Judicial Process Notes | LL.M. Semester 2 | Mumbai University | munotes

In one line

The judicial process is what a court actually does when it decides a case: how a judge, faced with a dispute and a body of law that never quite fits it, reaches a decision and justifies it.

In the wording a student can write in an exam: the judicial process is the process by which courts of law arrive at their decisions. It is the sum of the methods, the reasoning, the sources and the constraints that a judge employs in adjudicating a dispute, and it includes both the settled part of that work, where an existing rule plainly governs, and the unsettled part, where the judge must choose between competing rules or make a rule that did not exist before.

Why this subject exists at all

Every other paper on this course asks what the law is. This one asks how the law comes to be what it is, in the hands of judges.

That is not a philosopher's question. A student who has read the Indian Penal Code cannot explain why the death penalty survives but is confined to the rarest of rare cases; that limit is in no statute. A student who has read the Constitution cannot find the basic structure doctrine in it, or the right to livelihood, or the collegium, or the guidelines against sexual harassment that governed Indian workplaces for sixteen years before Parliament legislated. All of those came out of the judicial process, and none of them can be found by reading the text they are said to interpret.

So the subject is the study of judicial law-making: whether it happens, how it happens, by what techniques, within what limits, and whether it is legitimate.

The three words, taken separately

Judicial. Belonging to the courts. It marks off this process from the legislative process, by which a legislature makes law prospectively and in general terms, and from the administrative process, by which the executive applies policy to particular situations. The distinction matters because the whole argument about judicial activism in [What Judicial Activism Is] is an argument about a court doing work that belongs to one of the other two.

Process. Not a single act but a sequence. A dispute is framed, evidence is taken, authorities are cited, a rule is identified, the rule is applied, a decision issues, reasons are given, and the reasons themselves become material for the next case. The word insists that a decision is arrived at rather than announced.

Judicial process, taken together, is therefore the working of the judicial mind on a dispute, from the framing of the question to the reasons that outlive the parties.

In one line

To call the judicial process an instrument of social ordering is to say that courts do not merely settle the quarrel in front of them: by settling it, and by giving reasons that bind later cases, they arrange how people in that society may behave towards one another.

In the wording a student can write in an exam: the judicial process serves as an instrument of social ordering because every adjudication performs two functions at once. It resolves a particular dispute between particular parties, and it declares or refines a norm which thereafter regulates the conduct of everyone similarly placed. The second function is prospective and general, and it is the reason the judicial process shapes society rather than merely responding to it.

Why a society needs this at all

Take away courts and disputes do not disappear. They are settled some other way: by the stronger party, by the family, by the caste panchayat, by the mob, or by nobody, in which case the grievance festers. Each of those is also a method of social ordering, and each produces a different society.

The distinctive claim of adjudication is that the dispute is decided by somebody who has no stake in it, on evidence, according to a rule announced in advance, with reasons given publicly. That is why an ordered society prefers it. And it is why the judicial process is not a neutral machine: choosing courts over force is already a choice about what kind of society this is.

The two functions of every decided case

The dispute-settling function. The immediate one. A owes B money, or does not; the land is A's, or B's. The parties get an answer they must obey, backed by the coercive power of the State, and the quarrel ends.

The norm-declaring function. The lasting one. In deciding, the court states the rule it applied. That statement is available to everyone: to the next litigant, to the lawyer advising a client not to litigate at all, to the company drafting a contract, to the police officer deciding whether to arrest.

The second function is where the ordering happens, and it works largely without further litigation. A rule that landlords must give notice is obeyed by thousands of landlords who will never see a court. This is the point students consistently miss: the judicial process orders society mostly through the cases that are never brought.

How the ordering actually operates

1. By settling expectations. People plan around known rules. A businessman who knows that a contract will be enforced extends credit; one who does not, does not.

2. By allocating advantage between classes of people. A rule about who bears the loss when goods are damaged in transit determines, across the whole economy, whether that risk sits with carriers or with consignors.

In one line

Benjamin Cardozo was an American judge who, in 1921, wrote down honestly what judges actually do when the law runs out, and every later account of the judicial process begins from his.

In the wording a student can write in an exam: Benjamin Nathan Cardozo (1870 to 1938), judge of the New York Court of Appeals and later of the Supreme Court of the United States, delivered the Storrs Lectures at Yale in 1921, published as The Nature of the Judicial Process. His central contribution was to abandon the pretence that judges merely declare pre-existing law and to describe instead the four methods by which a judge decides a case that the existing authorities do not settle: the method of philosophy or logic, the method of history, the method of tradition or custom, and the method of sociology.

MU prints his name as "Cordozo" in four of its five papers. The correct spelling is Cardozo.

Why he matters more than any other writer in this subject

Because he was a working judge describing his own work, and because the honest description he gave was, at the time, close to a confession.

The orthodox account was Blackstone's: judges do not make law, they find it. Cardozo, having decided cases for years, knew that this was untrue of the cases that were hard, and he said so from the bench's own side of the argument. That is why he is quoted rather than the many academics who said similar things. He could not be dismissed as an outsider.

The three quotations MU has actually set

Each is set as a whole essay, so each is worth knowing in the form MU prints it.

1. "The process of the law is not a mere calculation, a mechanical adding and subtracting of established rules; it is a process of reasoning." MU set this in December 2024. It denies that adjudication is arithmetic. Worked in [Judicial Reasoning, not Calculation].

2. "It is when the colours do not match, when the references in the index fail, when there is no decisive precedent, that the serious business of the judge begins." MU set this in 2018. It locates the whole subject in the hard case. Worked in [The Gap in the Law].

3. "The final cause of law is the welfare of society." MU set this in January 2023. It supplies the standard by which the judge chooses when the authorities do not choose for him. Worked in [The Final Cause of Law Is the Welfare of Society].

MU has also set, in July 2026, the proposition that "the judicial process at its highest reaches is not discovery, but creation", which is Cardozo's most direct statement that judges make law. Worked in [Creation, not Discovery].

In one line

The declaratory theory says that judges never make law, they only declare law that was always there; it is the oldest answer to the question this paper asks, and almost nobody now believes it, but understanding why it was believed is the fastest route to understanding what judges really do.

In the wording a student can write in an exam: the declaratory theory of precedent, classically stated by Sir William Blackstone in his Commentaries on the Laws of England (1765 to 1769), holds that judges are the "living oracles" of the law, sworn to determine according to the law of the land, whose office is to discover and declare the pre-existing common law and not to make new law. On this view a later decision overruling an earlier one does not change the law; it declares that the earlier decision was never law at all, being a mistaken statement of what the law always was.

Where the theory came from

Blackstone was describing a legal system whose law was largely unwritten. If the common law is the immemorial custom of the realm, then it exists independently of any judge, and a judge's task is genuinely one of finding rather than making. The oracle image is exact: an oracle does not compose the message, it utters one that comes from elsewhere.

Two further supports held the theory up.

The constitutional support. Law-making belongs to the legislature. If judges made law they would be exercising a power the constitution has given to somebody else, and doing it without election. The declaratory theory therefore protected judges from the charge of usurpation by denying that there was anything to usurp.

The rule of law support. A person can only obey a law that existed when he acted. If a judge makes law in deciding a case, he applies it to conduct that preceded it, which is retrospective law-making. The declaratory theory dissolves this problem: the law was always there, so the party is not surprised, merely corrected.

Why it collapsed

It cannot explain overruling. When Golak Nath was overruled by Kesavananda Bharati, was the law between 1967 and 1973 that Parliament could not amend fundamental rights, or was it not? On the declaratory theory the answer is that it never was, which is a fiction nobody acts on, since decisions were taken and rights determined in the meantime on the strength of Golak Nath.

It cannot explain the case of first impression. When the Supreme Court decided in M.C. Mehta v. Union of India, AIR 1987 SC 1086, that an enterprise carrying on a hazardous activity is absolutely liable, no earlier Indian authority said so and the Court said in terms that it declined to follow the English rule. There was nothing to declare.

In one line

Deciding a case is not arithmetic: the rules do not apply themselves, and between the rule and the result there is always an act of judgment that a machine could not perform.

In the wording a student can write in an exam: the judicial process is a process of reasoning and not a mechanical operation. Mechanical jurisprudence, sometimes called the slot machine theory of adjudication, supposes that a judge feeds facts and rules into a fixed procedure and a single correct answer emerges. Cardozo denied this. Rules are expressed in general words which must be given meaning; facts must be characterised before a rule can be selected; rules conflict; and where they run out the judge must choose. Each of those is an exercise of reason and not of calculation.

The four places where calculation breaks down

1. The facts must be characterised before any rule can be chosen. A statute penalises the use of a "vehicle" in a public park. A child's motorised toy is driven there. Whether that is a vehicle is not discoverable by adding and subtracting; it requires a judgment about what the rule is for. Until it is made, no rule can be applied at all.

2. General words have edges. Every legal term has a core of settled application and a penumbra of doubt. "Reasonable time", "public interest", "cruelty", "arbitrary" have no calculable content. In E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, the Court gave Article 14 a content that had not previously been drawn out of it.

Facts. A senior member of the Indian Administrative Service, appointed Chief Secretary of Tamil Nadu, was moved to the posts of Deputy Chairman of the State Planning Commission and then Officer on Special Duty, which he alleged were inferior and were given to him mala fide because he had displeased the Chief Minister. He complained of a breach of Articles 14 and 16.

Held. The petition failed on the facts, the allegations of mala fides being unproved. But the Court recast Article 14: equality is a dynamic concept which cannot be cribbed, cabined and confined within traditional and doctrinaire limits; from a positivistic point of view equality is antithetic to arbitrariness; equality and arbitrariness are sworn enemies, and where an act is arbitrary it is implicit that it is unequal and therefore violative of Article 14.

Why it matters here. Nothing in the fourteen words of Article 14 yields the proposition that arbitrariness violates it. That result came from reasoning about what equality is for, and it has governed Indian public law ever since, most recently in Shayara Bano v. Union of India, AIR 2017 SC 4609.

In one line

If you want to know why a judge chose one available answer rather than another, the answer is usually that he thought it better for the society the law serves; Cardozo said that this is not a lapse but the point.

In the wording a student can write in an exam: Cardozo's proposition that "the final cause of law is the welfare of society" states the end by reference to which the judicial process is to be conducted. A final cause, in the Aristotelian vocabulary Cardozo borrowed, is the purpose for the sake of which a thing exists, as distinct from its material, its form or its maker. Applied to law it means that rules are not ends in themselves; they exist to serve the welfare of the society that maintains them, and where a rule may honestly be read in more than one way, the reading that serves that welfare is to be preferred.

Unpacking the phrase

"Final cause." Aristotle distinguished four causes of anything. The material cause is what it is made of, the formal cause its shape or definition, the efficient cause what brought it about, the final cause the purpose it serves. A knife's efficient cause is the smith; its final cause is cutting. Cardozo is saying that the purpose of law, the thing for the sake of which it exists, is social welfare.

"Welfare of society." Deliberately broad. It covers security of person and property, the enforcement of reasonable expectations, the conditions of a decent life, and the moral standards a community holds. Cardozo did not define it precisely, and the vagueness is the standing objection to the whole approach.

What follows for the judge. Where two readings are open, choose the one that serves the end. Where a rule has become an obstacle to the end and can honestly be narrowed or distinguished, narrow it. Where the authorities are silent, let the end decide.

What does not follow. That a judge may disregard a clear rule because he dislikes its effects. Cardozo is describing the method of choosing among legally available options, not a licence to substitute a preference for the law.

Where it sits among the four methods

Cardozo ranked the method of sociology highest of the four, and this proposition is why. Philosophy, history and tradition are all backward-looking: they ask what follows from existing rules, where those rules came from, and what the community has done. Only the method of sociology asks what the result will do. Since the end of law is the welfare of society, the method that consults the end must prevail where the methods conflict. See [The Method of Sociology].

In one line

The whole of this subject lives in the small number of cases where the existing law does not decide the question, because that is the only place where what the judge does can be seen.

In the wording a student can write in an exam: a gap in the law exists where the authorities available to a court do not determine the case before it. That may be because no rule covers the facts, because two rules cover them and conflict, because the governing words are open-textured and their application is genuinely doubtful, or because the rule that covers the facts would produce a result the legal system itself treats as unacceptable. In such a case the judge cannot decide by applying law alone, and must exercise a choice. Cardozo described this as the point at which "the serious business of the judge begins".

The image MU quotes

Cardozo's picture is of a judge consulting the materials of his craft and finding them exhausted. "The colours do not match": the precedents resemble the case in some respects and not in others, so the analogy is imperfect. "The references in the index fail": the digest and the statute-book have nothing on the point. "There is no decisive precedent": something is close, but nothing governs.

At that moment the judge must still decide. A court cannot refuse jurisdiction on the ground that the law is unclear; the duty to decide is absolute. What he decides by is the question the rest of Module I answers.

The four kinds of gap

1. The gap of silence. No rule at all. The case of first impression. When the Supreme Court had to decide the standard of liability for a hazardous enterprise in M.C. Mehta v. Union of India, AIR 1987 SC 1086, no Indian authority governed it.

2. The gap of conflict. Two rules cover the facts and point opposite ways. Article 25 protects religious practice; Article 14 forbids arbitrary discrimination. In Indian Young Lawyers Association v. State of Kerala, decided on 28 September 2018, both applied to the exclusion of women from the Sabarimala temple.

Facts. The petitioners challenged the exclusion of women between the ages of ten and fifty from the Sabarimala temple, and rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules 1965 which permitted it, as violating Articles 14, 15, 17, 21 and 25.

Held. By four to one the exclusion was held unconstitutional. The devotees of Lord Ayyappa do not constitute a separate religious denomination, the exclusion is not an essential religious practice, and it violates the right of women to worship under Article 25(1) and their dignity under Article 21. Indu Malhotra J. dissented, holding that a court should not ordinarily interfere in matters of deep religious sentiment and that what is essential should be determined by the community itself.

In one line

At the top of the system, in the cases that matter most, judges are not finding law that was already there; they are making it, and the honest question is not whether they do but on what terms they may.

In the wording a student can write in an exam: Cardozo's statement that the judicial process at its highest reaches is not discovery but creation asserts three things. First, that judicial law-making is real and not a fiction. Second, that it is confined to the highest reaches, that is, to the appellate court deciding a case the existing authorities do not settle, and is therefore exceptional rather than routine. Third, that it is properly called creation, because what emerges did not exist in the legal materials before the decision.

The three words that do the work

"At its highest reaches." The qualification is essential and students drop it. Cardozo is not saying that every judge creates in every case. He is saying that the summit of the process, the hard case in the final court, is creative. Below that summit the process is largely one of application. An answer that omits the qualification turns a careful claim into an indefensible one.

"Not discovery." Aimed directly at Blackstone. Discovery presupposes a thing already there to be found. See [The Declaratory Theory and the Living Oracle].

"But creation." The strongest word available, and chosen deliberately. Cardozo could have said development, or adaptation, or growth. He said creation, because in the case where nothing governs, what the court produces is new.

Four Indian proofs

The Indian Supreme Court supplies better evidence for this proposition than any other court in the world, because it has created openly and at scale.

1. A doctrine created out of nothing in the text. The basic structure doctrine is nowhere in the Constitution. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, made it.

Facts. The head of a religious mutt in Kerala challenged Kerala land reform legislation under Articles 25, 26, 14, 19(1)(f) and 31. The petition grew into a challenge to the Constitution (Twenty-fourth), (Twenty-fifth) and (Twenty-ninth) Amendments, passed to undo Golak Nath and to protect further reform laws. Thirteen judges heard it, the largest Bench the Court has ever sat.

Held. Parliament's power to amend under Article 368 is wide but not unlimited: it does not extend to altering the basic structure or essential features of the Constitution. Golak Nath was overruled so far as it had denied the power to amend Part III at all, but no amendment may damage or destroy the basic structure. The judges gave illustrative and expressly non-exhaustive lists of what that structure includes.

Why it matters here. Article 368 contains no such limitation, and the Constituent Assembly considered and did not adopt one. The doctrine was created. It has since governed the Indian constitutional order for more than fifty years and has been the basis for striking down amendments in Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, and the NJAC decision.

In one line

The first thing a judge does when the authorities run out is ask what the existing rules, taken seriously, already commit the law to; that is the method of philosophy, and it is the pull of consistency.

In the wording a student can write in an exam: the method of philosophy, which Cardozo also calls the rule of analogy or of logic, directs the judge to develop the law by extending existing principles to new situations in a manner consistent with them. Its foundation is the formal principle of justice that like cases should be treated alike. Where a rule governs situation A, and situation B is like A in the respects that made the rule apply, the rule is extended to B. Cardozo treated this as the method of first resort: consistency has a claim, and a departure from it requires justification.

Why consistency has a claim at all

It is what equality means in adjudication. To decide B differently from A, when A and B are alike in every relevant respect, is to treat two people differently for no reason. That is the core of arbitrariness, and Indian law says so: E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, holds that equality and arbitrariness are sworn enemies and that an arbitrary act is for that reason unequal and violative of Article 14.

It is what makes law predictable. A lawyer advises by analogy: your case resembles that decided one, so expect this result. If analogy carried no weight, no advice would be possible.

It is the discipline of legal reasoning. A judge who cannot state a principle covering both his decision and the decided cases has not given a legal reason, he has announced a preference.

How the method actually runs

Step one: identify the principle behind the existing rule. Not the rule's words, its principle. If a rule protects a tenant from eviction without notice, the principle may be that a person is not to be deprived of a settled home without an opportunity to be heard.

Step two: ask whether the new case falls within that principle. A licensee of business premises is not a tenant, but if the principle is about settled occupation and the opportunity to be heard, the licensee may fall inside it.

Step three: extend or decline. If it falls within, extend the rule. If the respects in which the new case differs are the respects that mattered, decline, which is the technique of distinguishing, treated in [Distinguishing and Overruling: Precedent as Creativity].

The great Indian example

The reading of Articles 14, 19 and 21 as a single scheme is the method of philosophy carried out at constitutional scale, and it is the clearest illustration available.

In one line

Some rules can only be understood by knowing what they grew out of, and their origin often fixes how far they may honestly be stretched.

In the wording a student can write in an exam: the method of history directs the judge, when the authorities do not decide, to ask how the doctrine before him came into existence and what problem it was created to solve. Cardozo's proposition is that many legal rules are intelligible only as historical products, and that where a rule is the residue of conditions that have passed, history both explains its shape and limits the direction in which it can properly be developed.

Why history binds at all

Because a rule carries its purpose with it. A provision enacted to prevent a specific mischief is presumed to be aimed at that mischief. Knowing what the mischief was tells the court how wide the words should run. This is the historical method operating inside statutory interpretation, where it is called the mischief rule.

Because doctrines have shapes that only origin explains. Why does the Indian Constitution say "procedure established by law" in Article 21 rather than "due process of law"? Because the Constituent Assembly considered the American phrase, was advised against it, and deliberately chose the narrower Japanese formulation. That fact does not decide the meaning of Article 21 today, but no honest account of A.K. Gopalan v. State of Madras, AIR 1950 SC 27, or of Maneka Gandhi v. Union of India, AIR 1978 SC 597, can be given without it.

Because continuity is itself a value. A legal system that could be redirected at will would offer no security. History is a brake, and brakes are useful.

How the method runs

Step one: find the origin of the rule. What was the state of affairs before it, and what was it a response to?

Step two: ask whether the conditions that produced it still obtain. If they do, the rule should be applied in its original scope. If they have passed, that is a reason for confining rather than extending it.

Step three: use the origin to fix the direction of development. The rule may be extended along the line its purpose runs, and not across it.

The Indian illustrations

1. The Ninth Schedule. Articles 31A and 31B and the Ninth Schedule were inserted by the First Amendment in 1951 for a specific historical purpose: to save agrarian reform legislation from challenge under the property right. Sri Sankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458, upheld that amendment.

Facts. The Constitution (First Amendment) Act 1951, which inserted Articles 31A and 31B and the Ninth Schedule to protect agrarian reform laws, was challenged on the grounds that the provisional Parliament was not competent to amend the Constitution and that an amendment abridging fundamental rights was void under Article 13(2).

In one line

When the rules give out, a judge may ask what people in this society actually do and actually expect, and treat the settled practice as the standard.

In the wording a student can write in an exam: the method of tradition, which Cardozo also expresses as the force of custom and of the accepted standards of right conduct, directs the judge to determine the content of an open legal standard by reference to the settled practices and expectations of the community. It operates in two ways: custom may supply a rule of law directly, where the legal system recognises it as a source; and, more commonly in a modern system, the accepted standards of right conduct supply the content of legal standards that are deliberately left open, such as reasonableness, good faith, public policy and unfair practice.

The two operations, kept apart

Students conflate these and lose marks. They are different.

Custom as a source of law. Here the practice IS the rule. Indian law recognises this in defined places: personal law, where custom may displace textual law; commercial usage, which supplies the terms of a contract; and the customary law of particular communities preserved under Article 13(3)(a), which includes custom and usage having the force of law within the definition of "law".

Its requirements are strict, and an examiner will expect them. A custom must be ancient, continuous, certain, reasonable, observed as of right and not by permission, and not opposed to public policy or to any express statutory provision.

Accepted standards as the content of an open legal standard. Here the practice is not the rule; it fills a rule the law has deliberately left blank. When a court asks whether a driver acted reasonably, it is asking what the community's accepted standard of careful driving is. When it asks whether a contract term is unconscionable, it is asking against a standard of accepted dealing. The rule is the law's; the content is the community's.

Why the method has force

Because law that contradicts settled practice is not obeyed. A rule that no one follows and no one enforces is a dead letter, and a system that produces many of them loses authority generally.

Because expectations deserve protection. People arrange their affairs on the footing of what is normally done. Defeating those arrangements without warning is itself a kind of injustice.

Because the community often knows better than the court. In a technical trade, the practice of the trade is better evidence of what is reasonable than a judge's intuition.

The Indian illustrations

1. Custom displacing text in personal law. Hindu law recognised customary divorce in communities where it was practised, long before statute did, and the Hindu Marriage Act 1955 preserved it by saving customs in section 29(2). This is custom operating as a source.

In one line

When the other methods conflict or run out, the judge asks what result will actually serve the society the law exists for, and prefers it.

In the wording a student can write in an exam: the method of sociology directs the judge to decide by reference to the social consequences of the competing results, preferring the one that serves the welfare of society. Cardozo ranked it highest of the four methods, so that where logic, history and custom point one way and social welfare another, social welfare prevails. His reason was the proposition worked in [The Final Cause of Law Is the Welfare of Society]: the end of law is the welfare of society, and the other three methods are means to it.

Why it ranks highest

Because the other three are backward-looking. Philosophy asks what the existing rules commit us to; history asks where they came from; tradition asks what the community has done. All three consult the past. Only sociology asks what the decision will do.

Because the past has no authority of its own. That a rule follows logically from another rule, or has an ancient origin, or matches settled practice, is a reason for applying it only if the resulting arrangement is one worth having. Where it is not, consistency, antiquity and practice are reasons for changing the rule rather than for keeping it.

Because a judge cannot avoid the question. Every decision has consequences. A judge who declines to consider them has not escaped responsibility for them; he has merely declined to think about what he is doing.

What the method actually asks

1. What are the likely consequences of each available result? Not only for these parties, but for the class of persons the rule will govern.

2. Which consequence better serves the ends the legal system is committed to? In India, this is not left to the judge's taste. The Preamble, the fundamental rights and the directive principles state the ends, which is why Indian courts can use the method with more discipline than Cardozo's own.

3. Is the preferred result legally available? The method chooses among readings the materials permit. Where the text or a binding precedent shuts the door, the method cannot open it. This is the qualification that separates adjudication from government.

Why India is the best evidence for it

Cardozo was writing about a common law court. India gave the method something he never had: a written statement of the society's ends, in the Preamble and Part IV, which the courts have used as the measure of social welfare rather than inventing one.

The move is visible in Unni Krishnan, J.P. v. State of Andhra Pradesh, AIR 1993 SC 2178.

In one line

Law has to keep up with the society it governs, legislatures cannot do it all, and the difference is made up by judges: that is judicial creativity, and the growth of law is what it produces.

In the wording a student can write in an exam: judicial creativity is the process by which courts, in deciding cases, develop the law beyond what existing rules expressly provide. It operates where the authorities do not decide the question, and it produces the growth of law: the gradual extension, refinement and occasional transformation of legal doctrine by judicial decision rather than by legislation.

Why a legal system needs it

Because legislatures are slow and selective. Parliament sits for limited periods, has finite capacity and legislates on what is politically urgent. Sexual harassment at the workplace was not politically urgent in 1997; it was legally urgent for the women affected. Vishaka v. State of Rajasthan, AIR 1997 SC 3011, filled the gap, and Parliament reached the subject in 2013, sixteen years later.

Because language cannot anticipate. Statutes are written in general words which have to be applied to circumstances the drafter never imagined.

Because the alternative is denial of justice. A court cannot refuse to decide because the law is unclear. If the authorities do not settle the case, something must, and that something is judicial creativity.

Because a constitution is meant to last. An instrument intended to govern for centuries cannot be confined to the understandings of the year it was written, which is the argument of [The Constitution as a Living Document].

The three degrees of creativity

An answer that distinguishes these is much stronger than one that treats creativity as a single thing.

1. Interpretive creativity. The court gives a new meaning to existing words. Nothing is added to the text; its content changes. Reading livelihood, education, health, privacy and a clean environment into "life" in Article 21 is interpretive creativity, and the text of Article 21 has never been amended.

2. Remedial creativity. The court invents a remedy the law did not provide. Compensation in public law in Nilabati Behera v. State of Orissa, AIR 1993 SC 1960, is the clearest Indian instance; so is the continuing mandamus, by which a court retains a case and supervises compliance over years.

3. Structural or institutional creativity. The court alters the arrangement of public power itself. The basic structure doctrine in Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, and the collegium created by the Second and Third Judges cases are of this kind. This is the most contested degree, because it changes who decides rather than what the law is.

In one line

Judicial creativity is not one act but a set of recognised techniques, each with a name, a use and an Indian case attached to it, and an answer that lists them with authority will always beat an answer that talks about creativity in general.

In the wording a student can write in an exam: the tools and techniques of judicial creativity are the recognised devices by which courts develop the law in the course of deciding cases. They fall into three groups: techniques of interpretation, which change what existing words mean; techniques of precedent, which change what earlier decisions require; and techniques of remedy and procedure, which change what a court can do and who may ask it.

Group one: techniques of interpretation

1. Purposive interpretation. The words are read in the light of the object the provision was meant to achieve rather than in their bare literal sense. This is the everyday tool, and every other interpretive technique is a special case of it.

2. Reading down. A provision wide enough to be unconstitutional is given a narrower meaning so that it can survive. The court prefers a construction that saves the provision to one that destroys it. In Kihoto Hollohan v. Zachillhu, (1992) 1 SCR 686, the Court read the finality clause of the Tenth Schedule as leaving judicial review available for jurisdictional error, mala fides, breach of natural justice and perversity, and so preserved the rest of the Schedule.

Facts. The Tenth Schedule, inserted by the Fifty-second Amendment to deal with defection, was challenged. Paragraph 7 provided that no court should have any jurisdiction in respect of any matter connected with the disqualification of a member, and the amendment had not been ratified by the State legislatures under the proviso to Article 368(2).

Held. Paragraph 7 was invalid for want of ratification, because in terms and in effect it took away the jurisdiction of the Supreme Court under Article 136 and of the High Courts under Articles 226 and 227. The rest of the Tenth Schedule was severable and survived. The Speaker deciding a disqualification acts as a tribunal, so the decision is subject to judicial review, though review is confined to jurisdictional errors, mala fides, non-compliance with natural justice and perversity, and is not available before the decision.

Why it matters here. It shows three techniques in one judgment: severance, reading down, and the protection of judicial review.

3. Reading in. Words are added so that the provision conforms to the Constitution. The court supplies what the legislature omitted rather than striking the provision down.

4. Severance. The bad part is cut away and the rest allowed to stand, as with paragraph 7 in Kihoto Hollohan and section 14 in A.K. Gopalan v. State of Madras, AIR 1950 SC 27.

In one line

A court may develop the law only where the law leaves room, only by reasons it can publish, and only up to the point where it would be governing rather than deciding.

In the wording a student can write in an exam: judicial creativity is bounded by four kinds of limit. There are textual limits, because a clear provision must be applied whatever the court thinks of it. There are institutional limits, because a court is not equipped to do what a legislature or an executive does. There are constitutional limits, because the separation of powers assigns law-making and administration elsewhere. And there are practical limits, because a court cannot enforce what it decrees.

1. Textual limits

A clear provision governs. Where words admit of only one meaning, the court applies it. Creativity operates on ambiguity, on silence and on conflict, and where none of those is present there is nothing to work on. A court that departs from clear words is not being creative; it is exceeding its jurisdiction, and the remedy is appeal.

A binding precedent governs. A smaller Bench cannot depart from a larger one. Central Board of Dawoodi Bohra Community v. State of Maharashtra, (2005) 2 SCC 673, states the rule.

Facts. A petition of 1986 sought reconsideration of a 1962 Constitution Bench decision and had been directed to a seven judge Bench. An application asked that it instead be listed before a Bench of two or three judges, relying on Bharat Petroleum Corporation v. Mumbai Shramik Sangha and four later Constitution Bench decisions.

Held. A decision of a Bench of larger strength binds a Bench of smaller strength. A Bench of lesser quorum cannot express disagreement with, or question the correctness of, the view of a Bench of larger quorum. Only a Bench of the same quorum may doubt a co-ordinate Bench, and then the matter goes to a larger quorum. A two judge Bench not inclined to follow a three judge Bench may not say so; it may only request the Chief Justice to place the matter before a three judge Bench.

Why it matters here. Creativity is distributed unevenly through the hierarchy. What a nine judge Bench may do, a two judge Bench may not, and most judges most of the time are bound.

Amendment forecloses interpretation. Where the legislature has amended a provision to reverse a judicial construction, the court must give effect to the amendment, unless the amendment is itself unconstitutional.

2. Institutional limits

A court hears two parties. The record is built to decide a dispute, not to survey a problem. A legislature can call for evidence, consult affected interests, cost the alternatives and revise after a year. A court sees the fragment the litigation presents.

In one line

A precedent is a decided case treated as a rule for later cases of the same kind, and a system that follows precedent is one in which a court's reasons outlive the quarrel that produced them.

In the wording a student can write in an exam: the doctrine of precedent is the principle that a decision of a court, on a point of law, furnishes a rule for the decision of later cases raising the same point. Where the doctrine operates as a rule of law rather than merely as a practice, it is expressed by the maxim stare decisis et non quieta movere, to stand by decided matters and not to disturb what is settled. Its binding element is the ratio decidendi, the principle on which the decision actually rests, and not the whole of the judgment.

Why a legal system keeps precedents

Equality. Two litigants whose cases are alike should get the same answer. If the outcome depended on which judge heard the case, the system would not be administering law but distributing luck. This connects directly to E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555: equality and arbitrariness are sworn enemies.

Certainty. People and businesses plan around known rules. Precedent is what makes advice possible.

Efficiency. A question once decided need not be argued again, and courts have finite time.

Discipline of the judge. Having to fit a decision to existing authority constrains what a judge can do, which is one answer to the objection that judicial creativity is unbounded.

The growth of law. Paradoxically, precedent is also how law grows: the reasoning of one case becomes the material for extension in the next. See [Distinguishing and Overruling: Precedent as Creativity].

The two systems

The common law system, which India inherited, treats precedent as binding: a court is obliged to follow the decision of a superior court on the same point, whether or not it agrees.

The civil law system treats decided cases as persuasive only: the code is the law, and a settled line of cases is evidence of what the code means rather than a source of obligation.

India is common law in method and constitutional in structure. Article 141 supplies the obligation in terms, which is why the Indian doctrine is stronger than the English one it descends from.

The Indian architecture

Supreme Court. Its decisions bind all courts in India by Article 141. It is not bound by its own decisions: Bengal Immunity Co. Ltd. v. State of Bihar, (1955) 2 SCR 603.

Facts. The appellant company manufactured and sold sera, vaccines and medicines from West Bengal and had no office, agent or godown in Bihar. Bihar tax authorities called on it to register and file returns. Its petition under Article 226 was dismissed by the Patna High Court, and it appealed. The tax could stand only if the Court followed its own recent majority decision in State of Bombay v. United Motors (India) Ltd.

In one line

Only a small part of a judgment is law; the rest is explanation, illustration and opinion, and telling the two apart is the central skill of using precedent.

In the wording a student can write in an exam: the ratio decidendi is the reason for deciding: the principle of law which the court applied to the material facts and on which the decision actually rests. It alone binds later courts. An obiter dictum is a thing said by the way: a statement of law in the judgment which was not necessary for the decision, or which was made on facts that were not before the court. Obiter has persuasive force and no binding force.

Why the distinction exists

A judgment is written to explain a decision to the parties, to the profession and to the appellate court. In explaining, a judge ranges: he states the history of the doctrine, considers arguments he rejects, illustrates with situations not before him, and sometimes says what he would decide in a different case.

If all of that bound later courts, three things would follow, all bad. The law would grow by accident, because a stray observation would become a rule. Judges would write cautiously and unhelpfully to avoid creating law they did not intend. And the parties, who alone were heard, would be the only people whose arguments had shaped a rule that binds everybody.

So the system binds only what was necessary to decide the case that was actually argued.

How to find the ratio

There is no mechanical test, and an examiner will credit a student who says so and then gives the working methods.

Method one: the material facts test. Identify the facts the court treated as material, and the decision it reached on them. The ratio is the rule that connects the two. Facts the court treated as immaterial, by ignoring them or by saying they do not matter, are excluded. This is the standard approach.

Method two: the reversal test. Ask whether, if the proposition were reversed, the decision would have had to be different. If yes, it is ratio. If the decision would have been the same anyway, it is obiter. This is the most useful practical test.

Method three: read the court's own signals. Judges often say "it is not necessary for us to decide", which marks obiter, or "we hold", which usually marks ratio. The signals are helpful and not conclusive.

Complications, which MU's questions reward.

• Multiple judgments. Where several judges concur in the result for different reasons, the ratio is what a majority agreed on. Where no reasoning commands a majority, there may be no discoverable ratio, which happened in Shayara Bano v. Union of India, AIR 2017 SC 4609.
• Alternative grounds. If a court gives two independent reasons, the better view is that both are ratio, since neither is unnecessary in the sense of being uncalled for.
• Wider and narrower formulations. A ratio can usually be stated at several levels of generality, and choosing the level is the work of the later court. This is where distinguishing lives.

In one line

Whether an earlier decision binds depends on which court gave it, how many judges sat, and whether it falls into one of the recognised categories of decision that does not bind at all.

In the wording a student can write in an exam: a precedent binds where it is a decision on a point of law, given by a court whose decisions bind the court now seized of the matter, by a Bench of sufficient strength, on facts not distinguishable in a material respect, and where it has not been overruled, is not per incuriam, was not given sub silentio, and has not been superseded by statute or amendment.

The hierarchy

The Supreme Court binds every court in India. Article 141: the law declared by the Supreme Court shall be binding on all courts within the territory of India.

The Supreme Court does not bind itself. Bengal Immunity Co. Ltd. v. State of Bihar, (1955) 2 SCR 603, holds that Article 141 refers to courts other than the Supreme Court, and that nothing in the Constitution prevents it from departing from a previous decision when convinced of its error and of its harmful effect on the general interests of the public. Worked in [The Doctrine of Precedent].

A High Court binds all courts subordinate to it within its own territory. It does not bind another High Court; that decision is persuasive.

Within a High Court, a Full Bench binds a Division Bench, which binds a single judge.

Subordinate courts bind nobody, not even themselves.

Bench strength: the rules students omit

This is where marks are won, and the two governing decisions are Indian.

Union of India v. Raghubir Singh, AIR 1989 SC 1933, is the first.

Facts. Land was acquired and the Collector made his award in 1963. While the owners' appeal for more compensation was pending, the Land Acquisition (Amendment) Act 1984 raised solatium to thirty per cent, and the High Court applied the higher rate. Two earlier Benches had taken opposite views on whether the higher solatium applied to awards made before 30 April 1982: a two judge Bench in Kamalajammanniavaru said it did not, and a three judge Bench in Bhag Singh said it did, purporting to overrule the earlier decision. A two judge Bench referred the conflict to a larger Bench.

Held. The higher solatium applies only where the award of the Collector or the court was made between 30 April 1982 and 24 September 1984, and to appeals from such awards. On precedent, the law declared by the Supreme Court under Article 141 binds all courts in India; a decision of a Bench of greater strength binds a Bench of lesser strength; and a Bench should not purport to overrule the considered view of a Bench of larger or equal strength, the proper course being a reference to a larger Bench.

In one line

Precedent buys certainty, equality and speed, and pays for them in rigidity, in the accumulation of bad decisions, and in law that grows only when litigation happens to arrive.

In the wording a student can write in an exam: the doctrine of precedent is defended on the grounds of certainty, equality, efficiency, impartiality and the practical growth of law, and criticised on the grounds of rigidity, perpetuation of error, bulk and complexity, retrospective operation, haphazard development and the artificiality of distinguishing. A complete answer states both sides and then explains the devices by which a legal system tries to keep the merits while limiting the demerits.

The merits

1. Certainty and predictability. A settled rule allows people to plan and lawyers to advise. Most legal advice is a prediction based on decided cases, and without precedent the prediction would be worthless.

2. Equality of treatment. Like cases decided alike. If the outcome turned on which judge sat, the system would distribute luck rather than administer law. This connects to E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, where equality and arbitrariness are described as sworn enemies.

3. Efficiency. Questions once settled are not reargued. Court time is finite, and a system in which every point were open would collapse under its own docket. India's arrears make this a practical and not a theoretical merit.

4. Impartiality and the appearance of it. A judge who must follow authority is visibly not deciding by preference. Precedent protects the judge as much as the litigant.

5. Practical convenience and detail. Judge-made rules are worked out on real facts. A statute must legislate in the abstract; a line of cases accumulates the qualifications that actual disputes reveal.

6. Growth without legislation. Precedent is the mechanism by which law develops between statutes. See [Judicial Creativity and the Growth of Law].

The demerits

1. Rigidity. A court may be bound to apply a rule it believes unjust. In India the rigidity is felt most by High Courts and subordinate courts, since the Supreme Court can depart from its own decisions under Bengal Immunity Co. Ltd. v. State of Bihar, (1955) 2 SCR 603, and a lower court cannot.

2. Perpetuation of error. A wrong decision binds until a competent Bench overrules it, and that may take decades. A.K. Gopalan v. State of Madras, AIR 1950 SC 27, governed the reading of Article 21 for twenty eight years before Maneka Gandhi v. Union of India, AIR 1978 SC 597, replaced it, and in the interval it supplied part of the reasoning in Additional District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207.

In one line

The same doctrine that binds a judge also gives him the means to change the law, because deciding what an earlier case decided is itself a creative act.

In the wording a student can write in an exam: precedent is a tool of judicial creativity and not merely a limit on it, because a later court controls the meaning and reach of an earlier decision. It does so by distinguishing, which confines the earlier case to its facts; by narrowing or widening the ratio, since a ratio can be stated at several levels of generality; by overruling, which removes the earlier rule; and by prospective overruling, which changes the rule for the future while leaving past transactions undisturbed.

Why precedent is creative at all

A precedent does not come with a label saying how wide it is. The later court must decide what the earlier case decided, and that decision is not dictated by the earlier judgment.

Consider a decision that a hotel owes a duty of care to a guest injured by a defective lift. The ratio may be stated as: an occupier owes a duty to a person lawfully on the premises; or, a hotel owes a duty to its guests; or, an occupier owes a duty in respect of machinery under his control. Each is a faithful statement of the case. Which one governs the next dispute is chosen by the next court, and the choice makes law.

Distinguishing

What it is. Holding that the earlier decision does not apply because the material facts differ in a respect that matters.

Why it is the commonest technique. It requires no authority to overrule, no reference to a larger Bench and no admission that anything has changed. A court of any level can do it.

When it is legitimate. Where the difference relied on is one that the reasoning of the earlier case shows to be material. If the earlier decision rested on the occupier's control of the machinery, then a case where the machinery was not in his control is genuinely distinguishable.

When it is not. Where the difference is real but immaterial. This is the artificial distinguishing criticised in [The Merits and the Demerits of Precedent], and it is a way of not following a precedent while appearing to follow it.

Its creative effect. Repeated distinguishing shrinks a rule until it applies only to its own facts. The rule is not overruled; it is emptied.

Widening

The mirror image. A later court states the ratio at a higher level of generality than the earlier court needed, and the rule then covers cases the first court never considered.

The Indian expansion of Article 21 is a chain of widening. Maneka Gandhi v. Union of India, AIR 1978 SC 597, decided that a passport could not be impounded without a fair procedure. Read narrowly it is a case about passports. Read at the level the later cases adopted, it holds that any deprivation of personal liberty requires a procedure that is right, just and fair, and on that footing it supported everything from prison conditions to the right to livelihood.

In one line

India did not merely inherit binding precedent from England; it wrote it into the Constitution, and the exact words it used are why the Supreme Court is bound by nothing but its own judgment.

In the wording a student can write in an exam: Article 141 provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India. It converts the common law practice of stare decisis into a constitutional obligation, so that the binding force of a Supreme Court decision in India rests on the Constitution and not merely on custom or on the hierarchy of courts. Its own words also settle the limit of that obligation: because it binds "all courts within the territory of India", it has been held to refer to courts other than the Supreme Court itself.

The text, taken apart

"The law declared." Not the decision, and not the order. What binds is the proposition of law the Court states, which is the ratio decidendi. It also covers law the Court has plainly made rather than found, which is how the guidelines in Vishaka v. State of Rajasthan, AIR 1997 SC 3011, were given binding force: the Court directed that they be treated as law declared under Article 141 until Parliament legislated.

"By the Supreme Court." High Court decisions are not within Article 141. Their binding force comes from the hierarchy of courts and from Article 227, not from this provision.

"Shall be binding." Mandatory. A subordinate court that declines to follow a Supreme Court decision is not exercising judgment; it is disobeying the Constitution.

"On all courts within the territory of India." Three consequences. It binds every court in India, whatever its subject or level. It binds courts, and its application to tribunals is by extension rather than by the letter. And, decisively for MU's question, it refers to courts other than the Supreme Court.

The constitutional significance, which is MU's other phrasing

It makes precedent a constitutional rather than a customary obligation. In England the practice of the House of Lords in binding itself was announced, and later abandoned, by a Practice Statement. Nothing so informal could alter Article 141.

It makes the Supreme Court the single source of a uniform law for the whole Union. A country with many High Courts and a federal structure risks the same statute meaning different things in different States. Article 141 prevents that.

It supports Article 32. A right enforceable by the Supreme Court is worth little if the pronouncement binds nobody below. Article 141 makes the enforcement effective at every level.

It makes judicial creativity durable. A rule the Court creates in the exercise of the techniques in [The Tools and Techniques of Judicial Creativity] becomes binding law across India the moment it is declared.

In one line

The Supreme Court may overrule itself, but not casually: it needs a Bench of the right strength, a reason of substance, and something close to agreement that the earlier view was wrong.

In the wording a student can write in an exam: the Supreme Court's power to reconsider and depart from its earlier decisions is inherent and is not excluded by Article 141, but its exercise is disciplined. The conditions are procedural, that the matter be before a Bench of sufficient strength, and substantive, that there be considerations of a substantial and compelling character justifying departure.

The governing decision

Keshav Mills Co. Ltd. v. Commissioner of Income-Tax, AIR 1965 SC 1636, is the leading Indian authority on when, as distinct from whether.

Facts. The appellant was a company registered in the former Baroda State. In the 1942-43 assessment the Income-tax Officer held that certain sale proceeds, collected by cheques on British Indian shroffs and merchants, were received in British India and were taxable. The High Court twice remanded the reference to the Tribunal for further facts under section 66(4) of the Indian Income-tax Act 1922 and then decided against the company. The company argued that the High Court had no such power, relying on two earlier Supreme Court decisions, the New Jahangir Mills case and the Petlad Co. case. The Revenue asked the Court to reconsider both.

Held. The earlier decisions were not disturbed. Stare decisis cannot be pressed into service in cases where the power of the Court to reconsider and revise its earlier decisions is invoked, because that power is inherent in the Court; but the normal principle that judgments pronounced by the Court are final cannot be ignored, and unless considerations of a substantial and compelling character make it necessary the Court should be reluctant to review and revise its earlier decisions. If the Court is satisfied that its earlier decision was clearly erroneous it should not hesitate to correct the error, but before a previous decision is pronounced plainly erroneous the Court must be satisfied with a fair amount of unanimity among its members that a revision of that view is fully justified. It is not possible or desirable, and would in any case be inexpedient, to lay down principles governing every case.

Why it matters here. It supplies the standard, and the last sentence is important: the Court expressly declined to reduce the question to a formula. An answer that offers a closed list has misstated the law; an answer that gives the recognised considerations and says the list is not exhaustive has stated it correctly.

The recognised circumstances

Drawn from Keshav Mills, from Bengal Immunity and from the practice since.

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Law can also grow the other way, by being written down in a code, and understanding what codification does is the only way to see what judicial development is for.

In the wording a student can write in an exam: codification is the reduction of the whole law on a subject into a systematic, authoritative written enactment which supersedes the previous sources on that subject. Legal development through codification is the growth of law by legislative statement rather than by judicial decision. It is the counterpart of judicial creativity, and the two are complementary: a code fixes the law at a moment and the courts develop it thereafter, until the accumulated development justifies a fresh code.

Codification distinguished from what it is not

Students lose marks by treating every statute as a code.

Codification covers the whole of a subject and displaces the earlier law on it. The Indian Penal Code 1860 is the model: after it, there is no offence at common law in India.

Consolidation gathers existing statutes on a subject into one Act without changing the law.

Ordinary legislation deals with a particular matter without attempting the field.

Statutory restatement of case law enacts judicial rules, as section 13 of the Contempt of Courts Act 1971 did in giving statutory form to defences developed by courts.

The Indian record

India is one of the most codified common law jurisdictions in the world, which is why this topic belongs in an Indian paper on the judicial process.

The nineteenth century codes. The Indian Penal Code 1860, drafted by the First Law Commission under Macaulay; the Code of Civil Procedure; the Code of Criminal Procedure; the Indian Evidence Act 1872; the Indian Contract Act 1872; the Transfer of Property Act 1882. They were the work of successive Law Commissions.

Post-independence codification. The Hindu Code Bills of the 1950s, enacted as the Hindu Marriage Act 1955, the Hindu Succession Act 1956, the Hindu Minority and Guardianship Act 1956 and the Hindu Adoptions and Maintenance Act 1956.

The new criminal codes. In 2023 Parliament replaced the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act with the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam. It is the largest single act of Indian codification since independence.

The Law Commission of India is the standing machinery. It is not a statutory body but is constituted by Government resolution, and its reports are the ordinary route by which a judicially identified defect becomes a legislative amendment.

The merits of codification

1. Certainty and accessibility. The law is in one place and can be read. A citizen can consult the Penal Code; nobody can consult the whole body of decided cases.

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Deciding whether a law made by an elected legislature may stand is a different exercise from deciding whether a contract was broken, and Module II is about the ways in which it is different.

In the wording a student can write in an exam: the special dimensions of the judicial process in constitutional adjudication are the respects in which a court deciding a constitutional question does something different in kind from a court deciding an ordinary dispute. They are: the subject matter, which is public power rather than private right; the effect, which is to invalidate the act of another organ of the State rather than to give relief between parties; the material, which is an open-textured text stating values rather than a detailed rule; the method, which admits considerations of principle and consequence that ordinary adjudication excludes; the parties, since the decision governs people who were never before the court; and the finality, since a constitutional ruling can ordinarily be undone only by amendment.

The six dimensions

1. The subject matter is public power. An ordinary suit asks whether A wronged B. A constitutional case asks whether an organ of the State acted within the authority the Constitution gave it. The question is about the validity of power, not the breach of an obligation.

2. The effect is invalidation. An ordinary decree binds the parties. A declaration that a statute is void removes it from the statute book for everybody. In Supreme Court Advocates-on-Record Association v. Union of India, decided on 16 October 2015, a constitutional amendment passed by Parliament and ratified by the States was declared void.

Facts. The Constitution (Ninety-ninth Amendment) Act 2014 and the National Judicial Appointments Commission Act 2014 replaced the collegium with a commission of the Chief Justice of India, the two next senior judges of the Supreme Court, the Union Minister of Law and Justice and two eminent persons, with a veto exercisable by any two members. Both were challenged, and the Union asked for the Second and Third Judges cases to be reconsidered by a larger Bench.

Held. By four to one the prayer for reconsideration was rejected; the Constitution (Ninety-ninth Amendment) Act 2014 was declared unconstitutional and void; the National Judicial Appointments Commission Act 2014 was declared unconstitutional and void; and the collegium system as it existed before the amendment was declared operative. Chelameswar J. dissented.

Why it matters here. Nothing in ordinary adjudication resembles this. A court set aside the considered decision of Parliament, of the State legislatures that ratified it, and of the President who assented, and restored an arrangement of its own earlier making.

3. The material is a text of a different kind. Section 73 of the Indian Contract Act tells a court what to do. Article 14 says "equality before the law". The words state a value and leave the rule to be worked out, which is why constitutional adjudication is far more creative than ordinary adjudication and why Module I's methods matter most here.

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Judicial review is the power of a court to examine whether an act of the legislature or the executive is within the authority the Constitution gives it, and to refuse to give effect to it if it is not.

In the wording a student can write in an exam: judicial review is the power of the superior courts to examine the constitutional and legal validity of legislative enactments, executive actions and, in India, constitutional amendments, and to declare them void or to refuse to enforce them where they exceed the authority conferred. It is the mechanism by which the supremacy of the Constitution is enforced against the organs the Constitution itself creates.

Why a supreme constitution implies review

The argument is short and MU has set it as a question in its own right.

The Constitution is supreme. It creates the legislature, the executive and the judiciary, and defines what each may do.

A limited power exercised beyond its limits is void. If Parliament may not make a law abridging a fundamental right, a law that abridges one is not a law at all.

Somebody must decide whether the limit has been exceeded. Leaving it to the body whose power is limited makes the limit meaningless, since it would be judge in its own cause.

The courts are the natural decider, because deciding whether an act conforms to a legal standard is what courts do.

Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, states the third step as law.

Facts. A sick textile undertaking was taken over and nationalised, and the Act was placed in the Ninth Schedule. The petitioners challenged sections 4 and 55 of the Constitution (Forty-second Amendment) Act 1976. Section 55 had inserted clauses (4) and (5) into Article 368, declaring that no amendment could be called in question in any court and that there was no limitation on the constituent power. Section 4 had widened Article 31C so that any law giving effect to any directive principle was immune from challenge under Articles 14 and 19.

Held. Both were void and beyond the amending power. Clause (5) sought to remove all limitations on the amending power and demolished the basis on which limited government rests. Clause (4) sought to deprive the courts of the power to decide whether a limitation had been exceeded, and a limited power cannot be made unlimited by removing the means of enforcing the limit. The widened Article 31C destroyed the balance between fundamental rights and directive principles, which is itself a basic feature.

Why it matters here. The reasoning on clause (4) is the argument for judicial review reduced to a sentence: if the power to enforce a limit is removed, the limit ceases to exist.

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In America the courts had to argue that judicial review exists; in India the Constitution says so, in several places at once.

In the wording a student can write in an exam: judicial review in India rests on express constitutional provision and not on judicial inference. Its foundations are Article 13, which declares laws inconsistent with the fundamental rights void; Article 32, which makes the right to move the Supreme Court for enforcement of fundamental rights itself a fundamental right; Articles 226 and 227, which confer the writ and supervisory jurisdictions on the High Courts; Articles 131 to 136, which give the Supreme Court its original and appellate jurisdictions; and Article 246 with the Seventh Schedule, which distributes legislative power and so makes competence a justiciable question.

The provisions, one by one

Article 13. Clause (1) makes pre-Constitution laws void to the extent of inconsistency with Part III. Clause (2) forbids the State to make any law taking away or abridging the fundamental rights and declares any such law void to the extent of the contravention. Clause (3)(a) defines "law" broadly, to include ordinances, orders, bye-laws, rules, regulations, notifications, customs and usages having the force of law. This is the textual heart: it is a direction to the courts to treat inconsistent law as void.

Article 32. The right to move the Supreme Court by appropriate proceedings for enforcement of the fundamental rights, itself a fundamental right, with power in the Court to issue directions, orders or writs including habeas corpus, mandamus, prohibition, quo warranto and certiorari. Dr. Ambedkar called it the heart and soul of the Constitution, and the reason is that a right without a remedy is not a right.

Articles 226 and 227. Article 226 gives every High Court power to issue writs for the enforcement of fundamental rights and for any other purpose, which makes it wider than Article 32. Article 227 gives superintendence over all courts and tribunals within its territory.

Articles 131 to 136. Original jurisdiction in federal disputes; appellate jurisdiction in constitutional, civil and criminal matters; and Article 136, the discretionary special leave that has become the ordinary route to the Court.

Article 246 and the Seventh Schedule. By dividing legislative power between the Union and the States, the Constitution makes it a legal question whether a given legislature had competence, and a court must answer it.

Article 245(1). Legislative power is conferred "subject to the provisions of this Constitution", which is a textual statement that legislative power is limited.

Why the Indian foundation is stronger than the American

In the United States the Constitution does not confer the power expressly, and it was inferred in Marbury v. Madison from the supremacy of the Constitution and the judicial duty to say what the law is. The doctrine has been contested there ever since precisely because it rests on inference.

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A court does not strike down a law or an order because it disagrees with it; it needs a ground, and the grounds are a known list.

In the wording a student can write in an exam: the grounds of judicial review differ according to what is being reviewed. Legislation is reviewed for want of legislative competence, for violation of the fundamental rights, for violation of any other constitutional provision, and for manifest arbitrariness. A constitutional amendment is reviewed for damage to the basic structure. Executive and administrative action is reviewed on the classical grounds of illegality, irrationality and procedural impropriety, to which proportionality and legitimate expectation have been added.

Grounds against legislation

1. Want of legislative competence. Whether the enacting legislature had power under Article 246 and the Seventh Schedule, determined by the pith and substance of the Act rather than by its label.

2. Violation of the fundamental rights. Article 13(2) makes an inconsistent law void to the extent of the contravention. The commonest heads are Article 14, Article 19 read with its clauses of reasonable restriction, and Article 21.

3. Violation of another constitutional provision. Freedom of trade under Article 301, the prohibitions in Articles 276 and 286, and so on.

4. Manifest arbitrariness. The modern head, descended from E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, and applied to strike down a practice in Shayara Bano v. Union of India, AIR 2017 SC 4609.

Facts. The petitioner sought a declaration that talaq-e-biddat, by which a Muslim husband may divorce his wife by pronouncing talaq three times at once, abruptly, unilaterally and irrevocably, was void and unconstitutional, and that it was not protected by section 2 of the Muslim Personal Law (Shariat) Application Act 1937.

Held. By three to two the practice was set aside. Two judges held it manifestly arbitrary and therefore violative of Article 14, applying the arbitrariness doctrine. A third held it was not an essential religious practice and was bad in personal law itself. The two dissenting judges held that it was protected personal law under Article 25 and that the remedy lay with the legislature.

Why it matters here. It shows manifest arbitrariness operating as an independent ground and shows how contested the ground is, since only two of five judges rested on it.

5. Excessive delegation. A legislature may delegate details but not its essential legislative function, which is the laying down of policy.

6. Vagueness. A provision so vague that a citizen cannot know what is forbidden may violate Article 14 or Article 21.

The ground against a constitutional amendment

Damage to the basic structure. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, established it; Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, first applied it to strike down an amendment; Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, applied it to the Forty-second Amendment; and the NJAC decision of 16 October 2015 applied it to the Ninety-ninth.

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Judicial review is not merely a power the Constitution gives; it is one of the things the Constitution cannot be amended to remove.

In the wording a student can write in an exam: the power of judicial review vested in the High Courts under Articles 226 and 227 and in the Supreme Court under Article 32 is part of the basic structure of the Constitution. It follows that it cannot be excluded or abridged by an ordinary law, and cannot be removed even by a constitutional amendment, because an amendment that damaged or destroyed a basic feature would itself be beyond the amending power under Article 368 as construed in Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.

The doctrine it rests on

Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, is the foundation.

Facts. The head of a religious mutt in Kerala challenged Kerala land reform legislation under Articles 25, 26, 14, 19(1)(f) and 31. The petition grew into a challenge to the Constitution (Twenty-fourth), (Twenty-fifth) and (Twenty-ninth) Amendments, passed to undo Golak Nath and to protect further reform laws. Thirteen judges heard it, the largest Bench the Court has ever sat.

Held. By a majority, Parliament's power to amend under Article 368 is wide but not unlimited: it does not extend to altering the basic structure or essential features of the Constitution. Golak Nath was overruled so far as it had denied the power to amend Part III at all, so amendments to fundamental rights are possible, but no amendment may damage or destroy the basic structure. The judges gave illustrative and expressly non-exhaustive lists of what that structure includes.

Why it matters here. Everything in this chapter is a consequence of it. Without a limit on the amending power, no feature could be beyond amendment and the question would not arise.

The steps by which review became a basic feature

Step one: the amending power is limited. Kesavananda, 1973.

Step two: an attempt to exclude review from amendments fails. Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789.

Facts. A sick textile undertaking was taken over and nationalised, and the Act was placed in the Ninth Schedule. The petitioners challenged sections 4 and 55 of the Constitution (Forty-second Amendment) Act 1976. Section 55 inserted clauses (4) and (5) into Article 368, declaring that no amendment could be called in question in any court and that there was no limitation on the constituent power. Section 4 widened Article 31C so that any law giving effect to any directive principle was immune from challenge under Articles 14 and 19.

Held. Both were void and beyond the amending power. Clause (5) sought to remove all limitations on the amending power and demolished the very pillars on which limited government rests. Clause (4) sought to deprive the courts of the power to decide whether a limitation had been exceeded, and a limited power cannot be made unlimited by removing the means of enforcing the limit. The widened Article 31C destroyed the balance between fundamental rights and directive principles, which is itself a basic feature.

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Judicial review is what a society does when it decides that government should be limited and that the limits should mean something.

In the wording a student can write in an exam: the philosophy of judicial review rests on constitutionalism, the doctrine that government is limited by law. Its premises are that all public power is conferred and therefore finite; that a conferred power exceeded produces a nullity; that the body whose power is limited cannot be the judge of its own limits; and that the limits are worth having only if some institution can enforce them. Judicial review is the institutional expression of constitutionalism, and the fundamental rights are the limits it most often enforces.

The philosophical foundations

1. Constitutionalism, or limited government. The idea that a government's authority derives from and is bounded by a constitution. The opposite is not tyranny necessarily; it is parliamentary sovereignty, where the legislature may make or unmake any law and no court may question it.

2. The rule of law. Government by law and not by will. Its minimum content is that public power be exercised under the authority of a legal rule announced in advance, applied equally, and enforceable in an independent court. Judicial review supplies the last of these.

3. The separation of powers. Not absolute in India: Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549.

Facts. Publishers of school textbooks complained that the Punjab Government's policy of nationalising textbooks, carried out by executive notifications without legislation, destroyed their business and violated Article 19(1)(g).

Held. The executive function comprises both the determination of policy and its execution, including the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy and the general administration of the State. The executive may act without a statute so long as it does not infringe a legal right. The Constitution does not contemplate an absolute separation of powers but a broad demarcation, with the executive answerable to the legislature.

Why it matters here. The demarcation being broad rather than absolute is exactly why the boundary of review is argued about, and why the Court can be criticised from both directions at once.

4. The protection of minorities and of the individual. Majorities can look after themselves through elections; the individual against whom the majority has legislated cannot. Judicial review is the counter-majoritarian element deliberately built into a democratic constitution.

5. The supremacy of the Constitution as the will of the people. When a court strikes down a statute it does not set the judiciary above the legislature; it sets the Constitution above both. This is the classical answer to the democratic objection, and it is only partly satisfying, because somebody must say what the Constitution means.

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There is no single answer to what a court is for in constitutional cases, and the competing answers explain almost every disagreement between judges in this subject.

In the wording a student can write in an exam: the role of the court in constitutional adjudication is contested, and four positions can be distinguished. On the strict constructionist view the court applies the text as written and nothing more. On the originalist view it applies the meaning the framers gave the text. On the structuralist view it enforces the arrangements the Constitution creates, including limits not spelled out. On the purposive or transformative view it reads the text in the light of the values the Constitution declares, so as to advance them in changing conditions. Indian practice has moved decisively towards the last, without wholly abandoning the others.

The four theories

1. Strict construction. The court gives effect to the words. Its virtue is restraint and predictability; its weakness is that constitutional words are open-textured and frequently do not decide. A.K. Gopalan v. State of Madras, AIR 1950 SC 27, is the Indian high point: "procedure established by law" was read as procedure laid down by a duly enacted law, and no more.

2. Originalism. The court asks what the framers meant. In India the Constituent Assembly Debates are available and are cited, and the strongest originalist argument in Indian law is that the Assembly considered and rejected "due process of law" in favour of "procedure established by law". Maneka Gandhi v. Union of India, AIR 1978 SC 597, overcame that argument rather than answering it, which is worth noting honestly.

3. Structuralism. The court enforces what the Constitution's arrangement implies, even where nothing says it. The basic structure doctrine is structuralism in its strongest form: nothing in Article 368 limits the amending power, and the limit was inferred from the scheme of the Constitution as a whole.

4. Purposive and transformative reading. The Constitution states values and the court's role is to realise them. This is the dominant Indian position, and MU's 2024-25 question states it: "The Constitution of India is a living document; its spirit must evolve with time."

The Indian answer, and how it was reached

L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, states the institutional half of the role.

Facts. A batch of matters questioned whether Articles 323A(2)(d) and 323B(3)(d), which allowed exclusion of the jurisdiction of all courts except the Supreme Court under Article 136 in tribunal matters, could stand against judicial review under Articles 226 and 227 and Article 32; whether tribunals could test the constitutional validity of statutes; and whether they were effective substitutes for the High Courts.

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Judicial review exists because power that nobody can check is power that will eventually be misused, and Indian constitutional history contains the demonstration.

In the wording a student can write in an exam: Lord Acton's proposition that "power tends to corrupt and absolute power corrupts absolutely", written in 1887, states the practical premise of constitutionalism: that the danger of misuse is inherent in the possession of unchecked power, whatever the character of the holder. Judicial review is one of the institutional checks a constitution establishes against that danger, alongside periodic elections, the separation of powers, federalism, a free press and the parliamentary accountability of the executive.

The argument

1. Power is exercised by people, and people are fallible. Acton's claim is not that rulers are wicked but that the absence of a check removes the ordinary corrective on error and self-interest.

2. Elections are a check, but a slow and blunt one. They operate periodically, in the aggregate, and on a whole record. They cannot protect the individual against whom a majority has legislated between elections.

3. Parliamentary accountability is a check, but not where the executive controls the legislature. In a Westminster system a government with a majority is not, in practice, checked by the House.

4. So a legal check is needed, operating on the individual case, at the instance of the person affected, and applying a standard fixed in advance.

That is judicial review, and it is why the maxim leads to the doctrine.

The Indian demonstration

MU's question is not rhetorical. Indian constitutional history contains a controlled experiment.

Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, is the check working.

Facts. The Allahabad High Court set aside the election of the Prime Minister on 12 June 1975, holding that she had committed corrupt practice by obtaining the assistance of a gazetted officer, and disqualified her for six years. While her appeal was pending, the Constitution (Thirty-ninth Amendment) Act 1975 inserted Article 329A, clause (4) of which purported to declare that her election could not be called in question in any court and that the pending appeal would abate.

Held. The appeal succeeded on the merits under the amended election law, but clause (4) of Article 329A was struck down as destructive of the basic structure. It did not amend the election law; it decided a particular dispute by constitutional fiat, withdrawing it from every court, and so violated the rule of law, free and fair elections, and the separation of the judicial function from the legislative.

Why it matters here. It is Acton's maxim in a law report. The amending power, which is the most nearly absolute power the Constitution confers, was used to decide one person's case in her own favour, and it was the existence of a check that prevented it.

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Judicial activism is a court going further than the minimum its case required, in order to make a right effective, and the argument about it is an argument about how much further is too far.

In the wording a student can write in an exam: judicial activism describes a judicial approach in which a court, in exercising its established jurisdiction, adopts an expansive view of its role: it reads rights broadly, relaxes procedural barriers to access, devises remedies not expressly provided, and is willing to direct the other organs of the State to act. It is contrasted with judicial restraint, in which a court confines itself to the narrowest ground that disposes of the case and defers to the legislature and the executive within their spheres.

Why the word needs defining before it can be used

Because it is used in at least four incompatible senses, and an answer that does not fix its sense cannot be marked.

As a description. A neutral account of how expansively a court has behaved. This is the sense used here.

As praise. A court protecting the powerless against an indifferent State.

As abuse. Judges legislating and governing without a mandate.

As a synonym for judicial review. Simply wrong. Review is a jurisdiction that exists whether or not it is exercised expansively.

A good answer states which sense it is using. MU's own questions supply both loaded senses: the January 2023 paper calls activism "a necessary weapon in a democracy to protect the rights of marginalized section of the society", and Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, has the Court warning judges not to behave like emperors.

Activism distinguished from what it is not

Creativity and activism overlap and are not the same. A court may create a rule in a small commercial case without being activist; and a court may be activist procedurally, by relaxing standing, without creating any new rule of substantive law.

The marks of an activist decision

Five features, and an answer that lists them can classify any decision.

1. Expansive reading of a right. Reading livelihood, education, health, shelter, privacy and a clean environment into "life" in Article 21.

2. Relaxation of procedural barriers. Standing, limitation, the form of the proceeding. S.P. Gupta v. President of India, AIR 1982 SC 149, is the Indian source.

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Activism comes in kinds, and separating them turns a vague argument about whether courts do too much into a precise one about which of five different things they are doing.

In the wording a student can write in an exam: judicial activism may be classified into five varieties, distinguished by what the court is expanding. Interpretive activism expands the meaning of a text. Procedural activism expands access to the court. Remedial activism expands what the court can order. Structural activism alters the arrangement of public power. Juristic activism develops legal doctrine and principle beyond what any case required.

1. Interpretive activism

What it does. Gives existing words a wider content.

Indian instance. Maneka Gandhi v. Union of India, AIR 1978 SC 597.

Facts. The petitioner's passport was impounded under section 10(3)(c) of the Passports Act 1967 "in the public interest", and the Government declined to furnish the statement of reasons that section 10(5) provides for, saying it was withholding them in the interest of the general public.

Held. Articles 14, 19 and 21 are not mutually exclusive but form a single scheme, so a law depriving a person of personal liberty must answer the tests of all three. The procedure established by law in Article 21 must be right, just and fair, and not arbitrary, fanciful or oppressive; a procedure that is arbitrary is no procedure at all. The right to travel abroad is part of personal liberty, and audi alteram partem applies, though a post-decisional hearing may suffice in urgency.

Why it matters here. Nothing in the text changed. The activism was entirely in what the words were held to mean, and every later expansion of Article 21 depends on it.

Its limit. Interpretation must be of something. Where the words cannot bear the meaning, the court is not interpreting.

2. Procedural activism

What it does. Removes barriers to reaching the court: standing, form, limitation, cost, proof.

Indian instance. S.P. Gupta v. President of India, AIR 1982 SC 149.

Facts. Writ petitions filed in different High Courts and transferred under Article 139A challenged the Law Minister's circular on the consent of additional judges, the non-extension of the terms of certain additional judges, and the transfer of two High Court judges. Advocates who were not themselves affected brought the petitions, so their standing was in question.

Held. Where a legal wrong is caused to a person or a determinate class who by reason of poverty, disability or a socially or economically disadvantaged position cannot approach the court, any member of the public acting bona fide may move the court under Article 226 or Article 32. On appointments the majority held that consultation with the Chief Justice does not mean concurrence and that the ultimate power rests with the Central Government.

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Indian judicial activism is not an accident of temperament; it grew in the space left by legislatures that did not legislate and administrations that did not administer.

In the wording a student can write in an exam: the necessity of judicial activism in India is argued from four facts: the constitutional promise of justiciable rights coupled with a remedy that is itself a fundamental right; sustained legislative inaction on subjects the Constitution requires to be addressed; sustained executive failure to implement laws already made; and the inaccessibility of the courts to the people whose rights were most often violated. Its scope is correspondingly wide: it extends to enforcing rights against the State, to filling legislative vacuums provisionally, to supervising the implementation of existing law, and to opening the court to those who could not reach it.

The four grounds of necessity

1. The Constitution promised rights and supplied a remedy. Part III is justiciable and Article 32 makes the right to move the Supreme Court itself a fundamental right. A constitution that does this has already decided that rights are to be enforced by courts and not merely honoured by legislatures.

2. Legislative inaction. Where the legislature does not act, the choice is not between judicial and legislative action; it is between judicial action and nothing.

Vishaka v. State of Rajasthan, AIR 1997 SC 3011, worked in full in [The Judicial Process as an Instrument of Social Ordering], is the case. There was no Indian legislation on sexual harassment at the workplace; the Court held the practice to violate Articles 14, 15, 19(1)(g) and 21 and laid down guidelines to hold the field under Article 141 until Parliament legislated, which it did sixteen years later.

The necessity argument is not that courts legislate better. It is that a vacuum in a domain the Constitution covers is itself a constitutional failure, and that the Court did not displace Parliament: it occupied the space Parliament had left and vacated it when Parliament arrived.

3. Executive failure to implement existing law. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802, worked in full in [Locus Standi and Epistolary Jurisdiction], concerned bonded labour, which Article 23 and the labour statutes already prohibited. A letter was treated as a writ petition, commissioners were appointed to establish conditions the petitioner could not prove, and detailed directions issued.

This is the strongest form of the necessity argument, and a student should say why: the democratic objection does not touch it. The Court created no policy. The elected branches had already prohibited bonded labour, and the activism lay entirely in making their own prohibition reach the quarry.

4. Inaccessibility. A right enforceable only by those who can afford a lawyer is a right for the prosperous. S.P. Gupta v. President of India, AIR 1982 SC 149, changed who may complain, and Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1360, held free legal services to be an essential ingredient of the fair procedure Article 21 requires.

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The case against judicial activism is not made by its enemies; it is made in the Supreme Court's own judgments, and an answer that cites them is stronger than one that quotes commentators.

In the wording a student can write in an exam: the limits on judicial activism are democratic, because unelected judges override elected bodies; institutional, because a court lacks the information, the machinery and the power over resources that governing requires; constitutional, because the separation of powers assigns law-making and administration elsewhere; and practical, because a court cannot implement its own orders and spends its authority when they are ignored. Where activism exceeds these, it is called judicial overreach.

1. The democratic limit

The objection. A rule created by judges binds a population that did not choose them and cannot remove them. In Supreme Court Advocates-on-Record Association v. Union of India, decided on 16 October 2015, a constitutional amendment passed by both Houses, ratified by State legislatures and assented to by the President was declared void.

Facts. The Constitution (Ninety-ninth Amendment) Act 2014 and the National Judicial Appointments Commission Act 2014 replaced the collegium with a commission of the Chief Justice of India, the two next senior judges, the Union Minister of Law and Justice and two eminent persons, with a veto exercisable by any two members. Both were challenged and the Union sought reconsideration of the Second and Third Judges cases.

Held. By four to one the prayer for reconsideration was rejected; both the amendment and the Act were declared unconstitutional and void; and the collegium as it existed before the amendment was declared operative. Chelameswar J. dissented.

Why it matters here. It is the democratic objection at its sharpest, because the subject of the amendment was the judiciary itself. Whatever the merits, the Court decided the extent of its own power against the most deliberate decision the political system can make.

The answers, such as they are. That the Constitution and not the court is supreme; that the elected branches may act afterwards where the decision is not constitutional; that the people activism protects are those the electoral process does not reach; and that reasons are published and open to criticism.

2. The institutional limit

The objection. A court has two parties, a record built for a dispute, no power to consult, no ability to revise, and no control over money.

Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, is the Court's own statement.

Facts. Two workmen employed as tractor drivers claimed regularisation against the post of tractor driver, a post which did not exist in the sanctioned strength, and the labour court and the High Court directed regularisation, in effect creating a post.

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Activism and restraint are two dispositions towards the same jurisdiction, and the choice between them is made case by case rather than once for all.

In the wording a student can write in an exam: judicial restraint is the disposition to decide a case on the narrowest ground available, to presume the validity of legislative and executive action, to defer to the other organs within their spheres, and to abstain from laying down more than the case requires. Judicial activism is the opposite disposition. Neither is a rule of law; both are approaches to exercising a jurisdiction that exists either way.

The distinction

The case for restraint

Democratic legitimacy. Elected bodies should decide contestable questions.

Institutional competence. A court lacks the information and the machinery.

Predictability. A court that decides narrowly leaves the law more stable.

Preservation of authority. A court that decrees what will not be obeyed spends its authority.

Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, states the case from the Bench.

Facts. Two workmen employed as tractor drivers claimed regularisation against the post of tractor driver, a post which did not exist in the sanctioned strength, and the courts below directed regularisation, in effect creating a post.

Held. The directions were set aside. Creating a post is an executive or legislative function and directing it is unconstitutional. In the name of judicial activism judges cannot cross their limits and take over functions belonging to another organ of the State. Judges must exercise judicial restraint and must not encroach into the executive or legislative domain; they must know their limits, must not try to run the government, must have modesty and humility, and must not behave like emperors.

Why it matters here. It is the fullest judicial statement of restraint in Indian law, and it is authoritative rather than merely critical because the Court is disciplining a lower court and itself in the same breath.

The case for activism

Rights are worthless unenforced. The Constitution made Article 32 itself a fundamental right.

The other organs sometimes do not act. In Vishaka v. State of Rajasthan, AIR 1997 SC 3011, restraint would have meant that women had no remedy at all.

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If judges check everybody else, something has to check the judges, and in India the machinery for that is thinner than the machinery they apply to others.

In the wording a student can write in an exam: judicial accountability is the requirement that judges answer for the exercise of their power. It is in tension with judicial independence, which requires that they be free from pressure, and the constitutional problem is to secure enough of each. The Indian mechanisms are: reasoned judgments open to criticism; appeal and reconsideration by larger benches; removal by an address of Parliament under Article 124(4); the criminal law, following K. Veeraswami v. Union of India, (1991) 3 SCR 189; the in-house procedure laid down in C. Ravichandran Iyer v. Justice A.M. Bhattacharjee, (1995) 5 SCC 457; contempt jurisdiction restrained by the truth defence; and transparency measures including the declaration of assets and the application of the right to information.

Why the problem is hard

Independence and accountability pull against each other. A judge who may be punished for a decision is not independent. A judge who may never be questioned is unaccountable. Every mechanism has to be designed so that it reaches misconduct without reaching adjudication.

The ordinary checks do not apply. Judges are not elected, cannot be dismissed by an employer, and are protected from discussion in Parliament by Article 121 except on a motion for removal.

The judiciary controls the mechanisms that would check it. Appointments are made by the collegium; contempt is decided by the courts; and the in-house procedure is operated by the Chief Justice of India.

The mechanisms, one by one

1. Reasoned judgments. The primary accountability of a judge is that the reasons are published and can be shown to be wrong. This is weaker than it sounds when judgments are long and the profession dependent, but it is real.

2. Appeal and larger benches. An erroneous decision can be corrected, which is accountability for the decision rather than for the judge.

3. Removal under Article 124(4). A judge of the Supreme Court may be removed by an order of the President after an address by each House supported by a majority of the total membership and by not less than two thirds of those present and voting, on the ground of proved misbehaviour or incapacity. The Judges (Inquiry) Act 1968 provides the procedure. The threshold is very high and no judge of the Supreme Court has been removed under it.

4. The criminal law. K. Veeraswami v. Union of India, (1991) 3 SCR 189.

Facts. A former Chief Justice of the Madras High Court was prosecuted under the Prevention of Corruption Act 1947 for possessing assets disproportionate to his known sources of income. He contended that a judge of a superior court is not a public servant under the Act and that criminal prosecution would compromise the independence of the judiciary, the Constitution having provided only for removal by Parliament.

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Beyond the conduct of individual judges, the court as an institution owes duties it can fail: to decide within a reasonable time, to be reachable, to enforce what it orders, and to answer for the consequences of what it does.

In the wording a student can write in an exam: institutional liability of the courts refers to the responsibility of the judiciary as an institution, as distinct from the personal accountability of a judge, for the manner in which it discharges its constitutional function. Its scope covers delay and arrears, access and cost, the enforcement of its own orders, the consequences of its interventions in administration, and the administration of the court system itself. Its limits are that the judiciary is not liable in damages for judicial acts, that no external body may sit in judgment on adjudication, and that many of the defects have causes outside the courts.

Why this is a separate question from judicial accountability

Accountability asks: what happens when a judge misbehaves. The answers are removal, prosecution, the in-house procedure.

Institutional liability asks: what happens when the court system fails to do its job. The failures are not misconduct by anybody. Nobody misbehaves when a case takes fourteen years; the institution simply does not work, and no mechanism designed for misconduct reaches that.

The scope: where the institution is liable

1. Delay and arrears. The largest single failure. A right that is vindicated after fifteen years has in most practical senses not been vindicated. The Court has itself recognised delay as a constitutional wrong in the criminal context: Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1360.

Facts. A newspaper report and a habeas corpus petition disclosed that large numbers of undertrial prisoners in Bihar had been in jail awaiting trial for periods far longer than the maximum sentence for the offences charged, many unrepresented and unaware of their rights.

Held. Speedy trial is of the essence of criminal justice and delay in trial by itself constitutes a denial of justice. Though not enumerated, speedy trial is implicit in the broad sweep of Article 21. Free legal services to a prisoner unable to afford counsel are an essential ingredient of the reasonable, fair and just procedure Article 21 requires. The undertrials before the Court were ordered released.

Why it matters here. The Court held delay to be a violation of a fundamental right. That proposition, applied to the institution that produced the delay, is the sharpest statement of institutional liability available, and it is the Court's own.

2. Access and cost. The ordinary process is reachable only by those who can pay for it, which is why the procedural activism in [Locus Standi and Epistolary Jurisdiction] was necessary in the first place. That a jurisdiction had to be invented for the poor is itself an admission of institutional failure.

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Most of what the judicial process actually does, day to day, is make the administration answer for what it has done, and the machinery for that is the largest part of Indian public law.

In the wording a student can write in an exam: accountability of the executive is the requirement that the government and its agencies answer for the exercise of public power. It operates through political mechanisms, chiefly collective and individual responsibility to the legislature under Articles 75 and 164; through legal mechanisms, chiefly judicial review under Articles 32, 226 and 227; through institutional mechanisms, such as the Comptroller and Auditor General under Articles 148 to 151, the Public Accounts Committee and statutory commissions; and through transparency mechanisms, chiefly the Right to Information Act 2005 and a free press.

Why the judicial mechanism matters most in this paper

Political accountability works in theory and is weak in practice where the executive commands the legislature, which is the ordinary state of a Westminster system with a majority government. The individual citizen against whom power has been misused cannot wait for an election and cannot compel a debate. What that citizen can do is go to court.

The legal mechanisms

1. The writs. Article 32 in the Supreme Court and Article 226 in the High Courts, with Article 227 supplying supervision over tribunals. The five writs are habeas corpus for unlawful detention, mandamus to compel performance of a public duty, prohibition and certiorari against excess of jurisdiction, and quo warranto against a person holding a public office without title.

2. The grounds. Illegality, irrationality, procedural impropriety, proportionality, legitimate expectation and mala fides, worked in [The Grounds of Judicial Review].

3. Natural justice. Maneka Gandhi v. Union of India, AIR 1978 SC 597, is the case that made procedural fairness a constitutional requirement rather than a common law implication.

Facts. The petitioner's passport was impounded under section 10(3)(c) of the Passports Act 1967 "in the public interest", and the Government declined to furnish the statement of reasons that section 10(5) provides for, saying it was withholding them in the interest of the general public.

Held. Articles 14, 19 and 21 form a single scheme, so a law depriving a person of personal liberty must answer the tests of all three. The procedure established by law in Article 21 must be right, just and fair, and not arbitrary, fanciful or oppressive. The right to travel abroad is part of personal liberty, and audi alteram partem applies to the impounding of a passport, though a post-decisional hearing may suffice in urgency.

Why it matters here. The executive had acted under an express statutory power and had given a statutory reason for withholding reasons. It was still held to account, on the ground that a power exercised without a fair procedure is not lawfully exercised at all.

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India has a single integrated judiciary applying one body of law to the whole Union, and almost everything distinctive about its judicial process follows from that fact and from Article 32.

In the wording a student can write in an exam: the judicial process in India is distinguished by five structural features. It is an integrated judiciary: one hierarchy of courts administers both Union and State law, unlike the dual system of the United States. It is common law in method but operates under a written and supreme Constitution. It has an entrenched power of judicial review extending even to constitutional amendments. It couples rights with a remedy that is itself a fundamental right, in Article 32. And it has developed a distinctive procedural jurisdiction, public interest litigation, which has no close counterpart elsewhere.

1. An integrated judiciary

The Supreme Court at the apex; High Courts in the States; subordinate civil and criminal courts under them; tribunals alongside them but subject to High Court supervision after L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.

Facts. A batch of matters questioned whether Articles 323A(2)(d) and 323B(3)(d), which allowed exclusion of the jurisdiction of all courts except the Supreme Court under Article 136 in tribunal matters, could stand against judicial review under Articles 226 and 227 and Article 32; whether tribunals could test the constitutional validity of statutes; and whether they were effective substitutes for the High Courts.

Held. The power of judicial review vested in the High Courts under Articles 226 and 227 and in the Supreme Court under Article 32 is part of the basic structure and cannot be excluded. The exclusion clauses were struck down to that extent. Tribunals may test the vires of subordinate legislation and statutes, but their decisions are subject to scrutiny before a Division Bench of the High Court within whose jurisdiction they fall, and they act as courts of first instance rather than as substitutes for the High Court.

Why it matters here. Integration is not merely descriptive. It is protected: a legislature may create tribunals but may not detach them from the hierarchy.

Consequences of integration. One law throughout the Union, since Article 141 makes the Supreme Court's declaration binding everywhere; no conflict between federal and State court systems; and a single career judiciary at the subordinate level.

2. Common law method under a written constitution

The method is the common law's: adversarial procedure, oral argument, binding precedent, reasoned judgments, development case by case. The framework is a written supreme constitution with justiciable rights.

The combination is unusual and it is the source of the subject's central tension. Common law method invites judicial development, which Module I describes. A written constitution invites the objection that development should come by amendment. Indian constitutional law is the argument between the two.

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Judicial independence means that a judge decides according to law and evidence, and that nothing else, and nobody else, has any purchase on the decision.

In the wording a student can write in an exam: judicial independence is the freedom of a judge, in deciding a case, from any influence other than the law and the evidence. It has two aspects. Individual independence protects the judge deciding a particular case, through security of tenure, protected salary, immunity for judicial acts and freedom from direction. Institutional independence protects the judiciary as an organ, through separation from the executive, control over appointments, financial autonomy and protection of jurisdiction. And it has two directions: independence from the executive and the legislature, and independence from private interest, including the judge's own.

Why it exists, which MU's quotations state

It is not a privilege. MU's 2024-25 paper prints the proposition that judicial independence "is not a privilege of judges but a responsibility cast on him", and this is the correct starting point for an answer. Independence is granted to the office because the function requires it, not to the person because the office deserves it. A judge who invokes independence to avoid accountability has misunderstood it, which is the theme of [Judicial Accountability].

It is a condition of the rule of law. A right against the State is worthless if it is decided by the State.

It is a condition of judicial review. A court that can be pressured cannot check power, which is the argument of [Judicial Review as a Check on Power].

It is what makes adjudication different from administration. An administrator implements policy and is answerable for doing so; a judge decides between parties and must not be answerable to either.

The demonstration that it matters

Additional District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207, is the Indian case that makes the argument for independence unanswerable.

Facts. During the Emergency proclaimed on 25 June 1975, a Presidential Order under Article 359 suspended the right of detenus to move any court to enforce Articles 14, 21 and 22. Detenus applied to High Courts for habeas corpus and several entertained the petitions. The State appealed, contending that the Order barred the courts from entertaining them at all.

Held. By four to one, in view of the Presidential Order no person had any locus standi to move a writ petition under Article 226 before a High Court for habeas corpus to challenge the legality of a detention order on any ground, including mala fides. Section 16A(9) of the Maintenance of Internal Security Act was constitutionally valid. Khanna J. dissented, holding that the State had no power to deprive a person of life or personal liberty without the authority of law even during an emergency.

In one line

Independence in India is not a sentiment; it is a list of specific provisions, and knowing the list is what separates an answer from an essay.

In the wording a student can write in an exam: the independence of the judiciary is secured by provisions dealing with appointment, tenure, removal, salary and allowances, conditions of service after appointment, freedom from legislative discussion, restriction on practice after retirement, contempt jurisdiction, control over subordinate courts, and the separation of the judiciary from the executive.

The provisions, by what they protect

1. Appointment. Articles 124(2) for the Supreme Court and 217(1) for the High Courts require consultation with the Chief Justice of India and others. The meaning of "consultation" is the whole of the Judges cases, treated in [The Appointment of Judges].

2. Tenure. A judge of the Supreme Court holds office until the age of sixty five, Article 124(2); a judge of a High Court until sixty two, Article 217(1). Tenure is not at pleasure and not renewable, so it cannot be used as a reward.

3. Removal. Article 124(4): only by an order of the President after an address by each House supported by a majority of the total membership and by not less than two thirds of the members present and voting, on the ground of proved misbehaviour or incapacity, in the same session. Article 218 applies it to High Court judges. The Judges (Inquiry) Act 1968 supplies the procedure. The threshold is deliberately high, and the consequence, that removal is close to unusable, is the criticism in [Judicial Accountability].

4. Salary and allowances. Article 125 for the Supreme Court and Article 221 for the High Courts. Salaries are charged on the Consolidated Fund and are therefore not submitted to the vote of the legislature, and privileges and allowances shall not be varied to a judge's disadvantage after appointment.

5. Administrative expenses. Article 146(3) charges the administrative expenses of the Supreme Court on the Consolidated Fund of India; Article 229(3) does the same for a High Court on the State's fund.

6. Freedom from legislative discussion. Article 121 forbids discussion in Parliament of the conduct of a judge of the Supreme Court or a High Court in the discharge of his duties, except on a motion for an address for removal; Article 211 imposes the same bar on State legislatures.

7. Restriction on practice. Article 124(7): a retired judge of the Supreme Court shall not plead or act before any court or authority in India. Article 220 restricts a retired High Court judge from practising before that High Court or any court subordinate to it.

8. Contempt. Article 129 makes the Supreme Court a court of record with power to punish for contempt of itself; Article 215 does the same for High Courts. Regulated by the Contempt of Courts Act 1971, section 13 of which, as amended in 2006, permits truth as a defence where it is in the public interest and the plea is bona fide.

In one line

The Constitution gives the appointment of judges to the President after consultation with the Chief Justice, and almost everything now done under it comes from what the courts made of the word consultation.

In the wording a student can write in an exam: Article 124(2) provides that every judge of the Supreme Court shall be appointed by the President after consultation with such judges of the Supreme Court and of the High Courts as the President may deem necessary, and that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted. Article 217(1) provides that a judge of a High Court shall be appointed by the President after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a judge other than the Chief Justice, the Chief Justice of the High Court.

The text, taken apart

"Appointed by the President." Under Article 74(1) the President acts on the aid and advice of the Council of Ministers, so on the plain reading the appointment is made by the executive.

"After consultation with." The word is consultation, not concurrence. On its ordinary meaning it requires the views to be sought and considered, not obeyed. This is the word the whole controversy is about.

"Such judges as the President may deem necessary." Discretionary as to whom, except that the Chief Justice of India must always be consulted for a puisne judge.

"Shall always be consulted." Mandatory for the Chief Justice of India.

The qualifications

Supreme Court, Article 124(3). A citizen who has been a judge of a High Court, or of two or more such courts in succession, for at least five years; or an advocate of a High Court, or of two or more such courts in succession, for at least ten years; or a distinguished jurist in the opinion of the President. The third category has never been used.

High Court, Article 217(2). A citizen who has held judicial office in India for at least ten years, or has been an advocate of a High Court, or of two or more such courts in succession, for at least ten years.

No fixed criteria beyond these. There is no examination, no published criteria of merit, and no requirement to record reasons, which is the source of the transparency criticism.

The problem the text leaves

Who decides if opinions differ? The text does not say. If consultation is not concurrence, the executive decides; if the Chief Justice's view must prevail, the judiciary decides. Nothing in Articles 124 and 217 resolves it.

Why it matters for independence. A judiciary whose members are chosen by the executive is exposed to the influence the appointment power carries, both before appointment, in the selection, and after it, in elevation and post-retirement office. That is MU's 2018 question exactly.

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In 1981 the Supreme Court opened its doors to anyone acting in good faith for those who could not come, and in the same judgment held that the executive, not the Chief Justice, has the last word on who becomes a judge.

In the wording a student can write in an exam: S.P. Gupta v. President of India, AIR 1982 SC 149, known as the First Judges case, decided two things. On standing, that where a legal wrong is caused to a person or a determinate class who cannot approach the court by reason of poverty, disability or a socially or economically disadvantaged position, any member of the public acting bona fide may move the court under Article 226 or Article 32. On appointments, that "consultation" in Articles 124(2) and 217(1) does not mean concurrence, and that the ultimate power of appointment rests with the Central Government.

The case

Facts. Writ petitions filed in different High Courts and transferred to the Supreme Court under Article 139A challenged three things: a circular of the Union Law Minister asking Chief Ministers to obtain from additional judges their consent to appointment outside their own States; the non-extension of the terms of certain additional judges; and the transfer of two High Court judges. The petitions were brought by advocates who were not themselves affected, so their standing was in question.

Held. On standing, the Court widened locus standi decisively: where a legal wrong or injury is caused to a person or to a determinate class who by reason of poverty, disability or a socially or economically disadvantaged position cannot approach the court for relief, any member of the public acting bona fide may move the court under Article 226 or Article 32. On appointments, the majority held that consultation with the Chief Justice of India under Articles 124 and 217 does not mean concurrence, that the opinions of the constitutional functionaries are entitled to great weight but are not binding, and that the ultimate power of appointment rests with the Central Government.

Why it matters. It is the high water mark of executive primacy in judicial appointments, and it was the law for twelve years. It is also the birth of modern public interest litigation.

The appointments holding, unpacked

"Consultation is not concurrence." The reasoning is textual and orthodox. Where a constitution intends concurrence it says so; the framers used "consultation", and the ordinary meaning of that word is that the view must be sought and considered.

"The opinions are entitled to great weight." Consultation must be full and effective, in the sense established in Union of India v. Sankalchand Himatlal Sheth, AIR 1977 SC 2328: the material must be furnished and an opinion actually formed. What the Court denied was that the opinion binds.

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In 1993 the Supreme Court reversed itself and took the appointment of judges out of the hands of the government, on the ground that a judiciary chosen by the executive cannot be independent of it.

In the wording a student can write in an exam: Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441, the Second Judges case, overruled the First Judges case on appointments and held that in the matter of appointment of judges of the Supreme Court and the High Courts the opinion of the Chief Justice of India has primacy, and that his opinion is not his individual opinion but one formed collectively, after taking into account the views of his senior colleagues who are required to be consulted. MU prints the citation as "1994", which is the year of the AIR report.

The case

Facts. The correctness of the majority view in S.P. Gupta, that consultation does not mean concurrence and that the executive has primacy in judicial appointments, was referred to a nine judge Bench, together with questions on the transfer of High Court judges and on the fixation of judge strength.

Held. S.P. Gupta was overruled on this point. In the matter of appointment of judges of the Supreme Court and the High Courts the opinion of the Chief Justice of India has primacy. That primacy is, in effect, the primacy of the opinion of the Chief Justice of India formed collectively, that is to say, after taking into account the views of his senior colleagues who are required to be consulted by him for the formation of his opinion. In view of Article 74(1), the expression "President" in Articles 124(2) and 217(1) means the President acting in accordance with the advice of the Council of Ministers with the Prime Minister at the head, and the advice given must accord with the mandate of the Constitution.

Why it matters. It created the collegium, which is the arrangement under which every Indian judge has since been appointed, and it did so without any amendment to the Constitution.

The reasoning, which is what MU's question wants

MU asks whether the appointment procedure ensures independence, "in the light of" this case. So the reasoning matters more than the result.

1. Independence is part of the basic structure. If so, the appointment procedure must be read so as to secure it rather than to defeat it.

2. A judiciary appointed by the executive it reviews cannot be independent of it. Not because any particular appointment is corrupt, but because the power to appoint is a standing influence.

3. "Consultation" takes its meaning from the scheme, not from the dictionary. In the context of appointments to a judiciary whose independence the Constitution secures elsewhere at length, the word must be read to require that the judicial view prevail.

In one line

Five years after creating the collegium, the Court was asked what it actually was, and answered: the Chief Justice plus the four senior-most judges for the Supreme Court, plus the two senior-most for a High Court.

In the wording a student can write in an exam: In re Special Reference No. 1 of 1998, (1998) 7 SCC 739, the Third Judges case, was an advisory opinion given by nine judges on a Presidential Reference under Article 143. It held that the Chief Justice of India must consult a plurality of judges and cannot act in his individual capacity; that for appointments to the Supreme Court the collegium consists of the Chief Justice of India and the four senior-most puisne judges; that for appointments to a High Court the Chief Justice consults the two senior-most judges of the Supreme Court; and that an opinion formed without such consultation is not binding on the Government.

What a Presidential Reference is

Article 143(1) permits the President, where a question of law or fact of public importance has arisen or is likely to arise, to refer it to the Supreme Court for its opinion. The opinion is advisory: it does not decide a lis and is not, strictly, binding. In practice it is followed, and this reference has been treated as settled law ever since.

The route was used because there was no litigation in which the questions could be raised, and because the Government and the Chief Justice of India had differed on how the Second Judges case was to be worked.

The questions referred

The reference asked, among other things:

• whether "consultation with the Chief Justice of India" in Articles 217(1) and 222(1) requires consultation with a plurality of judges in the formation of the opinion of the Chief Justice, or whether his sole individual opinion constitutes consultation;
• whether the transfer of judges is judicially reviewable, in the light of the Second Judges case's observations that transfer is not justiciable on any ground and its further observation that limited review is available;
• whether Article 124(2) as interpreted requires the Chief Justice to consult only the two senior-most judges or whether there should be wider consultation according to past practice;
• whether the Chief Justice of India is entitled to act solely in his individual capacity, without consulting other judges of the Supreme Court, in respect of material conveyed by the Government against a recommended candidate.

The answers

Plurality is required. The Chief Justice of India cannot act in his individual capacity. An opinion formed without consulting the required judges is not an opinion within Articles 124(2) and 217(1) at all.

The Supreme Court collegium. The Chief Justice of India and the four senior-most puisne judges of the Supreme Court. Ordinarily one of those four will succeed as Chief Justice, but if the successor Chief Justice is not among the four he must invariably be made part of the collegium, because the judges appointed will serve during his term and he should have a hand in their selection. It is not practicable to include the senior-most judge who comes from the same High Court as the person recommended, unless he is part of the collegium as one of the four.

In one line

Parliament tried to replace the collegium with a commission, and the Supreme Court struck down both the amendment and the Act that made it, on the ground that judicial primacy in appointments is part of the basic structure.

In the wording a student can write in an exam: the Constitution (Ninety-ninth Amendment) Act 2014 inserted Articles 124A, 124B and 124C and substituted Articles 124(2), 217(1) and 222(1), replacing the collegium with a National Judicial Appointments Commission. The National Judicial Appointments Commission Act 2014 provided the machinery. In Supreme Court Advocates-on-Record Association v. Union of India, decided on 16 October 2015, a Constitution Bench declared both unconstitutional and void by four to one and declared the collegium system operative.

A trap in the name, before anything else

Two different decisions carry this name. The Second Judges case of 1993, which created the collegium, is Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441. The NJAC decision of 2015, which struck down the amendment replacing the collegium, is Supreme Court Advocates-on-Record Association v. Union of India, decided on 16 October 2015. Same petitioner, same respondent, twenty two years apart, opposite subject matter. A citation given without a year or a date does not identify which is meant, and an answer that cites "Advocates-on-Record" for a proposition from the wrong one loses the mark it was trying to earn.

What the NJAC would have been

Composition, under Article 124A. The Chief Justice of India as chairperson; the two next senior-most judges of the Supreme Court; the Union Minister in charge of Law and Justice; and two eminent persons, nominated by a committee of the Prime Minister, the Chief Justice of India and the Leader of the Opposition in the House of the People, one of the eminent persons to be from the Scheduled Castes, Scheduled Tribes, Other Backward Classes, minorities or women.

The veto. The Act provided that the Commission shall not recommend a person if any two members do not agree. The consequence is arithmetical and is the heart of the case: the three judges could be outvoted by the Law Minister and the two eminent persons, and any two non-judicial members could block a recommendation the three judges supported.

Article 124C. Parliament was empowered to regulate the procedure by law, and the Commission to make regulations, which the challengers said left the whole machinery at Parliament's disposal.

The decision

Facts. The Constitution (Ninety-ninth Amendment) Act 2014 and the National Judicial Appointments Commission Act 2014 replaced the collegium with a commission of the Chief Justice of India, the two next senior judges of the Supreme Court, the Union Minister of Law and Justice and two eminent persons, with a veto exercisable by any two members. Both were challenged, and the Union asked for the Second and Third Judges cases to be reconsidered by a larger Bench.

In one line

To say the judicial process is political is not to say judges are partisan; it is to say that deciding who gets what in a society is a political function however it is done, and courts do it.

In the wording a student can write in an exam: the judicial process is political in three distinct senses, and they must be separated. It is political in the constitutional sense, because a court exercising judicial review allocates power between organs of the State and decides contested questions of public value. It is political in the institutional sense, because the judiciary's composition, jurisdiction and resources are determined through political processes. It is political in the pejorative sense only if judges decide by partisan preference rather than by law, and that is a charge to be proved and not assumed.

Sense one: constitutionally political

Judicial review allocates power. When a court holds that a subject belongs to the States and not to the Union, or that an amendment exceeds Article 368, it is deciding who governs. That is a political question in the classical meaning of the word.

Constitutional adjudication decides contested values. Whether talaq-e-biddat is protected by Article 25 or forbidden by Article 14; whether the exclusion of women from a temple is an essential religious practice; whether privacy is part of liberty. These are questions on which a society is divided, and a court answers them.

The remedies are governmental in effect. Guidelines that regulate every workplace, directions that reorganise an administration, and rules for advance medical directives are governmental acts in substance whatever their form.

Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, is the case where the political character is undeniable.

Facts. The Allahabad High Court set aside the election of the Prime Minister on 12 June 1975, holding that she had committed corrupt practice by obtaining the assistance of a gazetted officer, and disqualified her for six years. While her appeal was pending, the Constitution (Thirty-ninth Amendment) Act 1975 inserted Article 329A, clause (4) of which purported to declare that her election could not be called in question in any court and that the pending appeal would abate.

Held. The appeal succeeded on the merits under the amended election law, but clause (4) of Article 329A was struck down as destructive of the basic structure. It did not amend the election law; it decided a particular dispute by constitutional fiat, withdrawing it from every court, and so violated the rule of law, free and fair elections, and the separation of the judicial function from the legislative.

Why it matters here. The subject matter was the tenure of the head of government. No account of the judicial process that treats it as a technical exercise can accommodate a case like this, and the Court's reasoning is itself political in the constitutional sense: it is about how power is held and lost.

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The dangerous influences on a judge are not bribes; they are the ordinary hopes and fears that the structure of the office creates, and the Indian structure creates several.

In the wording a student can write in an exam: structural vulnerability is exposure to influence that arises from the design of the office rather than from any wrongdoing. A judge is structurally vulnerable where the political executive controls something the judge may want or fear: elevation to a higher court, appointment as Chief Justice, transfer to another High Court, post-retirement office, and, historically, supersession. The proposition MU sets is that independence requires the removal of these dependencies, so that the judge holds office free of any obligation to the executive.

The five vulnerabilities

1. Elevation. A High Court judge hoping for the Supreme Court, or a puisne judge hoping to be Chief Justice of a High Court, has an interest in the goodwill of those who decide. Since 1993 the decision is the collegium's, which removes the executive from it but substitutes a dependence on senior judges.

2. Supersession. Passing over the senior-most judge for the office of Chief Justice of India. This is the historical Indian vulnerability, and its most cited instance is the supersession of Khanna J. after his dissent in Additional District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207.

Facts. During the Emergency proclaimed on 25 June 1975, a Presidential Order under Article 359 suspended the right of detenus to move any court to enforce Articles 14, 21 and 22. Detenus applied to High Courts for habeas corpus and several entertained the petitions. The State appealed, contending that the Order barred the courts from entertaining them at all.

Held. By four to one, in view of the Presidential Order no person had any locus standi to move a writ petition under Article 226 before a High Court for habeas corpus to challenge the legality of a detention order on any ground, including mala fides. Section 16A(9) of the Maintenance of Internal Security Act was constitutionally valid. Khanna J. dissented, holding that the State had no power to deprive a person of life or personal liberty without the authority of law even during an emergency.

Why it matters here. The dissenting judge was next in line for the office of Chief Justice and was passed over. Nothing in the Constitution required seniority to be followed, and nothing forbade it being departed from. That is a structural vulnerability exactly: no rule was broken, and the incentive was visible to every judge who came after.

3. Transfer. Article 222 permits transfer of a High Court judge. Union of India v. Sankalchand Himatlal Sheth, AIR 1977 SC 2328, confined it.

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No supreme court in the world has made more law out of an unamended text than the Supreme Court of India, and the record divides into five clear periods.

In the wording a student can write in an exam: the judicial creativity of the Supreme Court of India has developed through five periods: a formal period from 1950 to 1967; a period of struggle over the amending power from 1967 to 1973; the failure of 1975 to 1977; the transformative period from 1978 to the early 1990s; and a period of consolidation and self-criticism from the mid-1990s to the present.

1950 to 1967: the formal period

The Court read the Constitution as a lawyer's document.

A.K. Gopalan v. State of Madras, AIR 1950 SC 27, is the emblem.

Facts. The petitioner, detained under the Preventive Detention Act 1950, sought habeas corpus under Article 32, arguing that the Act violated Articles 13, 19, 21 and 22.

Held. The majority upheld the Act except for section 14, which was severable. The fundamental rights were read as separate and self-contained: a law of preventive detention was to be tested against Article 22 alone; Article 19 had no application to a person lawfully detained; and "procedure established by law" in Article 21 meant procedure laid down by a duly enacted law. Fazl Ali J. dissented, holding that the articles overlap and that the procedure must satisfy natural justice.

Why it matters here. It is the baseline against which everything after 1978 is measured, and its dissent is the seed of what followed.

Also in this period: Sri Sankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458, upholding the First Amendment, and Bengal Immunity Co. Ltd. v. State of Bihar, (1955) 2 SCR 603, establishing that the Court may depart from its own decisions.

The most revealing of the early amendment cases is Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845, because of what two judges said while agreeing with the result.

Facts. After the First and Fourth Amendments, State land reform measures were still being struck down, so Parliament enacted the Constitution (Seventeenth Amendment) Act 1964, again amending Article 31A and adding forty four Acts to the Ninth Schedule. Persons affected by those Acts challenged the Seventeenth Amendment, contending that Sankari Prasad had been wrongly decided.

Held. The majority followed Sankari Prasad and upheld the Seventeenth Amendment, holding again that an amendment made under Article 368 is not law within Article 13(2) and so is not void for abridging a fundamental right. Two judges, Hidayatullah and Mudholkar JJ., expressed doubts, Mudholkar J. asking whether the Constitution has basic features that the amending power cannot touch.

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The Constitution states what kind of society India is to become, and the question is what a court can properly do to get there.

In the wording a student can write in an exam: the constitutional goals and values are the ends the Constitution declares for the Indian polity. They are stated in the Preamble, which resolves to constitute India a sovereign socialist secular democratic republic and to secure to all its citizens justice, liberty, equality and fraternity; in Part III, which makes certain of them enforceable rights; and in Part IV, the directive principles, which Article 37 declares fundamental in the governance of the country and a duty of the State to apply in making laws, though not enforceable by any court. The judicial process pursues them by reading Part III in the light of Part IV, by holding the balance between the two, and by enforcing Part III against the State.

The three sources of the goals

The Preamble. Justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity; and fraternity assuring the dignity of the individual and the unity and integrity of the Nation. It has been held to be part of the Constitution and a key to its interpretation.

Part III. Equality, freedom, life and personal liberty, freedom of religion, cultural and educational rights, and the right to constitutional remedies. Enforceable.

Part IV. Adequate means of livelihood, distribution of material resources to subserve the common good, equal pay, health, free and compulsory education for children, living wage, humane conditions of work, legal aid under Article 39A, uniform civil code under Article 44, separation of the judiciary from the executive under Article 50, and protection of the environment under Article 48A. Not enforceable, but fundamental in governance.

How the process pursues them

1. By reading Part III in the light of Part IV. The characteristic Indian technique. Unni Krishnan, J.P. v. State of Andhra Pradesh, AIR 1993 SC 2178, is the model.

Facts. Private unaided professional colleges challenged State legislation regulating capitation fees, and the Court reconsidered how far Mohini Jain v. State of Karnataka, AIR 1992 SC 1858, had gone in recognising a fundamental right to education.

Held. The right to education flows from the right to life under Article 21, but its content is to be determined in the light of the directive principles in Articles 41, 45 and 46. Every child therefore has a fundamental right to free education up to the age of fourteen years; beyond that age the right is subject to the limits of the State's economic capacity and development. A scheme regulating admissions and fees in private professional colleges was framed.

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The activism of the 1980s was about reading rights into the Constitution; the activism of the present is about privacy, autonomy and governance, and it is conducted by a court whose main problem is that it cannot get through its own list.

In the wording a student can write in an exam: the new dimensions of judicial activism are the fields into which it has moved since about 2000: privacy and informational autonomy; personal and sexual autonomy; dignity in dying; environmental governance through specialised institutions; electoral and governance transparency; and continuing supervision of administration. The structural challenges are the conditions under which it is exercised: arrears, vacancies, the State as the largest litigant, cost and distance, the enforcement gap, and the absence of criteria in appointments.

The new dimensions

1. Privacy and informational autonomy. Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

Facts. A nine judge Bench was constituted to decide whether the Constitution guarantees a fundamental right to privacy, because two early decisions, M.P. Sharma and Kharak Singh, had said it did not, while later decisions had assumed it did.

Held. Unanimously, M.P. Sharma and Kharak Singh stand overruled to the extent that they held privacy not to be protected, and the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III.

Why it matters here. It is a new dimension in two senses: the subject matter did not exist in this form when the Constitution was written, and the technique was to overrule the Court's own early decisions by a Bench large enough to do it.

2. Personal and sexual autonomy. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

Worked in full in [The Constitution as a Living Document]. Section 377 of the Indian Penal Code was held unconstitutional so far as it criminalised consensual sexual conduct between adults in private, as violating Articles 14, 15, 19 and 21, and Suresh Kumar Koushal was overruled.

Why it matters here. The reasoning is the new dimension: constitutional morality, and not popular or majoritarian morality, governs the interpretation of fundamental rights, expressly against majority sentiment.

3. Dignity in dying. Common Cause v. Union of India, (2018) 5 SCC 1.

Facts. A registered society sought a declaration that the right to die with dignity is a fundamental right within Article 21, and directions permitting a competent adult to execute an advance medical directive refusing life-sustaining treatment.

Held. The right to live with dignity includes dignity in the process of dying, passive euthanasia is permissible in law, and an advance medical directive is legally valid. Because Parliament had not legislated, the Court laid down detailed guidelines on who may execute a directive, how it is to be recorded and witnessed, and the medical board procedure for giving effect to it, to hold the field until legislation is made.

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Almost every doctrine an Indian constitutional law student learns was made by a court, and knowing which case made which is the whole of this question.

In the wording a student can write in an exam: constitutional jurisprudence means the body of doctrine by which the constitutional text is understood and applied. In India, that body has been built almost entirely by judicial decision rather than by amendment, and its principal doctrines are the basic structure, the golden triangle of Articles 14, 19 and 21, the arbitrariness doctrine, the expanded content of Article 21, the State in Article 12, public interest litigation, public law compensation, and constitutional morality.

Doctrine by doctrine, with the case that made it

1. The basic structure. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, holding that Parliament's power to amend under Article 368 does not extend to damaging or destroying the basic structure. Applied in Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299; Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789; L. Chandra Kumar v. Union of India, AIR 1997 SC 1125; I.R. Coelho v. State of Tamil Nadu, decided on 11 January 2007; and the NJAC decision of 16 October 2015. Not in the text.

2. The golden triangle. Maneka Gandhi v. Union of India, AIR 1978 SC 597, holding that Articles 14, 19 and 21 form a single scheme, so a law depriving a person of personal liberty must satisfy all three and the procedure must be right, just and fair. It reversed the compartments of A.K. Gopalan v. State of Madras, AIR 1950 SC 27, on an unchanged text.

3. Arbitrariness. E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555.

Facts. A senior member of the Indian Administrative Service, appointed Chief Secretary of Tamil Nadu, was moved to posts he said were inferior, alleging mala fides because he had displeased the Chief Minister, and complaining under Articles 14 and 16.

Held. The petition failed on the facts. In reasoning, equality is a dynamic concept which cannot be cribbed, cabined and confined within traditional and doctrinaire limits; from a positivistic point of view equality is antithetic to arbitrariness; equality and arbitrariness are sworn enemies, so that an arbitrary act is implicitly unequal and violates Article 14.

Why it matters here. A doctrine that governs Indian public law was made in a petition that failed, in reasoning strictly unnecessary to the decision, and is now applied to strike down statutes and practices, as the majority did in Shayara Bano v. Union of India, AIR 2017 SC 4609.

4. The expanded content of Article 21. Dignity and the bare necessaries in Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746; speedy trial and legal aid in Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1360; livelihood in Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180; pollution free water and air in Subhash Kumar v. State of Bihar, AIR 1991 SC 420; education in Unni Krishnan, J.P. v. State of Andhra Pradesh, AIR 1993 SC 2178; privacy in Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

In one line

Public interest litigation is a proceeding brought by somebody who has suffered no personal wrong, on behalf of people who cannot come to court themselves, and almost everything about ordinary procedure had to be changed to make it possible.

In the wording a student can write in an exam: public interest litigation is a proceeding under Article 32 or Article 226 in which a person acting bona fide, and not himself aggrieved, invokes the jurisdiction of the court to redress a public wrong or to enforce the rights of a person or class who by reason of poverty, disability or a socially or economically disadvantaged position cannot approach the court themselves. It departs from the ordinary adversarial model in who may sue, in the form of the proceeding, in how facts are found, in the remedies granted, and in the court's continuing role after judgment.

Why it had to be invented

The ordinary model assumes a plaintiff who can litigate. He must know his rights, afford a lawyer, and be able to travel and wait.

The people whose rights were most often violated could do none of that. Undertrials, bonded labourers, pavement dwellers, prisoners.

The result was a right that existed on paper. Article 32 was available and nobody came.

So the model was changed. The change was procedural, and it is the largest single piece of judicial creativity in Indian law after Kesavananda.

The five departures from the ordinary model

1. Who may sue. S.P. Gupta v. President of India, AIR 1982 SC 149, is the source.

Facts. Writ petitions filed in different High Courts and transferred under Article 139A challenged the Law Minister's circular on the consent of additional judges, the non-extension of the terms of certain additional judges, and the transfer of two High Court judges. Advocates who were not themselves affected brought the petitions, so their standing was in question.

Held. Where a legal wrong is caused to a person or a determinate class who by reason of poverty, disability or a socially or economically disadvantaged position cannot approach the court, any member of the public acting bona fide may move the court under Article 226 or Article 32. On appointments the majority held that consultation with the Chief Justice does not mean concurrence and that the ultimate power rests with the Central Government.

Why it matters here. It is the constitutional foundation. Every later public interest case rests on this holding, and the appointments holding it was decided alongside has been overruled while this one has not.

2. The form of the proceeding. A letter may be treated as a petition; this is epistolary jurisdiction, worked in the next chapter.

In one line

Two rules were changed, one about who may complain and one about how, and between them they brought a population into court that had never been in one.

In the wording a student can write in an exam: locus standi is the standing required to invoke the jurisdiction of a court. The traditional rule was that only a person whose own legal right had been infringed could sue. Epistolary jurisdiction is the practice by which a court treats a letter addressed to it, or to a judge, as a writ petition. The first change decided who may come; the second decided how, and together they are the procedural foundation of public interest litigation.

The traditional rule and why it existed

The rule. Only a person aggrieved may sue. A stranger has no standing however serious the wrong.

Its justifications, which are real. It keeps courts from being flooded by people with no stake; it ensures the case is presented by somebody with an interest in presenting it well; it prevents officious interference in disputes belonging to others; and it keeps the judicial function tied to the resolution of concrete disputes.

Its failure in Indian conditions. Where the person aggrieved is a bonded labourer, the rule means the wrong is not litigated at all. The rule assumes an aggrieved person who is able to sue, and the whole problem was that he was not.

The relaxation

S.P. Gupta v. President of India, AIR 1982 SC 149, is the case.

Facts. Writ petitions filed in different High Courts and transferred under Article 139A challenged the Law Minister's circular on the consent of additional judges, the non-extension of the terms of certain additional judges, and the transfer of two High Court judges. Advocates who were not themselves affected brought the petitions, so their standing was in question.

Held. Where a legal wrong is caused to a person or a determinate class who by reason of poverty, disability or a socially or economically disadvantaged position cannot approach the court, any member of the public acting bona fide may move the court under Article 226 or Article 32. On appointments the majority held that consultation with the Chief Justice does not mean concurrence and that the ultimate power rests with the Central Government.

Why it matters here. Note the conditions, which students omit and which are the whole of the rule. The wrong must be to a determinate person or class; the reason they cannot come must be poverty, disability or a socially or economically disadvantaged position; and the applicant must be acting bona fide. It is not a rule that anyone may litigate anything.

In one line

Once the court let people in who could not litigate, it had to invent things to do for them, because a declaration of right is useless to someone who cannot enforce it.

In the wording a student can write in an exam: public interest litigation creates new dimensions for achieving justice because it changes what a court can deliver. The ordinary remedy is a declaration or an order between parties, executed by the party who won. Public interest litigation added fact-finding by commission, continuing mandamus, guidelines in the absence of legislation, compensation in public law, structural directions to an administration, and retention of the matter for supervision. Together these amount to the court acting as an arm of justice rather than as an umpire of a dispute.

Why declarations were not enough

A bonded labourer who obtains a declaration that bonded labour is unlawful is still a bonded labourer. He cannot execute a decree, cannot pay a lawyer to pursue contempt, and cannot return to court next year. The remedy has to operate without him, or it does not operate.

That is the whole reason the remedial dimensions exist, and it is the answer to the objection that the Court was simply enlarging its own powers.

The six dimensions

1. Fact-finding by commission. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.

Worked in full in [Locus Standi and Epistolary Jurisdiction]. Every objection an opponent can make was made there and rejected: that a letter cannot be a writ petition, that no fundamental right of the petitioner was infringed, that no commission may be appointed under Article 32, and that ex parte reports have no evidentiary value. Article 32 prescribes no form; commissioners may be appointed because otherwise the poor could never prove their case; and their reports are material the Court may act on once the parties have answered them.

Why it is first. Without proof, standing achieves nothing. This is the remedial dimension the others depend on.

2. Continuing mandamus. The matter is not disposed of. Directions are issued, compliance is reported, further directions follow, and the case remains on the board for years. It converts a single order into a supervisory relationship, and it is the dimension most criticised as administration by court.

3. Guidelines in the absence of legislation. Vishaka v. State of Rajasthan, AIR 1997 SC 3011.

Facts. A class action was brought under Article 32 by social activists and non-governmental organisations for the enforcement of the fundamental rights of working women, the immediate cause being the alleged gang rape of a social worker in a village in Rajasthan. There was no Indian legislation on sexual harassment at the workplace.

In one line

The jurisdiction that let in the bonded labourer also let in the rival trader, the political opponent and the publicity seeker, and the court has had to build a filter it did not originally have.

In the wording a student can write in an exam: misuse of public interest litigation occurs where the jurisdiction is invoked otherwise than for the benefit of a person or class who cannot approach the court. Its recognised forms are private interest disguised as public, publicity interest, political interest, commercial rivalry, extortion, and frivolous or ill-informed petitions. The remedies are dismissal for want of bona fides, exemplary costs, verification of credentials and contents before entertaining, rules framed by the High Courts, prosecution for perjury in a proper case, and judicial restraint in the kind of matter entertained.

The forms of misuse

1. Private interest in public dress. Subhash Kumar v. State of Bihar, AIR 1991 SC 420.

Facts. The petitioner filed a public interest petition under Article 32 alleging that West Bokaro Collieries and Tata Iron and Steel Company were polluting the Bokaro river by discharging slurry, and sought directions restraining them. He also asked, by way of interim relief, to be permitted to collect the slurry himself. The pollution boards showed that directions had been issued and permissions granted under the Water (Prevention and Control of Pollution) Act 1974.

Held. The right to life under Article 21 includes the right of enjoyment of pollution free water and air, and a citizen may move the court under Article 32 to remove pollution detrimental to the quality of life. But the petition was dismissed with costs of five thousand rupees: it was not a genuine public interest litigation, having been brought to satisfy a personal grudge and to secure the petitioner's own interest in obtaining slurry, and public interest litigation cannot be invoked to satisfy a personal grudge or enmity.

Why it matters here. It is the model case, because the Court declared a new environmental right and dismissed the petitioner with costs in the same judgment. That combination is what makes it usable in an answer: the jurisdiction is valuable and the abuse of it is separately punishable.

2. The busybody and the meddlesome interloper. Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305.

Facts. An advocate who was a stranger to the proceedings sought to intervene in the Bofors investigation while it was still at the stage of investigation, invoking the public interest jurisdiction.

Held. He had no locus standi: though a member of a noble profession, he had no direct interest in the investigation and suffered no special loss, and the doors of the court would not be opened to him at that stage. Only a person acting bona fide and having sufficient interest may move the court in public interest, and petitions by busybodies, meddlesome interlopers and persons with an oblique motive must be rejected.

In one line

A constitution meant to last centuries cannot be confined to the understandings of the year it was written, and the Indian court has said so and acted on it more than any other.

In the wording a student can write in an exam: to call the Constitution a living document is to say that its provisions are to be read as capable of applying to conditions the framers did not foresee, and that their meaning may develop with changing social understanding without any amendment of the text. The competing view is originalism, that the text means what it meant when adopted, and that change should come through Article 368 rather than through interpretation.

The argument for the living reading

1. A constitution is meant to endure. An instrument written for an indefinite future cannot be tied to the technology, the economy or the social assumptions of the year of its adoption.

2. It is written in the language of values, not of rules. "Equality", "liberty", "life", "reasonable" do not carry fixed content. A text of that kind invites development.

3. Amendment is a poor instrument for meaning. Amendment is available for structural change. Using it to keep pace with every change in circumstance would make the Constitution a statute book.

4. The Indian Constitution is transformative. It was adopted to change an existing social order, not to record it, so reading it by the understandings of 1950 would be reading it against its purpose.

The Indian demonstrations

Privacy. Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

Facts. A nine judge Bench was constituted to decide whether the Constitution guarantees a fundamental right to privacy, because two early decisions, M.P. Sharma and Kharak Singh, had said it did not, while later decisions had assumed it did.

Held. Unanimously, M.P. Sharma and Kharak Singh stand overruled to the extent that they held privacy not to be protected, and the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III.

Why it matters here. The framers cannot have contemplated informational privacy in its modern form. The living reading is what allowed the same words to reach it, and the Court had to overrule its own early decisions to get there.

Sexual autonomy and constitutional morality. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

Facts. The petitioners sought a declaration that the right to sexuality, sexual autonomy and choice of a sexual partner is part of Article 21, and that section 377 of the Indian Penal Code, so far as it criminalised consensual sexual acts between adults, was unconstitutional. An earlier two judge Bench in Suresh Kumar Koushal had restored section 377 after the Delhi High Court had read it down.

In one line

The rights to livelihood, education, health, shelter, a clean environment, privacy and legal aid are not in the Constitution; they were put into Article 21 by decisions, one at a time, over forty years.

In the wording a student can write in an exam: the new socio-economic rights are rights not enumerated in Part III which the Supreme Court has held to be implicit in the fundamental rights, chiefly in Article 21, read in the light of the directive principles in Part IV. The technique is to treat the right to life as a right to life with human dignity, and then to hold that a particular condition is necessary to a life with dignity. The provisions on which the reasoning rests are Articles 21, 14, 19, 23 and 32 in Part III, and Articles 39, 39A, 41, 42, 43, 45, 46, 47 and 48A in Part IV.

The doctrinal foundation, in three steps

Step one: the golden triangle. Maneka Gandhi v. Union of India, AIR 1978 SC 597, held that Articles 14, 19 and 21 form a single scheme and that procedure under Article 21 must be right, just and fair. Without this step Article 21 remains a narrow procedural guarantee.

Step two: life means life with dignity. Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746.

Facts. A British national detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act complained that the conditions of her detention, which restricted interviews with her lawyer and her young daughter to one a month under prison rules, violated Articles 14 and 21.

Held. The right to life in Article 21 includes the right to live with human dignity and all that goes with it, namely the bare necessaries of life such as adequate nutrition, clothing and shelter, and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. The content varies with the economic development of the country but must include the basic necessities of life. The restrictions on interviews were struck down.

Why it matters here. It is the hinge. Once life means life with dignity, and dignity requires the bare necessaries, every socio-economic right becomes arguable.

Step three: Part IV supplies the content. Unni Krishnan, J.P. v. State of Andhra Pradesh, AIR 1993 SC 2178, read the right to education from Article 21 in the light of Articles 41, 45 and 46, and confined it at fourteen years by reference to the State's economic capacity.

The catalogue, with provisions

1. Livelihood. Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180. Article 21 with Article 39(a).

In one line

Indian constitutional law began by treating procedure as whatever a valid statute laid down, and ended by treating an unfair procedure as no procedure at all.

In the wording a student can write in an exam: the balance between procedural technicality and the substantive protection of fundamental rights is the question whether compliance with the form of a legal power is enough, or whether the substance of the right must also be protected. Under Article 21 the Indian answer moved from form to substance when Maneka Gandhi v. Union of India, AIR 1978 SC 597, held that the procedure established by law must be right, just and fair. Under Article 14 it moved from form to substance when E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, held that arbitrariness is the antithesis of equality, so that a measure formally applying to all may still be void.

The starting position: form was enough

A.K. Gopalan v. State of Madras, AIR 1950 SC 27.

Facts. The petitioner, detained under the Preventive Detention Act 1950, sought habeas corpus under Article 32, arguing that the Act violated Articles 13, 19, 21 and 22.

Held. The majority upheld the Act except for section 14, which was severable. The fundamental rights were read as separate and self-contained: a preventive detention law was to be tested against Article 22 alone, Article 19 had no application to a person lawfully detained, and "procedure established by law" in Article 21 meant procedure laid down by a duly enacted law, not procedure a court would find fair. Fazl Ali J. dissented, holding that the articles overlap and that the procedure must satisfy natural justice.

Why it matters here. It is the purest statement of form over substance in Indian law. If Parliament enacted a procedure, the procedure was constitutional, whatever it provided.

The turn on Article 14

E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555.

Facts. A senior member of the Indian Administrative Service, appointed Chief Secretary of Tamil Nadu, was moved to the posts of Deputy Chairman of the State Planning Commission and then Officer on Special Duty, which he said were inferior. He alleged that the transfers were mala fide because he had displeased the Chief Minister, and complained under Articles 14 and 16.

Held. The petition failed on the facts, the mala fides being unproved. In reasoning, the Court held that equality is a dynamic concept which cannot be cribbed, cabined and confined within traditional and doctrinaire limits; that from a positivistic point of view equality is antithetic to arbitrariness; and that equality and arbitrariness are sworn enemies, so that where an act is arbitrary it is implicit that it is unequal and it therefore violates Article 14.

In one line

Almost every constitutional case is a contest between what one person may do and what everyone else needs, and the Constitution supplies the machinery for deciding it rather than an answer.

In the wording a student can write in an exam: the Constitution reconciles individual freedom and collective welfare through four devices. The rights in Article 19(1) are subject to the reasonable restrictions in Articles 19(2) to 19(6). Article 14 permits classification for a legitimate object. Part IV, the directive principles, states collective goals which are used to give content to individual rights and to justify restrictions on them. And the courts apply proportionality, asking whether a restriction is suitable, necessary and balanced. The reconciliation is therefore structural: the Constitution does not rank the two, it provides a method for weighing them case by case.

The four devices

1. Reasonable restrictions. Article 19(1) grants six freedoms; clauses (2) to (6) permit restrictions in the interests of sovereignty and integrity, security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation, incitement to an offence, and the general public interest. The word doing the work is "reasonable", and it is for the court to decide.

2. Classification under Article 14. A law may treat people differently if the classification rests on an intelligible differentia with a rational nexus to a legitimate object, and, after E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, provided it is not arbitrary.

3. The directive principles. Part IV states collective goals: distribution of resources to subserve the common good, public health, the environment, education. Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, holds that the balance between Parts III and IV is itself a basic feature.

Facts. A sick textile undertaking was taken over and nationalised, and the Act placed in the Ninth Schedule. The petitioners challenged sections 4 and 55 of the Constitution (Forty-second Amendment) Act 1976. Section 55 inserted clauses (4) and (5) into Article 368; section 4 widened Article 31C so that any law giving effect to any directive principle was immune from challenge under Articles 14 and 19.

Held. Both were void. Clause (5) removed all limitations on the amending power and demolished the pillars on which limited government rests; clause (4) removed the courts' power to decide whether a limitation had been exceeded, and a limited power cannot be made unlimited by removing the means of enforcing the limit. The widened Article 31C destroyed the balance between fundamental rights and directive principles, which is itself a basic feature.

Why it matters here. It is the constitutional answer to the whole question. Parliament had tried to make collective welfare, in the form of any directive principle, automatically prevail over Articles 14 and 19. The Court held that a total subordination of individual freedom to collective goals is itself unconstitutional, and so is the reverse.

In one line

The strongest argument for judicial activism is that the people it has helped are exactly the people the political process was never going to reach.

In the wording a student can write in an exam: judicial activism has operated most defensibly for classes who are outside the political process: they are few, dispersed, or so placed that no party need court them; they cannot litigate for themselves; and the wrongs done to them are done by the State or with its acquiescence. The classes the Indian courts have reached are undertrial prisoners, bonded labourers, pavement and slum dwellers, prisoners, children, women in the workplace, victims of custodial violence, and communities affected by industrial and environmental harm.

Why this is the strongest form of the argument

1. The democratic objection is weakest here. The usual objection to activism is that unelected judges override elected bodies. It has least force where the persons affected have no electoral weight at all: an undertrial in a district jail is not a constituency.

2. The obligation usually already exists. Bonded labour was already prohibited by Article 23 and by statute; speedy trial follows from Article 21. The court is enforcing what the elected branches have already decided, which is the form of intervention set out in [The Scope and the Necessity of Judicial Activism].

3. Without it, the right is a form of words. A right that can be enforced only by someone able to reach a court is a right for those who can.

The catalogue, by class

Undertrial prisoners. Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1360.

It is worked in full in [What Judicial Activism Is]. Undertrials in Bihar had been held for longer than the maximum sentence for the offences charged, many unrepresented; the Court held speedy trial implicit in Article 21, held free legal services an essential ingredient of the fair procedure that Article requires, and ordered the undertrials released.

Why it belongs here. It is the founding case of the whole line. The petitioners had no lawyer, no vote that mattered and no knowledge of their rights, and they were released.

Bonded labourers. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.

It is worked in full in [Locus Standi and Epistolary Jurisdiction]. A letter alleging bondage in Faridabad stone quarries was treated as a writ petition, commissioners were appointed to establish conditions the petitioner could not prove, and bonded labour was held to violate Article 23 and the right to live with human dignity under Article 21.

Why it belongs here. The State's own labour law already prohibited what was happening. The activism was in making the prohibition reach the quarry, which is the form of intervention the democratic objection cannot touch.

In one line

A prisoner does not lose his fundamental rights at the prison gate, and the two cases that established it also invented the procedure by which a prisoner can say so.

In the wording a student can write in an exam: the prison cases hold that conviction does not reduce a person to a non-person. A prisoner retains all fundamental rights except those necessarily lost by the fact of lawful incarceration, and the conditions of his detention are subject to Articles 14, 19 and 21. Sunil Batra I, AIR 1978 SC 1675, decided the substance: solitary confinement and bar fetters may not be imposed as a matter of course. Sunil Batra II, AIR 1980 SC 1579, decided the procedure and the remedy: a letter may be treated as a proceeding, habeas corpus reaches treatment inside the prison as well as the fact of detention, and the court retains a continuing responsibility.

Sunil Batra I

Facts. A prisoner under sentence of death challenged his solitary confinement under section 30(2) of the Prisons Act 1894, and a second prisoner challenged the imposition of bar fetters under section 56, as violating Articles 14, 19 and 21.

Held. A prisoner does not shed his fundamental rights at the prison gate. Section 30(2) does not authorise solitary confinement as a matter of course: it applies only to a prisoner under sentence of death whose sentence has become final and executable, and even then confinement apart from other prisoners must not amount to solitary confinement as understood in penal law. Bar fetters under section 56 may be imposed only where strictly necessary, for the shortest possible period, with reasons recorded and subject to review.

Why it matters. It reads two nineteenth century prison provisions down so that they can survive Part III, which is the technique of reading down applied to a statute of 1894 that nobody had thought to test.

Sunil Batra II

Facts. A prisoner in Tihar Jail wrote a letter to a judge of the Supreme Court alleging that a fellow prisoner was being tortured by a head warder to extract money from his relatives. The letter was treated as a petition.

Held. A letter from a prisoner may be treated as a proceeding; the writ of habeas corpus can be used not only to secure release but to protect a prisoner against inhuman treatment inside the prison; and the court retains a continuing responsibility over the conditions of detention. Directions were laid down including judicial appraisal by the Sessions Judge before solitary confinement or the withdrawal of privileges, the Prison Manual being kept within the prisoners' reach, grievance boxes in prisons, and regular visits and reports by Sessions Judges.

In one line

Justice is the standard by which we judge whether a legal arrangement is any good, and the whole difficulty is that people who agree it matters disagree about what it requires.

In the wording a student can write in an exam: justice is the virtue of giving to each what is due. The classical formula, from the Roman jurists, is suum cuique tribuere, to give to each his own. The formula is agreed and empty: it tells us that justice consists in a correct allocation and not what allocation is correct. The theories of justice are competing answers to that second question, and they divide along three lines: what is being allocated, by what criterion, and by whom.

The three questions any theory must answer

1. What is allocated? Punishment and reward; property and income; office and opportunity; liberty; recognition and status. A theory adequate for punishment may be useless for income.

2. By what criterion? Desert, need, merit, entitlement, equality, contribution, status, or the general welfare. Most disputes about justice are disputes about which criterion governs which good.

3. Who decides, and by what procedure? A just outcome reached by an unjust process is contested, and so is an unjust outcome reached by a fair one. This is the distinction between substantive and procedural justice.

The classical divisions

These names recur through the whole module and are worth fixing here.

Distributive justice. The allocation of benefits and burdens among the members of a society: income, offices, honours, opportunities. Aristotle's account, in which distribution is according to merit or worth, and equals are treated equally and unequals unequally in proportion to their difference.

Corrective justice. The restoration of a balance disturbed by a wrong. It is the justice of the law of contract, tort and crime: the court does not ask what each party deserves in general, only what is required to repair what was done.

Commutative justice. Justice in exchange: that what is given and what is received should correspond. It underlies the doctrine of consideration and the law against unconscionable bargains.

Procedural justice. Justice in the manner of deciding: notice, a hearing, an unbiased decider, reasons. In Indian law this is the rule of natural justice, and Maneka Gandhi v. Union of India, AIR 1978 SC 597, made it a constitutional requirement.

Facts. The petitioner's passport was impounded under section 10(3)(c) of the Passports Act 1967 "in the public interest", and the Government declined to furnish the statement of reasons that section 10(5) provides for, saying it was withholding them in the interest of the general public.

Held. Articles 14, 19 and 21 form a single scheme, so a law depriving a person of personal liberty must answer the tests of all three. The procedure established by law in Article 21 must be right, just and fair, and not arbitrary, fanciful or oppressive; a procedure that is arbitrary is no procedure at all. Audi alteram partem applies to the impounding of a passport, though a post-decisional hearing may suffice in urgency.

In one line

Dharma is what upholds: the order of the world, the duty that falls on a person because of who and where they are, and the rightness by which both are judged.

In the wording a student can write in an exam: dharma derives from the Sanskrit root dhr, to hold, to bear, to sustain. It means that which upholds or sustains: the principle that holds the universe, the society and the individual in their proper order. It has no single English equivalent. It carries at once the senses of cosmic order, religion, duty, righteousness, law, justice and the right way of living, and any translation captures one and loses the rest. In the legal context it is closest to duty and to righteousness, and it is distinguished from religion in the narrow sense.

Why no English word will do

"Religion" is wrong because dharma governs the whole of conduct, including matters a modern reader would call secular: taxation, procedure, evidence, contract, the duties of a king. The distinction is judicially recognised, and the chapter [Dharma Is Not Religion] works it.

"Law" is wrong because dharma includes obligations no court enforces: truthfulness, hospitality, restraint, the duties of a householder to guests and ancestors.

"Duty" is close but incomplete because dharma is also the standard by which a duty is judged right.

"Justice" is close but incomplete because justice in the Western sense is chiefly about allocation between persons, while dharma is about the maintenance of an order of which persons are part.

"Righteousness" is close and is the word MU's July 2026 paper uses: "Dharma in ancient Indian jurisprudence represents righteousness, justice, and duty rather than mere religion."

The three levels

1. Cosmic. Dharma as the order of things, which sustains the universe. Its older name is rta, the cosmic order of the Vedic hymns, from which dharma descends: the regularity of the seasons, of the heavens, and of truth itself. Dharma inherits from rta the idea that moral and natural order are one.

2. Social. Dharma as the arrangement that holds a society together: the duties attaching to station and stage of life. This is varnashrama dharma, worked in [The Aspects of Dharma].

3. Individual. Dharma as what a particular person ought to do, given who they are, where they stand and what circumstances they face. Its most famous treatment is the argument of the Bhagavad Gita, in which the whole question is a warrior's dharma when the enemy is his own family.

The classical characterisations

"Dharana" and "dharma". The traditional gloss is that dharma is so called because it upholds: dharayati iti dharmah, that which sustains is dharma.

In one line

Dharma has four sources in a fixed order of authority, and the fourth of them is the individual's own reasoned conscience, which is a remarkable thing for an ancient legal order to include.

In the wording a student can write in an exam: the classical sources of dharma, given by Manu and by Yajnavalkya and repeated throughout the Dharmashastra literature, are four: Sruti, that which was heard, the Vedas; Smriti, that which was remembered, the Dharmashastras; Sadachara, the practice of the virtuous; and Atmatushti, the satisfaction of one's own conscience. They stand in a hierarchy: where a lower source conflicts with a higher, the higher prevails.

The four sources

1. Sruti. The Vedas, regarded as revealed and not composed. The highest source in theory. In practice the Vedas contain little that is directly legal, so their operation is chiefly as the ultimate warrant behind the rest.

2. Smriti. The remembered tradition, systematised in the Dharmashastras: the Manusmriti, the Yajnavalkya Smriti, the Narada Smriti and others, with the commentaries and digests that grew around them. This is where the substance is: the rules of marriage, succession, partition, adoption, debt, evidence, procedure, the duties of a king, and the classification of offences.

3. Sadachara. The usage and practice of the virtuous and learned. Custom, but qualified: not what people do, but what good people do. It supplies the content in the great range of matters the texts do not cover, and it is the channel by which local and community practice entered the system. Its modern descendant is the recognition of custom in Hindu personal law, preserved for example by section 29(2) of the Hindu Marriage Act 1955.

4. Atmatushti. What satisfies one's own conscience, when the other three do not decide. It is expressed as the satisfaction of a person who is himself learned and virtuous, so it is not the licence of individual preference. It applies only where the higher sources are silent.

The hierarchy, and why it matters

The order is not decorative. Where Smriti conflicts with Sruti, Sruti prevails; where Sadachara conflicts with Smriti, Smriti prevails; and Atmatushti operates only in the residue.

Two consequences worth stating in an answer.

It makes the system a legal one. A body of guidance with no rule for resolving conflicts between its parts is not a legal system. A hierarchy of sources with a rule of priority is exactly what a legal system has, which is the point of comparing it to the modern hierarchy of Constitution, statute, subordinate legislation and precedent.

It leaves room for change. Because Sadachara is a source, practice can enter the system, and because Atmatushti is a source, a case the texts do not decide can still be decided. A system with only revealed rules would have frozen.

In one line

An order built on what each person owes works differently from one built on what each person may claim, and dharma is the first kind.

In the wording a student can write in an exam: to say that dharma is the foundation of legal ordering is to say that the classical Indian social order was held together by a scheme of duties rather than by a scheme of rights, and that those duties were differentiated by station, stage of life and circumstance rather than uniform. The order is maintained when each performs his own dharma; it is disturbed when he does not; and the king's function is to restore it.

The duty-based structure

Everything is expressed as an obligation. The texts do not say that a creditor has a right to repayment; they say that a debtor has a duty to repay and that the king has a duty to compel him.

The correlative is assumed but not primary. A duty implies a beneficiary, so duties and rights are formally interchangeable. What differs is emphasis and, with it, remedy and psychology.

Three consequences of putting duty first.

1. Obligations exist without a claimant. A duty to the poor, to guests, to ancestors, to animals and to the earth requires no rights-holder able to sue. A rights-based order has difficulty with obligations nobody can enforce.
2. The order is maintained by performance, not by litigation. Litigation is a symptom of failure rather than the ordinary mode of operation, which is why the classical texts treat the growth of disputes as a sign of decline.
3. Enforcement is not the measure of obligation. Much of dharma was never justiciable and was still binding. A modern lawyer who identifies obligation with enforceability cannot describe the system.

Differentiation, and the objection to it

Duties are not uniform. They vary by varna, the four social orders; by ashrama, the four stages of life; by sex; and by circumstance, including apad dharma, the dharma of distress. There is also sadharana dharma, the general dharma binding on all, which includes truthfulness, non-injury, restraint, purity and forbearance.

The objection. Differentiation by birth is inequality, and the modern Indian constitutional order is founded on its rejection: Article 14, Article 15, Article 16, Article 17 abolishing untouchability, and Article 25(2)(b) opening Hindu religious institutions of a public character to all classes.

The honest answer for an examination. An account that presents the classical order as egalitarian is false, and an account that dismisses it entirely misses what MU is asking. The defensible position is that the tradition supplies a conception of ordering by duty which is valuable, and a scheme of differentiation by birth which the Constitution has repudiated, and the two can be separated because the general dharma binding on all is stated in the tradition itself.

In one line

Dharma is not only how the classical order was held together; it is also the standard by which that order could be judged, and that is what makes it a theory of justice rather than a theory of authority.

In the wording a student can write in an exam: to call dharma the foundation of justice is to make three claims. That there is a standard of rightness independent of the ruler's will, so that a command contrary to dharma is not binding merely because it is commanded. That the standard is discoverable, through the sources in [The Sources of Dharma]. And that the standard is the measure of law itself, so that law is judged by dharma and not dharma by law.

The difference from the previous chapter

Ordering answers: what holds the society together? Duty.

Justice answers: by what standard is the arrangement judged right? Dharma.

The second claim is much stronger, and it is the one that puts the Indian tradition alongside natural law rather than alongside positivism. It is also the claim that connects Module III to Module IV, because a standard by which law is judged is precisely what [The Independence of Justice from Law] describes.

The three claims worked

1. A standard independent of the ruler. The classical position is that the king does not make dharma; he is subject to it. He punishes those who depart from it and is himself punishable, in the tradition's own idiom, by the consequences of departing from it. This is worked in [Raja Dharma: The Duty of the Ruler], and it is the Indian answer to the question the rule of law asks: is the ruler under the law?

2. Discoverable, not decreed. Dharma is found in Sruti, Smriti, Sadachara and Atmatushti. That is a doctrine of sources, and a doctrine of sources is what distinguishes a standard from a preference. A king who says his will is dharma has no answer to the question which source he relies on.

3. The measure of law. The strongest claim. A rule inconsistent with dharma is not merely bad; on the classical view it lacks the character of a binding rule. This is the natural law position, and it is why the Indian tradition has been compared to the Western natural law tradition since the nineteenth century.

What follows for a theory of justice

Justice is objective. It is not what a society agrees on, nor what maximises satisfaction, but what accords with an order that exists independently.

Justice is not majoritarian. The number of people who prefer a departure is irrelevant to whether it is a departure, which is a proposition Indian constitutional law now expresses through constitutional morality in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

In one line

Dharma is not one duty but several kinds of duty at once, and a person is usually subject to more than one of them.

In the wording a student can write in an exam: dharma is classified in the tradition into several aspects, of which the principal are sadharana dharma, the general dharma binding on all; vishesha dharma, the special dharma attaching to a particular person; varnashrama dharma, the duties of social order and stage of life; raja dharma, the duty of the ruler; apad dharma, the dharma of distress; and yuga dharma, the dharma appropriate to an age. Purushartha, the four aims of life, supplies the frame within which the classification sits.

The purusharthas, as the frame

The four aims of human life, in the classical order: dharma, righteousness; artha, material means; kama, desire and enjoyment; and moksha, liberation.

Why the order matters for law. Artha and kama are legitimate and are not to be renounced, but they are to be pursued within dharma. That is the classical statement of the relation between economic activity, personal satisfaction and right conduct, and it is the reason the tradition treats commerce, property and pleasure as proper subjects of regulation rather than as evils.

Sadharana dharma

The general dharma binding on every person irrespective of station. The lists vary between texts and commonly include satya, truthfulness; ahimsa, non-injury; asteya, not stealing; shaucha, purity; dama and indriya nigraha, self-restraint; kshama, forbearance; dana, giving; and akrodha, absence of anger.

Why it is the most important aspect for a modern answer. It is the part of the tradition that is not differentiated by birth, and it is therefore the part that survives Articles 14 and 15. An answer that treats dharma as entirely a system of caste duties has omitted the aspect the tradition itself states first.

Example. Truthfulness as an obligation binding a witness, a party, a king and a servant identically. The modern parallel is the oath, which does not vary with station.

Vishesha dharma

The special dharma of a particular person: a soldier's, a physician's, a judge's, a teacher's. It arises from the office or role rather than from birth alone.

Example. The physician's obligation to treat, which the tradition states as his dharma and which modern law reaches through the duty of care and through Article 21, as in the line of emergency medical treatment cases.

Varnashrama dharma

Duties attaching to the four varnas and the four ashramas: brahmacharya, studentship; grihastha, the householder; vanaprastha, retirement; and sannyasa, renunciation.

The ashrama scheme is not objectionable. It differentiates by stage of life, which every legal system does: minority, majority, retirement age.

In one line

The classical Indian position is that the king is not the source of the law but its servant, which is the rule of law stated two thousand years before Dicey.

In the wording a student can write in an exam: raja dharma is the dharma of the ruler. Its content is that the king exists for the protection of his subjects; that he is bound by dharma and does not make it; that his function in adjudication is to apply dharma and not his own will; that he owes duties of protection, welfare and impartiality; and that a king who departs from dharma forfeits the obedience he would otherwise be owed. The classical maxim is that the law is the king of kings.

The five elements

1. The king exists for protection. The classical justification of kingship is functional: in the absence of a ruler the strong devour the weak, which the texts call matsya nyaya, the law of fishes. The king is instituted to prevent it. His authority is therefore conditional on performing that function, which is a contractual rather than a divine account of sovereignty and is worth comparing with [The Liberal Contractual Tradition].

2. The king is under dharma. He does not create it. The most quoted formulation is that dharma is the king of kings, mightier than the king, so that even a ruler is subject to it. This is the proposition that makes the tradition relevant to modern constitutional law.

3. In adjudication he applies dharma, not his will. He is to decide according to the sources, assisted by those learned in them, and not according to preference, anger or favour. The texts require him to sit with assessors, to hear both sides, and to give reasons, which is procedural justice stated in classical terms.

4. He owes affirmative duties. Protection of person and property; relief in famine and calamity; protection of the weak, of widows, of children, of the aged and of those without support; maintenance of the conditions of livelihood; and the taking of taxation proportionate to what is produced, the classical image being the bee taking honey without destroying the flower.

5. Departure has consequences. A king who fails in raja dharma is not owed obedience in the same way, and the tradition contains statements permitting resistance to a ruler who abandons dharma. The remedy is not judicial in the modern sense, which is the tradition's weakness, but the principle that authority is conditional is stated clearly.

The comparison with the rule of law

In one line

Dharma survives in Indian law as vocabulary, as a principle of interpretation and as a few saved customs; it does not survive as a source of rules, because codification displaced it.

In the wording a student can write in an exam: the influence of dharma on the present Indian legal system is partial and indirect. From the legislative perspective, the classical substantive rules were displaced by codification, and what survives is a small residue of saved customs and a body of statutory language descended from the tradition. From the judicial perspective, dharma survives as a concept used in constitutional interpretation, most authoritatively in A.S. Narayana Deekshitulu v. State of Andhra Pradesh, AIR 1996 SC 1765, and as a source of the values the courts have read into Articles 14 and 21.

The legislative perspective

1. Codification displaced the substance. The Hindu Marriage Act 1955, the Hindu Succession Act 1956, the Hindu Minority and Guardianship Act 1956 and the Hindu Adoptions and Maintenance Act 1956 replaced the classical law of marriage, succession, guardianship, adoption and maintenance. Where a code occupies the field, the earlier law ceases to operate as law.

2. Custom survives where expressly saved. Section 29(2) of the Hindu Marriage Act 1955 saves rights to obtain dissolution of marriage under custom, which is Sadachara preserved by statute. Definitions of custom and usage in the codes carry the classical requirements of antiquity, continuity, certainty and reasonableness, and exclude custom opposed to public policy.

3. The constitutional text uses the tradition's categories. Article 25(2)(b), throwing open Hindu religious institutions of a public character to all classes and sections; Article 17 abolishing untouchability; Article 44 on a uniform civil code; and Article 51A, the fundamental duties, which is the only duty-based provision in the Constitution and is unenforceable, exactly as much of classical dharma was.

4. What legislation deliberately rejected. The differentiation of duty and capacity by birth. Articles 14, 15, 16 and 17 and the enactments under them, including the Protection of Civil Rights Act 1955, are a repudiation, and the honest answer to "how far" begins here.

The judicial perspective

1. The concept used to construe the Constitution. A.S. Narayana Deekshitulu v. State of Andhra Pradesh, AIR 1996 SC 1765.

Facts. Archakas and other office holders of Hindu temples in Andhra Pradesh challenged provisions of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act 1987 which abolished hereditary rights in temple offices, contending that the offices were part of religious practice protected by Articles 25 and 26.

Held. The legislation was upheld: the office of an archaka is secular in character even though its duties are religious, and hereditary succession to it is not an essential religious practice. The Court held that "religion" in Articles 25 and 26 was used by the Constitution makers in the sense conveyed by dharma, that the two words are commonly but wrongly used interchangeably, and that English had no parallel word to dharma.

In one line

Dharma exists for the welfare of beings, and the three things MU names, justice, the individual and social harmony, are the forms that welfare takes.

In the wording a student can write in an exam: the classical account of the purpose of dharma is that it exists for the welfare of beings. The tradition states this directly: that dharma is so called because it upholds, and that what is not conducive to the welfare of beings is not dharma however it may be described. MU's proposition breaks that purpose into three: ensuring justice, protecting the individual, and maintaining social harmony. All three are supportable from the tradition, and a fourth, the restraint of power, belongs with them.

Purpose one: to ensure justice

The claim. Dharma is not merely an order but a right order, and the rightness is what makes it binding. A rule that produced systematic injustice would not be dharma, whatever text contained it.

Support in the tradition. The primacy of sadharana dharma, the general duty binding on all, which includes non-injury and truthfulness. A scheme whose first requirements are those is aimed at right dealing.

Its modern counterpart. The proposition that law is judged by a standard outside itself, worked in [Dharma as the Foundation of Justice in India].

Purpose two: to protect the individual

The difficulty. The tradition is organised around duty rather than right, so "protect the rights of individual" is MU's phrase and not the tradition's.

Why the claim is nonetheless sound. A duty owed to a person protects that person as effectively as a right vested in him, and sometimes better, because it operates without requiring him to assert anything. The obligation not to injure, the ruler's duty to protect the weak, and the duties towards widows, children, the aged and those without support all secure individuals who could not have enforced a right.

Where the claim is weakest. The protection was differentiated, and differentiated protection is not what a modern reader means by protecting the individual. Articles 14 and 15 are the repudiation.

The modern form. Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746, is where Indian law states the same protection as a right.

Facts. A British national detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act complained that the conditions of her detention, which restricted interviews with her lawyer and her young daughter to one a month under prison rules, violated Articles 14 and 21.

Held. The right to life in Article 21 includes the right to live with human dignity and all that goes with it, namely the bare necessaries of life such as adequate nutrition, clothing and shelter, and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. The content varies with the economic development of the country but must include the basic necessities of life. The restrictions on interviews were struck down.

In one line

If dharma were religion, a secular constitution could have nothing to do with it; because it is not, the Supreme Court has been able to use it to construe the Constitution.

In the wording a student can write in an exam: dharma is not religion, though the two overlap and are commonly used interchangeably. Religion, in the sense the Constitution uses in Articles 25 and 26, concerns belief, worship and observance. Dharma concerns right conduct: what a person ought to do because of who and where he is. Dharma includes matters no religion governs, such as procedure, evidence, taxation and the duties of a ruler, and it binds irrespective of belief. The distinction is judicially recognised in A.S. Narayana Deekshitulu v. State of Andhra Pradesh, AIR 1996 SC 1765.

The judicial authority

Facts. Archakas and other office holders of Hindu temples in Andhra Pradesh challenged provisions of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act 1987 which abolished hereditary rights in temple offices, contending that the offices were part of religious practice protected by Articles 25 and 26.

Held. The legislation was upheld. The office of an archaka is secular in character even though the duties attached to it are religious, and hereditary succession to that office is not an essential religious practice. In reaching that conclusion the Court drew a considered distinction between religion and dharma, holding that the word "religion" in Articles 25 and 26 was used by the Constitution makers in the sense conveyed by the word dharma; that the two words are very often used to signify one and the same notion and are used interchangeably, which is not correct; and that the English language having had no parallel word to dharma, the word religion was used in those articles.

Why it matters. It is the only Supreme Court decision that examines the relation at length, and it establishes three things a student can cite: that dharma and religion are different; that the Constitution's word "religion" was used in the sense of dharma; and that the absence of an English equivalent explains the drafting.

The four differences

1. Scope. Religion governs belief, worship and observance. Dharma governs the whole of conduct, including matters entirely secular: the rules of evidence, the order of proof, the rate of interest, the duties of a king, the conduct of a physician.

2. Basis. Religion rests on belief in and observance towards the divine. Dharma rests on an order that sustains, of which the divine is part rather than the author, which is the inheritance from rta discussed in [Dharma: What the Word Means].

3. Universality. A religion binds its adherents. Dharma binds a person by virtue of position and circumstance, and sadharana dharma binds everybody: truthfulness and non-injury are not confined to believers.

In one line

The two modern principles MU names, that nobody may be condemned unheard and that the ruler is under the law, are both stated in the classical tradition, and the difference is that the modern versions have courts behind them.

In the wording a student can write in an exam: natural justice comprises two rules: nemo judex in causa sua, that no person may be a judge in his own cause, which is the rule against bias; and audi alteram partem, that both sides must be heard, which is the right to a fair hearing. The rule of law, in Dicey's classical formulation, comprises the absence of arbitrary power, equality before the law, and rights secured by the ordinary law administered by ordinary courts. Both correspond to elements of dharma: the requirements of impartial adjudication, and the subjection of the ruler to a standard he does not make.

Natural justice: the modern principle

Nemo judex in causa sua. The decider must have no interest in the outcome and no appearance of one. Applied in A.K. Kraipak v. Union of India and throughout Indian administrative law; the modern formulation is that justice must not only be done but must manifestly be seen to be done.

Audi alteram partem. Notice of the case, an opportunity to answer it, and, in most contexts, reasons for the decision.

Its constitutional status in India. Not a common law implication only. Maneka Gandhi v. Union of India, AIR 1978 SC 597, made it a requirement of Article 21.

Facts. The petitioner's passport was impounded under section 10(3)(c) of the Passports Act 1967 "in the public interest", and the Government declined to furnish the statement of reasons that section 10(5) provides for, saying it was withholding them in the interest of the general public.

Held. Articles 14, 19 and 21 form a single scheme, so a law depriving a person of personal liberty must answer the tests of all three. The procedure established by law in Article 21 must be right, just and fair, and not arbitrary, fanciful or oppressive; a procedure that is arbitrary is no procedure at all. The right to travel abroad is part of personal liberty, and audi alteram partem applies to the impounding of a passport, though a post-decisional hearing may suffice in urgency.

Why it matters here. Natural justice ceased to be a presumption of statutory construction, displaceable by clear words, and became a constitutional requirement that a statute cannot lawfully exclude where Article 21 is engaged.

The rule of law: the modern principle

Dicey's three elements. No person may be punished except for a distinct breach of law established before the ordinary courts; every person, whatever his rank, is subject to the ordinary law and the jurisdiction of the ordinary courts; and the general principles of the constitution are the result of judicial decisions determining the rights of private persons.

In one line

The Western argument about justice begins with two Greeks: one who held that justice is each part of a whole doing its own work, and one who divided it into the kinds that lawyers still use.

In the wording a student can write in an exam: Plato (c. 427 to 347 BC), in the Republic, treats justice as a structural virtue: justice in the city consists in each class performing the function proper to it, and justice in the individual consists in each part of the soul performing its own. Aristotle (384 to 322 BC), in the Nicomachean Ethics, treats justice as a matter of proportion and divides it into distributive justice, the allocation of goods according to merit, and corrective justice, the restoration of a balance disturbed by a wrong. Aristotle also introduces epieikeia, equity, as the correction of law where its generality fails.

Plato

The setting. The Republic opens with the question what justice is, and rejects the answers offered: that justice is telling the truth and paying debts; that it is helping friends and harming enemies; and, from Thrasymachus, that justice is nothing but the interest of the stronger. That third answer is the ancestor of the equivalence theories in Module IV, and it is worth naming here for that reason.

The method. Plato proposes to look for justice in the city first, because it is written larger there, and then in the individual.

Justice in the city. The city has three classes: the rulers, whose virtue is wisdom; the guardians or auxiliaries, whose virtue is courage; and the producers, whose virtue is temperance. Justice is each doing its own work and not meddling in another's. It is not a fourth activity alongside the other three but the condition in which each is properly performed.

Justice in the individual. The soul likewise has three parts: reason, spirit and appetite. Justice in a person is the condition in which reason rules, spirit supports it, and appetite is governed.

What is valuable in it. Justice as a structural condition rather than a transaction. Plato's justice is a property of an arrangement, which anticipates what is now called social justice.

What is objectionable. The scheme is anti-democratic and its class structure is fixed. Each doing his own work can be read as everybody staying in an allotted place, which is the second sense of harmony criticised in [The Purpose of Dharma]. The parallel with varnashrama dharma is close and is worth drawing, including the objection.

Aristotle

Universal and particular justice. Aristotle first distinguishes justice in the wide sense, which is complete virtue in relation to others and is coextensive with lawfulness, from justice in the narrow sense, which concerns fairness in distribution and exchange. The narrow sense is the lawyer's.

In one line

The contractual tradition explains justice by asking what free and equal people would agree to, and its whole force comes from the fact that agreement is a standard nobody can complain about.

In the wording a student can write in an exam: the liberal contractual tradition grounds political obligation and justice in consent. It supposes an original condition without government, the state of nature, and asks what terms rational persons in that condition would agree to. The arrangement they would agree to is just, and government has authority only so far as it conforms to that agreement. Its principal early exponents are Thomas Hobbes (1588 to 1679), John Locke (1632 to 1704) and Jean-Jacques Rousseau (1712 to 1778), and its modern restatement is John Rawls, treated in the next chapter.

The common structure

1. A state of nature. A hypothetical condition without political authority, used to isolate what government adds.

2. A defect in it. Something makes that condition intolerable or unstable.

3. A contract. Rational persons agree to establish authority to remedy the defect.

4. The terms of the contract fix the limits of authority. Because the government exists by agreement and for a purpose, it has no authority beyond that purpose.

The device is not a historical claim. No writer in the tradition asserts that a contract was actually made; the contract is a way of asking what could be justified to each person.

Hobbes

The state of nature. A condition of war of every man against every man, in which there is no industry, no culture, no society, and continual fear and danger of violent death, so that the life of man is solitary, poor, nasty, brutish and short.

The defect. Insecurity. Without a common power there is no law, and without law no justice: notions of right and wrong have no place.

The contract. Each surrenders his right to govern himself to a sovereign, on condition that all others do the same. The sovereign is not a party to the contract and is therefore not bound by it.

Justice. For Hobbes, justice is the keeping of covenants, and there are no covenants before the sovereign exists to enforce them. Justice is therefore the creation of law, which makes Hobbes an ancestor of the equivalence theories in Module IV.

The objection. A sovereign not bound by the contract is not limited by it, so Hobbes secures order at the cost of the limited government the tradition is supposed to justify.

The Indian parallel. Hobbes's war of all against all is close to matsya nyaya, the law of fishes, which the classical Indian texts give as the reason for instituting a king. The difference is decisive: in the Indian account the king is instituted to enforce dharma and remains bound by it, which is [Raja Dharma: The Duty of the Ruler].

In one line

Rawls asks what principles you would choose for a society if you did not know who in it you were going to be, and answers that you would protect liberty absolutely and permit inequality only where it helps the worst off.

In the wording a student can write in an exam: John Rawls (1921 to 2002), in A Theory of Justice (1971), revives the contractual tradition as justice as fairness. Principles of justice are those that would be chosen by rational persons in an original position behind a veil of ignorance, which deprives them of knowledge of their own class, race, sex, natural endowments and conception of the good. He argues that they would choose two principles: an equal claim to a fully adequate scheme of basic liberties; and that social and economic inequalities are permissible only if attached to offices open to all under fair equality of opportunity, and only if they work to the greatest benefit of the least advantaged, which is the difference principle.

The device

The original position. A hypothetical situation of choice, corresponding to the state of nature in the older tradition but designed rather than imagined: it is constructed so that the agreement reached in it will be fair.

The veil of ignorance. The parties know general facts about society, economics and psychology, but not their own place in it: not their class, sex, race, natural talents, or even their conception of the good life.

Why the veil produces fairness. Nobody can tailor principles to his own advantage, because nobody knows what his advantage is. A person who might turn out to be the worst off will not choose principles that permit the worst off to be treated badly. Fairness is built into the procedure, which is why the theory is called justice as fairness.

The reasoning attributed to the parties. Facing a choice under complete uncertainty with a great deal at stake, they reason conservatively: they secure the worst outcome rather than gamble on the best. That reasoning is what yields the difference principle and it is also the most criticised step.

The two principles

First principle. Each person has an equal claim to a fully adequate scheme of equal basic liberties, compatible with the same scheme for all. The basic liberties are political liberty, freedom of speech and assembly, liberty of conscience and thought, freedom of the person, the right to hold personal property, and freedom from arbitrary arrest and seizure.

Second principle. Social and economic inequalities are to satisfy two conditions: they are to be attached to offices and positions open to all under conditions of fair equality of opportunity; and they are to be to the greatest benefit of the least advantaged members of society.

In one line

Kant's answer is that justice is what treats every person as an end and never merely as a means, and that is the philosophical source of what Indian law calls dignity.

In the wording a student can write in an exam: the liberal moral tradition, associated chiefly with Immanuel Kant (1724 to 1804), grounds justice in the moral worth of the person rather than in consent or in consequences. Its central propositions are the categorical imperative, that one must act only on a maxim one could will to be a universal law; the formula of humanity, that one must treat humanity, whether in one's own person or in another's, always as an end and never merely as a means; and autonomy, that a person is bound only by laws he can regard himself as giving.

The three propositions

1. The categorical imperative. An imperative is categorical if it binds unconditionally rather than as a means to some end one happens to have. Kant's test is universalisability: act only on that maxim which you can at the same time will to become a universal law. A maxim that could not be universalised without contradiction is impermissible.

Worked briefly. A person considers making a promise he does not intend to keep. Universalised, the maxim destroys the practice of promising, so the maxim cannot be willed as a universal law and the act is impermissible.

2. The formula of humanity. Act so as to treat humanity, in your own person and in every other, always at the same time as an end and never merely as a means. Persons have dignity, which Kant contrasts with price: what has a price can be replaced by an equivalent, what has dignity admits of no equivalent.

3. Autonomy. A person is subject only to laws of which he can regard himself as the author. This is the moral counterpart of self-government and connects the tradition to democratic theory.

What follows for justice

Justice is not a matter of consequences. The rightness of an act does not depend on what it produces. Kant is therefore the standing opponent of utilitarianism.

A person may not be sacrificed for the general good. If humanity is always an end, no individual may be used as an instrument for the benefit of others, however large the benefit. This is the objection utilitarianism has never satisfactorily answered.

Rights are not conferred but recognised. They belong to a person as a person, which is the structural assumption of Part III.

Punishment is retributive. Kant holds that punishment must be imposed because the offender has committed a crime, and not as a means to some further end such as deterrence, since punishing a person to deter others uses him as a means.

In one line

The utilitarian answer is that justice is whatever produces the most happiness, and its whole strength is that it gives a single, usable test where every other theory gives a principle you still have to interpret.

In the wording a student can write in an exam: the liberal utilitarian tradition, founded by Jeremy Bentham (1748 to 1832) and developed by John Stuart Mill (1806 to 1873), holds that the standard of right action, and therefore of just institutions, is the principle of utility: that action is right which tends to produce the greatest happiness of the greatest number. Justice on this view has no independent content; it is the name given to those rules whose observance is most conducive to general welfare. MU prints the tradition as "Utalitarian" and the name as "Geremy Bentham"; the correct forms are utilitarian and Jeremy Bentham.

Bentham

The principle of utility. Nature has placed mankind under two sovereign masters, pain and pleasure. The principle of utility approves or disapproves of every action according to its tendency to augment or diminish the happiness of the party whose interest is in question.

The felicific calculus. Bentham proposed that pleasures and pains be measured by their intensity, duration, certainty, propinquity, fecundity, purity and extent. The last, extent, is the number of persons affected, and it is what converts a personal calculation into a social one.

Each to count for one. The formula usually attributed to him is that everybody is to count for one and nobody for more than one. This is utilitarianism's egalitarian element and it is important in an answer: the theory is not indifferent to equality, it builds it into the counting.

Legislation. Bentham's target was the law of his day, which he regarded as a mass of fictions serving the interests of those who administered it. His contribution to the judicial process is his attack on judge-made law, which he called dog law, on the ground that it is made after the event and cannot be known in advance. He was the great advocate of codification, which is why he belongs in [Legal Development through Codification] as well as here.

Justice. For Bentham, justice is not a separate principle. Talk of natural rights he called nonsense upon stilts, and imprescriptible natural rights nonsense upon stilts of a higher order. Rights are the creations of law, and law is justified by utility.

Mill

The qualitative correction. Mill accepted the principle of utility and denied that pleasures differ only in quantity. Some are higher, and his test is the preference of those who have experienced both. His formulation is that it is better to be a human being dissatisfied than a pig satisfied.

In one line

Three objections divide the modern argument: that liberal justice interferes with liberty to maintain a pattern, that it measures the wrong thing, and that it is the ideology of whoever is in charge.

In the wording a student can write in an exam: the principal criticisms of the liberal theories of justice are libertarian, that a theory requiring a pattern of distribution must continually interfere with liberty and that justice is a matter of entitlement rather than of pattern; capability-based, that the proper measure of justice is not the goods a person holds but what he is able to do and to be; communitarian, that justice cannot be derived by abstracting a person from the community that formed him; and Marxian, that law and justice in a class society are the ideology of the dominant class.

Nozick and the entitlement theory

Robert Nozick (1938 to 2002), in Anarchy, State and Utopia (1974), answers Rawls directly.

The claim. A distribution is just if it arose justly. There are three principles: acquisition, how a person may first come to hold something unowned; transfer, how holdings may pass by voluntary exchange or gift; and rectification, how past injustices in acquisition or transfer are to be corrected. If holdings arose by just acquisition and just transfer, the resulting distribution is just, however unequal.

Patterned against historical. Rawls's difference principle is patterned: it requires the distribution to satisfy a formula. Nozick's is historical: it looks only at how holdings came about.

The liberty objection. Any patterned principle will be upset by voluntary transactions, because free people give and exchange. To maintain the pattern the State must interfere continuously with what people freely do. Nozick's conclusion is that liberty upsets patterns.

The minimal State. Only a State limited to protection against force, theft and fraud and to the enforcement of contracts is justified; anything more violates rights.

Why it matters in India. It is the strongest available argument against redistribution, and therefore against the reasoning of Articles 39(b) and 39(c) and the reservation provisions. Its weakness, in an Indian context, is the principle of rectification: where holdings arose from centuries of exclusion by birth, Nozick's own theory requires correction, and he never worked out how far it would go. That point is worth making because it turns his theory into an argument the other way.

Sen and the capability approach

Amartya Sen (born 1933) accepts much of the liberal framework and objects to its currency.

The claim. What matters is not the goods a person holds but the capabilities he has: what he is actually able to do and to be. Two people with the same income may have very different capabilities, because of disability, age, illness, climate or social position.

In one line

Everybody agrees that law and justice are connected; the module is about three incompatible accounts of how, and the choice between them decides what you say about an unjust law.

In the wording a student can write in an exam: the relation between law and justice is answered in three ways. On the equivalence view, justice is nothing more than the positive law of the stronger: the two are identical, and there is no independent standard of justice at all. On the dependency view, justice is distinct from law but depends on law for its realisation: without legal institutions justice remains an aspiration. On the independence view, justice is prior to and independent of law, so that law is judged by justice and an unjust law is defective as law. These three, in MU's own vocabulary of equivalence and dependency, are the whole of Module IV.

The question the module actually asks

Is there a standard of justice independent of what the law says?

If no, the equivalence view follows: what is just is what the law provides, and the question whether a law is unjust is confused.

If yes, a second question arises: what is the relation between the two? If justice needs law to become real, the dependency view follows. If justice stands over law and judges it, the independence view follows.

Everything in this module is an answer to those two questions, and an answer that begins by stating them is already organised.

The three positions in outline

Equivalence. Justice has no content beyond positive law. Its ancestors are Thrasymachus in Plato's Republic, that justice is the interest of the stronger; Hobbes, that there is no injustice before a sovereign exists to enforce covenants; Austin's command theory; and, in a different register, the Marxian account that law and justice express the interests of the dominant class. Worked in [Equivalence Theories of Justice].

Dependency. Justice is a distinct standard, but it is inert without law. A society may agree that the vulnerable should be protected, and nothing follows until there is a rule, a forum and a remedy. Worked in [Dependency Theories of Justice].

Independence. Justice exists independently and is the measure of law. The natural law tradition, the classical Indian position that dharma is the king of kings, and every doctrine permitting a court to hold an enacted rule void, belong here. Worked in [The Independence of Justice from Law].

The test question

The three positions are best distinguished by what each says about a formally valid but unjust law.

In one line

The equivalence theories say that there is nothing to justice except the law that those in power actually make, so that calling a law unjust is either a confusion or a complaint.

In the wording a student can write in an exam: the equivalence theories identify justice with positive law. On this view justice has no independent content: it is nothing more than the law laid down by whoever holds power, and a rule is just because it is law rather than being law because it is just. The classical form is Thrasymachus's proposition in Plato's Republic that justice is nothing else than the interest of the stronger. Its modern forms are Hobbes, that there is no injustice where there is no common power; Austin's command theory, that law is the command of a sovereign backed by sanction and that its merit is a separate question; and the Marxian account, that law and justice in a class society express the interests of the dominant class.

The four forms

1. Thrasymachus. In the first book of the Republic he holds that each ruling class makes laws in its own interest and calls obedience to them justice, so that justice is the advantage of the established government. Plato's Socrates spends the rest of the work answering him, which is a measure of how serious the position is.

2. Hobbes. Where there is no common power there is no law, and where there is no law there is no injustice: force and fraud are the cardinal virtues in the state of nature. Justice is the keeping of covenants, and covenants are void without a power to enforce them. The sovereign, not being a party to the contract, cannot commit injustice against a subject.

3. Austin and the command theory. Law is the command of a sovereign backed by a sanction, and the sovereign is one who is habitually obeyed and habitually obeys no one. Austin's separation thesis is that the existence of law is one thing and its merit or demerit another: a law which actually exists is a law though we happen to dislike it.

A careful answer distinguishes Austin from the strict equivalence position. Austin does not say the law is just; he says its justice is a different question. That is the separation thesis, and it is weaker than the claim that justice and law are identical. Both are treated here because MU's heading covers the family and because the practical consequence is the same: within the legal system there is no standard of justice to appeal to.

4. The Marxian account. Law in a class society is not neutral. It expresses and protects the interests of the class that controls the means of production, and the appearance of impartiality is part of how it operates. Formal equality before the law is worth little to those with nothing: an equal right to own property is not an equal position. Justice, on this account, is ideology, and it will remain so while the class structure persists.

In one line

Justice and law are not the same thing, but justice cannot do anything until law gives it a rule, a forum and a remedy.

In the wording a student can write in an exam: the dependency theories hold that justice is distinct from law but depends on law for its realisation. Justice supplies the standard; law supplies the machinery. Without law, a conception of justice remains an aspiration: it has no definite content in application, no institution to determine disputed cases, and no means of enforcement. The theories are therefore a middle position between equivalence, which denies that justice is distinct at all, and independence, which holds that justice stands over law and judges it.

The three dependencies

1. Justice depends on law for determinacy. A society may agree that a person injured by another's carelessness should be compensated. It does not follow how much, from whom, within what period, or on what proof. Those questions have several defensible answers, and the choice among them must be made by a rule. Until it is, the standard cannot be applied to a case.

2. Justice depends on law for an authoritative determination. Even where the standard is clear, people disagree about the facts and about the application. Without a forum whose decision settles the matter, each party remains judge in his own cause, which is precisely the defect Locke identifies in [The Liberal Contractual Tradition].

3. Justice depends on law for enforcement. A determination that is not enforced leaves the wronged party where he was. This is the point the equivalence theorists press, and the dependency theories concede it without conceding that justice reduces to law.

Why it is a distinct position

Against equivalence. The dependency theorist insists that justice is a standard and not merely a name for the rules. It is the standard by which a legislature chooses among possible rules, and by which a rule can be criticised as bad. What he denies is that the standard is self-executing.

Against independence. He denies that justice can operate over law, invalidating what is enacted. On his view the remedy for an unjust law is legislative, because the standard has no institutional voice of its own.

Where Indian law states the position

Part IV is the dependency position written into a constitution, and this is the single most useful observation a student can make on this topic.

Article 37. The directive principles are not enforceable by any court, but are nevertheless fundamental in the governance of the country, and it shall be the duty of the State to apply them in making laws.

Read that provision against the three dependencies. It states a standard of justice, in Articles 38 to 51: adequate means of livelihood, distribution of resources to subserve the common good, equal pay, humane conditions of work, free and compulsory education, legal aid, protection of the environment. It declares the standard fundamental. And it makes it operative only through law, being unenforceable by a court. That is dependency exactly: justice distinct from law and depending on law to be realised.

In one line

If justice is prior to law and measures it, then a sufficiently unjust law is not merely a bad law but a defective one, and a court may say so.

In the wording a student can write in an exam: the independence view holds that justice exists prior to and independently of positive law, and is the standard by which law is judged. Its consequences are that a law contrary to justice is defective as law; that the defect may be pronounced by an institution other than the legislature; and that obedience to a sufficiently unjust law is not required. Its tradition is natural law, its Indian classical form is the proposition that dharma is the king of kings, and its Indian constitutional form is the basic structure doctrine.

The natural law tradition in outline

The core proposition. There is a standard of right, discoverable by reason, which is not made by any legislator and by which human law is measured.

Its classical maxim. An unjust law is not law, in the sense that it does not bind in conscience and does not carry the authority a law claims.

The moderate form, which is what a lawyer can use: a law is defective as law to the extent that it departs from the standard, and a sufficiently grave departure deprives it of the obedience it would otherwise command. This avoids the difficulty of saying that a plainly enacted rule simply does not exist.

Its Indian classical form. Raja dharma: the king is bound by dharma and does not make it, and the classical maxim is that dharma is mightier than the king. Worked in [Raja Dharma: The Duty of the Ruler].

The Indian constitutional form

Indian law adopts the independence position in a qualified version, and the qualification is what makes it workable.

The commitment. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.

Facts. The head of a religious mutt in Kerala challenged Kerala land reform legislation, and the petition grew into a challenge to the Constitution (Twenty-fourth), (Twenty-fifth) and (Twenty-ninth) Amendments. Thirteen judges heard it.

Held. Parliament's power to amend under Article 368 is wide but not unlimited: it does not extend to altering the basic structure or essential features of the Constitution. Golak Nath was overruled so far as it had denied the power to amend Part III, but no amendment may damage or destroy the basic structure, and the lists given were expressly illustrative.

Why it matters here. There is now a standard, not stated in the amending provision, by which an exercise of the constituent power is judged and may be held void. That is the independence structure: a measure of law that is not itself an enactment.

In one line

Each theory of justice implies a different account of what law is for, and the fastest way to see the difference is to give them all the same problem.

In the wording a student can write in an exam: the theories of justice examined in Module III each imply a position on the relation between law and justice. Utilitarianism makes justice a function of law's consequences, so that the two are related as means to end and there is no independent standard. The contractual tradition makes law legitimate only so far as it conforms to what free and equal persons would agree to. Kant makes law's authority depend on its treating each person as an end. Rawls makes the basic structure of society, including its legal system, the primary subject of justice. Dharma makes law answerable to a standard that upholds the order of which it is part. The critics deny, in different ways, that any of these describes what law actually does.

The theories applied to one problem

The problem. A State proposes to acquire the land of a farming community to build a port that will raise national income substantially. Compensation is offered at market value. The community loses its occupation and its settlement, and will be resettled elsewhere.

Utilitarian. Count the gains and the losses, weighted for intensity, duration, certainty and extent. If the aggregate favours the port, the acquisition is right and the community's loss is a cost already counted. Law's function is to bring the arrangement about efficiently. Justice adds nothing beyond the calculation, which is the equivalence conclusion.

Contractual, in Locke's form. Government is a trust for the protection of life, liberty and property. Taking property is within the trust only if it serves the purpose for which government exists and goes no further, so the acquisition must be necessary and the compensation full. Law's function is to keep the government within its trust.

Kantian. The community must not be used merely as a means to the national income of others. Market value is not obviously an equivalent for a livelihood and a settlement, and dignity admits of no equivalent. Law's function is to secure the standing of each person against being treated as an instrument.

Rawlsian. Ask whether the arrangement satisfies the two principles. Basic liberties are not directly engaged. Fair equality of opportunity may be. The difference principle asks whether the inequality produced works to the greatest benefit of the least advantaged, and the farming community may well be the least advantaged, in which case the port must benefit them and not merely the national aggregate. Law's function is to constitute a just basic structure.

Dharma. The ruler's duty is the protection of his subjects, and taxation and taking are to be proportionate, on the image of the bee taking honey without destroying the flower. Displacing a community without securing its subsistence is a departure from raja dharma. Law's function is to give effect to a standard it does not create.

In one line

The Indian Constitution does not leave the relation between law and justice to theory; it settles it, in the Preamble, in Article 13, in Part IV and in the doctrine the Supreme Court built on Article 368.

In the wording a student can write in an exam: the Indian constitutional order takes a position on the relation between law and justice. The Preamble declares justice, social, economic and political, as the object of the constitutional enterprise. Article 13 makes a law void for inconsistency with the fundamental rights, so that enactment alone does not confer validity. Part IV, with Article 37, states goals of justice that are fundamental and unenforceable, which is the dependency position. And the basic structure doctrine subjects even the amending power to a standard, which is the independence position. The order is therefore committed to justice as a measure of law, applied through the Constitution rather than over it.

The four textual commitments

1. The Preamble. "JUSTICE, social, economic and political" is the first of the four objects, and it is placed before liberty, equality and fraternity. It has been held to be part of the Constitution and a key to its interpretation, and it is the reason a court construing an ambiguous provision may prefer the reading that advances justice.

2. Article 13. Clause (1) makes pre-Constitution laws void to the extent of inconsistency with Part III; clause (2) forbids the State to make any law taking away or abridging those rights and declares such a law void. This is the independence structure written as a rule: a valid legislature enacting in due form produces nothing if the content offends.

3. Part IV with Article 37. The directive principles are fundamental in the governance of the country and it is the duty of the State to apply them in making laws, but they are not enforceable by any court. Justice as a standard, awaiting law: the dependency position.

4. Article 32. The remedy is itself a right, so the machinery by which the standard is applied cannot be withheld.

The doctrinal commitments

The basic structure. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, holds that the amending power does not extend to damaging or destroying the basic structure. The standard is not in Article 368, so it is a measure of enactment that is not itself enacted.

The balance between Parts III and IV. Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789.

Facts. A sick textile undertaking was taken over and nationalised, and the Act placed in the Ninth Schedule. The petitioners challenged sections 4 and 55 of the Constitution (Forty-second Amendment) Act 1976. Section 55 inserted clauses (4) and (5) into Article 368; section 4 widened Article 31C so that any law giving effect to any directive principle was immune from challenge under Articles 14 and 19.

In one line

You can tell which theory of justice a court is using by what it treats as a reason, and the Indian reports are full of examples once you know what to look for.

In the wording a student can write in an exam: a judgment reveals its underlying conception of justice through what it counts as a reason. Reasoning from aggregate consequences is utilitarian. Reasoning from what a person is owed as a person is Kantian. Reasoning from what could be justified to those affected is contractual. Reasoning from the position of the worst off is Rawlsian. Reasoning from what a person is able to do and be is capability-based. Reasoning from a standard the enactment cannot satisfy is the independence position.

The reading, case by case

1. Livelihood: Kantian and capability-based, with a utilitarian outcome. Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.

Facts. Pavement and slum dwellers in Bombay, nearly half the population of the city, challenged the decision to evict them forcibly and deport them to their places of origin, and challenged section 314 of the Bombay Municipal Corporation Act 1888, which permits removal of encroachments without notice. Some had earlier undertaken in the High Court to vacate, and the Corporation pleaded estoppel.

Held. No estoppel can be claimed against the enforcement of a fundamental right. The right to life includes the right to livelihood, because no person can live without the means of living. Section 314 was read as enabling rather than compelling removal without notice, so notice and a hearing were ordinarily required. On the facts the evictions were allowed to proceed, after the monsoon and with alternative sites for census-recorded dwellers.

The reading. Livelihood within life is capability reasoning: what matters is what the person can do, not what he owns. The refusal of estoppel is Kantian: a right attaching to a person as a person is not his to bargain away. The disposition is utilitarian: the city's interest weighed against the dwellers', with mitigation.

2. Dignity: Kantian. Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746.

Facts. A British national detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act complained that the conditions of her detention, which restricted interviews with her lawyer and her young daughter to one a month under prison rules, violated Articles 14 and 21.

Held. The right to life includes the right to live with human dignity and all that goes with it, namely the bare necessaries of life such as adequate nutrition, clothing and shelter, and facilities for reading, writing and expressing oneself, freely moving about and mixing and commingling with fellow human beings. The content varies with the economic development of the country but must include the basic necessities of life. The restrictions were struck down.