JUDICIAL PROCESS AND CREATIVITY IN LAW Prof Alka

JUDICIAL PROCESS AND CREATIVITY IN LAW Prof. Alka R. Patil Department of Law University of Mumbai

JUDICIAL PROCESS AND CREATIVITY IN LAW • Source of law • Source is origin • Source of law 1) material and formal • Material –legal and Historical ***Legal 1) legislation 2)precedent 3)custom 4)agreement and Professional opinion. • formal sources are the law derives its force and validity. —will of the state. • Material sources are 2 types conti…

• Legal sources • Historical material source • They have no legal recognition. LEGAL SOURCES OF LAW ARE– • Reasonable immemorial customs • Judicial decisions • Acts of legislature • Equity • conventions Thursday, June 17, 2021 Judicial Process and Creativity in Law 3

Source of law in India • Prior British rule in India • Hindus and Muslims –population of this country—were governed by their personal laws. • Original Hindu law -4 sources of law I. The Sruti; II. The Smritis: III. The conduct of the virtuous, and IV. One’s own conscience. Thursday, June 17, 2021 Judicial Process and Creativity in Law 4

• The primary sources of Mohammedan law— I. Quran; II. Sunnat and Ahadis; III. Ijma, and IV. Qiyas. Classification of Sources • The binding source of law • Persuasive sources Thursday, June 17, 2021 Judicial Process and Creativity in Law 5

Law and society • Indian legal system is dependence on colonial rule. • The practice of the British legal system created conflict between old laws and modern notions of justice------Justice Krishna Iyer. • Law is a social science—linked with society. • A society cannot remain static but it keeps on changing with economic, scientific and technological developments. • Law and society gave inspiration---therefore pronounced sociological theory for the study of law. Thursday, June 17, 2021 Judicial Process and Creativity in Law 6

• Law depends on popular acceptance which has a great creative force. • Law consists not of propositions alone, but of legal institutions which people cherish in the society. • Law is not a branding omnipotence in the sky but a flexible instrument of social order, • The law should keep on changing along with the changing social order. • New added and old should be discarded-time to time. • This change is known as the dynamic of law. Thursday, June 17, 2021 Judicial Process and Creativity in Law 7

LAW AND THE CONSTITUTION • British rule in India, development of native law was very slow. • Britisher were orthodox(their rule and regulations) • 1950—const of India, independence of the country created a new era. • Social economic changes in the country. —new challenges before the nation • At present gap- between poor and the rich. — weaker section of the society, prevent exploitation, corruption etc, . Thursday, June 17, 2021 Judicial Process and Creativity in Law 8

LAW AND SOCIAL CHANGE • In a changing society, • Law cannot afford to remain static. • Law takes its own time to articulate social changes through a process of amendment. • Social group play a vital role. • Indian societies applies- with changing norms of legitimacy in every society. • The history of development of Hindu Law, -----it was never static, changed from time to meet challenges of the changing social pattern at different time. Thursday, June 17, 2021 Judicial Process and Creativity in Law 9

Rule of law is a Dynamic concept • Adjustment of law to social needs is a continuing process. • Law must always be responsive to the social development. • Continuing process requires a watchful legislature and an alert judiciary. Need for certainty in Law • The law should be clear & certain so that people know, where they stand conduct their affairs • Mathematically accurate classification cannot be done. • Reasonable & rational applies , should not be allowed vagueness and uncertainty. Thursday, June 17, 2021 Judicial Process and Creativity in Law 10

THANK YOU Thursday, June 17, 2021 Judicial Process and Creativity in Law 11