Mumbai University Solved Question Papers
Judicial Process
Previous Year Question Paper with Solution
LLM · Foundation Course
2018 Examination
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LLM Foundation Course Judicial Process 2018 Question Paper with Solutions
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First published on munotes.in on 12 August 2026.
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Model answers written and edited by the munotes.in editorial desk.
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The University does not publish an official answer key for this paper. The answers in this volume are model answers, written to show how a full-mark answer is built. They are a study aid, not an authority on what an examiner marked.
The question paper reproduced here is the paper as set by the University of Mumbai at the 2018 examination.
The answers in this volume state the law as it stands today, not as it stood when the paper was set. Four changes matter here. The National Judicial Appointments Commission and the Ninety ninth Amendment were struck down on 16 October 2015, so the collegium governs appointments and the Memorandum of Procedure remains unsettled. ADM Jabalpur was expressly overruled in Puttaswamy in 2017. On precedent, a Bench of seven judges overruled E.V. Chinnaiah on 1 August 2024 and a Bench of nine narrowed the reading of Article 39(b) on 5 November 2024, and both are more recent than any textbook on this subject. And on 19 November 2025 the core of the Tribunals Reforms Act, 2021 was struck down. Where a question turns on a position since changed, the answer gives it as it then stood and the present position, and says which is which.
Contents
The questions below are the paper as the University of Mumbai set it at the 2018 examination, in the order it was set.
MarksPage
MarksPage
The Paper as Set
The questions in this volume are the questions asked at the 2018 examination, reproduced as the University of Mumbai set them, in the order it set them. Nothing has been reworded, added or left out. Only the answers are ours. See the original question paper.
Duration 3 hours · Total marks 100 · 14 questions answered
How to use this volume
Solve the paper first, under exam conditions and against the clock. Then read the answers here and mark your own. Reading a solution before attempting the question feels productive and teaches very little, because recognising an answer is not the same as being able to write one.
SECTION I
Q.P. Code 40949
attempt any four questions · 100 Marks
1.What is the notion of 'Judicial process'? How far it serves as an instrument of social ordering in India?[25]
Answer
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.
The notion therefore has three components. A theory of sources, which in India includes the Constitution, statute, precedent, custom and, where domestic law is silent, international instruments. A theory of reasoning, which includes the identification of the ratio, distinguishing, analogy and purposive construction. And a theory of the judicial function, which is where the declaratory account of Blackstone gave way to the creative account of Cardozo and Lord Reid.
The method inside the process
Cardozo's account is not only that judges choose but that the choice is directed, and the four directing forces can each be matched to Indian authority.
Logic, the extension of an accepted principle by analogy, produced Maneka Gandhi v. Union of India, (1978) 1 SCC 248. A passport was impounded by an order giving no reasons. The Court held that Articles 14, 19 and 21 are not watertight compartments, that a law taking away personal liberty must also satisfy the other two, and that because Article 14 forbids arbitrariness the procedure under Article 21 must be right, just and fair. A.K. Gopalan v. State of Madras, AIR 1950 SC 27, which had held the opposite, ceased in substance to be good law without a word of the text changing.
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 goes furthest. The operative content of Article 21 is judicial almost in its entirety: fair procedure from Maneka Gandhi v. Union of India, (1978) 1 SCC 248, dignity from Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608, livelihood from Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545, privacy from K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1. Where Parliament had not legislated at all, binding rules were made in Vishaka v. State of Rajasthan, (1997) 6 SCC 241, and substantive tort law in M.C. Mehta v. Union of India, (1987) 1 SCC 395. At the highest level the amending power itself was limited in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
What makes this possible is a specific institutional design: Article 141 makes a declaration binding on every court at once, Article 32 makes the remedy a fundamental right and, after S.P. Gupta v. Union of India, 1981 Supp SCC 87, opens it to a bona fide stranger acting for those who cannot come, and Part IV supplies the social programme against which Part III is read.
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.
The cases that establish the ordering claim, with their facts
S.P. Gupta v. Union of India, 1981 Supp SCC 87. A circular of the Union Law Minister had asked Chief Ministers to obtain consent from additional judges to be transferred outside their States, and practising advocates challenged it together with the non-appointment of two additional judges. The Union objected that they had no personal right. Bhagwati J. 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 the court. That single holding is what converts the judiciary from an institution available to litigants into one available to a population.
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.
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 exceptions of act of God, act of a stranger, statutory authority and consent, the Court declined in terms, holding that an enterprise engaged in a hazardous activity owes an absolute and non-delegable duty to the community, that the liability admits no exception, and that compensation must be correlated to the magnitude and capacity of the enterprise so as to deter.
Conclusion. The notion of judicial process is the study of judicial choice, and Cardozo's four forces remain its best description. In India that process serves as an instrument of social ordering to an unusual degree, because Article 141, Article 32 and the generality of Article 21 give courts the means to make rules that bind immediately and reach everyone. It serves that function only within limits: it can declare a right but cannot fund it, can strike down a scheme but cannot design one, and depends on the political organs to convert its declarations into working arrangements. The correct answer to how far is therefore that the judicial process orders Indian society decisively at the level of principle and only indirectly at the level of delivery.
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