ASSIGNMENT

ON

JUDICIAL PROCESS

TOPIC- VALUE JUDGMENT

SUBMITTED BY:

MEHBUBUL HASSAN LASKAR

04/ LL.M/ 09

INDIAN LAW INSTITUTE, NEW DELHI

I. Introduction

Plainly and simply stating, the judicial decisions based on values such as social, constitutional,

moral, economic, political, ethical, environmental or human right values of the contemporary

society can be called as a ‘Value Judgment’ i.e. inculcation of values in judicial process.

“Value judgments” can be defined as a signified choice of any particular value and the

inculcation and incorporation of such choice in the judicial process to reach to a decision of

social importance.

According to Wikipedia, the free encyclopedia, a value judgment is a judgment of the rightness

or wrongness of something, or of the usefulness of something, based on a personal view. As a

generalization, a value judgment can refer to a judgment based upon a particular set of values or

on a particular value system.

To understand the role of values and value judgments in the judicial process, and its importance

for judges, we can recite the feelings of Cardozo as a judge,

“When I had to cope up with it as a judge, I found that the creative element was greater than I

had fancied.”1

Harry W. Jones said, “Law is not a form of art for art’s sake; its ends in view are social, nothing

more or nothing less than the establishment and maintenance of a social environment in which

the quality of human life can be spirited, improving and unimpaired.”2

Max Weber suggested that the term ‘value judgment’ refers “to practical evaluation of a

phenomenon which is capable of being … worthy of either condemnation or approval.” He

distinguished between “logically determinable or empirical observable facts” and “the value

judgments which are derived from practical standards, ethical standards or … views.”3

‘Values’ are very tough to define in words, as it is an abstract notion, which is similar to ‘good’

which establishes some standards for what should be desirable in a universal sense. But

1 B.N.Cardozo, Growth of Law 57 (2005).2 Harry W. Jones, “An Invitation to Jurisprudence”, 74 Columbian Law Review 1024 (1974).3 Weber, Value Judgments in Social Science (edn. 1987).

according to the positivistic notion, they are purely subjective or merely conventional and

nothing to do with law as such.

‘Morality’ and ‘Values’ in some sense are integral part of law or legal development imbibed in

legal system and to the extent inseparable from it. Law in action is not a mere system of rules,

but involves the use of certain principle and values such as justice, equity and good conscience.

Roscoe Pound states that, “Every society has some basic assumptions upon which its ordering

rests, though for the most part of it is implicit rather than expressly formulated.”4

These basic assumptions are the jural postulates guiding a legal system, and are considered as the

fundamental and basic purpose of law.

Society is full of conflicts, but what keep it socially integrated are some common postulates and

principles, which we call as ‘values’. We can say that values of a society are intrinsic to it and

they are to be discerned in the judicial process by the judges to come up with value judgments,

which are actually satisfying the true needs of the society.

The process of making a value judgment tends to balance the conflicting interests with respect to

values in question, and at times a value based judgment has much more importance in

furtherance of the notion of justice than a judgment based on established rules or procedures.

As Cardozo says, “The Judge is under a duty, within the limits of his power of innovation, to

maintain a relation between law and morals, between the percepts of jurisprudence and those of

reason and good conscience.”5

In fact, the judiciary in the modern democratic countries is shedding the merely technocratic role

assigned to them and by adopting the activist role; they are pioneering the transformation of

judicial process required for the betterment of the society.

The judiciary is playing an important role by identifying values and devising tools in form of

doctrines and principles to protect such values, and to inculcate them into the concept of law

through value judgments.

II. VALUES

4 Dennis Lloyd; Introduction to Jurisprudence 850 (2008).5 B. N. Cardozo, The Nature of the Judicial Process 133 (2004)

In order to have a better understanding of the concept of ‘value judgment’ in judicial process, we

must necessarily analyse and understand as to what does ‘values’ mean and its relation to law.

Dias defined values as, “All considerations which are viewed as objective of a legal order and

which shape the provisional decision of the court in guiding, handling of rules to measure and

balance conflicting interests.”6 He further identifies that these values are not static but they may

transform as the society develops new needs.

Morris R. Cohen in his article stated that earlier the reforms in law and legal institutions were

based on eternal principles of justice and reasons, but now the appeal is predominantly to the

vital needs, social values and the real or practical need of the times.

Hart said, “The law of every modern state shows the influence of both the accepted social

morality and wider moral ideals. These influences enter into law either abruptly or avowedly

through legislation or silently through the judicial process.”7

As we all know that the subjective elements that are shaping the law through judicial process are

not imaginary or illusory, rather they have solid grounds of principles and values having their

roots in the society. Howsoever inarticulate and subconscious they are, yet regulating and

balancing the conflicting and emerging needs of the society.

The study of value also reveals the difference between what are called the ‘totalitarian’ and ‘free’

societies. In the former role of judges is simple of declaring what are laws, but in latter there is

judicial independence of choice of values.

Different schools of jurisprudence have defined the relationship between values and law.

Values and its relation to law according to thoughts of various schools of jurisprudence are

discussed below in brief-

NATURAL LAW SCHOOL:8

While reconciling the tension between what ‘is’ and what ‘ought to be’, the natural law thinkers

maintain that what naturally ‘is’; is nothing but actually what ‘ought to be’.

6 R.W.M. Dias, Jurisprudence 258.7 H.L.A. Hart; The Concepts of Law 203 (2nd edn. 1961).8 Also see Dennis Lloyd; Introduction to Jurisprudence, and R.W.M. Dias, Jurisprudence.

Natural law thinking is essentially an assertion of faith in a standard of values. They believe that

rational nature, its state of reason and its conformity with nature, sociability etc. and the

consensus of all of the mankind and the divine will are the values.

For natural law thinkers, values play an indispensable role in the development and day- to-day

administration of law. They further believe that reason is what distinguishes man from other

living creatures and man by this reason can discern what is right and what is wrong.

Natural law thinking may be best described by quoting Aristotle, “If a written law tilts against a

case clearly we must appeal to the universal law and insist on its greater equity and justice.” 9

Natural law thinking is completely in favor of integral nature of values in any legal system, and

advocates that no system of law has an independent existence from values and morality.

ANALYTICAL AND POSITIVE LAW SCHOOLS 10 :

The positivists of earlier times have totally rejected any place for morality and values in the

sphere of laws and distinguished them as completely separate realms.

John Austin eliminated any element of morality from the content of positive law as he described

law, as the command of the sovereign, in which, there is no place for societal values. However,

Austin agreed that morals and values may have binding force for the people, but it could never

have the legally binding force according to the legal system.

Hans Kelsen also sought to reject any element of values in the realm of positive law. He held that

the values are purely subjective and hence they cannot be admitted into the scientific study of

law as an objective phenomenon. Though, he agreed that religion and morality are more driving

psychic forces than law in shaping the actual behavior of the society.

H.L.A. Hart in his essay “Positivism and Separation of Law and Morals” enumerates five points

of positivistic study of law, which includes necessary separation of law from morality. Though,

he admitted that the belief in objective moral values is easier to assert than to justify something

rationally.

9 Supra note 4, at p 97.

10 Cf. supra note 8.

Though many of the positivists advocated for law reforms, which necessarily involved moral

standards, and accepted their binding force, but no one agreed to incorporate morality in the

sphere of law.

SOCIOLOGICAL SCHOOL 11 :

The sociologists consider law as a tool for social control, and have a more functional than a

theoretical approach, i.e. they are more concerned with the law in action.

They rejected the theory of ultimate values of the divine and nature given by the naturalists and

also the positivistic notion of total separation of law and morality. They construed values as

something real, which is to be socially constructed looking at the needs of the society.

Dean Roscoe Pound in his theory of ‘social engineering’ concerned himself more with the effects

and impacts of law in the society, and the contemporary needs of the society to have a

meaningful ‘rule of law’. He argued for greater importance to the creative role of judiciary in

response to the arising needs of modern democratic societies.

Pound sees law as adjusting and reconciling conflicting interests. It is an instrument which

controls interests according to the requirements of the social order He believed that there are

some basic assumptions in every society upon which it’s ordering rests, though for the most part

these may be implicit rather than expressly formulated.

REALIST SCHOOL 12 :

The realists are preoccupied with the role of judicial decision-making and they accept the role of

sociological and psychological factors in the judicial process.

According to them, the rules laid down in the statute books are either of no use (American

Realists) or they are having a mere psychic force (Scandinavian Realists), but they actually

become worthy of being called law only when the courts interpret them and enforce them

through their decisions. The concept of ‘Jury Matrices’ given by the realists, is itself indicative

of the subjectivity of judicial process and further accepts the incorporation of values in the

judicial decision making.

11 Cf. supra note 8.12 Cf. supra note 8.

From the above discussion, it is clear that different schools have tried to define the relationship

between values and law from their own perspectives. But, as Justice B.N. Cardozo observed, “To

keep pace with the society which is evolving by leaps and bounds, the law needs to revolutionize

and transform.”13 So, we can say that in order to fulfill the ever-changing needs of the society,

law needs to be developed accordingly, i.e. law needs to inculcate societal values in its

framework to keep pace with the changing societal needs.

III. SCOPE OF GIVING VALUE-JUDGMENT

Generally, much of law is designed to avoid the necessity for the judges to resort to their own

convictions or values in judicial decision making process. The force of precedent, the strict

applicability of statute law, the separation of powers, statutes of limitations, rules of pleading and

evidence, and above all the pragmatic assessments of fact- all enable the judge in most cases to

stop short of a resort to his personal standards. But when all these prove unavailing and ‘justice’

requires something more, the judge should necessarily resort to his own scheme of values.

Cardozo stated that there are three types of conflicts that come before the courts for

adjudication14.

1. Where the rule of law is clear and its application to facts is equally clear.

2. Where the rule of law is clear and the sole question is about its application.

3. Where neither the rule of law nor its application is clear.

According to Cardozo, it is the third situation which is “serious business” for judges where a

value judgment could be given which has the potential of having the effect of advancement or

retardation of development of law.

In such cases, the formal rule of law and logic doesn’t satisfy the balance of competing sets of

principles, and it is difficult to decide a case one way or the other. Here comes into play the

personal jural philosophy of a judge, consciously or otherwise, by means of a value judgment

that places a greater weight on one competing principle than another.

The societal philosophy of right and wrong, and that of values which are guiding mutual

relations in the society, works as the guiding principle for a judge to reach a decision that can be

13 Cf. supra note 5.14 ibid.

termed as a value judgment. In such cases, judges select and apply extra-legal standards offered

by other disciplines, such as moral, ethical, social, political or economic concepts.

There are basically three methods that guide a judge in such situations15:

A. METHOD OF PHILOSOPHY:

We all know that judges are one of us, mortal human beings, not infallible to inherited instincts

and traditional beliefs therefore the resultant outcome may be based on these conceptions. This

method is the method of philosophy where a judge ultimately resorts to his perceptions of the

societal needs and justice.

This is the method which the judges often use when a case comes before them falling in the third

category mentioned by Cardozo.

Prof. Julius Stone, while talking about limitations to such discretion of a judge, formulates that

the choice made by the judge must appear to be as right as possible. i.e. justice must not only be

done but it must also seen to be done. Solid reasoning must substantiate his personal

philosophies and values.

The two guidelines given by Prof. Stone for such formulation and its acceptance are-

a). It should not be aleatory or arbitrary.

b). There must be reasoned elaboration of the findings.

A similar guideline or caution can also be found in the words of late President of America,

Roosevelt in his message of December 8, 1908, to the Congress of the United States. He said,

“The chief law-makers in our country may be, and often are, the judges, because they are the

final seat of authority. Every time they interpret contract, property, vested rights, due process of

law, liberty, they necessarily enact into law parts of a system of social philosophy; and as such

interpretation is fundamental, they give direction to all law-making. The decisions of the courts

on economic and social questions depend upon their economic and social philosophy; and for the

peaceful progress of our people during the twentieth century we shall owe most to those judges

who hold to a twentieth century economic and social philosophy and not to a long outgrown

philosophy, which was itself the product of primitive economic conditions.”16 Thus, what

15 Cf. Supra note 13.16 43 Congrssional Record, part-I, p. 21 quoted from Cardozo, B.N, The Nature of the Judicial Process 171 (2004).

President Roosevelt says is that judges must not depend on primitive or age-old notions or values

to solve the contemporary socio-economic problems of the society.

B. METHOD OF SOCIOLOGY:

In this method, a judge is guided along the path of social justice, morality, and social welfare. As

Cardozo said that ‘law is not for law’s sake rather law has a greater role to play in regulating the

mutual relations of the society, and final cause of law is welfare of the society.’

If there is no existing rule aimed for this ultimate purpose or any existing rule fails to identify

this real purpose, then the judge should resort to the method of sociology to achieve the object of

law.

Cardozo quoted Dean Roscoe Pound in his book where it is stated that, “perhaps the most

significant advance in modern society of law is the change from analytical to functional

attitude.17”

C. METHOD OF HISTORY:

Sometimes historically emanated principles tend to pre-dominate logic and pure reason, it is not

a mere repetition but it is actually the illumination of the present and future by the guiding torch

of the history.

Holmes, J. said, “Very often, effect of history is to make the path of logic clear.18” i.e. growth and

transformation may be called logical when it is shaped by the principle of consistency with pre-

established norms and general conceptions of the history.

IV. EXPECTATIONS FROM JUDGES MAKING VALUE JUDGMENTS :

He should not be a result-oriented judge, i.e. resisting arguments contrary to the initial

impression or pre-existing inclination.

Initial impression, if any, needs to be flexible enough to accommodate reasonably the

contrary arguments.

He should be intellectually interested in the outcome.

17 Supra note 13, at p. 7318 Id.at p.51

He should employ logically sound techniques of intellectual inquiry and reflection when

making a value judgment, and then explain both their premises and their conclusions in clear

language evidencing impeccable logical form.

V. ROLE OF VALUE JUDGMENTS IN LAW

The most important role of ‘Value Judgments’ in law is its contribution to the evolution and

transformation of law according to the needs of the society.

As Justice Cardozo said in his famous quote that, “Law should be stable, yet it should not stand

still.19”

In fact, value judgments help a lot in furtherance of the understanding and development of

sociology of law, i.e. the effect of law on the society and vice-a-versa. It helps the law in keeping

pace with the changing society. It is resorted to only in extra-ordinary circumstances where there

is vacuum in law or the existing law is not sufficient to meet justice. Thus, it is also a weapon in

the hands of judiciary to meet certain extra-ordinary circumstances and helps to ensure the

promotion of rule of law.

VI. INDIAN JUDICIARY AND VALUE JUDGMENTS

The Constitution of India which is the source of all laws in our country is also characterized as a

living and organic thing, which of all instruments, has the greatest claim to be construed broadly

and liberally.20

Cardozo also said about a written constitution that, “A written constitution is intended to state,

not the rules of passing nature but principles of an expanding future”21

Keeping this in view, the Supreme Court of India has gradually adopted an activist role and

delivered a number of value judgments. It has pronounced a plethora of judgments inculcating

social, moral, constitutional, religious and human right values into the legal system and thereby

introduced a number of doctrines and principles. e.g. the concept of PIL

The practice of Indian Judiciary in formulating value judgments can be studied under the

following three heads:

19 B.N.Cardozo; Growth of Law, at p. 120 Goodyear India v. State of Haryana, AIR 1990 SC 781 (in para 11).21 See supra note 17.

1. Identification of values as a source of law.

2. Evolution and transformation of law.

3. Filling of gaps or lacuna in the existing law.

IDENTIFICATION OF VALUES AS SOURCE OF LAW:

In many cases, while delivering judgments, the Supreme Court relied on certain values to be the

source of law.

a) Doctrine of Basic Structure:

Shankari Prasad v.Union of India22

In this case, the Supreme Court refused to put any restrictions on the amending (i.e. constituent)

power of the parliament under article 368, and held that it includes power to amend “any law”

under article 13 and also the constitution itself.

Golak Nath v. State of Punjab23

In this case, the majority (4:1) held that part III of the constitution of India is not amendable

under the constituent powers of the parliament, apprehending that the dilution or curtailment of

the Fundamental Rights would result into a totalitarian regime in the country.

But later on in-

Keshavananda Bharati v. State of Kerala24

The Supreme Court by majority (11:2) negated this view taken in Golaknath and held,

Parliament, under its constituent power given to it by article 368 can amend each and every

provision of the constitution including fundamental rights, but such amendment should not

abrogate or abridge the basic structure of the constitution.

However the Supreme Court didn’t define basic structure. It held that the Court from time to

time would articulate what is the basic structure of the constitution, identifying the constitutional

and social values of the democracy.

22 AIR 1951 SC 458.

23 AIR 1967 SC 1643.24 AIR 1973 SC 1461.

In different decisions, the Supreme Court declared the following to be the basic structure of the

Constitutions:

i) Supremacy of the Constitution ( Keshavananda Bharati Case)

ii) Republican and Democratic form of Government including free and fair election

(Indira Gandhi v. Raj Narain25)

iii) Sovereignty of country ( R.C. Poudyal v. U.O.I26)

iv) Federalism and Secularism ( S.R. Bommai v. U.O.I27)

v) Seperation of powers (Keshavananda Bharati case)

vi) Rule of law and judicial review ( L. Chandrakumar v. U.O.I28)

vii) Harmony and balance between fundamental Rights and Directive Principles of State

Policy ( Minerva Mills ltd. v. U.O.I29)

viii) Effective access to justice ( Central Coal Fields v. Jaiswal Coal Co.30)

b) Broad and Liberal Interpretation of Article 21 of the Constitution of India:

The Supreme Court has relied on Human Rights jurisprudence in interpreting Right to life and

liberty of individual.

Maneka Gandhi v. Union of India.31

Bhagwati, J. stated that the Right to Life does not mean mere animal existence but it includes the

right to live with human dignity.

The Supreme Court had also taken recourse of social values, incorporating justness, fairness and

reasonableness in the ‘procedure established by law’ which is the only occasion in which

individual liberty could be curtailed.

Olga Tellis v. Bombay Municipal Corporation32

25 AIR 1975 SC 2299.26 1994 SUPP 91) SCC 32427 AIR 1994 SC 1918.28 AIR 1997 SC 1125.29 AIR 1980 SC 1789.30 AIR 1980 SC 2125.31 AIR 1978 SC 507.32 AIR1986 SC 180. The case is also known as “pavement dwellers” case.

In this case, the Supreme Court has taken recourse to social and human rights values while

reading article 21 in the light of article 39 (a), and held that right to livelihood is included in the

purview of right to life and it is the duty of state to fulfill their obligations which are mentioned

in part IV of the constitution, i.e. to provide for alternative livelihood and accommodation before

their displacement.

Gaurav Jain v. Union of India33

Supreme Court identified the basic human rights values of children of prostitutes and in

furtherance of their constitutional right of ‘social justice’ declared that they have the same rights

to be educated in the government schools as other children.

P.U.D.R. v Police Commissioner34

Supreme Court in this case awarded compensation to the victim of police atrocities in custody,

acknowledging the values enshrined in basic human rights of a person.

Inderjeet v. State of Uttar Pradesh35

Supreme Court acknowledging the basic human right values held that any punishment, which is

cruel and torturous in its very nature, is unconstitutional, as it does not conform to a

reasonableness test of procedure established by law.

Hussainara Khatoon v. State of Bihar36

Supreme Court ordered the release of those under-trail prisoners who are confined in jails for a

period exceeding the maximum duration provided for the offence for which, they are undergoing

trial.

c) Freedom of Press:

Sakal Newspapers v. Union of India37

33 AIR 1990 SC 292.34 (1989) 4 SCC 730.35 AIR 1979 SC1867.36 AIR 1979 SC 1369.37 AIR 1962 SC 305.

Supreme Court considered freedom of press as a basic social and constitutional value and held

that publishing a newspaper is not purely a business but, it is actually a vehicle of thoughts and

information.

d) Environmental Values:

In fact, the whole of the Indian Environmental jurisprudence is based on value judgments

delivered by the Indian courts in various PILs.

M.C. Mehta v. Union of India38

Supreme Court included the right to wholesome and healthy environment (i.e. right to clean air

and water) under the concept of right to life under Article 21 of the Constitution of India.

Vellore Citizen’s Welfare Forum v. Union of India39

Supreme Court propounded two famous doctrines, viz. ‘Precautionary Principle’ and ‘Polluter

Pays Principle’ in this case for industries polluting environment. The former principle guides the

industry to take necessary precautions to minimize pollution before setting any industry and the

latter imposes strict liability in case of any damage caused to the environment.

M. C. Mehta v. Kamal Nath40

In this Judgment Supreme Court propounded the ‘Public Trust Doctrine’, which states that any

natural resource will not be the personal property of any individual rather it will be available to

the whole public, and nobody has the right to degrade or diminish its value in any form.

Murli Deora v. Union of India41

While deciding on a PIL the Supreme Court banned smoking at all public places in the interest of

non-smokers, upholding the social, ethical, and environmental value against personal liberty to

smoke.

EVOLUTION AND REFORMATION OF LAW:

Law has to be reformed in order to keep pace with the ever dynamic needs of the society.

38 AIR 1987 SC 1086.39 AIR 1996 SC 2715.40 (1997) 3 SCC 549.41 AIR 2002 SC 40.

To serve this dynamism the obsolete laws are to be phased out from the legal system. New

judgments are not supposed to be given on the basis of notion of ‘values’ as understood decades

ago, but they are to be identified in a very contemporary sense and should be inculcated in the

judicial process to serve appropriately the real societal needs and then only a judgment could

qualify to be termed as a value judgment.

Some of such judgments delivered by the Supreme Court of India keeping in view the needs of

present and future are as follows-

Indian Council for Enviro-legal Action v. Union of India42

In this case, the Supreme Court of India gave the concept of ‘Sustainable Development’ while

balancing the two competing values, i.e. economy and environment. Court held that there should

be industrial development but not at the cost of environment. We should use the natural

resources in such a way that sufficient is left for coming generations to sustain upon.

Sarla Mudgal v. Union of India43

The Supreme Court, while dealing with the misuse of freedom of religion guaranteed under

Article 25, held that a social and moral value should be protected against any evil. Court stated

that such freedom should not encroach upon a similar freedom of other person.

In the judgment, the Supreme Court said that second marriage by the respondent after converting

to another religion, infringes the religious rights and personal freedom of the petitioner Hindu

wife and such a person is liable to be prosecuted under S.494 of IPC for the offence of bigamy,

and he could not seek the protection under Art. 25 of the Constitution of India.

M. C. Mehta v, Union of India44

The Supreme Court extended the meaning of the term ‘state’ under Article 12 of the constitution,

including in it even a private corporation carrying out public functions and in the process

violating some fundamental rights of the citizen.

Anuj Garg v. Union of India45

42 AIR 1996 SC 1446.43 (1995) 3 SCC 635.44 AIR 1991 SC 420.45 (2008) 3 SCC 1.

In this recent case Supreme Court struck down a hundred year old provision of the Punjab Excise

Act, containing prohibition of employment of men below 25 years of age and any women in any

premises where liquor is being served to public. Supreme Court declared the said provision as

obsolete in 21st century.

FILLING OF GAPS AND LACUNA (if any) IN THE LAW:

If the courts while adjudicating on a case feel that there is a lacuna in the existing law and there

is no guiding principle for them to refer to and because of this lacuna some values, either social,

moral, ethical or constitutional is at stake, they resort to value judgments to plug these gaps.

Though these judgments only work as a guiding principle for the legislature to fill the gaps and

they remain in force only till the gap is filled in by some legislation.

Some examples where the Supreme Court of India has resorted to value judgments to fill the

lacuna or gaps in law are as follows:-

Vishaka v. State of Rajasthan46

In this case, the Supreme Court laid down detail guidelines for the protection of working women

from sexual harassment at workplaces. There was no law for such kind of protection to women at

workplaces and Supreme Court came up with a valuable value judgment to fill such stark gap.

Laxmikant Pandey v. Union of India47

In this case, the Supreme Court laid down guidelines for adoption of children in India by

foreigners. Because of absence of any law in this field, the existing provisions of adoption laws

were misused by the foreigners to traffic children from India for immoral purposes, such as

prostitution, bonded labor and slavery etc. To curb this menace, the Supreme Court came

forward and laid down guidelines for protection of children from abuses.

Common Cause v. Union of India48

There was absence of proper laws in the field of blood transfusion resulting into malpractices

and maladministration in the blood banks. To protect life of citizens Supreme Court came up

46 AIR 1997 SC 3011.47 AIR 1992 SC 118.48 (1996) 1 SCC 753.

with regulatory guidelines for collection, storage, and transfusion processes of blood in the blood

banks.

T. M. A. Pie Foundation v. State of Karnataka49

There was no law related to regulation of fee structure in private medical and engineering

colleges. Supreme Court has laid down regulations on fixation of fee structure in such colleges

protecting the standard of education and the interests of poorer section of the society, and

prevented the arbitrariness of the managers of such institutions.

Vineet Narain v. Union of India50

In this case, J.S. Verma, C.J., reiterated the importance of value judgment in filling of gaps by

saying that, “Where there is inaction by the legislature or the executive, for whatever reasons, the

judiciary must step in, in exercise of its constitutional obligation under Articles 32 & 142 to

provide a solution till such time as the legislature acts to perform its role by enacting proper

legislation to cover the field.”

VII. CONCLUSION

Value judgments indicate the choices and preferences of the society as a whole. However, such

choices must not be arbitrary or random, but must be based on rational arguments and

persuasions. Judges often resort to their personal experience and philosophy when they are

making value judgments, but the perception of judges must coincide with that of society as a

whole and then only such a judgment would be a value-judgment in real sense. Infact, whenever

judges resort to value judgment, they have to justify their perceptions on more objective grounds

of reasoning.

To conclude, it can be said that value judgments are the need of the hour as they are specifically

resorted to meet certain extra-ordinary circumstances. To keep up with the ever changing societal

patterns law needs to be as dynamic as the society. Since we all know about the limitations and

time constraints of the legislature and only legal rules and principles provided in a very objective

manner cannot be made fit to each and every case, and it is there we need to make more

subjective principles which may fit objectively to a given situation. Thus the role of judiciary and

49 AIR 1995 SC 2431.50 (1998) 1 SCC 226.

value-judgments can’t be underestimated. In fact, value judgment is an important tool through

which law can be adapted and modified to meet the rapid changing new challenges of the

twenty-first century.

******

VIII. BIBLIOGRAPHY

Basu, D. D, Constitutional Law of India (8th edn.), LexisNexis Butterworths Wadhwa Nagpur,

New Delhi, 2008.

Cardozo, Benjamin N, The Nature of The Judicial Process, Universal Law Publishing Co. Pvt.

Ltd., New Delhi, 2004.

Cardozo, Benjamin N, Growth Of The Law, Universal Law Publishing Co. Pvt. Ltd., New

Delhi, 2005.

Dias, R.W.M, Jurisprudence (5th edn.), Butterworths Publication, London, 1985.

Dworkin, Ronald, Justice In Robes, Universal Law Publishing Co. Pvt. Ltd., New Delhi, 2007.

Dworkin, Ronald, Law’s Empire, Universal Law Publishing Co. Pvt. Ltd., New Delhi, 2002.

Hart, H.L.A, The Concept Of Law (2nd edn.), Oxford University Press, U.K, 1961.

Lloyd, D, Introduction to Jurisprudence, Stevens & Sons Ltd., London, 1959.

Shukla, V.N, Constitution of India (10th edn.), Eastern Book Co., Lucknow, 2001.

Stone, Julius, Legal System and Lawyers’ Reasoning, Universal Law Publishing Co. Pvt. Ltd.,

New Delhi,