Friday, February 17, 2012

Importance &Role of Court Opinions

Importance &Role of Court Opinions

You may wonder what is the significance of title "Importance &Role of Courts Opinions",when all judgements of the courts are significant ,important and crucial for the lawyers ,judges and interested general public.There is lot of difference between ordinary judgment and land mark judgments,some times, land mark judgement will become law of the land[Visakha Case-Sexual harassment ],some judgments will become important citations /case law for future reference[D.K Basu case,Maneka Gandhi case or Bhim Singh case],which will be used by lawyers and courts.  

Sweeping Remarks or Merely expression of opinion:

While delivering the judgement, judges often makes sweeping remarks on certain point of law or legislative pitfalls [ shortcoming] or certain incisiveness criticism on important issue or general observations on the pressing problem of the nation,even suggest remedial measures to overcome lacuna or even suggest the government to make new law or amend the existing law to address the lacuna or pitfalls[example: Decriminalizing 377 or women should also be punished for adultery or misuse of 498-A  or legal terrorism ]. But trial courts or lower courts don't have privilege to make such sweeping remarks as they are court of facts.

There is lot of criticism on the judicial activism or  sweeping remarks of judges ,some say its judicial overreach as court are supposed to implement the law and should not to transgress on law making functions of the legislators or judges has no business to tell  legislators,how law should be or law ought to be.
Some say it is judicial activism,when other organs of government like executive or legislation fails to perform its obligation under Constitution,the courts has to intervene to perform it's  duty as watch dog of the constitution to protect the constitutional values and save the people from poor governance.

Types of Opinions: 

Lower courts or trial are fact based courts ,where as,the High Courts and Supreme Court have both original jurisprudence and appellate jurisprudence.

High Court : 

At high court level,the single or division bench hears appeals against the trial or lower court judgement.The panel of judges or bench[full bench or larger bench] will be constituted to hear any issue or point of law brought before it under original jurisdiction.
Supreme Court :
At Supreme Court ,panel of judges will hear appeals against high court [ trial courts ,all courts below Supreme Court are called trial courts in S.C ]orders or any issue brought before it under original jurisdiction.If any issue of constitutional importance or important legal issues is involved ,larger bench or full bench will be constituted to deliberate on the issue.

Some questions will asked by  young lawyers , budding lawyers or common man about meaning of certain terms ;

  • Majority opinion  
  • Concurring opinion
  • Dissenting opinion
  • Plurality opinion
  • Per-Incurium Opinion  
  • Majority Opinion :Where majority of judges agree on a specific point of law or affirming the judgement of lower court,lawyers often refer such cases  in court as precedent ,which carries lot of importance in deciding the out come of the pending case.
  • Concurring opinion : Concurring or agreeing  with fellow judges or majority of judges.
  • Dissenting Opinion : Disagreeing with fellow judges or judge,judge disagrees with colleague judge or judges with specific  reason for the differing [Js.P.N Bhagwathi dissenting opinion in Bachan Singh case] 
  • Plurality Opinion : Divergent opinions of judges. No consensus evolved in the case,because of lack of majority opinion. 

  •  Per-Incurium Opinion: The term indicate that the opinion was given by court ignoring existing law or judgment.This opinion does not carry much weight age.

The legislators makes statutory law, they are called law -makers ,if executive makes law,it is called administrative law [Viz .G.O] and Court /Judge gives judgement -it is called case law or we often call it judge -made law. 

The main aim of all organs of the government is to uphold constitution,no organ is greater or lesser than others,but all three organs are strong pillars of the government.The concept of checks &balances is very important in democracy and its survival.

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