Mumbai University Solved Question Papers
Judicial Process
Previous Year Question Paper with Solution
LLM · Foundation Course
2016 Examination
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LLM Foundation Course Judicial Process 2016 Question Paper with Solutions
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First published on munotes.in on 12 August 2026.
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Model answers written and edited by the munotes.in editorial desk.
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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 2016 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 2016 examination, in the order it was set.
MarksPage
MarksPage
The Paper as Set
The questions in this volume are the questions asked at the 2016 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 · 14 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.
SECTION I
QP Code BB-11803
attempt any four questions · 100 Marks
1.Discuss in detail the nature and scope of Judicial Process as an instrument of social ordering in India.[25]
Answer
For full marks, cover: what the judicial process is as a subject; what social ordering means; the four features of the Indian system that convert adjudication into ordering; the instances, with facts; and the limits, because the claim is a matter of degree.
The nature of the judicial process
Judicial process means the whole method by which courts decide, studied as a subject in its own right. It is not the law of procedure. It asks three questions: what sources a judge may draw on, by what reasoning he moves from those sources to a result, and what the judicial function actually is when the sources do not decide the case.
On the third question the answer has changed within living memory. Blackstone's judge in the Commentaries (1765) was the living oracle of the law, discovering a rule that already existed. Cardozo, in The Nature of the Judicial Process (1921), replaced that with an account in which the judge, in the residue of cases the materials do not decide, chooses, and is directed in that choice by four forces: logic, history, custom and his sense of the welfare of society. Lord Reid, in The Judge as Law Maker (1972), said that anyone who believes judges merely declare existing law believes in fairy tales.
One Indian doctrine settles the argument beyond dispute. Prospective overruling, introduced in Golak Nath v. State of Punjab, AIR 1967 SC 1643, allows the Court to declare the law for the future while leaving past transactions undisturbed. Only a court that knows it is making law can choose the date from which its law begins to operate.
What social ordering means
Social ordering is the arrangement of relations in a society by authoritative norms. Legislation is the obvious instrument. The claim in this question is that adjudication is another, and it rests on a simple proposition: a court that declares what a right means changes the position of everyone who holds that right, not merely of the two parties before it.
The four features that make it possible
Article 141. The law declared by the Supreme Court is binding on all courts within the territory of India. In an integrated judiciary with a single apex court, a declaration operates in substance like a legislative rule from the moment it is made, with none of the delay, publication and commencement machinery that attends a statute.
Article 32 with Article 226. The remedy for breach of a fundamental right is itself a fundamental right, and after S.P. Gupta v. Union of India, 1981 Supp SCC 87, it may be invoked by any bona fide member of the public on behalf of a class which by reason of poverty, helplessness, disability or a socially or economically disadvantaged position cannot approach the court. The facts are worth a line: the case arose from a circular of the Union Law Minister about the transfer of additional judges, challenged by practising advocates who had no personal right in the matter, and the objection that they lacked standing was rejected. Once the door opens to a stranger acting for a class, the jurisdiction ceases to be a mechanism for settling disputes between litigants and becomes one for supervising the observance of rights across a population.
The open texture of Article 21. Seventeen words have been held to include the right to live with human dignity in Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608, where a COFEPOSA detenu challenged restrictions on interviews with her lawyer and her young daughter and Bhagwati J. held that the right to life means more than mere animal existence; the right to livelihood in Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545, where pavement dwellers faced eviction and the Court held that no person can live without the means of living; the right to education in Unni Krishnan v. State of Andhra Pradesh, (1993) 1 SCC 645; and privacy in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
Part IV. The directive principles state the social order the Constitution intends. Article 37 makes them fundamental in the governance of the country while declaring them non-enforceable, and Minerva Mills v. Union of India, (1980) 3 SCC 625, held that the harmony and balance between Parts III and IV is itself a basic feature. That holding is what allows a non-enforceable programme to become an ordering force, because it licenses the use of Part IV to give content to Part III.
The instances
Vishaka v. State of Rajasthan, (1997) 6 SCC 241. Bhanwari Devi, a social worker employed in a State programme in Rajasthan, was gang raped in retaliation for attempting to prevent a child marriage. There was no statute on sexual harassment at the workplace. The Court read the Convention on the Elimination of All Forms of Discrimination against Women into Articles 14, 15, 19(1)(g) and 21, and laid down guidelines declared binding under Article 141 until Parliament legislated. They governed every workplace in India for sixteen years, until the Act of 2013. A rule binding on every employer in the country, made by a court, is social ordering in the plainest sense.
M.C. Mehta v. Union of India, (1987) 1 SCC 395. Oleum gas escaped from a plant of Shriram Foods in a densely populated part of Delhi in December 1985. Invited to apply Rylands v. Fletcher with its four exceptions, the Court declined on the express ground that a rule evolved in nineteenth century England could not govern modern Indian conditions, and laid down absolute liability for enterprises engaged in hazardous activity, with compensation correlated to the magnitude and capacity of the enterprise so as to have a deterrent effect.
Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 81. Newspaper reports disclosed that undertrials in Bihar had been in custody longer than the maximum sentence for the offences charged, some for years without a charge being framed. The Court read a right to a speedy trial into Article 21, held that the State could not plead administrative or financial incapacity, and ordered releases across a State.
The limits
A court acts only when moved and decides on the record two parties choose to place before it. It cannot appropriate money, levy a tax or create an administration: Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, set aside a High Court direction to create a post and held that judges cannot take over functions belonging to another organ. It will not design a statutory regime: Supriyo v. Union of India, decided on 17 October 2023, declined to recognise same sex marriage because that would require constructing a scheme covering succession, adoption and maintenance.
And a right declared is not a right delivered. Unni Krishnan became effective only when Parliament enacted Article 21A by the Eighty sixth Amendment in 2002 and the Right of Children to Free and Compulsory Education Act, 2009, followed.
Conclusion. The judicial process orders Indian society because the Constitution gave the courts three things needed for the purpose: a binding declaration under Article 141, an open remedy under Articles 32 and 226, and a text general enough in Article 21 and Part IV to be applied to conditions its framers did not foresee. Its scope as an ordering instrument is therefore wide and derivative rather than original. It works best where a constitutional guarantee already exists and the political organs have failed to honour it, as in Hussainara Khatoon and Vishaka, and it works least well, and least legitimately, where the question is one of policy design among lawful alternatives, which is what Chander Hass and Supriyo decide. Cardozo's own measure remains the right one: the judge legislates, but interstitially.
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