LLM Foundation Course Judicial Process Apr 2025 - ATKT Question Paper with Solutions

For full marks, cover: what judicial creativity means; the tools grouped as interpretation, precedent, and remedy and procedure; a leading Indian case for each important tool, with facts, holding and why it matters; a worked example showing how a court chooses among them; and the limits on their use.

What judicial creativity is

Judicial creativity is the development of the law by judges while deciding cases. Judges do not only find and apply existing rules. Where the text is open, the precedent is unsuited, or no remedy exists, they shape the rule that decides the case.

It is done with recognised tools, not by free choice. Each tool has a name, a use and a leading case. An answer that names the tools and attaches authority to each is stronger than one that praises creativity in general.

The tools fall into three groups.

1. Techniques of interpretation change what existing words mean.

Kihoto Hollohan v. Zachillhu, (1992) 1 SCR 686. The Tenth Schedule, added by the Fifty-second Amendment to deal with defection, was challenged. Its paragraph 7 barred every court from any matter about a member's disqualification. The amendment had not been ratified by the States under the proviso to Article 368(2). Held: paragraph 7 was invalid for want of ratification, because it took away the jurisdiction of the Supreme Court and the High Courts. The rest of the Schedule was severable and survived. The Speaker deciding a disqualification acts as a tribunal, so the decision is open to limited judicial review. Why it matters: one judgment uses three tools together: severance, reading down and the protection of judicial review.

1. Distinguishing: confining an earlier case to its facts. It is the commonest and least visible tool.
2. Overruling: declaring an earlier decision wrong.
3. Prospective overruling: confining the change to the future so that past transactions stand.
4. Per incuriam: treating a decision given in ignorance of a binding statute or authority as not binding.
5. Reference to a larger Bench: the formal way to reopen a settled rule.

I.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643. Land reform laws of Punjab and Mysore had been placed in the Ninth Schedule by the Seventeenth Amendment, and that amendment was challenged. Held: by six to five, fundamental rights could not be abridged by amendment under Article 368, because an amendment was "law" under Article 13(2). To avoid unsettling amendments already acted upon, the Court applied the doctrine of prospective overruling. Why it matters: it is the Indian origin of prospective overruling, a tool that lets a court change the law without undoing the past.

4. Continuing mandamus, keeping a case open and issuing directions until compliance.
5. Guidelines in the absence of legislation.
6. Compensation in public law for breach of fundamental rights.
7. Creating a substantive rule outright.

Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802. An organisation wrote to the Court that workers in Faridabad stone quarries were held in bondage. The Court treated the letter as a writ petition and appointed commissioners to visit the quarries. Held: Article 32 prescribes no particular form, so a letter may be a petition where the party cannot come to court, and the Court may appoint commissioners because the poor could otherwise never prove their case. Why it matters: epistolary jurisdiction and court-led fact-finding in one decision.

Nilabati Behera v. State of Orissa, AIR 1993 SC 1960. A mother wrote to the Court after her son, aged twenty two, was taken into police custody and found dead on a railway track the next day. Held: compensation under Article 32 or 226 is a public law remedy based on strict liability for breach of fundamental rights, and sovereign immunity is no defence. Why it matters: the Court created a remedy the statute book did not provide.

A worked example: choosing the tool

Suppose a statute lets a Collector detain a person for six months "if he is satisfied that it is necessary", with no hearing.

1. Reading in supplies a hearing, because after Maneka Gandhi v. Union of India, AIR 1978 SC 597, a procedure under Article 21 must be right, just and fair. In that case a passport was impounded without reasons, and the Court held that Articles 14, 19 and 21 form one scheme.
2. Reading down confines "satisfied" to satisfaction on real material.
3. Severance removes any sub-clause allowing detention without material.
4. Compensation on the Nilabati Behera principle follows if an unlawful detention has already occurred.

Conclusion. Judges in India exercise creativity through three groups of recognised tools. Interpretation tools include purposive reading, reading down and in, severance, harmonious construction and reading in international law (Kihoto Hollohan, Minerva Mills, Vishaka). Precedent tools include distinguishing, overruling, prospective overruling, per incuriam and reference (Golak Nath, Kesavananda Bharati, Raghubir Singh). Remedy and procedure tools include relaxed standing, letter petitions, commissioners, guidelines, public law compensation and new rules (Bandhua Mukti Morcha, Nilabati Behera, M.C. Mehta). Their use is legitimate when the court chooses the least destructive tool that cures the defect, and stays within the Constitution and the discipline of precedent.