LLM Foundation Course Judicial Process 2018 Question Paper with Solutions

For full marks, cover: the notion itself, which the question asks for first; then the extent of its ordering function, since the words how far invite a qualified answer and not a celebration.

The notion of judicial process is the method by which courts decide, considered as a subject in its own right. It is not the law of procedure. It asks what a judge does when the statute is silent or ambiguous and the precedents point both ways, what sources he may draw on, and how far the result is discovered rather than made.

Cardozo's answer in The Nature of the Judicial Process (1921) remains the standard one. In most cases the rule is plain and applying it is mechanical. In the cases that matter the judge must choose, and he is directed by four forces: logic, history, custom, and his sense of the welfare of society, which Cardozo called the method of sociology and to which he gave the last word.

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 the society that enacted it in 1860 and held unable to survive Articles 14, 15, 19 and 21.

Custom, admitted as a source but subject to the proviso in section 3(a) of the Hindu Marriage Act, 1955, that it be certain, reasonable and not opposed to public policy, produced Shayara Bano v. Union of India, (2017) 9 SCC 1, where talaq-e-biddat fell despite long observance.

Social welfare, to which Cardozo gave the last word because the final cause of law is the welfare of society, produced M.C. Mehta v. Union of India, (1987) 1 SCC 395, where the Court declined the exceptions to Rylands v. Fletcher in terms, on the ground that a rule evolved in nineteenth century England could not govern an Indian enterprise handling hazardous substances beside a dense population, and laid down absolute liability.

How far it serves as an instrument of social ordering is a question of degree, and the honest answer is: very far in some fields and not at all in others.

Where it does not go far at all. A court cannot appropriate money, raise a tax, create an administration, or revise its order as conditions change. It cannot act unless moved, and it decides on the record two parties choose to place before it. It cannot design a statutory regime, which is why the Court declined in Supriyo v. Union of India, decided on 17 October 2023, to recognise same sex marriage, holding that the choices involved were for Parliament. And it has warned itself in Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, that judges cannot take over functions belonging to another organ.

A further limit is delivery. A right declared is not a right delivered. The right to education recognised in Unni Krishnan v. State of Andhra Pradesh, (1993) 1 SCC 645, became effective only when Parliament enacted Article 21A by the Eighty sixth Amendment in 2002 and the Act of 2009 followed. That sequence is the pattern: the Court can identify and declare, and the political organs must then fund and administer.

Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 81. Newspaper articles disclosed that undertrials in Bihar had been in custody for periods exceeding the maximum sentence for the offences charged, some for years without a charge being framed. The Court held that a speedy trial is an essential ingredient of the reasonable, fair and just procedure required by Article 21, that the State cannot plead administrative or financial incapacity, that free legal services to an accused unable to engage counsel are part of that fair procedure by reading Article 39A into Article 21, and it ordered releases across a State.

Vishaka v. State of Rajasthan, (1997) 6 SCC 241. Bhanwari Devi, a social worker employed in a State programme, was gang raped in retaliation for attempting to prevent a child marriage. No statute on sexual harassment at the workplace existed. 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 declared its guidelines binding under Article 141 until Parliament legislated. They governed every workplace in India for sixteen years.

For full marks, cover: the role, critically, meaning both what the Court has achieved and what is said against it; the tools; the techniques; and the limitations in the present scenario, which the question names last and expressly.

The Supreme Court's role has been creative rather than declaratory, and the Court has said so. Blackstone's judge discovered pre existing law. Cardozo held that the judicial process at its highest reaches is not discovery but creation, and Lord Reid called the declaratory account a fairy tale. Indian practice has followed Cardozo.

International instruments, where domestic law is silent and there is no inconsistency, as in Vishaka v. State of Rajasthan, (1997) 6 SCC 241.

The techniques

Expansive interpretation, as in Maneka Gandhi. Reading down and reading in, to save a statute rather than strike it. Guidelines with the force of law pending legislation, as in Vishaka, which governed every workplace until the Sexual Harassment of Women at Workplace Act, 2013. Continuing mandamus, introduced in Vineet Narain v. Union of India, (1998) 1 SCC 226. Fact finding commissions, permitted in Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161. Prospective overruling, introduced in Golak Nath v. State of Punjab, AIR 1967 SC 1643. Overruling by a larger Bench, as in State of Punjab v. Davinder Singh, decided on 1 August 2024, which overruled E.V. Chinnaiah, and Property Owners Association v. State of Maharashtra, decided on 5 November 2024.

The techniques shown at work

A technique described is worth less than a technique demonstrated, so three should be given with their facts.

Rudul Sah v. State of Bihar, (1983) 4 SCC 141, concerned a man acquitted of murder in 1968 and kept in jail until 1982. By the time his habeas corpus petition was heard he had been released, so the writ had nothing to operate on. The Court held that if it could order release and nothing more, Article 32 would be reduced to a formality, and awarded compensation in the writ proceeding itself. Nilabati Behera v. State of Orissa, (1993) 2 SCC 746, where a young man taken into police custody was found dead on railway tracks, settled the basis: a public law remedy founded on strict liability, to which sovereign immunity is no answer.

The critical analysis

In favour. The rules made were made because no one else made them, and most were later ratified by the legislature, which is the strongest available answer to the charge of usurpation: Article 21A followed Unni Krishnan v. State of Andhra Pradesh, (1993) 1 SCC 645, the Act of 2013 followed Vishaka, and the Digital Personal Data Protection Act, 2023, followed K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

Control of the entry point, since State of Uttaranchal v. Balwant Singh Chaufal, (2010) 3 SCC 402, required credentials and substantial public interest to be verified before a public interest petition is entertained.

The critical case against, stated properly

Four objections deserve to be met rather than mentioned.

The doctrines have no textual anchor. Nothing in Article 368 contains the basic structure; nothing in Article 37 permits Part IV to be used to construe Part III; nothing in Article 32 mentions compensation. Each was supplied by the Court, and the Court alone determines their content.

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

The process lacks the inputs legislation has. Two parties, a record of their choosing, no consultation, no costing, and no power to revise the rule when circumstances change.

Conclusion. The Supreme Court's role in India has been creative in the strict sense that it has produced binding rules no legislature enacted, and the tools that made this possible are few and identifiable: Articles 32, 141, 142 and 21 with Part IV. The critical case against it is real, since the doctrines are textually unanchored and the Court supplies their content. The reason the balance nevertheless falls in favour of the practice is that its products have repeatedly been adopted by Parliament rather than reversed by it, and that the Court has itself developed the limitations, in Chander Hass, Balwant Singh Chaufal and Supriyo, that a purely self serving institution would not have developed.

Distinctness with connection. Hart accepted that law and morality are separable by definition, while holding that a viable legal system must contain a minimum content of natural law. This is the position Indian constitutional law takes, and it is the only one on which a law can be valid and unjust. That possibility is exactly what makes judicial review necessary, since on the first view review would be pointless and on the second unnecessary.

The theories then supply the content of justice.

Aristotle divides justice into distributive, the proportionate allocation of goods and honours, treating equals equally and unequals unequally, and corrective, the restoration of a balance disturbed by a wrong without regard to the parties' merit. Indian law uses both. Article 14 with Articles 15(4) and 16(4) is distributive; the law of torts and of restitution is corrective.

Amartya Sen, in The Idea of Justice (2009), objects that the whole tradition asks what perfectly just institutions look like. He revives the distinction between niti, correctness of rules and institutions, and nyaya, justice as actually realised in people's lives, and argues that comparative judgments about removing manifest injustice are both possible and more useful.

The theories applied

Aristotle decides the structure of the reservation debate. The objection that reservation violates equality assumes equality means identical treatment; on the distributive account it means treating unequals unequally in proportion to a relevant difference, so Articles 15(4) and 16(4) are applications of Article 14 and not exceptions to it. Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, reasons in exactly that way, upholding reservation for the Other Backward Classes while capping it at fifty per cent and requiring the exclusion of the creamy layer.

The Indian constitutional position takes the third relation expressly. The Preamble puts justice first among the four objectives and specifies it as social, economic and political. Part III makes part of it enforceable. Part IV states the distributive programme and Article 37 makes it fundamental in governance while denying it enforcement. Article 39A obliges the State to secure that the operation of the legal system promotes justice on a basis of equal opportunity, which is a constitutional acknowledgement that formally equal law can produce unequal justice.

The case law shows the connection at work. Maneka Gandhi v. Union of India, (1978) 1 SCC 248, held that a procedure established by law must be right, just and fair, which imports a justice standard into the test of validity. E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3, made arbitrariness the antithesis of equality, converting Article 14 from a rule about classification into a standard. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, limits even the amending power by reference to values the text does not enumerate.

The connection made operative in the reports

The theories would be decoration if the courts did not use them, so three decisions should be given in which a justice standard decided the case.

Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545. Pavement and slum dwellers faced eviction under the Bombay Municipal Corporation Act. The public interest in clearing the pavements was real and the Court accepted it. It nevertheless held that the right to livelihood is an integral facet of the right to life, because no person can live without the means of living, and that those affected must be heard before eviction. The aggregate was not permitted to settle the question without the people whose loss it counted.

Conclusion. Law and justice are distinct but connected, and the Indian Constitution is built on precisely that proposition. It enacts a theory of justice in the Preamble and Part IV, makes part of it enforceable in Part III, and gives the courts through Articles 14, 21 and 32 the means of testing law against it. The theories matter to a lawyer because they supply the content that the words justice, equality and fairness would otherwise lack, and because each of them can be found doing work in the reports: Aristotle in the reservation cases, Bentham in the reasoning about public welfare, Rawls in the structure of Parts III and IV, and Sen in the Court's repeated insistence that a right unenforced is not a right at all.

The text of the Constitution says very little. Article 124(2) provides that every Judge of the Supreme Court shall be appointed by the President after consultation with such Judges of the Supreme Court and of the High Courts as the President may deem necessary, and that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted. Article 217(1) provides for appointment of High Court judges after consultation with the Chief Justice of India, the Governor of the State, and, for a judge other than the Chief Justice, the Chief Justice of the High Court. The word the whole controversy turns on is consultation.

The First Judges case, S.P. Gupta v. Union of India, 1981 Supp SCC 87, held that consultation does not mean concurrence, that the Union Government could depart from the opinion of the Chief Justice of India for cogent reasons, and that primacy therefore lay with the executive.

The Second Judges case reversed that. The Court held that in the context of appointment and transfer, consultation means concurrence, that the opinion of the Chief Justice of India, formed after consulting his senior colleagues, has primacy, and that this follows from the independence of the judiciary, which is part of the basic structure. Appointment was thus made a participatory consultative process in which the judiciary's view prevails.

What the Second Judges case actually decided, and why

The reasoning deserves setting out, because the question names the case. The Court held that the Constitution intends the selection of judges to be a participatory consultative process in which the executive and the judiciary act together, and that in the event of a difference the view of the judiciary must prevail, because independence of the judiciary is part of the basic structure and the executive is the largest litigant in the country. The word consultation in Articles 124(2) and 217(1) was accordingly read as concurrence in the context of appointments and transfers, and the opinion of the Chief Justice of India, formed after consulting his senior colleagues, was given primacy.

Three further limbs of the decision matter. It held that no appointment can be made unless it is in conformity with the final opinion of the Chief Justice of India formed in the manner indicated. It held that the transfer of a High Court judge is not justiciable except on the ground that the recommendation was not made by the Chief Justice of India in the prescribed manner. And it expressly overruled the contrary holding in S.P. Gupta, which had given primacy to the executive.

It does not secure the other components of a sound appointment system. The collegium has no constitutional or statutory text: it is a construction placed on the word consultation. It works without published criteria, without a record of reasons and without any structured means of assessing candidates. It is not accountable to anyone, and the same institution that appoints also decides challenges to its appointments. The Government retains a practical veto by inaction, since it can delay a warrant indefinitely, and the Memorandum of Procedure that was to be revised after the Fourth Judges case has still not been settled, leaving the working arrangement uncertain a decade later. Vacancies in the High Courts have remained in the hundreds throughout.

Independence is also not only about appointment. Post retirement appointments, the allocation of cases by the Chief Justice as master of the roster, and the mechanism of transfer all bear on independence and none of them is addressed by the collegium.

The other guarantees of independence, and what the collegium does not cover

Appointment is one of seven devices and an answer confined to it has answered part of the question.

What none of these covers is obligation rather than vulnerability. Articles 124(7) and 220 restrict practice, not the acceptance of office from the Government after retirement. A judge who expects a tribunal or commission appointment is structurally exposed in a way the Constitution does not address, and the 2025-26 paper in this folder asks about exactly that, in the language of structural vulnerability and obligation to the political executive.

Conclusion. The procedure as it now stands does ensure judicial independence in the narrow and historically primary sense: no organ of the executive can decide who sits on the higher judiciary, and the Second and Third Judges cases put that beyond doubt while the Fourth Judges case defended it against constitutional amendment. It does not ensure the wider goods that a good appointment system should deliver, namely transparency, published criteria, a reasoned record and accountability, because it secured independence by concentrating the choice in the judiciary itself without building any of those safeguards into the process. The honest answer is therefore yes as to independence from the executive, and no as to the quality and accountability of the appointment process, and the unfinished Memorandum of Procedure is the standing evidence of the second half.

Its structure is duty based. Obligation is prior to entitlement and varies with varna and asrama, station and stage of life. The benefit to others is the consequence of the duty being performed, not the product of a claim. This is the sharpest structural contrast with the western tradition of subjective rights, and it explains why the classical literature is a literature of obligation.

Its constitutional theory is rajadharma. The king was bound by dharma and not above it, had no independent legislative power in the modern sense, and exercised danda, the power to punish, subject to dharma. Kautilya's Arthashastra recognises four feet of law, dharma, vyavahara, charitra and rajasasana, and places the royal edict last when they conflict.

Vyavahara supplied a working system of adjudication, with rules on the constitution of the court, the eighteen titles of litigation, the burden of proof and the classes of evidence, and with the judge required to decide according to dharma rather than according to the wishes of the king.

How far it reflects in the Indian legal system

In the structure of the Constitution, substantially. The Preamble's promise of justice, social, economic and political states an ordering aim rather than a set of individual claims. Part IVA, inserted by the Forty second Amendment in 1976, states fundamental duties in Article 51A, which is duty language in a rights instrument. The basic structure doctrine of Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, holds that a power conferred by an order cannot be used to destroy that order, which is rajadharma restated in constitutional terms. The Supreme Court's motto, Yato Dharmastato Jayah, states the connection openly.

In the reasoning of the courts, 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 rather than as indifference, a conception closer to the classical Indian treatment of religion than to the French. Judges have repeatedly used the vocabulary of duty in explaining Article 51A and the responsibilities of the State.

The four purusharthas, and dharma as a limit on the pursuit of gain

Dharma is the first of the four ends of life, dharma, artha, kama and moksha, and the ordering among them is a legal proposition and not a devotional one. Artha, the pursuit of wealth, and kama, the pursuit of desire, are legitimate, and the tradition is not ascetic about them. They are legitimate within dharma, which means that a gain obtained by conduct contrary to dharma is not a gain the order will protect.

That is the ancestor of the modern doctrine of public policy, of section 23 of the Indian Contract Act, 1872, which makes unlawful any consideration or object which the court regards as immoral or opposed to public policy, and of the whole idea that private ordering operates inside a boundary the parties cannot set for themselves.

For full marks, cover: both notes, at roughly equal length.

(a) Doctrine of Precedent

The doctrine of precedent, or stare decisis, requires a court to decide a case in the way an earlier court decided a case that cannot be materially distinguished. A precedent may be binding, so that it must be followed whatever the later court's own view, or persuasive, so that it may be.

What binds is the ratio decidendi, the rule of law necessary to the decision on the facts found. Everything else is obiter dictum and is persuasive only, though an obiter of a Constitution Bench carries great weight.

Its merits are certainty, equality of treatment, efficiency and the disciplining of judicial law making. Its defects are the perpetuation of error until a larger Bench corrects it, rigidity, and the sheer volume of reported decisions.

(b) Judicial Review

Judicial review is the power of a court to test legislative and executive action against the Constitution and to refuse effect to what is inconsistent with it. Its classical statement is Marbury v. Madison, 5 US 137 (1803).

In India it is express and not implied. Article 13(2) makes laws inconsistent with Part III void; Article 32 makes the remedy a fundamental right; Article 226 gives the High Courts a wider jurisdiction extending to any other purpose; Articles 245 and 246 make legislative competence justiciable.

Two recent applications show both notes operating together. State of Punjab v. Davinder Singh, decided on 1 August 2024, saw seven judges overrule E.V. Chinnaiah v. State of Andhra Pradesh, (2005) 1 SCC 394, after nineteen years, holding sub-classification within the Scheduled Castes permissible. Property Owners Association v. State of Maharashtra, decided on 5 November 2024, saw nine judges narrow the reading of Article 39(b) that had stood since Sanjeev Coke Manufacturing Co. v. Bharat Coking Coal, (1983) 1 SCC 147, with Nagarathna J. partly dissenting and Dhulia J. dissenting. Both required the Bench strength that Union of India v. Raghubir Singh, (1989) 2 SCC 754, prescribes, and both are exercises of review over questions of constitutional interpretation that Article 145(3) reserves for at least five judges.

The five techniques of precedent, worked

Distinguishing confines an earlier decision by finding a material difference in the facts, and it is the commonest and least visible form of judicial law making, because the earlier case is left standing while its reach is reduced.

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

Conclusion. Precedent and judicial review are the two doctrines that make Indian judicial decisions operate as law rather than as the settlement of a dispute. Precedent gives a decision force over later cases through Article 141; judicial review gives it force over the legislature and the executive through Articles 13, 32 and 226. Both are subject to correction, precedent by a larger Bench and review by constitutional amendment within the basic structure, and it is that combination of binding force and correctability that keeps them workable.

The case for activism is that rights in Part III are worthless to those who cannot enforce them; that a court asked to enforce a right cannot decline because the executive has failed; and that the historical record supports it, since public interest litigation was the means by which the Court recovered its standing after the majority in ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521, held that no person could move a High Court for habeas corpus during the Emergency. Its landmarks are S.P. Gupta v. Union of India, 1981 Supp SCC 87, Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 81, M.C. Mehta v. Union of India, (1987) 1 SCC 395, and Vishaka v. State of Rajasthan, (1997) 6 SCC 241.

The case for restraint rests on the separation of powers, stated in Asif Hameed v. State of Jammu and Kashmir, 1989 Supp (2) SCC 364, that the judiciary has no power over the sword or the purse; on institutional competence, since a court cannot cost a policy, consult those affected or revise its order; and on democratic legitimacy. Its clearest Indian statement is Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, holding that judges cannot take over functions belonging to another organ and that activism must not become adventurism, and its clearest application is Supriyo v. Union of India, decided on 17 October 2023, where the Court refused to construct a marriage regime.

Article 21 is read in the light of Part IV, which produced the right to education in Unni Krishnan v. State of Andhra Pradesh, (1993) 1 SCC 645, later enacted as Article 21A by the Eighty sixth Amendment in 2002, and the right to livelihood in Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545.

Equality is a value and not only a rule. E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3, made arbitrariness the antithesis of equality.

Particular values worked through: secularism in S.R. Bommai v. Union of India, (1994) 3 SCC 1; social justice from Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, to State of Punjab v. Davinder Singh, 1 August 2024; dignity and autonomy in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, and Navtej Singh Johar v. Union of India, (2018) 10 SCC 1; environmental protection in Vellore Citizens Welfare Forum v. Union of India, (1996) 5 SCC 647, and M.K. Ranjitsinh v. Union of India, 21 March 2024.

The limits are the same as everywhere in this subject: a court can declare a right but cannot fund it, and cannot design a statutory scheme.

Activism is legitimate where three conditions hold together: a constitutional guarantee is engaged; those entitled to it cannot enforce it themselves; and the political organs have not acted.

All three held in Vishaka v. State of Rajasthan, (1997) 6 SCC 241. Articles 14, 15, 19(1)(g) and 21 were engaged; women in unorganised workplaces could not litigate individually against their employers; and Parliament had enacted nothing, and did not do so for a further sixteen years.

All three held in Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 81, and in Sunil Batra v. Delhi Administration (No. 2), (1980) 3 SCC 488, where a convict's letter about the torture of a fellow prisoner was treated as a petition and converted into habeas corpus.

None of the three held in Supriyo v. Union of India, decided on 17 October 2023. No existing guarantee conferred a right to marry; the petitioners were before the Court and articulate; and the subject was one on which Parliament had legislated, in the Special Marriage Act, 1954, choosing its scope. The Court declined, and the refusal is as much a part of the doctrine as the interventions are.

The first thing the statement establishes is that most adjudication is not creative. Cardozo himself estimated that in the great majority of cases the law and its application are alike plain. An answer that treats every case as an act of creation misreads him. The creative function is confined to a margin, and it is important precisely because the margin contains the cases that shape the law.

The second thing it establishes is that in that margin the judge must choose, and therefore must have criteria. This is the whole subject of judicial process: not what the rule is, but how the judge selects one when the materials do not select it for him.

Cardozo's criteria are four. The method of philosophy, which is logic and analogy, extending an accepted principle to a case it does not cover in terms, and which he gave presumptive priority because like cases should be decided alike. The method of history, which explains a rule by its origins and often confines it to them. The method of tradition, which is custom, the standards a community has settled on without legislating them. And the method of sociology, the judge's sense of the welfare of society, to which he gave the last word, saying that the final cause of law is the welfare of society.

Social welfare produced M.C. Mehta v. Union of India, (1987) 1 SCC 395, where the Court expressly declined to apply the exceptions to Rylands v. Fletcher on the ground that a nineteenth century English rule could not govern hazardous industry in modern India, and laid down absolute liability. Vishaka v. State of Rajasthan, (1997) 6 SCC 241, is the same method applied to a legislative vacuum.

Why the residue is larger in India than in Cardozo's own system

Cardozo was describing a common law judge deciding private law disputes. Three features of the Indian text make the residue he described both wider and more consequential.

The Constitution is written, entrenched and general. A judge construing Article 21 has seventeen words and a case; a judge construing a detailed statute has the draftsman's answer in front of him. The more general the text, the larger the residue.

The scope of the process in India is wider than Cardozo's own, for reasons in the text. Article 141 makes a declaration binding on every court immediately, so the product of the margin becomes general law at once. Article 32 makes the remedy itself a fundamental right, and after S.P. Gupta v. Union of India, 1981 Supp SCC 87, it can be invoked by a stranger for those who cannot come. Article 21 is drafted generally enough to accommodate rights the framers never named, which is how privacy entered it in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, and a right against the adverse effects of climate change in M.K. Ranjitsinh v. Union of India, decided on 21 March 2024.

Cardozo's own limits belong in the answer. He insisted the judge is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness, and that he draws his inspiration from consecrated principles, exercising a discretion informed by tradition and disciplined by system. Indian courts have restated the same limit in their own terms in Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, and applied it in Supriyo v. Union of India, decided on 17 October 2023.

Custom, admitted as a source but subject to the proviso that it be certain, reasonable and not opposed to public policy, which is how section 3(a) of the Hindu Marriage Act, 1955, defines it. Shayara Bano v. Union of India, (2017) 9 SCC 1, held talaq-e-biddat unconstitutional notwithstanding long observance. Madhu Kishwar v. State of Bihar, (1996) 5 SCC 125, shows the opposite restraint, the Court preferring to work within tribal custom rather than demolish an integrated scheme.

Social welfare, to which Cardozo gave the last word. M.C. Mehta v. Union of India, (1987) 1 SCC 395: absolute liability laid down after the oleum gas leak, with the Court saying in terms that it was not bound by a rule evolved in nineteenth century England.

Conclusion. The statement locates the whole subject. The nature of the judicial process is the reasoning by which a judge decides the residue of cases the existing materials do not decide, and its scope is the size and importance of that residue. In India the residue is unusually consequential because Article 141 turns its product into binding law at once and Article 21 leaves unusually much for the judge to determine. Cardozo's four forces describe how the choice is actually made, and his qualification, that the judge draws from consecrated principles and not from his own preference, describes the only ground on which that choice can be defended.

In India the philosophy is enacted and not merely inferred. Article 13(2) provides that the State shall make no law taking away or abridging the rights conferred by Part III, and that any law made in contravention shall be void to the extent of the contravention. Article 32 makes the right to move the Supreme Court for enforcement of those rights itself a fundamental right, which Dr Ambedkar described as the heart and soul of the Constitution. Article 226 confers a wider power on the High Courts, extending to any other purpose besides fundamental rights. Articles 245 and 246 with the Seventh Schedule make legislative competence justiciable.

The concept operates in three fields.

Over legislation. The grounds are legislative incompetence, breach of Part III, and breach of any other constitutional limitation.

Over executive and administrative action. The grounds in Indian law are 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. Legitimate expectation and proportionality now operate as well, and proportionality was applied as a structured four part test in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

Against executive and administrative action: illegality, meaning acting without or in excess of jurisdiction, under dictation, on irrelevant considerations, in disregard of relevant ones, by fettering discretion or for an improper purpose; irrationality, a decision so unreasonable that no reasonable authority could have arrived at it; procedural impropriety, meaning breach of a mandatory procedure or of natural justice, the two rules being nemo judex in causa sua and audi alteram partem, applied to administrative action in A.K. Kraipak v. Union of India, (1969) 2 SCC 262; proportionality, as the four part test adopted in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, requiring a legitimate aim, a rational connection, necessity and a fair balance; and legitimate expectation, subject to overriding public interest.

Against constitutional amendments: the basic structure, from Kesavananda Bharati.

The present scenario has four features worth stating.

Review is itself beyond amendment. L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, held that the jurisdiction of the High Courts under Article 226 and of the Supreme Court under Article 32 is part of the basic structure, so tribunals may supplement the High Courts but cannot supplant them.

The standing criticism must be acknowledged. Review by unelected judges of laws made by an elected legislature is countermajoritarian, and the basic structure doctrine has no textual anchor while its content is settled by the Court itself. The Indian answers are that the power is conferred by Articles 13, 32 and 226 rather than assumed; that it is exercised on reasons given in public; and that Parliament may amend the Constitution subject only to the basic structure.

Review of amendments, with the facts of the three decisions

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225. The head of the Edneer Mutt challenged Kerala land reform legislation, and the case became the vehicle for testing the Twenty fourth, Twenty fifth and Twenty ninth Amendments, enacted to undo Golak Nath. Thirteen judges, the largest Bench ever constituted, held by seven to six that Parliament may amend any provision but may not damage or destroy the basic structure, and declined to define that structure exhaustively.

Conclusion. The statement in the question is an accurate account of the philosophy: government authorities must not act inconsistently with fundamental rights, and judicial review is the mechanism that gives that prohibition effect. In the present scenario the concept in India is broader than in most systems, because it reaches constitutional amendments as well as laws and executive action, and because it cannot itself be removed by amendment after L. Chandra Kumar. What has changed most recently is not the doctrine's reach but its self awareness: the same Court that struck down the Ninety ninth Amendment and the Tribunals Reforms Act has declined to design a marriage regime, which is the doctrine distinguishing between enforcing the Constitution and governing.

It allocates resources. A direction to provide education, to clean a river, or to compensate a victim commits public money that a legislature has not appropriated.

It decides contested value questions. Reservation, religious practice, sexuality and privacy have all been decided by courts in India, and each involves a choice among competing conceptions of the good on which reasonable people disagree.

Appointment to the Court is itself contested political ground, which is precisely why the question moves to the Commission.

A distinction must be preserved. The political questions doctrine of American law, that some issues are non justiciable because they are committed to the political branches, has not been adopted in India in that form. Indian courts examine the legality of a decision while declining to examine the political judgment inside it, which is exactly what S.R. Bommai did with Article 356.

The political questions doctrine, and why India did not adopt it

American law developed a political questions doctrine, under which certain issues are non-justiciable because the Constitution commits them to the political branches. Indian courts have not adopted it in that form.

The status of the National Judicial Appointments Commission

The Commission was created and struck down. The Constitution (Ninety ninth Amendment) Act, 2014 inserted Articles 124A, 124B and 124C and substituted the appointment provisions. Article 124A constituted the National Judicial Appointments Commission with the Chief Justice of India as Chairperson, the two next senior most Judges of the Supreme Court, the Union Minister in charge of Law and Justice, and two eminent persons nominated by a committee of the Prime Minister, the Chief Justice of India and the Leader of the Opposition in the House of the People, one of whom was to be from the Scheduled Castes, Scheduled Tribes, Other Backward Classes, minorities or women. Article 124C empowered Parliament to regulate the procedure by law, and the National Judicial Appointments Commission Act, 2014, provided that no recommendation shall be made if any two members do not agree.

The unfinished business is the Memorandum of Procedure. The Court, after striking down the Amendment, considered measures to improve the collegium and left the revision of the Memorandum to the Government in consultation with the collegium. It has still not been settled, and the disagreement includes the executive's claim to withhold a name on grounds of national security. Vacancies in the High Courts have remained in the hundreds throughout the period.

The decision is the strongest illustration of the political nature of the judicial process, and this should be said plainly. A constitutional amendment passed by both Houses with the special majority and ratified by the required number of State legislatures was set aside by five judges, on the ground that it reduced the role of judges in choosing judges. Whatever view one takes of the merits, the case shows a court deciding a question about the distribution of power in the State, which is what a political question is.

Vacancies have persisted in the hundreds in the High Courts against sanctioned strength, which is a threat to the effectiveness of the judiciary whether or not it is a threat to its independence.

And transparency has improved only marginally: collegium resolutions are now published, and Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal, decided on 13 November 2019, 2019 SCC OnLine SC 1459, held the office of the Chief Justice of India to be a public authority under the Right to Information Act, 2005. Neither supplies criteria or reasons.

Conclusion. The judicial process is political in the descriptive sense that it allocates power, commits resources and settles contested values, and it is not political in the partisan sense. The status of the National Judicial Appointments Commission is the clearest available demonstration: it was enacted by the political organs to change how judicial power is conferred, it was annulled by the judiciary on a doctrine the judiciary itself created, and the arrangement that survived is one for which the Constitution contains no text. The consequence, an unsettled Memorandum of Procedure and persistent vacancies a decade later, is what a genuinely political dispute between organs looks like when it is decided by one of them.

Sunil Batra v. Delhi Administration (No. 2), (1980) 3 SCC 488, is the more radical decision and is the one the question is aimed at. Sunil Batra, a convict, wrote a letter to a judge of the Supreme Court about the torture of a fellow prisoner by a warder. The Court treated the letter as a petition and converted the proceeding into habeas corpus, appointed amici curiae to visit the prison and report, and issued directions on prison visits by judicial officers, on grievance mechanisms and on the treatment of prisoners.

What the first decision actually held

Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, deserves its own treatment because it is a model of the least intrusive technique available to an activist court.

Section 30(2) of the Prisons Act, 1894, provided that every prisoner under sentence of death shall be confined in a cell apart from all other prisoners and placed under the charge of a guard by day and by night. Section 56 permitted the imposition of irons on a prisoner deemed necessary for safe custody.

Departure from the adversarial model. Amici were appointed to visit the prison and gather facts, because the petitioner could not lead evidence. The same technique was formalised in Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161.

The expansion of a guarantee. Article 21 was held to reach the conditions of confinement and not only its legality. This is the same movement as Maneka Gandhi v. Union of India, (1978) 1 SCC 248, applied to a class the political process does not reach.

Continuing supervision. The Court did not merely declare a right but issued institutional directions about how prisons were to be run, anticipating the continuing mandamus of Vineet Narain v. Union of India, (1998) 1 SCC 226.

The quotation in the question states the justification. If the object of law is a justice that recognises the dignity of every individual, then a prisoner is within it, and a procedural rule that keeps him out of court defeats the object. Krishna Iyer J.'s reasoning in these cases is exactly that: the rule of law must run inside the prison walls.

The critical assessment has three heads.

On the limits. The strongest answer to the objection is that activism of this kind is justified where three conditions hold together: a constitutional guarantee is engaged, the holders cannot enforce it themselves, and the political organs have not acted. All three held in Sunil Batra. Where they do not hold, the Court has declined, as in Supriyo v. Union of India, decided on 17 October 2023, and has disciplined petitioners in State of Uttaranchal v. Balwant Singh Chaufal, (2010) 3 SCC 402.

The wider line of prisoners' rights the case begins

The two Sunil Batra decisions are the start of a line, and naming it shows the case was not an isolated intervention.

Charles Sobraj v. Superintendent, Central Jail, Tihar, decided in the same period, held that imprisonment does not spell farewell to fundamental rights and that the treatment of a prisoner is subject to Articles 14, 19 and 21.

Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526, held that handcuffing is prima facie inhuman, unreasonable and arbitrary, that it may be resorted to only where there is clear and present danger of escape, and that the escorting officer must record reasons.

Conclusion. Sunil Batra is the best single illustration of judicial activism in Indian law because it contains the whole method in one case: a letter treated as a petition, facts gathered by the Court's own appointees, Article 21 extended into the prison, and directions issued for the future. Judged against the object stated in the question, a justice that recognises the dignity of every individual, it is a vindication, since no other organ was going to reach the prisoner. Judged as an exercise of the judicial function it is a departure, and the honest conclusion is that it was a justified departure because the three conditions that justify one were all present, which is precisely why the case is cited as a model rather than as a precedent for intervention at large.

They are distinct but connected. Hart accepted the separability of law and morals while insisting on a minimum content of natural law in any viable system. Indian constitutional law takes this position, and the whole apparatus of judicial review depends on it, because a law must be capable of being both valid and unjust before there is anything for a court to strike down.

The theories fill in what justice requires.

Aristotle. Distributive justice allocates goods and honours proportionately, treating equals equally and unequals unequally; corrective justice restores a balance disturbed by a wrong, indifferent to the parties' merit. Both are visible in Indian law, the first in Articles 14, 15(4) and 16(4), the second in tort and restitution.

Utilitarianism. Bentham's greatest happiness of the greatest number gives a criterion for legislation and is the theory behind most regulatory law. Its defect is that it permits an individual to be sacrificed for aggregate gain, which is what Part III exists to prevent, and Mill's harm principle is the attempt to build a limit into the theory.

Bentham explains the whole of regulatory and fiscal legislation and fails precisely where a bill of rights begins, which is why Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, held that majority morality cannot justify a criminal prohibition.

Rawls describes the architecture of Parts III and IV, entrenched liberties with a distributive programme left to politics under Article 37.

Sen explains Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545. The institutions were in order, which is niti: a statute, a municipal power and a lawful procedure. What the pavement dwellers lacked was nyaya, justice realised in their lives, which is why the Court held livelihood to be part of life and required a hearing before eviction.

Indian law adopts the third relation and enacts a theory of justice. The Preamble names justice first among the four objectives and specifies it as social, economic and political. Part III makes part of it enforceable; Part IV states the rest and Article 37 makes it fundamental in governance while withholding enforcement; Article 39A obliges the State to secure that the legal system promotes justice on a basis of equal opportunity and provides free legal aid.

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, limits even the amending power by reference to values the text does not enumerate, which presupposes a standard the law itself must answer to.

Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545, is the sharpest illustration of the tension between the utilitarian and the rights based account: a genuine public interest in clearing pavements, and a holding that livelihood is part of life and that those affected must be heard, so that the aggregate could not settle the matter without them.

Conclusion. Law and justice are distinct, since a law may be valid and unjust, and connected, since a legal system that never answers to a standard of justice forfeits the obedience it depends on. The Indian Constitution is constructed on exactly that view: it states a theory of justice in the Preamble and Part IV, makes part of it enforceable in Part III, and equips the courts under Articles 14, 21 and 32 to test law against it. That is why the theories are of practical and not merely academic use, since they supply the content that the words justice and fairness in the reports would otherwise lack.

Its constitutional theory is rajadharma: the ruler is bound by dharma, not above it, and danda, the power to punish, is regulated by it. Kautilya's Arthashastra recognises four feet of law, dharma, vyavahara, charitra and rajasasana, and places the royal edict last when they conflict.

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 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. It does not survive as operative law, because section 4 of the Hindu Marriage Act, 1955, and the corresponding provisions of the other codes override any pre existing text or rule of Hindu law, and because Articles 15 and 17 reject the disabilities the tradition carried.

(b) Judicial creativity: Tools and Techniques

A tool is a source of power; a technique is a way of using it.

Their limits are the separation of powers, stated in Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, institutional competence, applied by the Court to itself in Supriyo v. Union of India, 17 October 2023, and Bench discipline under Union of India v. Raghubir Singh, (1989) 2 SCC 754.

The limits belong in the second note and not only in a long answer. 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 directed the creation of a post, holds that judges cannot create posts or take over functions belonging to another organ. Supriyo v. Union of India, decided on 17 October 2023, declined to recognise same sex marriage because doing so would require a statutory scheme covering succession, adoption and maintenance. Union of India v. Raghubir Singh, (1989) 2 SCC 754, requires a smaller Bench doubting a larger one to refer rather than decide against it. Together they mark the boundary of the repertoire.

International instruments where domestic law is silent and there is no inconsistency, as in Vishaka v. State of Rajasthan, (1997) 6 SCC 241.

Conclusion. The two notes describe two answers to the same problem, which is what constrains the holder of power when no one is in a position to compel him. Dharma answers it by binding the ruler to a duty he did not create and cannot alter. Judicial creativity answers it by giving a court the tools to enforce a written constitution against the organs it created. The techniques differ entirely, but both assume that authority is subject to a standard it does not own, which is why a paper on the judicial process examines them together.

Article 21 is read in the light of Part IV. The right to education came from Articles 21, 41 and 45 in Unni Krishnan v. State of Andhra Pradesh, (1993) 1 SCC 645, and was then enacted as Article 21A by the Eighty sixth Amendment in 2002; livelihood came from Article 21 with Article 39(a) in Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545.

Equality is a value and not only a rule, after E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3.

The values worked through are secularism in S.R. Bommai v. Union of India, (1994) 3 SCC 1; social justice from Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, to State of Punjab v. Davinder Singh, 1 August 2024; dignity in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, and Navtej Singh Johar v. Union of India, (2018) 10 SCC 1; and the environment in Vellore Citizens Welfare Forum v. Union of India, (1996) 5 SCC 647, and M.K. Ranjitsinh v. Union of India, 21 March 2024.

The limit is that a court can declare a right but cannot fund or administer it, which is why Unni Krishnan required Article 21A and the Act of 2009 to become effective.

Removal for proved misbehaviour or incapacity under Article 124(4) with Article 218, and the procedure in the Judges (Inquiry) Act, 1968, requiring a motion signed by one hundred members of the House of the People or fifty of the Council of States, an inquiry by a committee of three, and special majorities in both Houses. It has never been carried to a conclusion.

Criminal liability for corruption. K. Veeraswami v. Union of India, (1991) 3 SCC 655, decided on 25 July 1991, held that a judge of the higher judiciary is a public servant within the Prevention of Corruption Act, but that no criminal case may be registered against him without prior consultation with the Chief Justice of India, and sanction for prosecution is granted by the President after such consultation.

The recent working of the machinery should be given, because it is the only occasion on which it has come close to a conclusion. After cash was found at the residence of a sitting High Court judge in March 2025, an in house committee of three judges inquired and recommended his removal. He challenged the process, and on 7 August 2025 the Supreme Court dismissed the petition, holding that a writ petition challenging the conduct of a sitting judge under the in house mechanism was not maintainable, that the constitution of the committee and the procedure it followed were not illegal, that the in house procedure enjoys legal sanctity and is not a parallel mechanism outside the constitutional framework, and that sending the report to the President and the Prime Minister was not unconstitutional. Removal motions signed by members of both Houses followed, a parliamentary committee was constituted, and the matter ended with the judge's resignation in April 2026. Nothing in that sequence was supplied by Article 124(4); everything effective in it came from a procedure the judiciary wrote for itself in 1997.

Article 21 takes content from Part IV, which produced education in Unni Krishnan v. State of Andhra Pradesh, (1993) 1 SCC 645, from Articles 21, 41 and 45, enacted as Article 21A by the Eighty sixth Amendment in 2002; livelihood in Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545, from Article 21 with Article 39(a); and humane conditions of work in Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161, from Articles 21, 39(e), 41 and 42.

Equality is a standard and not only a rule, after E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3.

Conclusion. The two notes state the demand and the answer. A judiciary that pursues constitutional goals and values exercises a power the text does not confine in detail, and the more it does so the more sharply the question arises of what it answers to. The scope of institutional liability is in fact wide in form, running from appeal to removal to prosecution under Veeraswami, and narrow in practice, because immunity protects the decision itself and the removal procedure has never been completed. What has actually developed is self regulation, the in house procedure and the Restatement of Values, whose legal standing the Supreme Court confirmed in August 2025, and which remains the only mechanism in this field that has ever produced a result.