Bulding Capacities - National Judicial Academy

312 Pages·2013·2.09 MB·English

Building Capacities
Developing Judging Skills
through Case Analysis

National Judicial Academy
2013
Preface

The National Judicial Academy does not claim that it teaches the judicial officers.
In fact it tries to situate the judicial officers in a position from there they could
perceive their constitutional position and identify the factors that contribute, nay
should contribute, to their decisions to be in consonance with constitutional vision
of justice envisaged in the preamble and part III and part IV of the constitution.
The need for reading statutes within the constitutional context has of late
assumed a lot of importance. Ruling that a document in the custody of the court
should be given to the accused if it helps her to explain evidence against her, the
Supreme Court in V.K. Sasikala (2012)9 SCC 771 observed thus:
“The question arising would no longer be one of compliance or non-compliance
with the provisions of S.207 Cr.PC. and would travel beyond the confines of the
strict language of the provisions of Cr.PC. and touch upon the large doctrine of
free and fair trial that has been painstakingly built up by the courts on a
purposive interpretation of Art. 21 of the Constitution. “
These are the days when the courts are not supposed to be confined to the
cabined provisions but are expected to examine the spirit of the law enshrined in
the provisions. These instances are quite often presented in decided cases.
Hence the present attempt..
It is sincerely hoped that our judicial officers would be benefited by these
exercises. Ms. Nidhi Gupta and Shri Pattabhi Rama Rao, Assistant Professors
have made significant contribution in developing these exercises. They deserve
approbation. I thank them profusely.

Prof.(Dr.) K.N. Chandrasekharan Pillai
Contents

Introduction

I) Finding the Law: Case Analysis and Identification of Ratio
A) V.Sekar v. State (2012 CriLJ 2451]
i) Exercise based on the case
ii) Issues for Discussion
iii) The High Court Judgment
B) B.S.Joshi v. State of Haryana [(2003)4 SCC 675]
i) Exercise based on the case
ii) Issues for Discussion
iii) The Supreme Court Judgment

II) Gender-Sensitive Justice: Problems and Perspective
A) Saygo Bai v. Chueeru Bajrangi [(2010) 13 SCC 762]
i) Simulation Exercise based on the case
ii) Issues for Discussion
iii) The Supreme Court Judgment
B) M. Palani v. Meenakshi [AIR 2008 Mad 162]
i) Simulation Exercise based on the case
ii) The High Court Judgment

III) Criminal Justice System and Human Rights
A) Senior Intelligence Office v. Jugal Kishore Samra
i) The High Court Judgment [2007 Cri LJ 2692]
ii) The Supreme Court Judgment [2011 (7) SCALE 3]
iii) Issues for Discussion
B) Nilabati Behera v. State of Orissa & Sahdeo v. State of Uttar Pradesh
i) Exercise based on the cases
ii) Issues for Discussion
iii) The Supreme Court Judgments
(1) Nilabati Behera [(1993) 2 SCC 746]
(2) Sahdeo [(2010) 3 SCC 705]

IV) Marginalized Groups in India: Law and Judicial Response
Kailas Govind Wadekar v. State of Maharashtra, AIR 2011 SC 598
i) Summary of the Supreme Court, the High Court & the Trial Court
Judgments
ii) Issues for Discussion
iii) The Trial Court Judgment
iv) The High Court Judgment
v) The Supreme Court Judgment

V) Delays & Arrears: Issues and Remedies
Pricewaterhouse Coopers Pvt. Ltd. v. C. Anthony Louis and others [2012
Bom CR(Cri) 660]
i) Summary of the Case
ii) Issues for Discussion
iii) The High Court Judgment

VI) Criminal Law: Concepts and Principles
A) Exercises on the Basic Concepts of Criminal Law
B) Exercises on General Principles of Criminal Procedure
Introduction

The role of judicial education in strengthening justice system in our country is
now well established. Our judicial system is equipped with fully functional State
Judicial Academies working under direct supervision of their respective High
Courts. There is a broad consensus within judiciary that the role of SJAs is much
more expansive than the mere provision of knowledge updates or procedural law
training. Judicial Academies are called upon to play an important role in capacity
building of the judges.
The role of the judicial academies is not to provide ‘right answers’ or to offer
solutions to the legal problems. Their main role is to provoke critical analysis and
thought and to provide a conducive environment for introspection and self-
criticism.
While the vision of the judicial academies as institutions for capacity building of
judicial officers is undisputed, the major challenges for the directors and faculty
are: How can this vision be translated into practice? How can discussions be
generated? What kind of materials and resources can be used to generate
discussions? How to infuse the spirit of critical inquiry while maintaining the
sanctity of higher judiciary?
Aiming to address the above issues, NJA has developed a set of model
exercises to enable a dialogue with the participants in order to encourage them
to examine the functioning of the legal system critically in light of the
constitutional vision of justice. These exercises, developed in the course of
programmes conducted at NJA, focus on different areas of law and justice which
are of relevance to judges. These exercises can be used to initiate discussion on
issues relating to the rights of individuals in the criminal justice system, matters
concerning gender justice and social justice in our country.
Depending on the resourcefulness of the faculty each of these exercises can be
used in diverse ways. The cases included here have a series of questions raised
to provoke the participants to think about the case for its legal relevance and also
for its legal relevance but also for its sociological, political and anthropological
dimensions.
1

Finding the Law:
Case Analysis and Identification of Ratio

About Exercises

The first two exercises in the series of exercises presented here are based
on two judgments, one from the Madras High Court in V. Sekar v State
Inspector of Police, decided on 1.3.2012 and second from the Supreme
Court in B.S. Joshi v State of Harayana, (2003) 4 SCC 675. These two
exercises, and others which may be developed on the same lines, are
appropriate for imparting skills of case analysis and for indentifying the
ratio of a case. The judgments are presented in a summary form.
In these exercises, the paragraphs of the judgment which provide the
findings of the Court as well as those which provide reasons for respective
findings have been selected and highlighted. The participants/ reader is
required to read the selected paragraphs and attempt to answer the
questions raised at the end of the case.
They serve the purpose of demonstrating to the participants reasoning
process adopted by the court in arriving at a particular finding. The
questions raised at the end of the case provoke the participants to think
about the issue at hand from different angles. Different participants may
come up with different answers, but these differences, it is expected, would
generate discussion and exchange of views with respect to the relevant
legal issue(s) under consideration in this case.
These exercises which can be most suitable for young entrants in
induction programme can be developed by the concerned faculty/resource
person using any case from any area of law. The exercise may be
distributed in advance so that the participants can come prepared to
contribute effectively to the discussions during the session. The exercises
can also be used to make participants read and analyse important cases
relating to a given area. Participants can also be given the assignment of
selecting and highlighting the relevant paragraphs in any case showing the
finding and the reasons supporting the finding.