Social Context Adjudication
Abstract
Judiciary in a democracy is like a charioteer of a carriage. It does not only give meaning to the intent of legislature but also by means of “social context adjudication” promotes the cherished ideals of the constitution. Our body of law is largely a colonial heritage, based on adversarial system of trial. In spite of this Indian judges have seldom been bound by its inherent impositions. Indian judiciary has not only been a guardian or even a reactor to social change but also active initiators of progressive social change and have breathed a lease of life in the dry letters of law by creative and socially responsive interpretation. It has donned the mantle of an active referee as opposed to a mere umpire, as envisaged in a strictly adversarial system. Gender-Justice, Prison Reforms, Rights of the Accused and victims of crime, children’s rights, Criminal justice reforms and poverty jurisprudence bears testimony to the activist role played by our judiciary. In a contest between religious rights and gender justice the judiciary has walked this tightrope and served the cause of gender equality. Right of maintenance of a Muslim woman, bolder interpretation of provisions of procedural laws by successive judicial decisions have all greatly contributed to social justice in India. The right to maintenance of a second wife is also another classic example of activist decisions by the judiciary to wipe every tear from every eye. The liberality in terms of bail has emancipated greatly the poor and indigent languishing in jails for periods larger than the offence that they ultimately get acquitted of. The monitoring of investigation by the magistrate, which has been traditionally seen as making serious inroads into the traditional concept of separation of powers, is now possible, , bringing in the elements of an inquisitorial system which our criminal justice system is in badly need of. In this paper I propose to analyze such instances of creative interpretation, which have reaffirmed the role of our courts as the sentinel on the qui vive of fundamental and basic human rights of our citizens.
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