LLM Foundation Course Judicial Process 2015 Question Paper with Solutions

The reason it belongs in a paper on the judicial process, rather than in a course on remedies, is that each of those departures was made by judges, none of them by Parliament, and together they changed what a court in India is able to do. Cardozo's proposition that the judicial process at its highest reaches is not discovery but creation has no better Indian illustration.

The first departure: standing

The classical rule was that only the person whose own legal right was injured could sue. The rule has an obvious justification, that it keeps courts out of disputes nobody has actually brought to them, and an equally obvious consequence, that it closes the courtroom to precisely those the Constitution was most concerned with. A bonded labourer, an undertrial and a pavement dweller each have rights under Part III and none of them has a lawyer.

S.P. Gupta v. Union of India, 1981 Supp SCC 87, is the doctrinal foundation and must be given with its facts, because the facts are what make the holding remarkable. A circular of the Union Law Minister had asked Chief Ministers to obtain consent from additional judges to be transferred outside their States, and a number of practising advocates challenged it, along with the non-appointment of two additional judges. The Union objected that advocates had no personal right in the matter. Bhagwati J. held that where a legal wrong or a legal injury is caused to a person or to a determinate class of persons who, by reason of poverty, helplessness, disability or a socially or economically disadvantaged position, are unable to approach the court for relief, any member of the public acting bona fide and having sufficient interest may move the High Court under Article 226 and the Supreme Court under Article 32.

Two limits inside that holding are usually missed and are worth stating, because they are the answer to the charge that standing was abolished. The applicant must act bona fide, and the persons on whose behalf he acts must be unable to come themselves. A busybody with a private grudge satisfies neither.

Sunil Batra v. Delhi Administration (No. 2), (1980) 3 SCC 488, produced what is called epistolary jurisdiction. Sunil Batra, a convict in Tihar jail, wrote a letter to a judge of the Supreme Court complaining that a warder had inflicted torture on another prisoner, Prem Chand, to extract money from his relatives. The Court treated the letter as a petition, converted the proceeding into one for habeas corpus, appointed two advocates as amici curiae with liberty to visit the prison and interview prisoners, and on their report issued directions on prison discipline, grievance mechanisms and visits by judicial officers. Krishna Iyer J.'s reasoning was that the rule of law does not stop at the prison gate and that a convict retains all fundamental rights except those necessarily lost by the fact of incarceration.

The third departure: remedy

Compensation in public law. Rudul Sah v. State of Bihar, (1983) 4 SCC 141, is the origin. Rudul Sah was acquitted of his wife's murder by a Sessions Court in 1968 and was kept in jail until 1982, fourteen years after his acquittal, the State's explanation being that he was of unsound mind. He moved the Supreme Court for habeas corpus, and by the time the petition was heard he had been released, so the writ had nothing to operate on. The Court held that if it could only order release and nothing more, Article 32 would be reduced to a formality, and awarded compensation in the writ proceeding itself, describing it as a palliative and leaving the ordinary civil suit open.

Substantive law. M.C. Mehta v. Union of India, (1987) 1 SCC 395, arose from the escape of oleum gas from a plant of Shriram Foods and Fertiliser Industries in a densely populated part of Delhi in December 1985, weeks after the Bhopal disaster. The Court was invited to apply the rule in Rylands v. Fletcher, which carries the exceptions of act of God, act of a stranger, statutory authority and consent. It declined. It held that an enterprise engaged in a hazardous or inherently dangerous activity owes an absolute and non-delegable duty to the community, that liability is absolute and subject to no exception, and that the measure of compensation must be correlated to the magnitude and capacity of the enterprise so that it has a deterrent effect. It also held that Article 32 is not merely injunctive but empowers the Court to forge new remedies for the enforcement of fundamental rights. The reasoning given for departing from an 1868 English rule is the clearest statement of Cardozo's method of sociology in the Indian reports: a rule evolved in a different society at a different stage of industrial development cannot govern this one.

Supervision over time. Vineet Narain v. Union of India, (1998) 1 SCC 226, arose out of the Jain hawala diaries, in which payments were allegedly recorded to a large number of politicians and officials, and the complaint was that the Central Bureau of Investigation had not pursued the matter because those implicated were in high office. Instead of disposing of the petition with a direction, the Court retained the case and issued directions from time to time until the investigation was complete, a technique now called continuing mandamus. It also issued directions on the independence of the CBI and the Central Vigilance Commission, including tenure for the Director.

The Court's control over its own creation

State of Uttaranchal v. Balwant Singh Chaufal, (2010) 3 SCC 402, decided on 18 January 2010, is the most important decision in this field since S.P. Gupta and is where a critical answer earns its marks. The petition itself concerned the appointment of the Advocate General of Uttaranchal. The Court used the occasion to trace the development of public interest litigation through three phases: the first directed at the fundamental rights of the poor and disadvantaged, the second at environmental protection, ecology and probity in public life, and the third, the present phase, in which the jurisdiction is increasingly invoked for extraneous reasons.

Critical assessment

The case for it is that every element of modern Indian rights jurisprudence came through this route, and that the classes it reached, prisoners, undertrials, bonded labourers and pavement dwellers, are exactly those the political process does not reach. There is also an institutional argument: 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 even against an illegal detention, the Court's standing was at its lowest, and public interest litigation was the means by which it recovered. That decision was expressly overruled in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

Conclusion. Public interest litigation is the clearest instance in Indian law of the judicial process creating new dimensions rather than applying existing ones: it produced a new rule of standing in S.P. Gupta, a new procedure in Bandhua Mukti Morcha and Sunil Batra, a new remedy in Rudul Sah and Nilabati Behera, new substantive law in M.C. Mehta, and binding rules in Vishaka where Parliament had enacted none. It converted Part III from a set of defences available to those who could afford a lawyer into a jurisdiction that reaches the undertrial and the bonded labourer. Its legitimacy is not unconditional, and the correct statement of the condition is the one the Court itself arrived at in Balwant Singh Chaufal: the jurisdiction is available where a constitutional guarantee is engaged and its holders cannot enforce it themselves, and a jurisdiction founded on the needs of those who cannot come to court loses its justification the moment it is used by those who have no business being there.

Bentham, who coined the word, made the case for it. His attack on the common law was that a law discoverable only by reading judgments cannot be known in advance by those bound by it, so it fails the first requirement of law. He called judge-made law dog law: you wait until your dog does the thing you dislike and then beat him for it. Against that he proposed a complete, publicly promulgated code, framed in ordinary language.

India was governed by codes decades before England was, and the sequence should be known. The Charter Act of 1833 created a single legislative authority for British India and provided for a Law Commission. The First Law Commission of 1834 under Macaulay produced the draft that, after long delay, became the Indian Penal Code, 1860. There followed the Code of Criminal Procedure, the Indian Evidence Act, 1872, drafted by Stephen, the Indian Contract Act, 1872, the Transfer of Property Act, 1882, and the Code of Civil Procedure, 1908. The General Clauses Act, 1897, supplies the definitions, presumptions and rules of construction that hold the whole structure together.

The gains are four. Codification makes law accessible, because the citizen and the subordinate court read a rule rather than reconstructing it from cases. It produces certainty and uniformity across a territory, which for a country of India's size is not a small thing. It permits deliberate reform, because a code can abolish in one section what courts would have been bound to continue. And it supplies a structure into which later amendments fit.

The costs are three and they are what connect codification to the judicial process. A code is rigid, and ages against a society that does not. It is necessarily incomplete, because no draftsman anticipates every case. And it transfers power to language, so that the meaning of the words then governs, which is why every codified system develops an elaborate law of statutory interpretation.

(b) Judicial Review as a special dimension of the judicial process

Judicial review is the power of a court to examine the validity of legislative and executive action against the Constitution and to refuse effect to what is inconsistent with it. It is a special dimension of the judicial process for a precise reason: in every other kind of adjudication the court applies the law to facts, whereas here the court sits in judgment on the law itself.

Its classical source is Marbury v. Madison, 5 US 137 (1803). Marbury had been appointed a justice of the peace in the last days of the Adams administration but his commission was not delivered; he sought mandamus from the Supreme Court under a provision of the Judiciary Act of 1789. Marshall C.J. held that the provision purporting to confer that original jurisdiction was itself repugnant to the Constitution, and reasoned that a written constitution superior to ordinary law would be an absurdity if courts were bound to give effect to a statute repugnant to it. The Court declined jurisdiction and in doing so established the power.

Review operates in three fields, and the grounds differ in each. Over legislation: legislative incompetence, tested by pith and substance; inconsistency with Part III; and inconsistency with any other constitutional limitation. Over executive and administrative action: illegality, irrationality and procedural impropriety, supplemented by Article 14, which since E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3, strikes at arbitrariness as such, and by the structured proportionality test adopted in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1. Over constitutional amendments, which is the distinctively Indian extension.

The amendment cases must be given with their facts. In Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, the head of a mutt challenged Kerala land reform legislation, and the case became the vehicle for testing the Twenty fourth, Twenty fifth and Twenty ninth Amendments. A Bench of thirteen judges, the largest ever assembled, held by seven to six that Parliament may amend any provision of the Constitution but may not damage or destroy its basic structure. The Court deliberately declined to define the basic structure exhaustively, listing features illustratively.

Review is itself part of the basic structure. L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, concerned Articles 323A and 323B, which permitted the exclusion of the jurisdiction of all courts except the Supreme Court in matters given to administrative tribunals. A Bench of seven judges held that the power of judicial review vested in the High Courts under Article 226 and in the Supreme Court under Article 32 is an integral and essential feature forming part of the basic structure, struck down the exclusionary clauses, and held that tribunals may act as courts of first instance but cannot supplant the High Courts, their decisions remaining subject to scrutiny before a Division Bench.

For full marks, cover: the paradox the question sets; the constitutional framework; what binds and what does not; the five creative techniques, each with a case explained; and why precedent belongs in a discussion of creativity rather than in opposition to it.

The paradox

Precedent looks like the opposite of creativity, and that is what the question is set on. A system in which every court repeats what was decided before appears to leave the judge nothing to do but match the case in front of him to one already decided. In practice the doctrine of precedent is the principal instrument of judicial creativity, for a reason that is easy to state and hard to overstate: the later judge decides what the earlier case decided. No decision arrives with its own scope marked on it.

It binds courts, and its effect on other authorities comes through Article 144.

The hierarchy that follows is that the Supreme Court binds every High Court and every subordinate court; within a State a High Court binds all courts subordinate to it, a Full Bench binds a Division Bench and a Division Bench binds a single judge; and the decision of one High Court is persuasive only in another.

The identification of the ratio is itself a creative act

This is the point on which the whole answer turns. A judgment states facts, arguments, reasons and a result, and nowhere states which proposition was necessary to the result. A later court that reads the earlier case broadly extends it to new facts; a later court that reads it narrowly confines it to its own. Neither court says it is changing the law, and both may be.

Two familiar tests exist. Wambaugh's inversion test asks whether the proposition, reversed, would have changed the result; if not, it is obiter. Goodhart's approach locates the ratio in the material facts treated as material by the judge, together with the decision on them, which is closer to how courts actually work, because the choice of which facts are material is where the discretion lies.

That freedom is disciplined by Bench strength. Union of India v. Raghubir Singh, (1989) 2 SCC 754, concerned conflicting decisions on the applicability of an amendment to the Land Acquisition Act. Pathak C.J. held that a decision of a Constitution Bench binds a Bench of lesser strength, so that a smaller Bench which doubts an earlier larger Bench decision must refer the matter rather than decide against it, and observed that while the Court is not bound to become a prisoner of its own past, the doctrine of binding precedent has the merit of promoting certainty and consistency and must not be lightly disturbed.

The five creative techniques

Distinguishing is the commonest and least visible form of judicial law making, because the earlier decision is left standing while its reach is reduced. It requires only that the later court find a difference in the facts which it treats as material. Its honesty depends entirely on whether the difference really is material, and a court determined to escape a precedent can usually find one.

Overruling declares the earlier decision wrong, and two very recent examples show it operating at the highest level.

Prospective overruling was imported into Indian law in Golak Nath v. State of Punjab, AIR 1967 SC 1643. The Court, by six to five, held that Parliament had no power to amend Part III so as to take away or abridge fundamental rights, which contradicted Shankari Prasad and Sajjan Singh. Subba Rao C.J. recognised that applying that holding retrospectively would unsettle the First, Fourth and Seventeenth Amendments and everything done under them, and therefore held that the Court may declare the law for the future while leaving past transactions undisturbed. The doctrine is confined to the Supreme Court and to constitutional matters. Its significance for this question is that it is impossible to reconcile with the declaratory theory: only a court that knows it is making law can choose the date from which its law operates.

Conclusion

Conclusion. Precedent in India binds by force of Article 141, and that makes it stronger than the English doctrine, which rests on convention. What it does not do is bind the reasoning of the judge who applies it. Between the choice of ratio, the power to distinguish, the freedom recognised in Bengal Immunity, the discipline of Bench strength in Raghubir Singh, the escape routes of per incuriam and sub silentio, and the frank law making of prospective overruling in Golak Nath, the Supreme Court retains complete control over the pace and direction of legal change while preserving the certainty that makes the system usable. That is why precedent belongs in a discussion of judicial creativity rather than in opposition to it: it is not a constraint the creative judge works against, it is the instrument he works with, and the two 2024 overrulings show it being used at the highest level within living memory.

Aristotle supplied the classification that has survived everything since. In the Nicomachean Ethics he divided particular justice into two. Distributive justice governs the allocation of honours, wealth and other divisible goods among the members of a community; it is proportionate, treating equals equally and unequals unequally in proportion to a relevant criterion, and disagreement about justice is usually disagreement about what the criterion should be. Corrective justice governs transactions and restores the balance disturbed by a wrong, and is arithmetical: the court looks only at the harm, not at the merit of the parties. He also identified equity, epieikeia, as the correction of the law where it is defective by reason of its generality, which is the classical statement of why judges must interpret and not merely apply.

The natural law tradition treats justice as conformity to an order accessible to reason. Aquinas distinguished eternal, natural, divine and human law, and held that a human law at variance with the natural law is not law but a corruption of law. The tradition supplies the vocabulary of inalienable rights and the argument used at Nuremberg against the defence of superior orders. Its weakness is the difficulty of establishing the content of the natural law in a way that commands agreement.

Utilitarianism made justice a function of consequences. Bentham, in An Introduction to the Principles of Morals and Legislation (1789), held that the greatest happiness of the greatest number is the measure of right and wrong, and dismissed natural rights as nonsense upon stilts and imprescriptible rights as nonsense upon stilts of a higher order. Mill qualified the theory in two ways: he distinguished higher from lower pleasures, and in On Liberty (1859) he added the harm principle, that the only purpose for which power can rightfully be exercised over a member of a civilised community against his will is to prevent harm to others. He also argued that justice names the most stringent class of social utilities, which is the utilitarian explanation of why justice feels categorical although its basis is consequential.

The decisive objection to utilitarianism, for a constitutional lawyer, is that aggregation permits the sacrifice of an individual whenever the sum improves. That is precisely what a bill of rights exists to forbid, and it is why Part III of the Indian Constitution is entrenched and enforceable rather than left to the legislature's calculation of the general good.

Amartya Sen, in The Idea of Justice (2009), objects that the whole tradition from Hobbes to Rawls has been transcendental institutionalism, asking what perfectly just institutions would look like. He proposes a comparative approach, and revives an ancient Indian distinction that is directly useful here: niti, the correctness of rules, procedures and institutions, and nyaya, the justice actually realised in the lives of people. His example is that a society may have impeccable institutions and still leave people starving, and that the removal of manifest injustice is both achievable and more urgent than the specification of a perfect society.

Part two: dharma

Dharma is not the Indian word for justice. It is a wider idea of which justice is a consequence, and an answer that treats the two as synonyms has misunderstood the question.

The derivation carries the meaning. Dharma comes from the root dhr, to hold, bear or sustain, and denotes both the order that holds the world and society together and the conduct of each person by which that order is maintained. It is the successor to the Vedic rita, the ordered regularity of the cosmos, and the continuity is significant: law is not something imposed on the world from outside but the human portion of an order already there.

Rajadharma is the constitutional theory. The king is bound by dharma and not above it. He had no independent legislative power in the modern sense; his function was protection and punishment, and danda, the power to punish, was itself regulated by dharma, so that a king who punished unjustly destroyed himself. Kautilya's Arthashastra recognises four feet of law, dharma, the sacred law, vyavahara, the law of transactions and evidence, charitra, custom, and rajasasana, the royal edict, and when they conflict it gives priority in a stated order in which the ruler's own command ranks last. A legal system in which the sovereign's command is the lowest of four sources is the exact opposite of Austin's command theory, and saying so is the sharpest way to make the point.

Vyavahara is the juridical branch and was a working system, not an ideal. The texts set out the constitution of the sabha, 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.

Dharma also governs the other ends of life. It is the first of the four purusharthas, dharma, artha, kama and moksha, and the pursuit of wealth and desire is legitimate only within it, which is the ancestor of the modern doctrine of public policy.

Part three: comparison

Both traditions agree on the proposition that matters most, that justice is not simply what the sovereign commands. Rajadharma and the four feet of law say it as clearly as Aquinas or Locke.

They differ in method. The western tradition works outward from the individual and asks what he may claim; the dharmic tradition works inward from the social order and asks what he owes. The western theories are largely institutional, and are argued as designs for a state; dharma is largely personal and situational, which is its strength in adapting to circumstance and its weakness in predictability.

Sen's distinction is the bridge, and it is not an accident that it was drawn by an Indian economist working inside the western analytical tradition. Niti is what the western theories mostly supply; nyaya is what the dharmic tradition was concerned with; and a legal system needs both.

For full marks, cover: that the statement is Cardozo's and where it sits in his argument; each of the four methods, defined and explained; an Indian illustration of each, given with its facts; how the forces interact when they conflict; and Cardozo's own limit on the judge.

The source of the statement

The four names in the question are Benjamin Cardozo's four methods, set out in the Storrs Lectures delivered at Yale in 1921 and published as The Nature of the Judicial Process. He called them the method of philosophy, which is logic; the method of history; the method of tradition, which is custom; and the method of sociology, which is the accepted standard of right conduct and the welfare of society.

The state of the law before the decision was A.K. Gopalan v. State of Madras, AIR 1950 SC 27, in which a communist leader detained under the Preventive Detention Act had argued that Article 21 required a procedure that was fair. The Court had held that procedure established by law meant simply a procedure prescribed by an enacted law, that Article 21 and Article 19 dealt with different subjects, and that the fundamental rights stood in watertight compartments.

In Maneka Gandhi the Court reasoned that Articles 14, 19 and 21 are not mutually exclusive but sustain, strengthen and nourish each other; that a law which deprives a person of personal liberty must therefore also satisfy Article 14 and, where a right under Article 19 is affected, that Article as well; and that since Article 14 forbids arbitrariness, a procedure which is arbitrary, fanciful or oppressive is no procedure at all, so the procedure contemplated by Article 21 must be right, just and fair.

Notice what was and was not done. No word was added to the text of Article 21. A principle already accepted for Article 14 was carried across by logic to Article 21, and Gopalan ceased in substance to be good law. That is the method of philosophy at its most consequential.

Joseph Shine v. Union of India, (2018) 2 SCC 189, is the same method applied to section 497. The provision punished a man who had intercourse with the wife of another man without that man's consent, and did not punish the woman even as an abettor. Traced historically, its premise was that a wife is the property of her husband, and on that ground it was struck down as violating Articles 14, 15 and 21.

The method of tradition, or custom

Custom is a recognised source of Indian law, and statutes preserve it in express terms. Section 3(a) of the Hindu Marriage Act, 1955, defines custom as a rule which, having been continuously and uniformly observed for a long time, has obtained the force of law, provided that it is certain and not unreasonable or opposed to public policy.

The proviso is where the judicial work happens, and two cases show it operating in opposite directions.

The method of sociology, or the accepted standard of right conduct

Cardozo gave this the last word, holding that when the methods conflict this one prevails, because the final cause of law is the welfare of society and a rule which misses its aim cannot permanently justify its existence.

The illustration is M.C. Mehta v. Union of India, (1987) 1 SCC 395. Oleum gas escaped from a plant of Shriram Foods and Fertiliser Industries situated in a densely populated area of Delhi in December 1985. The Court was invited to apply the rule in Rylands v. Fletcher (1868), which imposes strict liability for the escape of a dangerous thing but admits the exceptions of act of God, act of a stranger, statutory authority and the plaintiff's consent.

K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, applies it to technology: nine judges held privacy to be intrinsic to life and personal liberty under Article 21, a right the framers had no occasion to name and which the conditions of large scale data collection made necessary.

How the four interact

Cardozo did not rank them in a fixed order beyond giving logic presumptive priority and welfare the final word. His own formulation is that the judge must determine which of the forces shall dominate in a given case, and the answer varies with the subject matter.

The practical consequence is worth stating. A judge who applies only logic produces a system that is internally consistent and capable of great injustice, which is Gopalan. A judge who applies only his sense of social welfare produces a system that may be just in each case and predictable in none, which is why Cardozo added his limit.

Conclusion. The four forces are a description of what judges demonstrably do and not a licence for what they might wish to do, and each of them can be matched to Indian authority: logic in Maneka Gandhi, where a principle from Article 14 was carried across to Article 21; history in Navtej Johar, where a section of 1860 was dated by its own origins; custom and its constitutional limits in Shayara Bano and Madhu Kishwar; and social welfare in M.C. Mehta, where an English rule of 1868 was displaced in terms because it did not fit Indian conditions. Their combined operation is what allows a Constitution drafted in 1950 and codes drafted in the nineteenth century to govern a society neither drafter could have imagined. Cardozo's qualification is the necessary other half: the forces direct a discretion which is informed by tradition and disciplined by system, and it is that discipline which distinguishes the shaping of law from its replacement.

It is no longer maintained, and three arguments dispose of it. It cannot explain overruling, since a court that declares its own earlier declaration wrong has changed the law for everyone. It cannot explain a case of first impression, where there is nothing to discover. And it is contradicted by what judges say about their own work: Lord Reid, in The Judge as Law Maker (1972), said that those who believe judges merely declare existing law believe in fairy tales, and Cardozo had said fifty years earlier that the judicial process at its highest reaches is not discovery but creation.

The four instruments

Article 141 makes the law declared by the Supreme Court binding on all courts in India, so the product of a single decision becomes general law at once, without the publication and commencement machinery that attends a statute.

Article 32, which is itself a fundamental right, and which M.C. Mehta v. Union of India, (1987) 1 SCC 395, held is not merely injunctive but carries the power to forge new remedies for the enforcement of fundamental rights.

Article 142, permitting the Supreme Court to pass any decree or order necessary for doing complete justice in a cause before it.

Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608. A detenu under the COFEPOSA Act complained of restrictions on interviews with her lawyer and her young daughter. Bhagwati J. held that 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, and that any act which damages or injures or interferes with the use of any limb or faculty is an infringement of Article 21.

Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545. Pavement and slum dwellers in Bombay were sought to be evicted and deported to their places of origin under the Bombay Municipal Corporation Act. The Court 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 the procedure adopted must be fair, requiring that those affected be heard before eviction. It did not stop the eviction, which is a point worth making: the case established a right and did not deliver a house.

Unni Krishnan v. State of Andhra Pradesh, (1993) 1 SCC 645, held that the right to education flows from Article 21 read with Articles 41 and 45, up to the age of fourteen years.

Constitutional law at its most important point. The basic structure doctrine of Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, has no textual source in Article 368. It was applied to strike down a constitutional amendment in Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1, and again in Minerva Mills, and it is the doctrine on which the Ninety ninth Amendment fell in Supreme Court Advocates-on-Record Association v. Union of India, (2016) 5 SCC 1.

Creativity also operates by unmaking. State of Punjab v. Davinder Singh, 1 August 2024, seven judges, overruled E.V. Chinnaiah and permitted sub-classification within the Scheduled Castes. Property Owners Association v. State of Maharashtra, 5 November 2024, nine judges, narrowed the reading of Article 39(b) that had stood since Sanjeev Coke.

Competence. In Supriyo v. Union of India, decided on 17 October 2023, the Court declined to read a right to marry into the Special Marriage Act, holding that there is no unqualified right to marry and that recognising same sex marriage would require constructing an entire statutory regime, a legislative and not a judicial task.

The confines of Article 142. Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409, held that the power to do complete justice cannot be used to build a new edifice ignoring express statutory provisions, and in particular that the Court could not, under Article 142, itself debar an advocate from practice, that being a matter for the disciplinary machinery of the Advocates Act, 1961.

For full marks, cover: the three heads the question names, in that order and in proportion; keep activism, restraint and overreach distinct throughout; and give the case law with enough facts that the examiner can see why each decision supports the proposition you are using it for.

Definition, and the three terms that must be kept apart

Judicial activism describes the judiciary's assumption of an affirmative role in enforcing constitutional guarantees and in supplying remedies where the other organs have not acted. It is not a term of art in any statute and it is not, by itself, a criticism.

Article 142 permits any order necessary for complete justice, which is the source of the more unusual directions.

Article 21 supplies the substantive material, because a guarantee of life and personal liberty stated in seventeen words can be given content the framers never spelt out.

Within that scope the techniques are identifiable.

Guidelines with the force of law pending legislation. Vishaka v. State of Rajasthan, (1997) 6 SCC 241, after the gang rape of Bhanwari Devi, where no statute existed and the Court read CEDAW into Articles 14, 15, 19(1)(g) and 21 and declared its guidelines binding under Article 141 until Parliament legislated.

Continuing mandamus. Vineet Narain v. Union of India, (1998) 1 SCC 226, arising from the Jain hawala diaries and the failure of the CBI to investigate persons in high office, where the Court retained the case and issued directions from time to time until the investigation was complete, and laid down measures for the independence of the CBI and the Central Vigilance Commission.

Executive default. Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 81, concerned undertrials in Bihar jails held for periods exceeding the maximum sentence for the offence charged, some for years without a charge being framed. Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, concerned a prisoner under sentence of death kept in solitary confinement under section 30(2) of the Prisons Act, 1894, and prisoners kept in bar fetters under section 56; the Court read down section 30(2) so that solitary confinement is not permissible merely because a sentence of death has been passed, and required reasons and a hearing before fetters are imposed. Prisoners are the paradigm class: they cannot vote effectively, cannot organise, and the institution violating their rights controls their access to the outside world.

The inaccessibility of the ordinary process to the poor, which is the ground on which S.P. Gupta relaxed standing and which the Court has consistently given as the justification for the whole jurisdiction.

Institutional competence. A court hears two parties on a record they choose to place before it. It cannot consult those who will bear the burden of an order, cannot cost a proposal and cannot revise the order when conditions change. Supriyo v. Union of India, decided on 17 October 2023, is the clearest recent instance of the Court declining on exactly this ground: recognising same sex marriage would require a legislative scheme covering succession, adoption, maintenance and much else, and a court cannot construct one.

The confines of Article 142. Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409, held that complete justice cannot be used to supplant substantive statutory law or to ignore express statutory provisions.

Abuse by litigants. State of Uttaranchal v. Balwant Singh Chaufal, (2010) 3 SCC 402, traced the three phases of public interest litigation and directed High Courts to frame rules discouraging petitions filed for oblique motives, to verify the petitioner's credentials and the correctness of the contents prima facie, and to be satisfied that substantial public interest is involved. Ashok Kumar Pandey v. State of West Bengal, (2004) 3 SCC 349, warned against publicity, private and politics interest litigation.