wife was later found dead with a neck injury, and the session court declared it as a case of dowry death, sentencing the husband to 10 years in prison. The Supreme Court upheld the decision and stated that proving cruelty inflicted on the woman soon before her death is enough to establish dowry death under Section 304B, and the punishment passed by the session judge was justified.

In Raja Lal Singh v. State of Jharkhand, 8 May, 2007 case, the Supreme Court has laid down that there is a clear nexus between the death of Gayatri and the dowry related harassment inflicted on her, therefore, even if Gayatri committed suicide, S. 304-B of the I. P. C. can still be attracted.

Bride Burning:

Indian society has been stigmatized by many social and legal problems. One of such problems is the dowry system that still prevails in the society. Though such practice is condemned by law still it is a custom that is performed in various parts of India. The biggest problem that arose because of such practice being followed in society is the problem of bride burning.

In Paniben v. State of Gujarat, AIR 1992 S C 1817 case, the Supreme 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.

In Kundula Bala Subrahmaniam v. State of A.P. 1993 SCC (2) 684 case, the Supreme Court observed that such cases ought to be dealt with in a more realistic manner and criminals should not be allowed to escape on account of procedural technicalities or insignificant lacunae in the evidence and the courts are expected to be sensitive in cases involving crime against women.

In Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia, 1989 SCC (1) 715 case, the supreme Court observed, “We are referring to these provisions only to emphasize that it is not enough if the legal order with the sanction above moves forward for protection of women and preservation of societal values. The criminal justice system must equally respond to the needs and notions of the society. The investigating agency must display a live concern. The Court must also display greater sensitivity to criminality and avoid on all courts ‘soft justice”.

Harassment of Woman:

Workplace sexual harassment in India, was for the very first time recognised by the Supreme Court of India in its landmark judgment of Vishaka v. State of Rajasthan; so it laid down certain guidelines making it mandatory for every employer to provide a mechanism to redress grievances pertaining to workplace sexual harassment which were being followed by employers until the enactment of a legislation. This case is the foundation of the law against sexual harassment of women at the workplace in India.

In Vishaka v. State of Rajsthan, AIR 1997 SC 3011 case, 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 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. In 1950 the Government of India ratified the International Convention for the Suppression of Immoral Traffic in Persons and the Exploitation of the Prostitution of others. In 1956 India passed the Suppression of Immoral Traffic in Women and Girls Act, 1956 (SITA). SITA was amended in 1986 and the Immoral Traffic Prevention Act was passed.

In State of Maharashtra v. Mohd. Sajid Husain, AIR 2008 SC 155 case, the Supreme 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.

In Prerana v. State of Maharashtra, 2003 (2) MhLj 105 case, the Court held that a Magistrate before whom persons rescued under the Immoral Traffic (Prevention) Act, 1956 or found soliciting in a public place are produced, should, under Section 17(2) of the said Act, have their ages ascertained the very first time they are produced before him. When such a person is found to be under 18 years of age, the Magistrate must transfer the case to the Juvenile Justice Board if such person is a Juvenile in conflict with law, or to the Child Welfare Committee if such person is a child in need of care and protection.

In Gaurav Jain v. Union of India, 9 July, 1997 case, the Supreme Courtstated about the rights of the children of prostitutes and their rehabilitation.

In Vishal Jeet v. Union of India, AIR 1990 SC 1412 case, the Supreme Court pointed out the obligation of the central and state governments to ensure the welfare of children and girls involved in forced prostitution.

Outraging Modesty of Woman:

Indian society places great emphasis on the modesty of women and any act that is seen as an insult to modesty is considered to be a grave offence. 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 State of Punjab v. Major Singh, AIR 1967 SC 63 case, the Supreme Court observed that modesty to a woman has evolved as altogether a different concept which has very little to do with the physique of the woman. The court further states that the modesty of a woman is intimately connected with femininity including her sex.

In Ramkripal Singh v. State of Madhya Pradesh, 19 March, 2007 case the Supreme Court considered the relationship between Section 354 and Section 509 of the Code of 1860. Section 509 makes the intention to insult the modesty of the woman an indispensable ingredient of the offence mentioned under Section 354.

In Kanwar Pal S. Gill v. State (Admn. U. T. Chandigarh), 27 July, 2005 case, where the accuseds lapped 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 Supreme Court. That by itself is setting a model for others and it is a good example in connection to social ordering.

Rape:

Section 375 of IPC tells about rape and what actions, if done by a man, can make him liable for punishment under Section 376 of IPC. Section 375 was in IPC from the time of the enactment of this statute but its ambit has been enlarged after the Criminal Law Amendment of 2013. Earlier the penetration of the penis into the vagina, urethra, anus or mouth of a woman was considered rape. But now even if the man inserts any object or any other part of the body into the vagina, urethra, anus or mouth of a woman, it is considered rape.

In Rafiq v. State of UP, AIR 1981 SC 559 case, Justice Krishna Iyer said that the murderer kills the body of a victim but the rapist kills the soul. So, rape can be considered a more serious offence against humankind than murder. Section 375 plays a very important role in bringing to justice the women who are robbed of their souls by those perpetrators.

In State of M.P. v. Babulal, AIR 2008 SC 582 case, the Supreme 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.

In Mukesh v. State for NCT of Delhi case, commonly known as Nirbhaya case, a 23 year old medical student was returning after a movie with her friend and took a bus. In the bus, she was gang-raped by six people and was brutally assaulted. After the rape, she along with her friend were thrown out of the bus naked. The girl died while she was being treated in a hospital. The Supreme Court awarded death penalty to four of the accused among six. One of them being a juvenile was convicted by the Juvenile Justice Board and sent to the correctional home. The other one committed suicide before the judgment was delivered.

Maintenance:

The right to demand maintenance is statutory in India, and it cannot be taken away by an agreement to the contrary. The right to claim maintenance is available to wives, children, and parents. Even husbands (who are unable to support themselves) are entitled to maintenance under specific personal laws.

In Badshah v. Urmila Badshah Godse, 18 October, 2013 case, the Supreme Court explained the justification for granting maintenance by stating that “maintenance is provided with the goal of strengthening the poor and attaining social justice, or individual equality and dignity. It encapsulates societal ideals.

In Mohd. Ahmed Khan v. Shah Bano, AIR 1985 SC 945 case, the Supreme Court, for the first time, granted maintenance to divorced Muslim woman under Section 125 CrPC, ignoring her personal law, keeping in view essence of equality before law.

In Dimple Gupta v. Rajiv Gupta, AIR 2008 S C 239 case, the Supreme Court has granted Maintenance to illegitimate child under S. 125 CrPC. 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.

Conclusion:

The judicial process within the Constitution of India involves a technique of adapting the law to meet changing social needs and rendering complete justice by faithfully perceiving the constraints on the power of the state, in accordance with the provisions of the Constitution, falling within its own sphere of action. When there is a gap in law, the courts are required to settle the clamoring interests of the contesting parties which should be an embodiment of justice to fill the gaps in law.

The judiciary under a constitutional system would have to be performing policy control in terms of the policy choices reflected in the Constitution and state authoritatively what the law is. However, the superior courts in India continue to grapple with the motive judicial process and this problem constitutes a common challenge to the Constitution and the substance of the Constitution. However, in doing so, the superior courts would have to set an example and observe with diligence the limits on the power of the State falling on its own acts in compliance with the provisions of the laws in force.