The constitutional a living document, is said to be always in the making. The judicial process of constitutional interpretational involves a techniques of adapting the law to meet changing social mores. Constitution being the fundamental law, an insight into its new trends is essential for a meaningful understanding of the legal system and processes. The post graduate students in law who had the basic knowledge of Indian Constitutional Law at LL.B. level, should be exposed to the new challenges and perspectives of constitutional development which they are allowed to chose an area of law for specialization. Obviously, rubrics under this section of the paper require modification and updating from time to time.
2. A lawyer whether academic or professional is expected
to be competent to analyze and evaluate the legal process from a
broader juristic perspective. Hence a compulsory paper on judicial process is
essential in the LL.M. curriculum. The objective
of this section of the paper is to study the nature of judicial process as an
instrument of social ordering. It is intended to highlight the role of court as policy maker, participant in the power process
and as an instrument of social change. This
section of the paper further intends to expose the intricacies of judicial
creativity and the judicial tools and techniques
employed in the process.
Since the alternate aim of any legal process or system is pursue of justice a systematic study of the concept of justices and its various theoretical foundations is required. This section of the paper therefore, intends to familiarize the students with various theories, different aspects and alternative ways, of attaining justice.
SECTION - I
1. Federalism :
1.1 Allocation and share of resources - distribution of grants in aid.
1.1.1 The inter-state disputes on resources
1.2 Directions of the center to the state under article 356 and 365
1.3 Special status of certain states.
1.3.1 Tribal Areas, Scheduled Areas.
2. "State" : Need for Widening the Definition in the Wake of Liberalization.
3. Right to Equality : Privatization and Its Impact on Affirmative Action.
4. Freedom of press and challenge of new scientific development.
4.1 Freedom of speech and right to broadcast and telecast.
4.2 Access to information
4.3 Right to strikes, hartal and bandh
5. Immerging Regime of New Rights and Remarks
5.1 Realign Directive principles and fundamental duties into fundamental rights.
5.1.1 Compensation jurisprudence
5.2 Right to education
5.2.1 Commercialization of education and its impact
5.2.2 Brain drain by foreign education market
6. Secularism and Religious Fanaticism
7. Separation of Powers : Stresses and Strain
7.1 Judicial activism and judicial restraint
7.2 PII : implementation
7.3 Judicial independence
7.4 Appointment, transfer and removal of judges
7.5 Accountability : executive and judiciary
SECTION - II
1. Nature of Judicial Process :
1.1 Judicial process as an instrument of social ordering
1.2 Judicial process and creativity in law - common law model. - Legal Reasoning and growth of law-change and stability.
1.3 The tools and techniques of judicial creativity and precedent.
1.4 Legal development and creativity through legal reasoning under statutory and codified systems.
2. Special Dimensions of Judicial Process in
Constitutional Adjudications :
2.1 Notions of judicial review
2.2 Role in constitutional adjudication - various theories of judicial role.
2.3 Tools and techniques in policy - making and creativity in constitutional adjudication.
2.4 Variants of judicial and juristic activism.
2.5 Problems of accountability and judicial law-making.
3. Judicial Process in India :
3.1 Indian debate on the role of judges and on the notion of judicial review.
3.2 The "independence" of judiciary and the "political" nature of judicial process.
3.3 Judicial activism and creativity of the Supreme Court the tools and techniques of creativity.
3.4 Judicial process in pursuit of constitutional goals and values-new dimensions of judicial activism and structural challenges.
3.5 Institutional liability of courts and judicial activism-scope and limits.
4. The Concept of Justice :
4.1 The concept of justice or Dharma in Indian thought
4.2 Dharma as the foundation of legal ordering in Indian thought
4.3 The concept and various theories of justice in the western thought.
4.4 Various theoretical based of justice : the liberal contractual tradition, the liberal utilitarian tradition and the liberal moral tradition.
5. Relation between Law and Justice :
5.1 Equivalence Theories - Justice as nothing more than the positive law of the stronger class.
5.2 Dependency theories - For its realization justice depends on law but justice is not the same as law.
5.3 The independence of justice - the relationship in the context of the Indian constitutional ordering.
5.4 Analysis of selected cases of the Supreme Court where the judicial process can be seen as influenced by
theories of justice.
SECTION - I
No specific bibliography is suggested for this course since the course materials obviously depend upon the latest developments, These developments in the areas specified in the course can be gathered from the recent materials such as case law, changes and amendments to laws, critical comments, studies and reports, articles and research paper and lastly contemporary emerging ethos impacting on constitutional values.
SECTION - II
Julius Store, The Province and Function of Law, Part-II
Chs.1,8 -16(2000), Universal, New Delhi.
Cardozo, The Nature of Judicial Process (1995), Universal, New Delhi.
Henry J. Abraham, The Judicial Process (1998), Oxford
J. Stone, Precedent and the Law : Dynamics of Common Law Growth (1985), Butterworths
W. Friedmann, Legal Theory (1960), Stevens, London.
Bodenheimer, Jurisprudence - the philosophy and Method of the Law (1997), Universal, Delhi.
J. Stone Legal System and Lawers Reasoning (1999), Universal, Delhi.
U. Baxi, The Indian Supreme Court and Politics (1980), Eastern, Lucknow
Rajeev Dhavan, The Supreme Court of India - A Sicio-Legal Critique of its juristic Techniques (1977), Tripathi, Bombay.
John Rawls, A Theory of Justice (2000), Universal, Delhi.
Edward H. Levi. An Introduction to Legal Reasoning (1970), University of Chicago.
A post-graduate student of law should get an insight into the objectives of legal education. He should have an exposure to programmes like organization of seminars, publication of law journals and holding of legal aid clinics.
Law is taught in different ways in different countries. The LL.M. course, being intended also to produce lawyers with better competence and expertise, it is imperative that the student should familiarize himself with the different systems of legal education. The lecture method both at LL.B. level and LL.M. level has many demerits. The existing lacunae can be eliminated by following other methods of learning such as case methods, problem method, discussion method, seminar method and a combination of all these methods. The student has to be exposed to these methods so as to develop his skills.
Growth of legal science in India depends on the nature and career of legal research. The syllabus is designed to develop also skills in research and writing in a systematic manner.
1. Objectives of Legal Education
2. Lecture Method of Teaching - Merits and demerits
3. The Problem Method
4. Discussion Method and its suitability at post-graduate level teaching
5. The Seminar Method of Teaching
6. Examination System and Problems in Evaluation - External and Internal assessment
7. Student participation in law school programmes-Organization of seminars, publication of journal and assessment of teachers.
8. Clinical Legal Education - legal aid, legal literacy, legal survey and law reform
9. Research Methods
9.1 Socio-legal research
9.2 Doctrinal of empirical research
9.3 Relevance of empirical research
9.4 Induction and deduction
10. Identification of Problem of Research
10.1 What is a research problem?
10.2 Survey of available literature and bibliographical research
10.3 Legislative materials including subordinate legislation, notification and policy statements
10.4 Decisional material including foreign decisions; methods of discovering the "rule of the case" tracing the history of important cases and ensuring that these have not been over-ruled; discovering judicial in the reasons thereof
10.5 Juristic writings to survey of juristic literature relevant to select problems in India and foreign periodicals
10.6 Compilation of list of reports or special studies conducted relevant to the problem.
11. Preparation of the Research Design
11.1 Formulation of the Research problem
11.2 Devising tools and techniques for collection of data : Methodology
- Methods for the connection of statutory and case materials and juristic literature.
- Use of historical and comparative research materials
- Use of observation studies
- Use of questionnaires / interview
- Use of case studies
- Sampling procedures - design of sample, types of sampling to be adopted
- Use of scaling techniques
11.3 Computerized Research - A study of legal research programmes such as Lexis and West law coding.
11.4 Classification and tabulation of data - use of cards for data collection - Rules for tabulation; Explanation of tabulated data.
11.5 Analysis of data
Select Bibliography :
Brayal, Nigel Dunean and Richard Crimes, Clinical
Legal Education : Active Learning in Your Law School (1998).
Blackstone Press Limited London.
S.K. Agrawal (ed.) Legal Education in India (1973), Tripathic, Bombay N.R. Madhava Menon (ed.), A Handbook of Clinical Legal Education (1998), Eastern Book Company, Lucknow.
M.O. Price, H.Bitner and Bysiewiez, Effective Legal Research (1978) Pauline V. Young, Scientific Social Survey and Research (1962).
William J. Grade and Paul K. Hatt, Methods in Social Research, McGraw-Hill Book Company, London.
H.M. Hyman, Interviewing in Social Research (1965)
Payne, The Art of Asking Question (1965)
Erwin C. Surrency, B. Field and J. Crea, A Guide to Legal Research (1959)
Morris L. Cohan, Legal Research in Nutshell (1996), West Publishing Co. Harvard Law Review Association, Uniform System of Citations ILI Publication. Legal Research and Methodology.
The practical will be conducted in LL.M. Part-I as well as LL.M. Part-II. The practical examination shall be held at the end of the second year of LL.M. studies, on Research Methodology, Law Teaching and Clinical work. There shall be 20 marks each for doctrinal research and for non-doctrinal research, and 20 marks and 15 marks for clinical work and law teaching respectively. How the components of practical shall be evaluated is left to individual faculties of law. They can formulate their own models of assessment. However, for making the practical examination objective and meaningful, the following guidelines shall be adhered to.
1. Research Methodology :
(1) Doctrinal research (20 marks) :
Each student is assigned in advance a separate topic
and asked to collect materials. A period of 5-7 days can
be set apart for carrying out this assignment in the library. The materials indicated or collected during the
assignment shall be evaluated by a team of at least two faculty members.
(2) Non-doctrinal research (20 marks) :
Here the students are asked to go out of the class
room and library and make an empirical study of a problem
which has social, economic, moral or political dimension. Field data can be collected thought any model of data
collection. The result are to be assessed by a term of at least two faculty members.
2. Clinical work (20 marks) :
The modalities can be evolved by the law school / concerned P.G. recognized center. One method is that the legal aid clinic of the law school / P.G. Centre can involve itself with other legal aid programmes in the area. Student are encouraged not only to work with the clinic but also to acquaint themselves with court proceedings, drafting of business or other deeds and with public interest litigation. The initiative and potential of the student and the actual work turned out by him shall be assessed by a team of at least two faculty members.
3. Law Teaching (15 marks) :
A topic is assigned to the student in advanced. He is required to handle a class for 25 to 30 minutes. He can select any of the methods of teaching. The performance of the student shall be assessed by a team of at least two faculty members.
Dissertation work will be carried out and dissertation prepared during the two years of LL.M. studies. Dissertation carrying 125 shall be evaluated internally and externally, with 100 marks for the written work and 25 marks for viva-voce.