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Judicial Process
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LLM · Foundation Course
2023-24 Examination
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LLM Foundation Course Judicial Process 2023-24 Question Paper with Solutions
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First published on munotes.in on 12 August 2026.
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The question paper reproduced here is the paper as set by the University of Mumbai at the 2023-24 examination.
The answers in this volume state the law as it stands today, not as it stood when the paper was set. Four changes matter here. The National Judicial Appointments Commission and the Ninety ninth Amendment were struck down on 16 October 2015, so the collegium governs appointments and the Memorandum of Procedure remains unsettled. ADM Jabalpur was expressly overruled in Puttaswamy in 2017. On precedent, a Bench of seven judges overruled E.V. Chinnaiah on 1 August 2024 and a Bench of nine narrowed the reading of Article 39(b) on 5 November 2024, and both are more recent than any textbook on this subject. And on 19 November 2025 the core of the Tribunals Reforms Act, 2021 was struck down. Where a question turns on a position since changed, the answer gives it as it then stood and the present position, and says which is which.
Contents
The questions below are the paper as the University of Mumbai set it at the 2023-24 examination, in the order it was set.
MarksPage
The Paper as Set
The questions in this volume are the questions asked at the 2023-24 examination, reproduced as the University of Mumbai set them, in the order it set them. Nothing has been reworded, added or left out. Only the answers are ours. See the original question paper.
Duration 3 hours · Total marks 100 · 7 questions answered
How to use this volume
Solve the paper first, under exam conditions and against the clock. Then read the answers here and mark your own. Reading a solution before attempting the question feels productive and teaches very little, because recognising an answer is not the same as being able to write one.
1.According to Benjamin Cardozo, "The process of the law is not a mere calculation, a mechanical adding and subtracting of established rules; it is a process of reasoning." Analyze this statement in the context of nature and scope of Judicial process in India.[25]
Answer
For full marks, cover: what the statement denies and what it asserts; the two accounts of judging it lies between; the elements of reasoning it points to; and the Indian material, since the question asks for the Indian context.
The statement denies the mechanical theory of adjudication and asserts a reasoning theory. The mechanical theory, associated with the strict formalism of the nineteenth century, treats a case as a sum: identify the rule, identify the facts, and the conclusion follows without judgment. Cardozo's objection in The Nature of the Judicial Process (1921) is that this describes only the easy cases, and that where rules conflict, or run out, or are stated in terms that do not decide themselves, the judge must reason to a conclusion the materials do not compel.
The statement is equally a denial of the opposite error. Cardozo did not say that the judge decides as he pleases. He insisted that the judge is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness, but draws his inspiration from consecrated principles, exercising a discretion informed by tradition and disciplined by system. Reasoning is the middle term between calculation and preference.
The elements of that reasoning are Cardozo's four methods. The method of philosophy, which is logic and analogy, and which he gave presumptive priority. The method of history, which explains a rule by its origins and often confines it to them. The method of tradition, which is custom. The method of sociology, the judge's sense of the welfare of society, to which he gave the last word.
The nature of the judicial process in India follows this account, and four Indian doctrines prove it.
Reasoning by analogy from accepted principle produced Maneka Gandhi v. Union of India, (1978) 1 SCC 248. Article 21 speaks only of a procedure established by law. The Court reasoned that Articles 14, 19 and 21 do not stand in watertight compartments, so a law taking away personal liberty must also satisfy the other two, and that arbitrary procedure is no procedure at all. A calculation from the words of Article 21 could never have produced that result, and A.K. Gopalan v. State of Madras, AIR 1950 SC 27, which was such a calculation, ceased to be good law.
Reasoning from structure rather than text produced Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225. Article 368 contains no limitation on the amending power. The basic structure doctrine was derived from the character of the document as a whole, which is reasoning of a kind no adding and subtracting of rules could yield.
Reasoning from consequence produced M.C. Mehta v. Union of India, (1987) 1 SCC 395, where the Court declined to apply the exceptions to Rylands v. Fletcher on the express ground that a nineteenth century English rule could not serve modern Indian conditions, and laid down absolute liability.
Reasoning made explicit and checkable is the most recent development, and it answers the objection that reasoning is only preference in disguise. K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, adopted a structured proportionality test, requiring a legitimate aim, a rational connection, necessity in the sense that no less restrictive measure would serve, and a fair balance. That is reasoning reduced to a form in which it can be criticised.
The scope of the process in India is unusually wide, for reasons in the text. Article 141 makes what the Supreme Court declares binding on all courts at once, so the product of the reasoning becomes general law immediately. Article 32 makes the remedy a fundamental right and, after S.P. Gupta v. Union of India, 1981 Supp SCC 87, opens it to a stranger acting for those who cannot come. Article 21 is drafted generally enough to receive rights the framers never named, from dignity in Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608, to a right against the adverse effects of climate change in M.K. Ranjitsinh v. Union of India, decided on 21 March 2024.
The scope is bounded, and the bounds are also reasoning. Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, holds that judges cannot take over the functions of another organ, and Supriyo v. Union of India, decided on 17 October 2023, applied that in refusing to construct a marriage regime. A court that gives reasons must also be able to give a reason for stopping.
The four methods, which are the content of the reasoning
The statement asserts that adjudication is reasoning, and Cardozo said what the reasoning consists of.
The method of philosophy, which is logic and analogy, and which he gave presumptive priority because like cases should be decided alike. Maneka Gandhi v. Union of India, (1978) 1 SCC 248, is the Indian instance: a principle already accepted for Article 14 was carried across to Article 21 so that procedure must be right, just and fair, and A.K. Gopalan v. State of Madras, AIR 1950 SC 27, ceased in substance to be good law without a word of text changing.
The method of history, which explains a rule by its origins and often confines it to them. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, traced section 377 of the Penal Code to the moral assumptions of 1860 and held it unable to survive Articles 14, 15, 19 and 21.
The method of tradition, which is custom, admitted by section 3(a) of the Hindu Marriage Act, 1955, only if certain, reasonable and not opposed to public policy. Shayara Bano v. Union of India, (2017) 9 SCC 1, held talaq-e-biddat unconstitutional despite long observance.
The method of sociology, the welfare of society, to which he gave the last word. M.C. Mehta v. Union of India, (1987) 1 SCC 395, declined the exceptions to Rylands v. Fletcher in terms because a nineteenth century English rule could not govern hazardous industry beside a dense Indian population.
And Cardozo supplied the limit in the same lectures: the judge is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness, but draws his inspiration from consecrated principles, exercising a discretion informed by tradition, methodised by analogy and disciplined by system.
Conclusion. Cardozo's statement is an accurate description of Indian adjudication and not merely an American theory. The mechanical account cannot explain Maneka Gandhi, Kesavananda or M.C. Mehta, all of which reached results the rules did not contain, and the preference account cannot explain why those decisions were argued, reasoned and are now themselves binding. What the Indian material adds to Cardozo is a discipline he did not have: Article 141 makes the reasoning binding on everyone, which raises the cost of getting it wrong, and the structured proportionality test of Puttaswamy forces the reasoning into a form in which it can be tested. That is the nature of the judicial process in India, and its scope is as wide as the generality of Article 21 and as narrow as the reasons a court can publicly defend.
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