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First published on munotes.in on 12 August 2026.
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The University does not publish an official answer key for this paper. The answers in this volume are model answers, written to show how a full-mark answer is built. They are a study aid, not an authority on what an examiner marked.
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.
2.Critically analyze the notion of judicial creativity in the interpretation of the Indian Constitution. How has it developed over the period of decades in India?[25]
Answer
For full marks, cover: the notion; the development by decades, which the question expressly asks for; and the critical assessment.
The notion. Judicial creativity is the making of new law by a court in the course of deciding a case. The declaratory theory denied that it happens, Blackstone's judge being the living oracle who discovers rather than makes. Cardozo replaced it with the proposition that the judicial process at its highest reaches is not discovery but creation, and Lord Reid called the declaratory account a fairy tale. In constitutional interpretation the scope for creativity is at its widest, because the text is general, entrenched and expected to last.
The development, decade by decade
The 1950s: textual and deferential. A.K. Gopalan v. State of Madras, AIR 1950 SC 27, read Article 21 as requiring no more than a procedure prescribed by an enacted law, and treated the fundamental rights as separate compartments. State of Madras v. Champakam Dorairajan, AIR 1951 SC 226, subordinated Part IV to Part III. The one creative step was Bengal Immunity Co. v. State of Bihar, AIR 1955 SC 661, holding that the Court is not bound by its own earlier decisions.
The 1960s: the assertion of limits. Golak Nath v. State of Punjab, AIR 1967 SC 1643, held that fundamental rights could not be abridged by amendment and imported prospective overruling to do so without unsettling past transactions. That doctrine alone disposes of the declaratory theory, since only a court that admits it is making law can choose the date from which its law operates.
The 1970s: the structural decade. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, produced the basic structure doctrine, a limitation on Article 368 that appears nowhere in it. It was applied in Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1. The decade also produced the low point, ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521, and then the turn: Maneka Gandhi v. Union of India, (1978) 1 SCC 248, requiring procedure to be right, just and fair and reading Articles 14, 19 and 21 together.
The 1980s: the rights and remedies decade. Standing was relaxed in S.P. Gupta v. Union of India, 1981 Supp SCC 87. Article 21 acquired dignity in Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608, and livelihood in Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545. New remedies appeared: compensation in public law in Rudul Sah v. State of Bihar, (1983) 4 SCC 141, fact finding commissions in Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161, and absolute liability in M.C. Mehta v. Union of India, (1987) 1 SCC 395. Minerva Mills v. Union of India, (1980) 3 SCC 625, made the balance between Parts III and IV itself a basic feature.
The 1990s: institutions and rule making. The Court turned to the machinery of government. Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441, read consultation in Article 124(2) as concurrence and created the collegium, clarified in Special Reference No. 1 of 1998, (1998) 7 SCC 739. S.R. Bommai v. Union of India, (1994) 3 SCC 1, subjected Article 356 to review. Vishaka v. State of Rajasthan, (1997) 6 SCC 241, made binding rules where Parliament had made none. L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, protected review itself. Vineet Narain v. Union of India, (1998) 1 SCC 226, introduced continuing mandamus.
The 2000s: consolidation and the first self imposed limits. Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, warned against overreach.
The 2010s: discipline and dignity. State of Uttaranchal v. Balwant Singh Chaufal, (2010) 3 SCC 402, disciplined public interest litigation. Supreme Court Advocates-on-Record Association v. Union of India, (2016) 5 SCC 1, struck down the Ninety ninth Amendment. K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, recognised privacy, adopted structured proportionality and overruled ADM Jabalpur. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, and Joseph Shine v. Union of India, (2018) 2 SCC 189, applied dignity to the Penal Code.
The 2020s: creativity by reconsideration. The most notable recent exercises are unmakings rather than makings. Supriyo v. Union of India, decided on 17 October 2023, declined to create a marriage regime. M.K. Ranjitsinh v. Union of India, decided on 21 March 2024, recognised a right against the adverse effects of climate change. State of Punjab v. Davinder Singh, decided on 1 August 2024, overruled E.V. Chinnaiah v. State of Andhra Pradesh, (2005) 1 SCC 394, by seven judges. Property Owners Association v. State of Maharashtra, decided on 5 November 2024, narrowed by nine judges the reading of Article 39(b) that had stood since Sanjeev Coke Manufacturing Co. v. Bharat Coking Coal, (1983) 1 SCC 147.
The critical assessment
In favour. Each creative step answered a demonstrated failure, and Parliament repeatedly adopted the results rather than reversing them: Article 21A by the Eighty sixth Amendment in 2002 after Unni Krishnan v. State of Andhra Pradesh, (1993) 1 SCC 645, the Sexual Harassment of Women at Workplace Act, 2013, after Vishaka, and the Digital Personal Data Protection Act, 2023, after Puttaswamy.
Against. The doctrines with the greatest reach have no textual anchor, and their content is settled by the Court alone. Creativity is retrospective unless the Court chooses otherwise. The NJAC decision set aside an amendment passed by both Houses and ratified by the States on the ground that it reduced the role of judges in appointing judges, and Chelameswar J.'s dissent pressed exactly that objection.
The instruments that made the development possible
Creativity in constitutional interpretation is not free-standing; it works through four textual footholds and it is worth naming them.
Article 141, which makes the law declared binding on all courts at once, so that the product of one decision becomes general law immediately.
Article 32, itself a fundamental right, which M.C. Mehta v. Union of India, (1987) 1 SCC 395, held carries the power to forge new remedies, and whose entry point was widened by S.P. Gupta v. Union of India, 1981 Supp SCC 87, so that a bona fide stranger may move the Court for a class which cannot come itself.
Article 142, permitting any order necessary for complete justice, confined by Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409, which held that it cannot be used to build a new edifice ignoring express statutory provisions.
Article 21 read with Part IV, licensed by Minerva Mills v. Union of India, (1980) 3 SCC 625, holding the harmony between the two Parts to be a basic feature, which is how Unni Krishnan v. State of Andhra Pradesh, (1993) 1 SCC 645, derived a right to education from Articles 21, 41 and 45.
The ratification pattern, which answers the legitimacy objection
Parliament has repeatedly adopted the results rather than reversing them. The right to education became Article 21A by the Constitution (Eighty sixth Amendment) Act, 2002, followed by the Right of Children to Free and Compulsory Education Act, 2009. The Vishaka guidelines became the Sexual Harassment of Women at Workplace Act, 2013. The privacy holding in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, was followed by the Digital Personal Data Protection Act, 2023. A creative power whose products are enacted by the legislature is being ratified and not merely tolerated.
Conclusion. Judicial creativity in Indian constitutional interpretation developed from near absence in the 1950s to structural law making in the 1970s, rights and remedies in the 1980s, institutional rule making in the 1990s, and, since the 2000s, a phase in which the Court has been as active in limiting itself and in reconsidering its own precedents as in creating new doctrine. The critical judgment that best fits that record is neither approval nor condemnation but a condition: creativity has been defensible where a constitutional guarantee was engaged, its holders could not enforce it and the political organs had not acted. The most recent decade contains the Court both meeting that condition, in Ranjitsinh, and declining to act where it was not met, in Supriyo.
3.Judicial activism is a necessary weapon in a democracy to protect the rights of marginalized section of the society. Elucidate the notion of judicial activism with the help of case laws in India.[25]
Answer
For full marks, cover: the notion; then the proposition in the statement, which is specifically about marginalised sections; the case law group by group; and the limits, since elucidate does not mean endorse.
The notion. Judicial activism is the judiciary's assumption of an affirmative role in enforcing constitutional guarantees and supplying remedies where the political organs have not acted. It is best defined against judicial restraint, the disposition to leave contested policy to the elected organs, and judicial overreach, the assumption of functions belonging to those organs.
The statement's premise is sound and rests on a structural argument. Democracy allocates power by numbers. A group that is small, dispersed, stigmatised or unable to organise cannot obtain protection by that route, and the majority has no electoral incentive to supply it. Part III exists precisely to place certain claims beyond the reach of numbers, and Article 32 makes the remedy for those claims itself a fundamental right. A court enforcing Part III for a group the political process ignores is therefore not overriding democracy but performing the function the Constitution assigned it.
The case law divides by the group protected, and that is the most effective structure for this answer.
Prisoners and undertrials. Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, read down section 30(2) of the Prisons Act, 1894, so that solitary confinement is not permissible merely because a prisoner is under sentence of death, and held that a prisoner retains his fundamental rights. Sunil Batra (No. 2), (1980) 3 SCC 488, treated a convict's letter about the torture of a fellow prisoner as a petition and converted it into habeas corpus. Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 81, recognised a right to speedy trial and released undertrials held longer than the maximum sentence for their offences.
The arrested. D.K. Basu v. State of West Bengal, (1997) 1 SCC 416, laid down binding requirements on arrest and detention, later given statutory form.
Bonded and unorganised labour. Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161, held that Article 32 prescribes no particular procedure and appointed commissioners, because a bonded labourer cannot lead evidence in the ordinary way.
The urban poor. Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545, held that the right to livelihood is part of the right to life, and required that pavement dwellers be heard before eviction.
Women. Vishaka v. State of Rajasthan, (1997) 6 SCC 241, made binding rules against sexual harassment at the workplace where Parliament had made none, and they held the field until the Act of 2013. Shayara Bano v. Union of India, (2017) 9 SCC 1, held talaq-e-biddat unconstitutional.
Sexual minorities. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, held so much of section 377 of the Penal Code as criminalised consensual sexual conduct between adults to be unconstitutional. National Legal Services Authority v. Union of India, (2014) 5 SCC 438, recognised transgender persons as a third gender entitled to the protection of Articles 14, 15, 16, 19 and 21.
Victims of State violence. Rudul Sah v. State of Bihar, (1983) 4 SCC 141, and Nilabati Behera v. State of Orissa, (1993) 2 SCC 746, created compensation in public law for breach of fundamental rights.
Those exposed to environmental harm. M.C. Mehta v. Union of India, (1987) 1 SCC 395, created absolute liability. M.K. Ranjitsinh v. Union of India, decided on 21 March 2024, recognised a right against the adverse effects of climate change under Articles 14 and 21.
The enabling doctrine behind all of them is the relaxation of standing in S.P. Gupta v. Union of India, 1981 Supp SCC 87, which held that where a legal wrong is caused to persons who by reason of poverty, disability or a socially or economically disadvantaged position cannot approach the court, any bona fide member of the public may move it. Without that rule none of these cases would have been filed.
The historical argument is worth stating. The Court's standing was at its lowest after the majority in ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521, held that during an Emergency no person could move a High Court for habeas corpus. Public interest litigation was the means of recovery, and ADM Jabalpur was expressly overruled in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
The limits must be stated, because the word necessary in the statement is doing a lot of work. Activism is necessary where a constitutional guarantee is engaged, its holders cannot enforce it and the political organs have not acted. Where those conditions fail it becomes overreach: Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, holds that judges cannot take over another organ's functions, and Supriyo v. Union of India, decided on 17 October 2023, is the Court declining to design a statutory regime even for a group with a strong claim to protection. And the weapon can be turned: State of Uttaranchal v. Balwant Singh Chaufal, (2010) 3 SCC 402, directed courts to verify the credentials of petitioners because the jurisdiction opened for the marginalised was being used by others.
Why the marginalised cannot use the political process, and what follows
The premise of the statement is structural and should be stated as an argument rather than assumed. Democracy allocates power by numbers. A group that is small, dispersed, stigmatised, imprisoned or illiterate cannot obtain protection by that route, and the majority has no electoral incentive to supply it. Part III exists precisely to place certain claims beyond the reach of numbers, and Article 32 makes the remedy for those claims itself a fundamental right. A court enforcing Part III for a group the political process ignores is therefore performing the function the Constitution assigned it, not overriding democracy.
The enabling rule, and the classes it reached
S.P. Gupta v. Union of India, 1981 Supp SCC 87, is the rule without which none of these cases would have been filed: where a legal wrong is caused to persons who by reason of poverty, helplessness, disability or a socially or economically disadvantaged position cannot approach the court, any member of the public acting bona fide may move it.
Prisoners and undertrials. Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, read down section 30(2) of the Prisons Act, 1894, so that solitary confinement is not permissible merely because a prisoner is under sentence of death, and required reasons and a hearing before bar fetters under section 56. Sunil Batra (No. 2), (1980) 3 SCC 488, treated a convict's letter about the torture of a fellow prisoner as a petition. Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 81, released undertrials held longer than the maximum sentence for the offence charged.
Bonded labour. Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161, on the Faridabad quarries, where commissioners were appointed because the labourers could not lead evidence.
Women. Vishaka v. State of Rajasthan, (1997) 6 SCC 241, after the gang rape of Bhanwari Devi.
Sexual minorities. National Legal Services Authority v. Union of India, (2014) 5 SCC 438, recognising transgender persons as a third gender entitled to the protection of Articles 14, 15, 16, 19 and 21, and Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
Conclusion. The statement is correct with a qualification. Judicial activism has been the only effective protection available to prisoners, bonded labourers, pavement dwellers, women facing harassment at work and sexual minorities, and the case law shows it, group by group. It is a weapon in a democracy rather than against one, because it enforces a Part III that the Constitution deliberately placed beyond the reach of majorities. The qualification is that its justification is entirely conditional on the marginality it invokes, which is why the Court itself has had to police the entry point in Balwant Singh Chaufal and to decline in Supriyo, and why an activism exercised for those who can reach the political process is not what the statement defends.
4.According to Justice V.R. Krishna Iyer, "Judicial independence is the soul of democracy."- Discuss the role of judicial accountability with special reference to National Judicial Commission in India.[25]
Answer
For full marks, cover: why independence is said to be the soul of democracy; the tension between independence and accountability; the mechanisms of accountability; and the Commission, which the question names.
Independence is the soul of democracy because a democracy is a government of limited powers and someone must be able to enforce the limits against the government of the day. A judge who could be removed, transferred, denied promotion or prosecuted at the will of the executive could not decide against it, and the guarantees in Part III would then be enforceable only when the executive did not mind. That is why judicial independence is part of the basic structure and why the Constitution insulates judges by seven separate devices: appointment under Articles 124(2) and 217(1), security of tenure under Article 124(4) with Article 218, salaries charged on the Consolidated Fund under Article 112(3)(d), the bar on discussion in the legislature under Articles 121 and 211, the bar on practice after retirement under Articles 124(7) and 220, the contempt powers under Articles 129 and 215, and the direction to separate the judiciary from the executive in Article 50.
Accountability is the necessary counterpart, and the tension is genuine. Every device that protects a judge from pressure also protects him from consequences. A mechanism that reaches misconduct without exposing decisions to political pressure is difficult to design, and India has not designed one.
The mechanisms that exist are six.
Reasoned public judgments, which is the primary accountability of the judicial function and is more demanding than anything required of a legislature, which need give no reasons at all.
Appeal and review, which correct a decision without punishing the maker.
Removal for proved misbehaviour or incapacity under Article 124(4) with Article 218, requiring an address by each House supported by a majority of the total membership and by two thirds of those present and voting, on the procedure in the Judges (Inquiry) Act, 1968: a motion signed by one hundred members of the House of the People or fifty of the Council of States, and an inquiry by a committee of three. The procedure has never been carried to a conclusion.
Criminal liability for corruption. K. Veeraswami v. Union of India, (1991) 3 SCC 655, decided on 25 July 1991, held that a judge of the higher judiciary is a public servant under the Prevention of Corruption Act, but that no criminal case may be registered without prior consultation with the Chief Justice of India.
The in house procedure, adopted in 1997 with the Restatement of Values of Judicial Life, for misconduct falling short of removal. C. Ravichandran Iyer v. Justice A.M. Bhattacharjee, (1995) 5 SCC 457, held that the Bar cannot sit in judgment on a judge and that such complaints go to the Chief Justice. Its working was tested recently: after cash was found at the residence of a sitting High Court judge in March 2025, an in house committee inquired and recommended removal, the Supreme Court on 7 August 2025 dismissed the judge's challenge and held that the procedure has legal sanctity and is not a parallel mechanism outside the constitutional framework, removal motions were signed by members of both Houses, and the matter ended with the judge's resignation in April 2026. It is the closest the machinery has ever come to a conclusion, and it was the in house procedure and not the constitutional one that produced the result.
Transparency. Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal, decided on 13 November 2019, 2019 SCC OnLine SC 1459, held the office of the Chief Justice of India to be a public authority under the Right to Information Act, 2005.
The National Judicial Appointments Commission
The Commission addressed appointment rather than discipline, and that distinction is worth making at once, because it is often treated as an accountability measure when its subject was selection.
The Constitution (Ninety ninth Amendment) Act, 2014 inserted Articles 124A, 124B and 124C and constituted the Commission with 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. The National Judicial Appointments Commission Act, 2014, provided that no recommendation shall be made if any two members do not agree.
In Supreme Court Advocates-on-Record Association v. Union of India, (2016) 5 SCC 1, decided on 16 October 2015, a Constitution Bench struck down both by four to one, Chelameswar J. dissenting, holding that primacy of the judiciary in appointments is an aspect of independence and therefore of the basic structure, that the presence of the Law Minister introduced the executive into selection, and that the two member veto could defeat the unanimous view of the three judges on the Commission.
Its status is therefore that it does not exist, and appointments are made by the collegium created in Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441, and defined in Special Reference No. 1 of 1998, (1998) 7 SCC 739. The Memorandum of Procedure that was to be revised after the judgment remains unsettled, and High Court vacancies have remained in the hundreds.
The seven guarantees, and why the Commission is not an answer to accountability
Independence is secured by seven devices and they should be named with their Articles: appointment under Articles 124(2) and 217(1); security of tenure under Article 124(4) with Article 218; salaries charged on the Consolidated Fund under Article 112(3)(d); immunity from legislative discussion under Articles 121 and 211; the bar on practice after retirement under Articles 124(7) and 220; contempt powers under Articles 129 and 215; and separation from the executive under Article 50.
The Commission addressed appointment and not discipline, and the distinction is worth making at once, because the two are constantly confused. Its composition was the Chief Justice of India as Chairperson, the two next senior most Judges, 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; and the Act provided that no recommendation shall be made if any two members do not agree. That two member veto is the feature the judgment turned on, because it could defeat the concurrent opinion of all three judges on the Commission.
What actually works, and it is not the constitutional route
Removal under Article 124(4) with the Judges (Inquiry) Act, 1968, has never been carried to a conclusion.
Criminal liability exists but is qualified. K. Veeraswami v. Union of India, (1991) 3 SCC 655, decided on 25 July 1991, held that a judge of the higher judiciary is a public servant under the Prevention of Corruption Act, but that no criminal case may be registered without prior consultation with the Chief Justice of India.
The in house procedure, adopted in 1997 with the Restatement of Values of Judicial Life, is what operates. C. Ravichandran Iyer v. Justice A.M. Bhattacharjee, (1995) 5 SCC 457, held that the Bar cannot sit in judgment on a judge and that complaints must go to the Chief Justice. Its standing was confirmed on 7 August 2025, when the Supreme Court dismissed a sitting High Court judge's challenge to an in house inquiry that had recommended his removal, holding that the procedure has legal sanctity and is not a parallel mechanism outside the constitutional framework; the matter ended with his resignation in April 2026.
Conclusion. Krishna Iyer J.'s proposition is sound, and the Indian Constitution acts on it through seven separate guarantees. The role of accountability is to prevent that protection from becoming immunity, and on that measure India's record is poor in form and better in recent practice: the constitutional removal procedure has never once been completed, and what actually worked in 2025 and 2026 was the judiciary's own in house procedure, whose legal standing the Supreme Court confirmed in the course of it. The National Judicial Appointments Commission is not the answer to the accountability question because it was about appointment, and its annulment left the appointment process without transparency, criteria or reasons. Independence has been secured; accountability remains largely self administered, and the unsettled Memorandum of Procedure a decade after the judgment is the standing evidence of unfinished work.
5.According to Geremy Bentham, "the greatest happiness of the greatest number is the foundation of morals and legislation." Discuss the interrelationship between law and justice in the light of above statement.[25]
Answer
For full marks, cover: what Bentham's principle claims; where it places law in relation to justice; its strengths and its decisive weakness; the competing theories; and the Indian position.
Bentham's principle is a standard for legislation, not a description of law. In An Introduction to the Principles of Morals and Legislation (1789) 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, and for a legislature that party is the community. Bentham's target was the vagueness of natural law and of the common law, and he dismissed natural rights as nonsense upon stilts and imprescriptible rights as nonsense upon stilts of a higher order.
On the relation between law and justice, utilitarianism takes a distinctive position. Justice is not a standard independent of consequences. It is, as Mill later put it, the name for a class of social utilities that are more stringent than others because they concern the essentials of human well being. Law is therefore the instrument by which utility is realised, and a law is just if it produces the best aggregate consequences.
Its strengths are three and should be conceded before it is criticised. It supplies a criterion a legislature can actually apply, which natural law does not. It is egalitarian in its arithmetic, since each is to count for one and none for more than one. And it explains most of the ordinary content of a modern legal system, since regulatory law, taxation, planning and public health are justified in exactly these terms.
Its weakness is decisive for a constitutional lawyer. Aggregation permits the sacrifice of an individual where the sum improves. If the happiness of the greatest number is the whole criterion, nothing in principle prevents the deprivation of a minority whose suffering is outweighed. That is precisely what a bill of rights exists to forbid, and it is why Part III is entrenched and enforceable rather than left to the legislature's calculation of the general good.
The competing accounts answer that weakness.
Rawls, in A Theory of Justice (1971), objected that utilitarianism does not take seriously the distinction between persons. His parties, choosing behind a veil of ignorance, would secure equal basic liberties first, and would permit inequalities only where attached to positions open under fair equality of opportunity and only where they benefit the least advantaged.
Aristotle supplies the older distinction that survives both: distributive justice allocates proportionately, corrective justice restores a balance disturbed by a wrong.
Amartya Sen, in The Idea of Justice (2009), accepts the consequentialist concern with actual outcomes but rejects the aggregation, distinguishing niti, correctness of rules and institutions, from nyaya, justice as realised in people's lives.
The syllabus's own classification places these positions precisely. Equivalence theories treat justice as nothing more than the positive law of the stronger class; dependency theories hold that justice depends on law for its realisation but is not the same as law; the third position treats justice as independent of law. Utilitarianism sits with the dependency theories: it supplies a standard of justice distinct from the law in force and requires law to realise it.
Indian law takes the dependency position and rejects pure aggregation. The Preamble names justice first among the four objectives. Part III places certain claims beyond the reach of the general good, which is an express rejection of unrestricted utilitarian calculation. Part IV, with Article 37, states the aggregate welfare programme but withholds enforcement, which is utilitarian in content and subordinate in force. Article 39A obliges the State to secure that the legal system promotes justice on a basis of equal opportunity.
The case law shows the two working together. Restrictions on fundamental rights are permitted only if reasonable and in the interests specified, which is a utilitarian consideration admitted under a controlling standard, and K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, disciplined that admission by requiring a structured proportionality test rather than a bare balance of advantage. Maneka Gandhi v. Union of India, (1978) 1 SCC 248, requires procedure to be right, just and fair, which is a justice standard the law must meet and not one it defines. Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545, is the clearest instance of the tension: the public interest in clearing pavements was real, and the Court required that those affected be heard and their livelihood recognised, refusing to let the aggregate settle the matter without them.
The competing accounts, and where each sits in the Indian text
Rawls objected that utilitarianism does not take seriously the distinction between persons. In A Theory of Justice (1971) parties behind a veil of ignorance, not knowing their class, talents or conception of the good, would choose in lexical order: equal basic liberties for all; and inequalities permitted only where attached to positions open under fair equality of opportunity and only where they benefit the least advantaged. That is the closest theoretical statement of the scheme of Part III with Article 16(4) and Part IV.
Aristotle supplies the older division that survives both: distributive justice, proportionate allocation, and corrective justice, restoration of a balance disturbed by a wrong.
Amartya Sen, in The Idea of Justice (2009), accepts the concern with actual outcomes and rejects the aggregation, distinguishing niti, correctness of institutions and rules, from nyaya, justice as realised in the lives of people.
The syllabus's own classification places these precisely. Equivalence theories treat justice as nothing more than the positive law of the stronger class; dependency theories hold that justice depends on law for its realisation but is not the same as law; the third position treats justice as independent of law. Utilitarianism belongs with the dependency theories, because it supplies a standard distinct from the law in force and requires law to realise it.
The tension shown in a decided case
Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545, is the clearest Indian illustration. Pavement and slum dwellers faced eviction under the Bombay Municipal Corporation Act. The public interest in clearing the pavements was genuine and the Court accepted it. It nevertheless held that the right to livelihood is an integral facet of the right to life, because no person can live without the means of living, and that those affected must be heard before eviction. The aggregate was not permitted to settle the question without the people whose loss it counted, which is precisely what Bentham's criterion, applied without a bill of rights, would have allowed.
Conclusion. Bentham's principle states one true thing and one insufficient thing about the relation between law and justice. It is true that law is the instrument by which a society's conception of the good is realised, and it is insufficient because a standard that aggregates cannot protect the person whose loss is outweighed. Indian constitutional law adopts both halves in their proper places: Part IV states the welfare programme in language Bentham would recognise, and Part III with Article 32 places certain claims beyond that calculation. That arrangement is the practical answer to the question, and it shows that law and justice in India are neither identical nor independent, but related in the way the dependency theories describe.
6."The purpose of Dharma is to ensure justice, protect the rights of individual and maintain social harmony."- Discuss.[25]
Answer
For full marks, cover: the three purposes the statement names, taken one by one; and an honest evaluation, since one of the three sits awkwardly with the tradition and saying so is what makes the answer critical.
Dharma derives from the root dhr, to hold or sustain, and means the order that holds the world and society together together with the duty of each person that maintains it. Its sources, in order of authority, are sruti, smriti, sadachara and atmatusti. The statement in the question ascribes three purposes to it, and they are not equally well supported.
Ensuring justice
This is the purpose the tradition supports most strongly. Justice in the classical scheme follows from everyone performing their dharma, and the institutions exist to secure that they do.
Rajadharma places the ruler inside the order rather than above it. The king had no independent legislative power in the modern sense; his function was protection and punishment, and danda was itself regulated by dharma, so that a king who punished unjustly destroyed himself. Kautilya's Arthashastra lists four feet of law, dharma, vyavahara, charitra and rajasasana, and places the royal edict last when they conflict, which is the classical statement of the rule of law.
Vyavahara supplied the adjudicative machinery: the constitution of the court, the eighteen titles of litigation, the burden of proof, the classes of evidence, and the duty of the judge to decide according to dharma and not according to the wishes of the king.
Maintaining social harmony
This is also well supported, and is arguably the primary purpose. The word itself means what holds together. The classical scheme allocates function by varna and asrama and treats the performance of allotted duty as what keeps the whole in order. The four purusharthas, dharma, artha, kama and moksha, subordinate the pursuit of wealth and desire to dharma, which is a harmony principle applied to the individual life.
Protecting the rights of the individual
This is the claim that requires qualification, and a good answer says so. The classical tradition is duty based, not rights based. Obligation precedes entitlement; others benefit because a duty is performed rather than because a claim is asserted; and there is no classical vocabulary of subjective right corresponding to the western one. To say that dharma protects the rights of the individual is to describe its effect in modern language rather than its structure.
The qualification goes further. The order dharma maintained was hierarchical, and the harmony it secured was the harmony of that hierarchy. Duties and their consequences varied by varna, and the disabilities that followed are precisely what the Constitution rejects: Article 15 forbids discrimination on grounds of caste, Article 17 abolishes untouchability, Article 16(4) makes reservation a constitutional obligation, and the Hindu Succession (Amendment) Act, 2005, made a daughter a coparcener by birth, reversing one of the oldest rules of the classical law.
The honest position is that the statement is true of dharma as a modern reconstruction and only partly true of dharma as historically administered. It ensured justice through the subordination of the ruler; it maintained social harmony; and it protected the individual by imposing duties on others rather than by conferring rights on him, and it did so unequally.
What survives, and where
At the level of principle the tradition survives clearly. The Preamble promises justice, social, economic and political, stating an ordering aim rather than a catalogue of claims. Article 51A states fundamental duties, which is duty language inside a rights instrument. Article 50 directs separation of the judiciary from the executive. The Supreme Court's motto, Yato Dharmastato Jayah, states the connection expressly. The reasoning of Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, that a power conferred by an order cannot be used to destroy that order, is rajadharma in constitutional form. In S.R. Bommai v. Union of India, (1994) 3 SCC 1, secularism was explained as a positive obligation of equal respect for all faiths, which is nearer the Indian tradition than the French model.
At the level of operative rule it does not survive. Section 4 of the Hindu Marriage Act, 1955, and the corresponding provisions of the other codes provide that any text, rule or interpretation of Hindu law in force before their commencement ceases to have effect on matters for which the Acts provide. Custom survives only where a statute preserves it and only if certain, reasonable and not opposed to public policy, and yields to the Constitution, as Shayara Bano v. Union of India, (2017) 9 SCC 1, held for talaq-e-biddat.
The three claims tested against the sources
Ensuring justice is the claim the tradition supports most strongly, through rajadharma: the king is bound by dharma and not above it, has no independent legislative power in the modern sense, and danda, the power to punish, is itself regulated by dharma so that a king who punishes unjustly destroys himself. Kautilya's Arthashastra lists four feet of law, dharma, vyavahara, charitra and rajasasana, and when they conflict places the royal edict last, which is the exact opposite of Austin's command theory.
Maintaining social harmony is also well supported, and is arguably the primary purpose, since the word itself means what holds together, and the four purusharthas subordinate the pursuit of wealth and desire to dharma.
Protecting the rights of the individual is the claim that requires qualification. The tradition is duty based: obligation precedes entitlement, others benefit because a duty is performed rather than because a claim is asserted, and there is no classical vocabulary of subjective right. To say that dharma protects rights is to describe its effect in modern language rather than its structure.
The qualification goes further, and a critical answer must say so. The order dharma maintained was hierarchical, and duties and their consequences varied by varna. The Constitution rejects those disabilities by name: Article 15 forbids discrimination on grounds of caste, Article 17 abolishes untouchability, Article 16(4) makes reservation a constitutional obligation, and the Hindu Succession (Amendment) Act, 2005, made a daughter a coparcener by birth, abolished survivorship and removed the doctrine of pious obligation.
And codification displaced the rules by express words. Section 4 of the Hindu Marriage Act, 1955, provides that any text, rule or interpretation of Hindu law, or any custom or usage, in force immediately before the Act ceases to have effect on matters for which the Act provides.
Conclusion. The statement is accurate on two of its three claims and requires qualification on the third. Dharma did aim at justice, through a conception in which the ruler is bound by a law he did not make, and it did aim at social harmony, which is what the word itself means. It did not protect the rights of the individual in the sense the modern word carries, because it worked through duty rather than claim and because the order it sustained was unequal. What the Indian legal system has taken from it is the first idea and not the third: the Preamble, the fundamental duties and the basic structure doctrine all rest on the proposition that authority is subject to a standard it does not own, while the enforceable rights of the individual come from Part III and from Article 32, which the tradition did not supply.
7.Write Short Notes on (Any Two)[25]
- a) Judicial process in pursuit of Constitutional goals and Values
- b) Accountabilities of Executive
- c) Doctrine of Precedent
- d) Judicial Creativity: Tools and Techniques
Answer
For full marks, cover: two of the four, at roughly twelve and a half marks each. All four are answered here because the two a candidate chooses will differ.
(a) Judicial process in pursuit of Constitutional goals and Values
The goals and values are stated in the Preamble, in Part III and in Part IV, and the judicial process has pursued them through four doctrines.
The Preamble is part of the Constitution and an aid to construction, held in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, departing from In re Berubari Union, AIR 1960 SC 845.
Parts III and IV are complementary, the early subordination in State of Madras v. Champakam Dorairajan, AIR 1951 SC 226, giving way to Minerva Mills v. Union of India, (1980) 3 SCC 625, which held the balance between them to be itself a basic feature.
Article 21 is read in the light of Part IV, which produced the right to education in Unni Krishnan v. State of Andhra Pradesh, (1993) 1 SCC 645, enacted as Article 21A by the Eighty sixth Amendment in 2002, and the right to livelihood in Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545.
Equality is a value and not only a rule, after E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3.
The values worked through are secularism in S.R. Bommai v. Union of India, (1994) 3 SCC 1; social justice from Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, to State of Punjab v. Davinder Singh, 1 August 2024; dignity in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, and Navtej Singh Johar v. Union of India, (2018) 10 SCC 1; and the environment in Vellore Citizens Welfare Forum v. Union of India, (1996) 5 SCC 647, and M.K. Ranjitsinh v. Union of India, 21 March 2024.
The limit is that a court can declare a right but cannot fund or administer it, which is why Unni Krishnan required Article 21A and the Act of 2009 before it became effective.
(b) Accountabilities of Executive
The executive in India is accountable in five directions, and the note is best organised that way.
To the legislature, politically. Article 75(3) makes the Council of Ministers collectively responsible to the House of the People, and Article 164(2) does the same in the States. The instruments are questions, motions, the no confidence motion, and financial control through Articles 112 to 117, since no expenditure may be incurred without an appropriation made by law.
To the legislature, through its committees and the auditor. The Public Accounts Committee and the Estimates Committee examine expenditure, working from the reports of the Comptroller and Auditor General, whose independence is secured by Articles 148 to 151 and whose reports are laid before the House under Article 151.
To the courts, legally. All executive action is subject to judicial review on the grounds of illegality, irrationality and procedural impropriety, with Article 14 striking at arbitrariness after E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3, and with structured proportionality after K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1. Even a Proclamation under Article 356 is reviewable, as S.R. Bommai v. Union of India, (1994) 3 SCC 1, held. Public law compensation lies for violation of fundamental rights by the State's officers, as in Rudul Sah v. State of Bihar, (1983) 4 SCC 141, and Nilabati Behera v. State of Orissa, (1993) 2 SCC 746, and continuing mandamus permits supervision over time, as in Vineet Narain v. Union of India, (1998) 1 SCC 226.
To the public, through transparency and statutory watchdogs. The Right to Information Act, 2005, the Lokpal and Lokayuktas Act, 2013, the Central Vigilance Commission and the Prevention of Corruption Act, 1988.
To the electorate, ultimately, through periodic elections conducted by an Election Commission whose independence rests on Article 324.
The weaknesses are the anti defection regime's effect on the reality of parliamentary control, the volume of legislation passed with limited scrutiny, and the delay that attends judicial remedies.
(c) Doctrine of Precedent
Stare decisis requires a court to decide a case in the way an earlier court decided a case that cannot be materially distinguished. What binds is the ratio decidendi; the rest is obiter dictum.
In India it is constitutional. Article 141 makes the law declared by the Supreme Court binding on all courts within the territory of India; Article 144 requires all authorities to act in its aid; Article 145(3) requires at least five judges for a substantial question of constitutional interpretation.
The Supreme Court is not bound by itself, held in Bengal Immunity Co. v. State of Bihar, AIR 1955 SC 661, subject to the Bench strength discipline of Union of India v. Raghubir Singh, (1989) 2 SCC 754. That is why State of Punjab v. Davinder Singh, 1 August 2024, went to seven judges to overrule E.V. Chinnaiah, and Property Owners Association v. State of Maharashtra, 5 November 2024, to nine.
The escapes are distinguishing, per incuriam as in A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602, sub silentio, and overruling, which may be prospective since Golak Nath v. State of Punjab, AIR 1967 SC 1643.
Merits: certainty, equality, efficiency, uniformity across the country, and discipline on judicial law making. Demerits: perpetuation of error, rigidity, retrospective operation, and volume.
(d) Judicial Creativity: Tools and Techniques
A tool is a source of power; a technique is a way of using it.
Tools: Article 32 with Article 226, held in M.C. Mehta v. Union of India, (1987) 1 SCC 395, to include power to forge new remedies, with standing widened by S.P. Gupta v. Union of India, 1981 Supp SCC 87; Article 141; Article 142, confined by Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409; Article 21 with Part IV; and international instruments where domestic law is silent, as in Vishaka v. State of Rajasthan, (1997) 6 SCC 241.
Techniques: expansive interpretation, as in Maneka Gandhi v. Union of India, (1978) 1 SCC 248; reading down and reading in; guidelines pending legislation, as in Vishaka and D.K. Basu v. State of West Bengal, (1997) 1 SCC 416; continuing mandamus, as in Vineet Narain; fact finding commissions, as in Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161; new remedies, as in Rudul Sah; prospective overruling, from Golak Nath; overruling by a larger Bench; and structured proportionality, from Puttaswamy.
Limits: Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683; Supriyo v. Union of India, 17 October 2023; and State of Uttaranchal v. Balwant Singh Chaufal, (2010) 3 SCC 402.
The four notes, with the authority each needs
On constitutional goals and values, the four doctrines are that the Preamble is part of the Constitution and an aid to construction, from Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, departing from In re Berubari Union, AIR 1960 SC 845; that Parts III and IV are complementary and their harmony is itself a basic feature, from Minerva Mills v. Union of India, (1980) 3 SCC 625, displacing State of Madras v. Champakam Dorairajan, AIR 1951 SC 226; that Article 21 takes content from Part IV, which produced Unni Krishnan v. State of Andhra Pradesh, (1993) 1 SCC 645, and then Article 21A in 2002; and that equality is a standard and not only a rule, from E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3.
On the accountability of the executive, the five directions are: to the legislature politically, under Articles 75(3) and 164(2), through questions, motions and financial control under Articles 112 to 117; to the legislature through its committees working on the reports of the Comptroller and Auditor General, whose independence rests on Articles 148 to 151 and whose reports are laid under Article 151; to the courts, on the grounds of illegality, irrationality and procedural impropriety, with Article 14 striking at arbitrariness and, since K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, structured proportionality, even a Proclamation under Article 356 being reviewable after S.R. Bommai v. Union of India, (1994) 3 SCC 1; to the public, through the Right to Information Act, 2005, the Lokpal and Lokayuktas Act, 2013, and the Prevention of Corruption Act, 1988; and to the electorate through elections conducted by a Commission whose independence rests on Article 324.
On precedent, Article 141 makes the law declared binding on all courts; the ratio binds and obiter does not; the Supreme Court is not bound by itself after Bengal Immunity Co. v. State of Bihar, AIR 1955 SC 661, subject to the Bench strength discipline of Union of India v. Raghubir Singh, (1989) 2 SCC 754; and the escapes are distinguishing, per incuriam as in A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602, sub silentio and overruling, which may be prospective since Golak Nath v. State of Punjab, AIR 1967 SC 1643.
On judicial creativity, the tools are Articles 32, 141, 142 and 226 with Article 21 read alongside Part IV, and the techniques are expansive interpretation, reading down, guidelines pending legislation, continuing mandamus, fact finding commissions, new remedies, prospective overruling and structured proportionality.
Conclusion. The four notes describe one system from four angles. The Constitution states goals; the executive is the organ that must deliver them and is held to account in five directions for doing so; precedent is what makes a court's declaration operate as a general rule rather than a settlement between parties; and the tools and techniques of creativity are how that declaration acquires content the text did not spell out. Taken together they explain why the judicial process in India is studied as a source of law and not only as a method of deciding disputes.
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This volume prints the 2023-24 Judicial Process paper set by the University of Mumbai for LLM Foundation Course, with a model answer to each of its 7 questions.
Written and edited by the munotes.in editorial desk. Published by munotes.in, Mumbai.
12 August 2026.
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