Realist school of jurisprudence and its analysis (Part 2)

Realist says that in reality the implementation of law is very different than laws written in the doctrine. Judgements can change due to various extra- legal factors.  This school does predictive analysis that is reliable predictions of future decisions, which is done on the basis of 13 factors which can affect the decision making. The factors will be explained below and how it is applicable to above mentioned case :-

1.Existence of law conditioned officials

These officials include the police ,clerks ,etc .If these officials are corrupted and bribed by opposite party then it can affect the decision making .Like it is the duty of police officer to maintain a diary which has a record of every information about the crime happened .This diary can be used as a corroboration to evidence I court of law .Police has a major role to play in investigation . For example- If there is a commission of theft and after further investigation police officer comes to know about the accused but he hides some major information which are against the accused. This happened because he was bribed from the accused side. So this can be one of the reason which can affect the decision making in the court.

In Maneka Gandhi case ,popularly known as the Passport Case ,the regional passport officer impugned her passport intimating her that it was the order from the government of India and it was done under “general public interest” .Sec 10(3)(c) gave unlimited power to impound the passport without even informing the grounds .There might be a possibility that the officer was bribed that’s why he impugned her passport and there is a possibility that the judge would support the government .As judges while interpreting laws follow the principles of interpretation which clearly says that at first laws made by legislature will be assumed to be correct by the judges .So the law that is sec 10(3) (c) of passport act was the law which supported the government .This can have a effect on decision making .

2.Trained and experienced lawyers

Having experienced lawyers plays a major role in predicting the decision making of judges .The more experienced and trained the lawyer is the better would be the his arguments for better judgement .In Maneka Gandhi case, the lawyers on petitioner side were more experienced .So that might be one of the reason that the judgement was on their side mostly .

3.Presence of legal doctrines

This means presence of paper rules supporting the argument .In this case the paper rules involved were Article 14 (Right to Equality) ,Article 19 (Right to freedom) and Article 21 (Right to life and personal liberty) of Constitution of India and also the passport act which had a great effect on decision making of the judges .Article 21 was also questioned .Relation between these three articles was also explained in this case .

4.Responsibility of Judge

Bribery or politically motivated judiciary can have a great effect on decision making .Judgements may vary if the judge is having some political connections .There is independence of judiciary and separation of power among three organs(legislature ,executive and judiciary) but sometimes there is overlapping between the powers of legislature and judiciary or executive and judiciary .So it also has a effect on decision making .

5.Traditional one single right answer

6.Existence of written opinion

7.Frozen records from below

These three points relates to the presence of precedents .Here the realist wants to say that the judgements should not be always relied completely on the precedents because we live in a dynamic society so laws should be changed along with the evolution in the society .But the reasons should be specified by the judges if they try to deviate from the precedents .

8.Presentation

Adversary argument by the counsel .This has a major effect on decision making because it has to do with experienced lawyers and how did they present the case in front of the judges .In this case the lawyers of the petitioners and respondents were experienced and they presented the case by giving proper reasoning of the facts but the petitioners were more good at the arguments .So this effected the decision making thus the case was more tilted towards the petitioner side.

9.Practice of group decisions

This means for example there is a bench of five judges and there is one judge who represents all other while delivering his opinions .And most of the judges in the bench are on one side and there is very less or one judge having a dissenting opinion .This can have pressure on the judge having dissenting opinion .In Maneka Gandhi case there was uniformity in the opinions and there was no dissenting opinion .

10.Security for independents judgement

It refers to the security of the judgement of the judge having dissent opinion .There should be an equal respect  and reverence for the dissenting opinion .

11.Known bench

Having knowledge about the previous judgements made by the judges judging the present case . For example if a judge is a liberalist one then the lawyer will prepare the arguments which would be more of a liberal one so that the decision of the judge can favour him .Like in this case the judge Krishna Iyer J. was a socialist one so if the lawyers are experienced one then they might have known this fact and presented their arguments accordingly .This helps in predicting the decisions of the judges .

12.General period style

It refers to that if a judge and lawyers belongs to the same family then there can be a possibility that judge might favour that lawyer .Like for example Y.V. Chandrachud is the judge and D.Y. Chandrachud is the lawyer who is fighting the case so it can be a possibility that the judge might support the lawyer as they belong to same family .Though the judge did not support the lawyers but will try his best to support him in the arguments .

13.Professional judicial officer

It helps to know the ethics behind law making .

Aishwarya Says:

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