LLM Foundation Course Judicial Process 2016 Question Paper with Solutions

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.

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 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.

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.

The sources

Manu and Yajnavalkya state the sources as a hierarchy of authority, and the hierarchy is what makes this a legal system rather than a moral exhortation.

Sruti, the Vedas, that which is heard, the highest authority.

Smriti, that which is remembered, chiefly the Dharmashastras of Manu, Yajnavalkya and Narada.

Sadachara, the practice of those learned in the Vedas and of good conduct, which admits usage as a source but qualifies it by the character of those who observe it.

Atmatusti, what is approved by one's own conscience, available only where the earlier sources are silent.

The order operates as a rule of priority: a lower source cannot displace a higher one, exactly as subordinate legislation cannot displace a statute. The great commentaries, the Mitakshara and the Dayabhaga, are essentially the work of reconciling the texts with regional practice, which is a recognisably juristic activity.

Rajadharma

The ruler is inside the law, not above it, and this is the foundational proposition of the traditional legal order.

The king had no independent legislative power in the modern sense. His function was protection and punishment. Danda, the power to punish, was itself regulated by dharma, and the texts are explicit that danda wrongly applied destroys the one who wields it.

Kautilya's Arthashastra recognises four feet of law, and the ordering among them is the single most effective point available in this answer. They are dharma, the sacred law; vyavahara, the law of transactions and evidence; charitra, custom; and rajasasana, the royal edict. When they conflict, priority is given in a stated order, and 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 the contrast is the sharpest way to establish that dharma is a jurisprudential concept and not a devotional one.

And the reasoning of Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, is rajadharma restated in constitutional terms. Thirteen judges held by seven to six that Parliament may amend any provision but may not damage or destroy the basic structure, on the reasoning that the holder of a power conferred by an order cannot use that power to destroy the order which conferred it. That is exactly what the classical texts say about the king and danda.

In judicial reasoning the tradition appears occasionally and expressly. 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 rather than as State indifference to religion, a conception closer to the Indian tradition than to the French.

Conclusion. Dharma is the foundation of legal ordering in Indian thought in a precise and demonstrable sense, and not merely a pious one: it bound the ruler, it ranked the royal command below three other sources of law, and it supplied a system of adjudication which required the judge to decide by the law and not by the king's wish. Those are the marks of a legal order rather than of a moral code. What has carried into the present system is that structural idea, visible in the Preamble, in Article 51A and in the basic structure doctrine, together with the priority of obligation over claim. What has not carried is dharma as a body of rules, because codification displaced the Dharmashastras by express words and the Constitution rejected the hierarchical elements of the tradition outright.

Its classical statement is Marbury v. Madison, 5 US 137 (1803). Marbury had been appointed a justice of the peace in the final days of the Adams administration but his commission was never delivered, and he sought mandamus in the Supreme Court under a provision of the Judiciary Act of 1789. Marshall C.J. held that the provision purporting to give the Court that original jurisdiction was itself repugnant to the Constitution, reasoning that a written constitution superior to ordinary law would be reduced to an absurdity if courts were obliged to enforce a statute repugnant to it. The Court refused jurisdiction and in doing so established the power.

The Indian foundations are textual, not inferred

Article 13(2) provides that the State shall make no law which takes away or abridges the rights conferred by Part III, and that any law made in contravention of that clause shall be void to the extent of the contravention. Article 13(1) does the same for pre-Constitution laws.

Over executive and administrative action, on the grounds of illegality, meaning acting without or in excess of jurisdiction, under dictation, on irrelevant considerations or for an improper purpose; irrationality, a decision so unreasonable that no reasonable authority could have reached it; and procedural impropriety, meaning breach of a mandatory procedure or of natural justice. To these Indian law adds Article 14 as a bar on arbitrariness after E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3, and structured proportionality after K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, which requires a legitimate aim, a rational connection, necessity in the sense that no less restrictive measure would serve, and a fair balance.

Over constitutional amendments. This is the distinctively Indian extension and it must be given with the facts of the three cases.

Minerva Mills v. Union of India, (1980) 3 SCC 625. The Forty second Amendment had inserted clauses (4) and (5) into Article 368, the first purporting to place any amendment beyond judicial review and the second declaring that there shall be no limitation whatever on the amending power. Both were struck down. The reasoning is the most quotable in the field: a limited amending power is itself a basic feature, and the donee of a limited power cannot use it to convert that power into an unlimited one. The Court also struck down the amendment to Article 31C on the ground that the harmony and balance between Parts III and IV is a basic feature.

The significance

It maintains the supremacy of the Constitution. Without it Article 13 would state a prohibition with no consequence attached, and the entrenchment of Part III would be a statement of preference.

It protects fundamental rights against transient majorities. Part III exists precisely to place certain matters beyond ordinary political decision, and a forum outside ordinary politics is required to enforce that exclusion.

It polices the federal distribution of powers. A federation needs an umpire whose decision on competence is final, and Articles 131, 245 and 246 supply the jurisdiction.

It maintains the separation of powers in both directions. S.R. Bommai v. Union of India, (1994) 3 SCC 1, subjected a Proclamation under Article 356 to judicial review, holding that the satisfaction of the President must be based on relevant material and that the power is not immune merely because it is political, while leaving the political judgment inside the decision untouched. That is review defining the boundary rather than crossing it.

The negative proof is worth giving. In ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521, the majority held that during the Emergency, the right to move any court for enforcement of Article 21 having been suspended, no person had locus to move a High Court for habeas corpus even to allege that a detention was wholly illegal or mala fide. Khanna J. dissented and was superseded in the succession to the office of Chief Justice. That is what the absence of effective review looks like, and the decision was expressly overruled in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

Conclusion. Judicial review is the pivot of constitutional adjudication in India. It converts the Constitution from a political document into an enforceable law, supplies the only institutional check on a Parliament that commands its own majority, umpires the federation, and, since Kesavananda and L. Chandra Kumar, is itself beyond the reach of amendment. Its significance is best measured not by what it has done but by what its absence produced in 1976, and by the fact that the decision of that year had to be overruled forty one years later before the Court could say that the law had returned to where it should have been.

Equivalence theories hold that law and justice are the same thing, and that justice is nothing more than the positive law of the stronger class. On this view to call a valid law unjust is a category mistake. Thrasymachus in Plato's Republic argues that justice is nothing else than the interest of the stronger, and that each ruling class makes laws for its own advantage and calls obedience to them justice. Austin's command theory reaches a similar practical result from a different direction: law is the command of the sovereign backed by sanction, and the merit or demerit of a law is a separate question that does not affect its validity. Marx supplies the class version, treating law as part of the superstructure reflecting the relations of production.

Dependency theories hold that for its realisation justice depends on law, but that justice is not the same as law. A valid law may be unjust; and a standard of justice with no institution behind it changes nothing, because rights need courts, procedures, remedies and enforcement.

The third position treats justice as wholly independent of law, so that an unjust law is not law at all. Aquinas held that a human law at variance with the natural law is a corruption of law rather than law.

Utilitarianism made justice a function of consequences. Bentham held that the greatest happiness of the greatest number is the measure of right and wrong and dismissed natural rights as nonsense upon stilts. Mill distinguished higher from lower pleasures, added the harm principle in On Liberty (1859), and argued that justice names the most stringent class of social utilities.

Its strength is that it supplies a criterion a legislature can actually apply, and it explains most regulatory, fiscal and public health legislation. Its defect is decisive for a constitutional lawyer: aggregation permits the sacrifice of an individual whenever the sum improves, which is exactly what a bill of rights exists to forbid.

Rawls, in A Theory of Justice (1971), rebuilt the contract to meet that defect. Parties in an original position behind a veil of ignorance, not knowing their class, talents, generation 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 work to the greatest benefit of the least advantaged, the difference principle. His objection to utilitarianism is that it does not take seriously the distinction between persons.

Aristotle decides the reservation debate's structure. The objection that reservation violates equality assumes equality means identical treatment. On the distributive account, equality means treating unequals unequally in proportion to a relevant difference, so Articles 15(4) and 16(4) are not exceptions to Article 14 but applications of it. That is exactly how Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, reasoned when it upheld reservation for the Other Backward Classes while capping it at fifty per cent and requiring exclusion of the creamy layer: the criterion must be relevant and the proportion must be defensible.

Bentham decides most regulatory legislation and fails at the margin. A law restricting a trade, imposing a tax or regulating an industry is justified by aggregate welfare, and Article 19's scheme of reasonable restrictions admits exactly that reasoning. What utilitarian calculation cannot do is explain why a small and unpopular group may not be sacrificed for a larger gain, and that is why Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, held that majority morality cannot supply a constitutional justification.

Part III makes part of that promise enforceable and, by entrenching it, excludes the utilitarian calculation for the claims it protects.

Part IV states the distributive programme, and Article 37 declares those principles fundamental in the governance of the country while providing that they shall not be enforceable by any court. That is justice stated but not yet realised, which is the dependency position in constitutional form.

Article 39A requires the State to secure that the operation of the legal system promotes justice on a basis of equal opportunity, and to provide free legal aid. It is the clearest textual acknowledgement anywhere in the Constitution that a formally equal law can produce unequal justice.

The case law

Maneka Gandhi v. Union of India, (1978) 1 SCC 248, imported a justice standard directly into validity. A passport was impounded by an order which gave no reasons. The Court held that Articles 14, 19 and 21 are not watertight compartments and that the procedure contemplated by Article 21 must be right, just and fair, and not arbitrary, fanciful or oppressive.

Conclusion. Law and justice are neither identical nor unconnected. A law may be valid and unjust, which is why the question matters, and a legal system which never answers to a standard of justice forfeits the obedience on which it depends. The Indian Constitution takes the dependency position deliberately and in three moves: it states a theory of justice in the Preamble and Part IV, it makes part of it enforceable in Part III and thereby removes those claims from the utilitarian calculation, and it equips the courts under Articles 14, 21, 32 and 39A to test law against it. The theories matter to a lawyer for exactly that reason, because they supply the content that the words justice, equality and fairness in the reports would otherwise lack.

What binds is the ratio decidendi, the rule of law necessary to the decision on the facts as found. Everything else is obiter dictum, an observation not necessary to the decision, which carries persuasive weight only, though an obiter of a Constitution Bench may in practice be followed universally.

The identification of the ratio is not mechanical, and this is where the doctrine becomes interesting. No judgment states which of its propositions was necessary to the result. Wambaugh's inversion test asks whether the proposition, if reversed, would have changed the outcome; if it would not, it is obiter. Goodhart located the ratio in the facts treated as material by the judge together with his decision on them, which is closer to practice, because the choice of which facts are material is itself the exercise of judgment. A later court reading an earlier case broadly extends it; a later court reading it narrowly confines it; and neither says it has changed anything.

The constitutional basis in India

In England the doctrine is a rule of practice developed by the courts. In India it is constitutional, and that is a real difference.

The Supreme Court is not bound by itself

Bengal Immunity Co. v. State of Bihar, AIR 1955 SC 661. The company, based in Calcutta, was assessed to sales tax in Bihar in respect of goods delivered for consumption there, and the State relied on the Court's earlier decision in State of Bombay v. United Motors, which had construed the Explanation to Article 286(1) in favour of the delivery State. A Bench of seven judges was constituted. It held that there is nothing in the Constitution which prevents the Supreme Court from reviewing and departing from a previous decision if it is convinced of its error and of its baneful effect on the general interests of the public, and it departed from United Motors. Das Actg. C.J. rested the conclusion on the words of Article 141 itself: the Article binds all courts within the territory of India, and the Supreme Court, being the court which declares, is not one of those addressed.

The four escapes

Distinguishing on a material difference in the facts, which leaves the earlier case standing while reducing its reach and is the commonest form of judicial law making.

Per incuriam, where a decision was rendered in ignorance or forgetfulness of a binding statute or authority. A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602, is the striking Indian application: an earlier Constitution Bench had, without hearing the point argued, transferred the appellant's trial from a Special Judge to the High Court, thereby depriving him of a statutory right of appeal, and a Bench of seven judges recalled the directions as having been given per incuriam and in breach of natural justice.

Sub silentio, where a point was assumed by the parties and never argued or decided, so that the decision is no authority on it.

Overruling, which may be prospective since Golak Nath v. State of Punjab, AIR 1967 SC 1643, where Subba Rao C.J. held that the Court may declare the law for the future while leaving past transactions undisturbed, precisely so that a change of constitutional doctrine would not unsettle amendments already acted upon.

The demerits

Perpetuation of error. A wrong decision governs until a larger Bench corrects it, and the correction may take a generation: nineteen years passed between E.V. Chinnaiah and Davinder Singh.

Rigidity, and artificial reasoning. Where a court wishes to escape a precedent without overruling it, the technique of distinguishing can produce distinctions that are unreal.

Retrospective operation. A change of decision states what the law always was, which is why prospective overruling had to be invented.

Volume. The number of reported decisions has become unmanageable, and the search for authority can obscure the principle.

The accident of litigation. The law develops only on the questions that happen to be litigated, by parties able to litigate them.

For full marks, cover: the distinction between a tool and a technique, stated at the start; the tools, with what each contributes; the techniques, each with a case explained; and the limits, which are part of the repertoire and not an afterthought.

The distinction

A tool is a source of power. A technique is a way of using it. The question names both, and separating them is what earns the higher band, because it shows that having a power and knowing what to do with it are different questions.

Article 142. The power to pass any decree or order necessary for doing complete justice in a cause or matter pending before the Supreme Court. It is the source of the more unusual directions, and it is 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, and 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.

Article 21 read with Part IV. The substantive raw material. Article 37 makes the directive principles fundamental in the governance of the country while withholding enforcement, and Minerva Mills v. Union of India, (1980) 3 SCC 625, held the harmony between Parts III and IV to be a basic feature, which is the licence to use Part IV to give content to Part III. It is how Unni Krishnan v. State of Andhra Pradesh, (1993) 1 SCC 645, derived a right to education from Articles 21, 41 and 45.

International instruments, where domestic law is silent and there is no inconsistency with it. Vishaka v. State of Rajasthan, (1997) 6 SCC 241, read the Convention on the Elimination of All Forms of Discrimination against Women into Articles 14, 15, 19(1)(g) and 21 on exactly that basis.

Guidelines with the force of law pending legislation. Vishaka, whose guidelines bound every workplace in India until the Act of 2013, and D.K. Basu v. State of West Bengal, (1997) 1 SCC 416, which arose out of letters about deaths in police custody and laid down eleven requirements on arrest and detention, including identification of the arresting officers, a memo of arrest attested by a witness, information to a relative, the right to have someone informed, an examination of injuries and a medical examination every forty eight hours. Those requirements were later given statutory form.

Continuing mandamus. Vineet Narain v. Union of India, (1998) 1 SCC 226, arising from the Jain hawala diaries and the failure of the Central Bureau of Investigation to pursue persons in high office. Rather than dispose of the petition with a single order, 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.

Structured proportionality. K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, requiring a legitimate aim, a rational connection, necessity in the sense that no less restrictive measure would serve, and a fair balance. It belongs in this list although it is a technique of restraint as much as of creativity, because it obliges the Court to state its reasoning in a form that can be checked.

The limits

Separation of powers. Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, where gardeners at a State run golf club sought regularisation as tractor drivers and the High Court had directed the creation of a post. The Supreme Court set that aside, holding that judges cannot create posts or take over functions belonging to another organ, and that judicial activism must not become judicial adventurism. Asif Hameed v. State of Jammu and Kashmir, 1989 Supp (2) SCC 364, states the principle: the judiciary has no power over the sword or the purse.

Institutional competence. Supriyo v. Union of India, decided on 17 October 2023, declining to recognise same sex marriage because it would require constructing a statutory regime.

For full marks, cover: both notes, at roughly twelve and a half marks each, and give each of them real case law rather than a definition and a list.

(a) Public Interest Litigation

Public interest litigation is the exercise of the writ jurisdiction under Articles 32 and 226 at the instance of a person other than the one injured, for the benefit of persons who cannot approach the court themselves. It is not a separate jurisdiction and no statute governs it. Everything novel about it lies in three departures from the adversarial model.

Remedy and substance. Compensation in public law in Rudul Sah v. State of Bihar, (1983) 4 SCC 141, where the petitioner had been held fourteen years after his acquittal; the right to a speedy trial and the release of undertrials in Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 81; absolute liability in M.C. Mehta v. Union of India, (1987) 1 SCC 395; binding guidelines in Vishaka v. State of Rajasthan, (1997) 6 SCC 241; continuing supervision in Vineet Narain v. Union of India, (1998) 1 SCC 226.

Control of abuse. State of Uttaranchal v. Balwant Singh Chaufal, (2010) 3 SCC 402, traced three phases of the jurisdiction, the third being the phase of misuse, and directed that High Courts frame rules to discourage petitions filed for oblique motives, that courts verify the credentials of the petitioner and the correctness of the contents prima facie, that substantial public interest be established, and that petitions of real gravity be given priority. Ashok Kumar Pandey v. State of West Bengal, (2004) 3 SCC 349, warned against publicity, private and politics interest litigation, and exemplary costs are now routinely imposed.

No judge has ever been removed under this procedure, and that single fact is the centre of the subject.

Criminal liability exists but is qualified. K. Veeraswami v. Union of India, (1991) 3 SCC 655, decided on 25 July 1991, concerned a former Chief Justice of the Madras High Court prosecuted for possession of assets disproportionate to his known sources of income. The Court held that a judge of the higher judiciary is a public servant within the Prevention of Corruption Act, so a prosecution is competent, but that no criminal case shall be registered against him without prior consultation with the Chief Justice of India, and that sanction is to be granted by the President after such consultation. The qualification was introduced to protect the judiciary from motivated prosecutions.

The in house procedure is what actually operates. Adopted in 1997 along with the Restatement of Values of Judicial Life, it deals with misconduct not grave enough, or not provable enough, for removal. C. Ravichandran Iyer v. Justice A.M. Bhattacharjee, (1995) 5 SCC 457, arose from a Bar association's agitation demanding a judge's resignation; the Court held that the Bar cannot sit in judgment on a judge, that such complaints must be taken to the Chief Justice, and set out the procedure to be followed.

Reform has repeatedly failed. The Judicial Standards and Accountability Bill, 2010, lapsed. The National Judicial Appointments Commission, which addressed appointment rather than discipline, was struck down in Supreme Court Advocates-on-Record Association v. Union of India, (2016) 5 SCC 1.

The critical assessment of PIL belongs even in a short note. In its favour, the classes it reached are those the political process does not reach, and the institutional argument is strong: after ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521, in which the majority held that during the Emergency no person could move a High Court for habeas corpus even against a wholly illegal detention, the Court's standing was at its lowest, and this jurisdiction is how it recovered. Against it, the Court takes jurisdiction on documents that are not petitions, at the instance of persons with no injury, on facts gathered by its own appointees and never tested by cross examination, and it directs departments it cannot fund. A respondent condemned on a commissioner's report has lost something real, and a jurisdiction with no rule of standing has no principled stopping point.

Conclusion. Public interest litigation and judicial accountability are two halves of one institutional question: how far the judiciary's power should extend, and to whom it answers when it is exercised. PIL widened that power dramatically, and the Court has since supplied its own limits through Balwant Singh Chaufal. Accountability remains the weaker half, because the constitutional route has never once been carried to a conclusion, and everything that works in this field, the in house procedure, the Restatement of Values and the qualified prosecution permitted by Veeraswami, is either self imposed or judicially designed. The events of 2025 and 2026 show that machinery producing a result for the first time, which is a reason for cautious confidence and not for satisfaction.

For full marks, cover: the nature of the judicial process as a method of decision; the sense in which adjudication orders a society; the four dimensions of that ordering in India, with cases; the structural features that make it possible; and the boundaries.

The University set this question in both papers of this examination, word for word. It is the single most reliable question in the subject and repays being prepared to a finished state.

The nature

The judicial process is the reasoned method by which courts choose and apply a rule; it is not a mechanical application of one. Cardozo's account in The Nature of the Judicial Process (1921) remains the standard statement, and it is more modest than it is usually made to sound. In the great majority of cases, he said, the law and its application are alike plain and the work is close to mechanical. The subject is the residue, where the colours do not match and the index fails, and there the judge must choose, directed by logic, history, custom and his sense of the welfare of society.

It orders relations between private parties. M.C. Mehta v. Union of India, (1987) 1 SCC 395, laid down absolute liability after the oleum gas leak from Shriram Foods in Delhi in December 1985, deliberately displacing the exceptions to Rylands v. Fletcher on the ground that a nineteenth century English rule could not govern modern Indian industrial conditions. Vishaka v. State of Rajasthan, (1997) 6 SCC 241, made binding rules for every workplace in India after the gang rape of Bhanwari Devi, and they governed for sixteen years before Parliament legislated.

It orders the relations between the organs of the State. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, thirteen judges by seven to six, fixed the outer limit of Parliament's amending power. S.R. Bommai v. Union of India, (1994) 3 SCC 1, subjected a Proclamation under Article 356 to judicial review and thereby altered the working of Centre and State relations, holding that the satisfaction of the President must rest on relevant material.

It orders access to the process itself. S.P. Gupta v. Union of India, 1981 Supp SCC 87, held that a person with no personal injury may move the court for a class that cannot, which converts the judiciary from an institution available to litigants into one available to a population.

The method inside the process

Naming Cardozo's four forces and showing each at work in Indian law converts a description of outcomes into an account of method.

Logic, the extension of an accepted principle by analogy, produced Maneka Gandhi: a principle already settled for Article 14 was carried across to Article 21, and A.K. Gopalan v. State of Madras, AIR 1950 SC 27, which had treated the rights as watertight compartments, ceased in substance to be good law.

History, which dates a rule by its origins, produced Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, where section 377 of the Penal Code was traced to the moral assumptions of 1860 and held unable to survive Articles 14, 15, 19 and 21.

Custom, admitted as a source but subject to a proviso, produced Shayara Bano v. Union of India, (2017) 9 SCC 1, where talaq-e-biddat was held unconstitutional notwithstanding long observance, because antiquity does not immunise a practice from constitutional scrutiny.

And delivery is not declaration. Unni Krishnan v. State of Andhra Pradesh, (1993) 1 SCC 645, recognised a right to education which became effective only through Article 21A, inserted by the Eighty sixth Amendment in 2002, and the Act of 2009.

Conclusion. The judicial process is an instrument of social ordering in India in a sense that is descriptive before it is normative: a large part of the operative law governing the citizen and the State, and a substantial part of the law governing private parties, was made by courts and not by legislatures. The instrument is powerful because Article 141 makes its product binding at once and Article 32 supplies both the door and the remedy, and it is limited because a court can only decide what is brought to it and can only enforce, never administer. Its legitimacy rests on staying inside those limits, which is why the same body of case law that demonstrates its reach also contains the Court's own warnings against exceeding it.

The authority for the proposition

L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, is the direct authority, not Kesavananda. Articles 323A and 323B, inserted by the Forty second Amendment, permitted the exclusion of the jurisdiction of all courts except the Supreme Court in matters entrusted to tribunals, and the Administrative Tribunals Act, 1985, excluded the High Courts. 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 clause 2(d) of Article 323A and clause 3(d) of Article 323B so far as they excluded that jurisdiction, and held that tribunals may function as courts of first instance but cannot supplant the High Courts, all their decisions remaining subject to scrutiny before a Division Bench of the High Court within whose jurisdiction they fall.

A Constitution Bench of five judges struck down both the Amendment and the Act by four to one, Chelameswar J. dissenting. The majority held that the independence of the judiciary is part of the basic structure; that the primacy of the judiciary in appointments is an essential component of that independence, established in Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441, and Special Reference No. 1 of 1998, (1998) 7 SCC 739; that the presence of the Law Minister introduced the executive into the selection of judges; that the two eminent persons were laypersons appointed without criteria; and that the two member veto could defeat the concurrent opinion of all three judges on the Commission.

A second and more recent illustration is Madras Bar Association v. Union of India, decided on 19 November 2025, in which the Supreme Court struck down the core provisions of the Tribunals Reforms Act, 2021, dealing with appointment, tenure and conditions of service, and directed steps towards a National Tribunal Commission. It is L. Chandra Kumar being enforced a generation later against the same tendency.

A written constitution superior to ordinary law is meaningless unless some organ can refuse effect to what contradicts it. That was Marshall C.J.'s reasoning in Marbury v. Madison, 5 US 137 (1803), and it applies with greater force where the Constitution expressly voids inconsistent law in Article 13.

Article 32 is itself a fundamental right. If review could be removed by amendment, a fundamental right would be removed by amendment through the back door, while Part III remained formally intact.

The historical argument is the strongest. In ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521, the majority held that during the Emergency no person had locus to move a High Court for habeas corpus even to allege that a detention was wholly illegal or mala fide, Khanna J. alone dissenting. That is what the absence of effective review produces, and the decision was expressly overruled in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

Against the proposition, or at least against the way it operates.

The doctrine has no textual source. Article 368 contains no limitation of the kind the Court read into it, and six of the thirteen judges in Kesavananda did not accept it.

Conclusion. The statement is accurate as a proposition of Indian law: judicial review under Articles 32 and 226 is part of the basic structure and cannot be taken away or effectively curtailed by amendment, and L. Chandra Kumar is the direct authority, enforced as recently as November 2025 in the Tribunals case. The critical question is not whether review is a basic feature but who decides the content of the basic structure, and the answer, unavoidably, is the Court itself. That is the strongest argument against the doctrine and also the reason it has survived: no alternative guardian has ever been proposed which does not reintroduce the very problem the doctrine exists to solve, and the record of 1975 to 1977 is what the doctrine was built against.

The Court's role has been to convert declarations into operative law, and it has done so through four doctrines rather than case by case.

The four doctrines

First, the Preamble is part of the Constitution and may be used to construe it. In In re Berubari Union, AIR 1960 SC 845, the Court had said the Preamble was not part of the Constitution. In Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, that was departed from: the Preamble is part of the Constitution and is a key to the minds of the makers. The consequence is large, because the objectives in the Preamble then became a source of the basic structure itself.

Second, Parts III and IV are complementary and not in conflict. The early view in State of Madras v. Champakam Dorairajan, AIR 1951 SC 226, was that the directive principles must conform to and run subsidiary to the fundamental rights, and the decision led directly to the First Amendment and Article 15(4). That view gave way. 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, and that to give absolute primacy to one over the other is to disturb the harmony. This is the doctrinal step that lets a non-enforceable programme shape enforceable rights.

The values worked through

Secularism. S.R. Bommai v. Union of India, (1994) 3 SCC 1, held secularism to be a basic feature, and, importantly, treated it as a positive obligation of equal treatment of all faiths rather than as State indifference to religion. The decision arose from Proclamations under Article 356 dismissing State governments, and the Court held that a State government which acts against secularism may properly be dismissed, while also holding that the Proclamation itself is subject to judicial review.

Social justice. The reservation jurisprudence runs from Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, which upheld reservation for the Other Backward Classes, capped total reservation at fifty per cent in the ordinary case and required the exclusion of the creamy layer, to State of Punjab v. Davinder Singh, decided on 1 August 2024, where seven judges by six to one permitted sub-classification within the Scheduled Castes and overruled E.V. Chinnaiah v. State of Andhra Pradesh, (2005) 1 SCC 394. Both are the Court giving content to the distributive commitment of Articles 15 and 16 read with the Preamble.

The counter-current, which a balanced answer must include

The development has not been in one direction only, and the recent record shows the Court narrowing its own earlier readings as well as extending them.

Property Owners Association v. State of Maharashtra, decided on 5 November 2024, is the clearest instance. A Bench of nine judges held that not every privately owned resource is a material resource of the community within Article 39(b), departing from the very wide reading given by Krishna Iyer J. in State of Karnataka v. Ranganatha Reddy, (1977) 4 SCC 471, and followed in Sanjeev Coke Manufacturing Co. v. Bharat Coking Coal, (1983) 1 SCC 147. Nagarathna J. partly dissented and Dhulia J. dissented. The case is about the balance between an individual right and a collective goal, and the Court moved that balance back.

The limits

The Court cannot appropriate funds, so a right to education or to health declared by it depends on the executive for delivery, and Unni Krishnan is the proof: nine years passed before the constitutional amendment and sixteen before the statute.

It will not extend a value where the extension requires designing a regime. Supriyo v. Union of India, decided on 17 October 2023, declined to recognise same sex marriage on exactly that ground.

Conclusion. The Supreme Court has been the principal developer of the Constitution's goals and values, not because it was assigned that role but because the text states its aims in general terms and gives the Court, through Articles 32, 141 and 21, the means of applying them to particular facts. Its most durable contributions are the doctrines rather than the individual decisions: that the Preamble may be used to construe the text, that Parts III and IV must be harmonised, that Article 21 takes content from Part IV, and that Article 14 forbids arbitrariness. Those four propositions, none of them in the text, are what made the rest possible. Its limits are equally clear, since a right the executive will not fund and a regime Parliament has not enacted are beyond what any declaration can achieve.

Why law making creates a special need

Judges are not elected and cannot be removed for their decisions. Article 124(4) permits removal only for proved misbehaviour or incapacity, and the process has never once been carried to a conclusion. A legislator who makes an unpopular law faces an election; a judge who declares one faces nothing.

Judicial law making is retrospective by default. A declaration under Article 141 states what the law always was, so it applies to transactions already completed. Prospective overruling, introduced in Golak Nath v. State of Punjab, AIR 1967 SC 1643, exists precisely because the Court recognised this as a defect, and it is used sparingly.

The process lacks the inputs legislation has. A court hears two parties on a record they choose. It does not consult, does not cost a proposal, cannot hear those who will bear the burden of a rule but are not before it, and cannot revise the rule when circumstances change.

The product binds immediately and universally. Article 141 makes a declaration binding on every court in India from the moment it is pronounced, with none of the publication and commencement machinery that attends a statute.

Legislative correction. Parliament may enact a law removing the basis of a decision, or amend the Constitution, subject only to the basic structure. This is the substantial answer to the countermajoritarian objection and it is used: Article 21A followed Unni Krishnan v. State of Andhra Pradesh, (1993) 1 SCC 645, and the Sexual Harassment of Women at Workplace Act, 2013, replaced the Vishaka guidelines.

The Court's own doctrines of restraint. Asif Hameed v. State of Jammu and Kashmir, 1989 Supp (2) SCC 364, states that the judiciary has no power over the sword or the purse. Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, holds that judges cannot take over functions belonging to another organ. Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409, confines Article 142 so that it cannot supplant express statutory provisions. Supriyo v. Union of India, decided on 17 October 2023, is the doctrine applied to refuse relief.

Transparency. Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal, decided on 13 November 2019, 2019 SCC OnLine SC 1459, held that the office of the Chief Justice of India is a public authority under the Right to Information Act, 2005.

What actually operates is the in house procedure, adopted in 1997 with the Restatement of Values of Judicial Life, supported by C. Ravichandran Iyer v. Justice A.M. Bhattacharjee, (1995) 5 SCC 457, which 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 the judge's resignation in April 2026.

What accountability for law making would look like if it were designed

It is worth saying what is missing, because the question asks about necessity and a necessity is measured by the gap.

Prospectivity as a norm rather than an exception. Prospective overruling exists but is used rarely, so most judicial law making applies to transactions completed before the rule existed.

A means of hearing those affected but absent. The amicus curiae and the court appointed commissioner are partial substitutes, but neither is a consultation and neither produces evidence tested by the ordinary means.

The genuine gap is not in the law making function but in the disciplinary one. A constitutional procedure that has never once been carried to a conclusion is the only formal mechanism the Constitution provides for misconduct, and the events of 2025 and 2026 are the first occasion on which anything approaching a conclusion was reached, by a mechanism the judiciary designed for itself.

Conclusion. Judicial accountability is necessary in the process of law making in India because the Court has assumed a law making function without acquiring any of the correctives that attend legislation: election, consultation, prospectivity and easy repeal. The response has been largely self imposed, through reasoned judgments, Bench strength discipline and doctrines of restraint, supplemented by the residual power of Parliament to legislate around a decision, which it has exercised in Article 21A and in the Acts of 2009, 2013 and 2023. Judged against the question as asked, that response is adequate to the law making function and inadequate to the disciplinary one, and the difference matters because a judiciary distrusted for the second will not long be permitted the first.

The significance, under four heads

It changed who can reach a court. S.P. Gupta v. Union of India, 1981 Supp SCC 87, held that where a legal wrong is caused to a person or class 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 and having sufficient interest may move it. Before that rule, prisoners, undertrials, bonded labourers and pavement dwellers held rights under Part III and had no practical means of asserting them.

It changed what a court can find out. Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161, on bonded labour in the stone quarries of Faridabad, held that Article 32 prescribes no particular form of proceeding and that the Court may appoint commissioners to investigate and report. Without that, the State's denial would have been the end of the matter, because the labourers could not have proved anything.

Why it is a tool and not a jurisdiction, stated precisely

The distinction matters because it answers the commonest objection. Critics sometimes speak as though the Court had invented a power. It did not. Articles 32 and 226 were in the Constitution from the beginning and their text is unchanged. What the Court altered were three rules of practice: the rule that only the injured party may sue, the rule that facts must be proved by the parties in the ordinary way, and the rule that relief is confined to the writs named in the Article. Each of those three was a judge made rule to begin with, which is why a court could alter it without amending anything. Seeing that clearly is what allows an answer to defend the jurisdiction against the charge of usurpation while still criticising particular uses of it.

The competence objection is that a court taking on a polycentric problem lacks the information and the instruments to solve it, cannot consult those affected, cannot cost its order and cannot revise it when conditions change. Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, states the separation of powers form of the objection: judges cannot take over functions belonging to another organ, and activism must not become adventurism.

The refusal case is the most useful recent illustration, because it shows the Court declining rather than being criticised. Supriyo v. Union of India, decided on 17 October 2023, held that there is no unqualified right to marry and that recognising same sex marriage would require a legislative scheme covering succession, adoption, maintenance and much else, which a court cannot construct.

The counterweight is that the jurisdiction continues to produce results the political process did not. M.K. Ranjitsinh v. Union of India, decided on 21 March 2024, in a petition concerning the Great Indian Bustard and overhead transmission lines, recognised a right against the adverse effects of climate change under Articles 14 and 21. That is why the discourse is about discipline and not abolition.

Conclusion. The significance of public interest litigation is that it converted the writ jurisdiction from a remedy available to those able to litigate into a tool for enforcing constitutional guarantees on behalf of those who cannot. Every element of modern Indian rights jurisprudence, from the content of Article 21 to environmental law to workplace regulation, came through it. The recent discourse has not challenged that record; it has challenged the use of the tool by petitioners with private or political motives, and its extension into questions of policy design. The correct position, and the one the Court itself has adopted in Balwant Singh Chaufal and applied in Supriyo, is that the tool remains available where a constitutional guarantee is at stake and those entitled to it cannot come to court, and is not available as a general licence to supervise government.

Its constitutional basis is Article 32 with Article 226, with standing relaxed by S.P. Gupta v. Union of India, 1981 Supp SCC 87; Article 141, which makes a declaration binding at once; Article 142, permitting orders for complete justice; and Article 21, whose generality supplies the substantive material.

Its typical forms, each with a case. The expansive reading of a guarantee, as in Maneka Gandhi v. Union of India, (1978) 1 SCC 248, where a passport was impounded without reasons and the Court held that Articles 14, 19 and 21 must be read together and that procedure must be right, just and fair. Guidelines with the force of law pending legislation, as in Vishaka v. State of Rajasthan, (1997) 6 SCC 241, after the gang rape of Bhanwari Devi, which governed every workplace until the Act of 2013. Continuing mandamus, as in Vineet Narain v. Union of India, (1998) 1 SCC 226, on the Jain hawala diaries. New remedies, as in M.C. Mehta v. Union of India, (1987) 1 SCC 395, and Rudul Sah v. State of Bihar, (1983) 4 SCC 141.

Its justification is that guarantees in Part III are worthless to those who cannot enforce them, and that a court asked to enforce a right cannot decline because the executive has failed to act. The institutional argument is ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521, and what followed it.

Its necessity, shown by the classes it reached. Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 81, concerned undertrials in Bihar held longer than the maximum sentence for the offence charged, some for years without a charge being framed, and produced a right to a speedy trial and their release. 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. Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161, reached bonded labourers in the Faridabad quarries. Each of those classes is one the political process has no incentive to reach, which is the structural justification for the whole jurisdiction.

(b) Dharma in Indian thought

Dharma derives from the root dhr, to hold or sustain, and means both the order that sustains the world and society and the duty of each person which maintains that order. It is wider than law and is not a synonym for religion.

Its juridical branch, vyavahara, sets out the constitution of the court, the eighteen titles of litigation, the burden of proof and the classes of evidence, and requires the judge to decide according to dharma and not according to the wishes of the king.

Its survival in the modern order is at the level of principle: the Preamble's promise of justice, the fundamental duties in Article 51A, the direction in Article 50 to separate the judiciary from the executive, the Supreme Court's motto Yato Dharmastato Jayah, and the reasoning of Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, that a power conferred by an order cannot destroy that order.

Two qualifications are required in a critical answer. Dharma is not Hindu personal law, which is a modern statutory subject: section 4 of the Hindu Marriage Act, 1955, provides that any text, rule or interpretation of Hindu law in force before the Act ceases to have effect on matters for which the Act provides. And dharma as historically administered carried the disabilities of varna, which Articles 15 and 17 of the Constitution reject, and which the Hindu Succession (Amendment) Act, 2005, reversed in making a daughter a coparcener by birth.

For full marks, cover: both notes at roughly equal length, and for the first use the syllabus's own three fold classification.

(a) Interrelationships between Law and Justice

Three relations are possible, and the syllabus names two of them.

Equivalence theories hold that law and justice are the same and that justice is nothing more than the positive law of the stronger class. Thrasymachus in Plato's Republic argues that justice is the interest of the stronger and that each ruling class makes laws for its own advantage. Austin's command theory produces the same practical result: law is the command of the sovereign backed by sanction, and its merit is a separate question that does not affect validity. Marx supplies the class version, treating law as superstructure reflecting the relations of production.

The Indian text enacts the connection. The Preamble names justice first among the four objectives. Part III makes part of it enforceable and thereby removes those claims from utilitarian calculation. Part IV states the rest, with Article 37 withholding enforcement. Article 39A obliges the State to secure that the operation of the legal system promotes justice on a basis of equal opportunity and to provide free legal aid, which is the clearest textual admission that a formally equal law can produce unequal justice. Maneka Gandhi v. Union of India, (1978) 1 SCC 248, imports the standard into validity by requiring procedure to be right, just and fair, and E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3, makes arbitrariness the antithesis of equality.

(b) Judicial Creativity

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 in the Commentaries (1765) was the living oracle who discovers rather than makes. Cardozo replaced that account, observing that the judicial process at its highest reaches is not discovery but creation, and Lord Reid in The Judge as Law Maker (1972) called the declaratory account a fairy tale.

Article 21 traced end to end is the clearest single demonstration. A.K. Gopalan v. State of Madras, AIR 1950 SC 27, read the guarantee as satisfied by any enacted procedure. Maneka Gandhi required the procedure to be right, just and fair. Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608, added the right to live with human dignity and the bare necessaries of life. Olga Tellis added livelihood. Unni Krishnan added education, which Parliament then enacted as Article 21A by the Eighty sixth Amendment in 2002. Puttaswamy added privacy, followed by the Digital Personal Data Protection Act, 2023. Ranjitsinh added a right against the adverse effects of climate change. Seventeen words of text, and none of that content in them.

Its legitimacy rests on three things: it is interstitial, filling gaps rather than displacing enacted law; it is exercised on reasons given in public; and it is correctable, by a larger Bench under Union of India v. Raghubir Singh, (1989) 2 SCC 754, or by the legislature, as Article 21A and the Acts of 2009, 2013 and 2023 all show.

Its limits are Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, and Supriyo v. Union of India, 17 October 2023.