LLM Foundation Course Judicial Process 2019 Question Paper with Solutions

For full marks, cover: what a statutory and codified system is; how India came to have one; the advantages and the costs; the relation between codification and the judicial process; and case law, which the question demands expressly.

A statutory system develops law by enactment; a codified system goes further and reduces the whole law on a subject to a single systematic enactment which supersedes the earlier sources. The distinction matters because a code is not merely a large statute: it claims to be exhaustive of its field, and that claim governs how it is interpreted.

India has been governed by codes longer than England has. The Charter Act of 1833 created a single legislative authority for British India and the First Law Commission of 1834 under Macaulay produced the draft that became the Indian Penal Code, 1860. There followed the Code of Criminal Procedure, the Indian Evidence Act, 1872, the Indian Contract Act, 1872, the Transfer of Property Act, 1882, and later the Code of Civil Procedure, 1908. The General Clauses Act, 1897, supplies the definitions and presumptions that hold the system together.

The costs are what connect codification to the judicial process, and this is where the case law belongs.

A code must be construed as a whole and, where it is exhaustive, without recourse to the pre existing law. That is why Bengal Immunity Co. v. State of Bihar, AIR 1955 SC 661, matters here as well as on precedent: a codified system depends on a court's willingness to correct its own construction of the code.

A code does not stop the growth of the law it codifies. M.C. Mehta v. Union of India, (1987) 1 SCC 395, laid down absolute liability although the field was governed by the common law received in India, on the express ground that a nineteenth century rule could not govern modern hazardous industry.

Where the code is silent the courts supply the rule, and the legislature then codifies it. Vishaka v. State of Rajasthan, (1997) 6 SCC 241, laid down binding guidelines because no statute existed, and Parliament enacted the Sexual Harassment of Women at Workplace Act, 2013. The same sequence produced Article 21A by the Eighty sixth Amendment in 2002 after Unni Krishnan v. State of Andhra Pradesh, (1993) 1 SCC 645, and the Digital Personal Data Protection Act, 2023, after K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

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

Shayara Bano v. Union of India, (2017) 9 SCC 1. The practice of talaq-e-biddat was defended on long observance. A Bench of five judges held by three to two that it was unconstitutional, the majority reasoning turning on its arbitrariness in permitting a marriage to be ended capriciously and without any attempt at reconciliation. Antiquity does not immunise a practice from constitutional scrutiny.

Where the code is silent, the courts supply and Parliament codifies

Vishaka v. State of Rajasthan, (1997) 6 SCC 241, followed the gang rape of Bhanwari Devi, a State employed social worker attacked for trying to prevent a child marriage. 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 legislation. Parliament enacted the Sexual Harassment of Women at Workplace Act in 2013, sixteen years later.

The transfer of power to language. Once the rule is in words, the meaning of the words governs, and the meaning is settled by courts. Codification therefore does not reduce judicial power so much as relocate it, from the making of rules to the construction of them.

Conclusion. The Indian legal system is statutory and codified in its foundations and judicial in its development, and the two are not rivals. Codification supplied the framework, from Macaulay's Penal Code to the Sanhitas of 2023, and delivered accessibility, certainty and the possibility of deliberate reform. What it cannot supply is completeness, and the reported decisions show courts filling the gaps, refusing to freeze a received rule, and testing every code against the Constitution. Cardozo's observation that the serious business of the judge begins where the index fails is a description of a codified system, not an argument against having one.

Legislative activism, the making of rules to fill a statutory vacuum. Vishaka v. State of Rajasthan, (1997) 6 SCC 241, whose guidelines governed every workplace in India until the Act of 2013.

Supervisory activism, the retention of a case for continuing directions. Vineet Narain v. Union of India, (1998) 1 SCC 226, the origin of continuing mandamus.

Structural activism, the review of constitutional amendments themselves. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, and Supreme Court Advocates-on-Record Association v. Union of India, (2016) 5 SCC 1.

These varieties are not equally controversial, and saying so is the mark of a good answer. Interpretive and remedial activism sit comfortably within the judicial function. Legislative and supervisory activism do not, and they attract the criticism recorded in Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, that judges cannot take over functions belonging to another organ.

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 under the Prevention of Corruption Act, and that no criminal case may be registered without prior consultation with the Chief Justice of India, sanction being granted by the President after such consultation.

The in house procedure, adopted in 1997 with the Restatement of Values of Judicial Life, for misconduct short of removal. C. Ravichandran Iyer v. Justice A.M. Bhattacharjee, (1995) 5 SCC 457, held that the Bar cannot sit in judgment on a judge and that such complaints must go to the Chief Justice. The Supreme Court confirmed the standing of the procedure on 7 August 2025 when dismissing a sitting judge's challenge to an in house inquiry that had recommended his removal, holding that it has legal sanctity and is not a parallel mechanism outside the constitutional framework.

State liability in public law, where compensation is awarded for a violation of a fundamental right by the State's officers, as in Rudul Sah and Nilabati Behera. The liability is the State's, not the judge's.

Remedial activism. Rudul Sah v. State of Bihar, (1983) 4 SCC 141. The petitioner was acquitted of murder in 1968 and kept in jail until 1982. By the time his petition was heard he had been released, so the writ had nothing to operate on, and the Court held that if it could order release and nothing more Article 32 would be a formality, awarding 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 as a public law remedy founded on strict liability to which sovereign immunity is no defence, relying on Article 9(5) of the International Covenant on Civil and Political Rights.

Legislative activism. Vishaka v. State of Rajasthan, (1997) 6 SCC 241, whose guidelines bound every workplace in India for sixteen years.

Supervisory activism. Vineet Narain v. Union of India, (1998) 1 SCC 226, on the Jain hawala diaries and the inaction of the Central Bureau of Investigation, where the Court retained the case and issued directions until the investigation was complete.

Conclusion. The varieties of activism differ in how far they take a court from its own function, and the further they take it the sharper the question of liability becomes. On liability the position is that the form is wide and the practice is narrow: appeal, removal, prosecution under Veeraswami, the in house procedure and public law compensation all exist, but immunity protects the decision itself and no removal has ever been completed. What actually operates is the judiciary's own machinery, whose legal standing was confirmed in August 2025, which is a satisfactory answer only so long as it continues to be used.

Aristotle supplied the distinction that everything since has used. Distributive justice allocates honours and goods in proportion to merit, treating equals equally and unequals unequally. Corrective justice restores a balance disturbed by a wrong, without regard to the parties' merit. He also identified equity, epieikeia, the correction of law where it fails by reason of its generality, which is the classical statement of why judges must interpret.

Natural law treats justice as conformity to an order accessible to reason. Aquinas held that a human law at variance with the natural law is a corruption of law rather than law, and distinguished eternal, natural, divine and human law. The tradition supplies the vocabulary of inalienable rights and the argument used at Nuremberg. Its weakness is the difficulty of establishing the content of natural law without disagreement.

The social contract writers made justice a construct of agreement rather than of nature. Hobbes derived it from the covenant by which men escape a state of nature that is a war of all against all, and concluded that where there is no common power there is no law and no injustice. Locke made government a trust limited by natural rights to life, liberty and estate, with a right of resistance if the trust is broken. Rousseau located justice in the general will, which is not the will of all.

Nozick answered him in Anarchy, State and Utopia (1974) with an entitlement theory: justice is historical rather than patterned, a holding being just if it arose by just acquisition and just transfer, and maintaining any pattern requires continuous interference with liberty.

Amartya Sen, in The Idea of Justice (2009), objects that the whole tradition since Hobbes has been transcendental institutionalism, asking what perfectly just institutions would be. He proposes a comparative approach, and revives the distinction between niti, correctness of rules and institutions, and nyaya, justice as actually realised in the lives of people, arguing that the removal of manifest injustice is both achievable and more urgent.

The theories are of practical use to a lawyer. Aristotle's division explains why Articles 15(4) and 16(4) are not exceptions to Article 14 but applications of it. Bentham explains most regulatory legislation. Rawls describes the structure of Part III with Part IV. Sen explains why Article 39A obliges the State to secure that the legal system actually promotes justice on a basis of equal opportunity.

The theories doing work

A theory earns its place in a law answer when it decides something.

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 was absent was nyaya, justice realised in the lives of the pavement dwellers, and the Court's response was to hold livelihood part of the right to life and to require a hearing before eviction.

Where the Indian text answers the question directly

Article 39A requires the State to secure that the operation of the legal system promotes justice on a basis of equal opportunity, and in particular to provide free legal aid so that opportunities for securing justice are not denied by reason of economic or other disabilities. It is the clearest textual acknowledgement anywhere in the Constitution that a formally equal law can produce unequal justice, and it is the provision most often omitted from answers on this subject.

The criticisms each theory attracts

Plato defines justice by the harmony of a hierarchy, and can therefore justify any settled order however unequal, which is why the Republic has been read both as a utopia and as a defence of authoritarian rule.

Nozick cannot explain what makes an original acquisition just, which is the point on which the whole entitlement theory rests.

Sen is criticised for offering a method of comparison without the standard by which comparisons are to be made, which he answers by pointing to public reasoning as the standard.

Conclusion. Western theories of justice divide on a single question: whether justice is discovered or constructed. Plato, Aristotle and the natural lawyers treat it as discovered, in nature or in reason; the contract writers, the utilitarians and Rawls treat it as constructed, out of agreement or out of consequences. The disagreement is not academic, because a legal system built on the first view will treat certain rights as beyond legislative reach, and one built on the second will not. India built on the first, which is why Part III is entrenched and why Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, could hold that some things are beyond even the amending power.

The method of philosophy, or logic

It extends an accepted principle by analogy to a case it does not cover in terms, and Cardozo gave it presumptive priority, since like cases should be decided alike.

Illustration. Maneka Gandhi v. Union of India, (1978) 1 SCC 248. Article 21 speaks only of a procedure established by law. The Court reasoned that Articles 14, 19 and 21 do not stand in watertight compartments, so a law depriving a person of personal liberty must also satisfy Articles 14 and 19, and a procedure which is arbitrary or unfair is no procedure at all. Nothing was read into the text; a principle already accepted for Article 14 was carried across, and A.K. Gopalan v. State of Madras, AIR 1950 SC 27, ceased to be good law.

The method of history

It explains a rule by its origins and frequently confines it to them. A doctrine carried forward after its reason has gone is an obstacle, and tracing the reason is how a court decides whether to keep it.

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

Cardozo gave this the last word, holding that where the methods conflict this one prevails, because the final cause of law is the welfare of society.

Illustration. M.C. Mehta v. Union of India, (1987) 1 SCC 395. Invited to apply Rylands v. Fletcher with its exceptions, the Court declined on the express ground that a rule evolved in nineteenth century England could not govern an Indian enterprise handling hazardous substances near a dense population, and laid down absolute liability. Vishaka v. State of Rajasthan, (1997) 6 SCC 241, applies the same method to a legislative vacuum, and M.K. Ranjitsinh v. Union of India, decided on 21 March 2024, applies it to climate change, recognising a right against its adverse effects under Articles 14 and 21.

The forces are not ranked in a fixed order. Cardozo's own formulation is that the judge must decide which of them shall dominate in a given case. A judge who applies only logic produces a system that is consistent and unjust; one who applies only his sense of welfare produces a system that is just in each case and predictable in none.

Indian courts have restated the same limit in their own terms. Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, where gardeners at a State run golf club sought regularisation and the High Court had directed the creation of a post, holds that judges cannot take over functions belonging to another organ and that activism must not become adventurism. Supriyo v. Union of India, decided on 17 October 2023, applied the limit in declining to construct a marriage regime.

A fifth force is worth naming although Cardozo did not. In India the text operates as a force of its own, because a written and entrenched Constitution supplies both the material and the outer boundary. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, is the point at which the four methods produced a limit on the amending power that the text does not contain, and it is the strongest possible illustration of the method of sociology operating on constitutional material.

The four methods against the two rival accounts of judging

The forces described in the statement occupy the ground between two positions, and locating them there is what makes the answer analytical.

Conclusion. The four forces describe what Indian judges demonstrably do, and each can be matched to reported authority: logic in Maneka Gandhi, history in Navtej Johar, custom and its constitutional limits in Shayara Bano, and social welfare in M.C. Mehta. Their combined operation is why a Constitution of 1950 and codes of the nineteenth century still govern a society neither drafter could have imagined. Cardozo's qualification is the necessary limit: the judge is not a knight errant pursuing his own ideal, but draws from consecrated principles, and it is that discipline which distinguishes the shaping of law from its replacement.

The source aspect. Manu and Yajnavalkya give a hierarchy of sources: sruti, the Vedas; smriti, the Dharmashastras; sadachara, the practice of those learned in the Vedas and of good conduct; and atmatusti, what is approved by one's own conscience, where the earlier sources are silent. Example: the hierarchy operates as a rule of priority, so a later source cannot displace an earlier one, exactly as a subordinate legislation cannot displace a statute.

The personal aspect, and the priority of duty. Dharma is stated as obligation and varies with varna and asrama, station and stage of life. Others benefit because a duty is performed, not because a claim is asserted. Example: there is an elaborate classical literature of obligation and almost none of subjective right, which is the sharpest structural contrast with the western tradition.

The political aspect, rajadharma. The ruler is bound by dharma, not above it, and has no independent legislative power in the modern sense. Danda, the power to punish, is regulated by dharma, and a king who punishes unjustly destroys himself. Example: Kautilya's Arthashastra recognises four feet of law, dharma, vyavahara, charitra and rajasasana, and when they conflict places the royal edict last.

Examples of survival in the present system

In the constitutional structure. The Preamble's promise of justice, social, economic and political states an ordering aim rather than a catalogue of claims. Article 51A states fundamental duties, which is duty language in a rights instrument. The Supreme Court's motto, Yato Dharmastato Jayah, states the connection openly. The reasoning of Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, that a power conferred by an order cannot be used to destroy that order, is rajadharma in constitutional form.

In judicial reasoning. S.R. Bommai v. Union of India, (1994) 3 SCC 1, explained secularism as a positive obligation of equal respect for all faiths rather than as State indifference, a conception nearer the Indian tradition than the French.

Not in the operative rules, and this must be said. 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. Custom survives only where a statute preserves it and only if certain, reasonable and not opposed to public policy, and it yields to the Constitution, as Shayara Bano v. Union of India, (2017) 9 SCC 1, held. Articles 15 and 17 reject the hierarchical disabilities the tradition carried.

The four purusharthas

Dharma is the first of the four ends of life, dharma, artha, kama and moksha, and the ordering among them is a legal proposition. Artha, the pursuit of wealth, and kama, the pursuit of desire, are legitimate; the tradition is not ascetic about them. They are legitimate within dharma, which means that a gain obtained contrary to dharma is not a gain the order will protect. That is the ancestor of the modern doctrine of public policy and of section 23 of the Indian Contract Act, 1872.

The three claims a critical answer must separate

That dharma ensured justice is well supported, through rajadharma, danda regulated by dharma, and the ordering of the four feet of law with the royal edict last.

That it maintained social harmony is also well supported, since the word itself means what holds together and the purusharthas subordinate wealth and desire to it.

That it protected individual rights requires qualification. The tradition is duty based; obligation precedes entitlement; there is no classical vocabulary of subjective right. To describe its effect in the language of rights is to translate, not to report.

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

(a) Doctrine of precedent

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 or merely persuasive.

What binds is the ratio decidendi, the rule of law necessary to the decision on the facts found; the rest is obiter dictum, persuasive only.

In India the binding force is constitutional. Article 141 makes the law declared by the Supreme Court binding on all courts within the territory of India; Article 144 requires all authorities to act in its aid. Within a State a High Court binds the courts subordinate to it, and a larger Bench binds a smaller one.

Appointment under Articles 124(2) and 217(1), where the word consultation was held to mean concurrence with primacy in the Chief Justice of India in Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441, and the collegium was defined in Special Reference No. 1 of 1998, (1998) 7 SCC 739.

Security of tenure, since removal under Article 124(4) with Article 218 requires proved misbehaviour or incapacity, an address by both Houses supported by a majority of the total membership and two thirds of those present and voting, and the procedure of the Judges (Inquiry) Act, 1968. It has never been completed.

Financial security, since salaries and allowances are charged on the Consolidated Fund under Article 112(3)(d) and are not subject to a vote, and cannot be varied to a judge's disadvantage after appointment.

Conduct not discussable in the legislature under Article 121 with Article 211, except on a motion for removal.

A bar on practice after retirement under Articles 124(7) and 220.

Contempt powers under Articles 129 and 215, which are constitutional and not statutory.

Separation from the executive, directed by Article 50 as a directive principle.

On independence, the seven constitutional guarantees should be named with their Articles, because that is the level of precision the question expects.

Appointment under Articles 124(2) and 217(1), where consultation was read as concurrence with primacy in the Chief Justice of India in Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441, and the collegium was defined in Special Reference No. 1 of 1998, (1998) 7 SCC 739, as the Chief Justice with the four senior most puisne Judges for the Supreme Court and the two senior most for a High Court.

Security of tenure under Article 124(4) with Article 218, removal requiring proved misbehaviour or incapacity and an address by each House supported by a majority of the total membership and two thirds of those present and voting, on the procedure of the Judges (Inquiry) Act, 1968.

Financial security, salaries being charged on the Consolidated Fund under Article 112(3)(d) and therefore not subject to a vote.

Immunity from legislative discussion under Articles 121 and 211 except on a removal motion.

A bar on practice after retirement under Articles 124(7) and 220.

And accountability is weak, since removal under Article 124(4) has never been carried to a conclusion and what actually worked in 2025 and 2026 was the judiciary's own in house procedure.

Conclusion. Precedent and independence are the two conditions of a judiciary whose decisions operate as law. Precedent makes a decision bind beyond the parties; independence makes it worth binding, because a decision reached under executive influence would not deserve the authority Article 141 confers on it. Each is now guarded by the basic structure doctrine, and the practical problem in both is the same: the mechanisms that protect them, the larger Bench and the collegium, are administered by the judiciary itself.

The case for creativity. The declaratory theory that judges only discover law is untenable: Cardozo said the judicial process at its highest reaches is not discovery but creation, and Lord Reid called the declaratory account a fairy tale. In India the products are identifiable rules that no legislature enacted: the basic structure doctrine in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, absolute liability in M.C. Mehta v. Union of India, (1987) 1 SCC 395, compensation in public law in Rudul Sah v. State of Bihar, (1983) 4 SCC 141, and the content of Article 21 from Maneka Gandhi v. Union of India, (1978) 1 SCC 248, to K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

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 consult, cost or revise; and on democratic legitimacy. Its clearest Indian statement is Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, and its clearest application is Supriyo v. Union of India, decided on 17 October 2023, where the Court declined to construct a marriage regime.

Its fields are legislation, on grounds of competence and of breach of Part III or any other constitutional limitation; executive and administrative action, on grounds of illegality, irrationality and procedural impropriety with the Article 14 bar on arbitrariness and, since Puttaswamy, a structured proportionality test; and constitutional amendments, on the basic structure test of Kesavananda, applied in Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1, and Minerva Mills v. Union of India, (1980) 3 SCC 625.

Review is itself a basic feature, held in L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, so tribunals may supplement but not supplant the High Courts. It was enforced again in Madras Bar Association v. Union of India, decided on 19 November 2025, striking down the core provisions of the Tribunals Reforms Act, 2021.

Its criticism is the countermajoritarian objection, and the Indian answers are that the power is conferred by the text, exercised on public reasons, and correctable by amendment within the basic structure.

The reconciliation, applied

The question is not which disposition is correct in general but which the case calls for, and the case law supplies a test.

Review's own protection, most recently enforced

L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, seven judges, 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, 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 act as courts of first instance but cannot supplant the High Courts, their decisions remaining subject to a Division Bench.

The principle was enforced again in Madras Bar Association v. Union of India, decided on 19 November 2025, striking down the core provisions of the Tribunals Reforms Act, 2021, on appointment, tenure and conditions of service, and directing steps towards a National Tribunal Commission.

The countermajoritarian objection, stated and answered

Review by unelected judges of laws made by an elected legislature is a genuine difficulty and should be met rather than mentioned.

Conclusion. Judicial review is the power; creativity and restraint are two ways of exercising it. Review states what a court may examine, and it says nothing about how far the court should go once it has. That is why the same Court could strike down a constitutional amendment in the NJAC case and decline to recognise a marriage in Supriyo, and why a criticism of one decision as activist is not a criticism of the power of review itself.

For full marks, cover: what Blackstone's oracle claim asserts; why it was abandoned; Cardozo's alternative in detail, since the question names him; and the Indian position.

Blackstone's claim is the declaratory theory of the judicial function. In the Commentaries on the Laws of England (1765) the judges are the depositaries of the laws, the living oracles, sworn to determine according to the law of the land. On this view the common law exists independently of judicial decision, judges discover it rather than make it, and a decision later held wrong was never law at all but a mistaken declaration of it.

The theory served two purposes. It reconciled decision making by unelected judges with parliamentary supremacy, since a judge who only declares makes no law that a legislature need resent. And it explained the retrospective operation of a change of decision: if the law always was as the later court says, then applying it to past transactions is not retrospection.

Cardozo's central proposition is that the judge legislates, but only interstitially. He fills the open spaces in the law. And Cardozo supplied the limit in the same lectures: the judge is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness, but draws his inspiration from consecrated principles, exercising a discretion informed by tradition and disciplined by system.

The Indian position follows Cardozo, and the text makes the creative function unusually large. Article 141 makes what the Supreme Court declares binding on all courts at once, so the product of the residue becomes general law immediately. 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 stranger acting for those who cannot come. Article 21 is drafted generally enough to receive rights that were never named: dignity in Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608, livelihood in Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545, privacy 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.

The four methods, each with an Indian case

Logic. Maneka Gandhi v. Union of India, (1978) 1 SCC 248. A passport was impounded by an order stating only that it was in the public interest. 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. No word of the text was altered, and A.K. Gopalan v. State of Madras, AIR 1950 SC 27, ceased in substance to be good law.

History. 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. Shayara Bano v. Union of India, (2017) 9 SCC 1, holding talaq-e-biddat unconstitutional despite long observance, and Madhu Kishwar v. State of Bihar, (1996) 5 SCC 125, where the Court preferred to work within tribal custom rather than demolish an integrated scheme, which shows the method applied with restraint.

The passage is this: the judge is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness; he is to draw his inspiration from consecrated principles, exercising a discretion informed by tradition, methodised by analogy, disciplined by system, and subordinated to the primordial necessity of order in social life.

Indian courts have restated the same limit in their own vocabulary. 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, holds that judges cannot create posts or take over the functions of 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 that the judiciary has no power over the sword or the purse. Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409, confines Article 142 so that it cannot supplant express statutory provisions. And Supriyo v. Union of India, decided on 17 October 2023, is the limit applied to refuse relief.

For full marks, cover: the nature and scope, the critical analysis, and the remedies for misuse, which is a separate question within the question and carries marks of its own.

Nature and scope

Public interest litigation is not a separate jurisdiction but the writ jurisdiction under Articles 32 and 226 invoked by someone other than the injured party, for the benefit of persons who cannot approach the court themselves. Three things changed: who may sue, how the proceeding is conducted, and what may be ordered.

Standing. 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, 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, the relaxation having begun in Mumbai Kamgar Sabha v. Abdulbhai Faizullabhai, (1976) 3 SCC 832.

The critical analysis

In favour. Every element of the modern Indian rights jurisprudence came through this route, and the classes it reached, prisoners, undertrials, bonded labourers and pavement dwellers, are precisely those the political process does not reach. Its institutional justification is also strong: 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, the Court's standing was at its lowest, and public interest litigation was how it was recovered. That decision was expressly overruled in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

The remedies available in case of misuse

Dismissal at the threshold on the petitioner's credentials. State of Uttaranchal v. Balwant Singh Chaufal, (2010) 3 SCC 402, decided on 18 January 2010, directed that courts prima facie verify the credentials of the petitioner and the correctness of the contents before entertaining a petition, and satisfy themselves that substantial public interest is involved.

High Court rules. The same decision directed that each High Court frame rules to encourage genuine petitions and discourage those filed for oblique motives, rather than each judge devising his own procedure.

Exemplary costs. Courts impose costs on frivolous or motivated petitions, a practice endorsed in Ashok Kumar Pandey v. State of West Bengal, (2004) 3 SCC 349, which warned against publicity interest litigation, private interest litigation and politics interest litigation.

Contempt and perjury. A petitioner who suppresses facts or files a false affidavit is liable to prosecution and to proceedings for contempt, and the petition is liable to be dismissed for suppression alone, since a petitioner invoking an equitable jurisdiction must come with clean hands.

It then directed that each High Court should frame rules for encouraging genuine petitions and discouraging those filed with oblique motives, rather than each judge devising his own procedure; that courts should prima facie verify the credentials of the petitioner; that they should be satisfied about the correctness of the contents; that they must be satisfied that substantial public interest is involved; that petitions involving larger public interest, gravity and urgency be given priority; and that the court should ensure the petition is aimed at redressal of genuine public harm.

Beyond those directions, four further remedies operate. Exemplary costs, endorsed in Ashok Kumar Pandey v. State of West Bengal, (2004) 3 SCC 349, which warned against publicity interest litigation, private interest litigation and politics interest litigation. Dismissal for suppression, since a petitioner invoking an equitable jurisdiction must come with clean hands. Prosecution for perjury and contempt where a false affidavit is filed. And the ordinary discretion to refuse relief where an alternative remedy exists.

The critical case against the jurisdiction

The relaxations are real departures from the judicial function and should be stated as such.

Conclusion. Public interest litigation is the single largest instrument of judicial creativity in India, and its nature is procedural rather than substantive: nothing new was added to Articles 32 and 226, but the rules of access, proof and remedy were rewritten. Critically, its achievements and its dangers come from the same source, since a jurisdiction opened to anyone acting bona fide has no natural limit and depends entirely on the court's own discipline. That is why the remedies for misuse matter as much as the achievements, and why Balwant Singh Chaufal is the most important decision in this field since S.P. Gupta: it is the Court supplying the limit that the doctrine itself does not contain.

In India the doctrine is textual. Article 13(2) voids any law taking away or abridging the rights conferred by Part III. Article 32 makes the right to move the Supreme Court for enforcement of those rights itself a fundamental right. Article 226 confers a wider power on the High Courts, extending to any other purpose. Articles 245 and 246 with the Seventh Schedule make legislative competence justiciable, and Article 131 gives original jurisdiction in federal disputes.

The grounds of review

Against legislation, three grounds.

Legislative incompetence, where the legislature has entered a field allotted to the other, tested by the doctrine of pith and substance and subject to the incidental encroachment rule.

Breach of Part III, under Article 13, applying the tests appropriate to each right: reasonable classification and the prohibition of arbitrariness under Article 14 after E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3; reasonable restriction under Article 19; and procedure that is right, just and fair under Article 21 after Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

Proportionality, applied as a structured test in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1: a legitimate aim, a rational connection, necessity in the sense that no less restrictive measure would do, and a balance between the extent of the interference and the aim.

Legitimate expectation, protecting an expectation created by a settled practice or an express promise, subject to overriding public interest.

The limits of the grounds are part of the doctrine. Review examines legality, not wisdom. A policy choice lawfully open to the executive is not reviewed for merit. Within a reviewable decision the political judgment may remain outside review, which is how S.R. Bommai v. Union of India, (1994) 3 SCC 1, treated a Proclamation under Article 356. And the Court declines where the remedy would require designing a statutory scheme, as in Supriyo v. Union of India, decided on 17 October 2023.

Review has also been applied to protect itself. L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, held the jurisdiction under Articles 32 and 226 to be part of the basic structure, and Madras Bar Association v. Union of India, decided on 19 November 2025, struck down the core provisions of the Tribunals Reforms Act, 2021, on appointment, tenure and conditions of service.

Against executive and administrative action, five. 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 reached 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: a legitimate aim, a rational connection, necessity in the sense that no less restrictive measure would serve, and a fair balance. Legitimate expectation, protecting an expectation created by settled practice or express promise, subject to overriding public interest.

The limits of the grounds, which keep review a legal doctrine

A power without limits is supervision, and the limits are as much a part of the doctrine as the grounds.

Review examines legality, not wisdom. A policy choice lawfully open to the executive is not reviewed on merit, however unwise the court may think it.

Conclusion. Lord Acton's proposition is the premise and judicial review is the institutional conclusion drawn from it. In India the doctrine is unusually wide, because the grounds reach not only executive action and legislation but constitutional amendments, and because after L. Chandra Kumar the power itself cannot be removed by amendment. The grounds are what keep it a legal doctrine rather than a general supervisory power: competence, breach of Part III, breach of other limitations, the basic structure, illegality, irrationality, procedural impropriety, proportionality and legitimate expectation. Acton's warning applies to the reviewing court as well, and the Court's own answer to it is that review is confined to those grounds, exercised on public reasons, and correctable by amendment within the basic structure.

The Commission was created by constitutional amendment and struck down within a year. The Constitution (Ninety ninth Amendment) Act, 2014 inserted Articles 124A, 124B and 124C. 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 the two to be from the Scheduled Castes, Scheduled Tribes, Other Backward Classes, minorities or women, each for a non renewable term of three years. Article 124B gave it the duty of recommending appointments and transfers, and Article 124C empowered Parliament to regulate the procedure. The National Judicial Appointments Commission Act, 2014, provided that the Commission shall not make a recommendation if any two of its members do not agree.

The critical analysis

The argument for the decision. The framers' concern was executive control of the judiciary, which is why Article 50 directs separation and why the removal, salary and post retirement provisions all insulate judges from the Government. The Government is the largest litigant in the country, and a body in which its Minister sits with a veto shared with two nominees would let the largest litigant influence the choice of its own judges. The two member veto was the specific defect, since it made the judicial members' unanimity insufficient.

The argument against it. The Amendment was passed by both Houses with the special majority under Article 368 and ratified by the required State legislatures, and it was set aside by five judges on a doctrine the judiciary itself created and whose content it alone determines. The judiciary retained the power to choose its own members, which no other public institution in India enjoys. Chelameswar J.'s dissent made these points and added that the collegium's own working, without criteria, records or reasons, was not obviously superior to what was being replaced. It is also fair to say that the Court struck down the Commission without upholding anything in its place except the arrangement it had itself constructed out of the word consultation.

What the four Judges cases decided, in sequence

The status of the Commission cannot be explained without the line it interrupted.

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

Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441, the Second Judges case, nine judges, reversed that. It held that appointment is a participatory consultative process in which the judiciary's view must prevail, because independence of the judiciary is part of the basic structure and the executive is the largest litigant in the country. Consultation in Articles 124(2) and 217(1) was read as concurrence, with primacy in the Chief Justice of India acting after consulting his senior colleagues.

The critical assessment, both ways

The argument for the decision. The framers' concern was executive control of the judiciary, which is why Article 50 directs separation and why the removal, salary, discussion and post retirement provisions all insulate judges from the Government. The Government is the largest litigant in the country, and a body in which its Minister sat with a veto shared with two nominees would allow the largest litigant to influence the choice of its own judges. The two member veto was the specific defect, because it made the unanimity of the three judicial members insufficient.

The argument against it. The Amendment was passed by both Houses with the special majority under Article 368 and ratified by the required State legislatures, and it was set aside by five judges on a doctrine the judiciary created and whose content it alone determines. The judiciary retained the power to choose its own members, which no other public institution in India enjoys. Chelameswar J. pressed these points in dissent and added that the collegium's own working, without criteria, records or reasons, was not self evidently superior to what was being replaced.

For full marks, cover: dharma as a foundation of justice; then the two perspectives the question names, legislative and judicial, separately, because that division is the marking scheme.

Dharma as the foundation of justice

Dharma derives from the root dhr, to hold or sustain, and means the order that sustains the world and society together with the duty of each person that maintains it. As a foundation of justice it has three features that distinguish it from the western conceptions.

Justice follows from duty rather than from claim. Obligation is prior to entitlement, and others benefit because a duty is performed. The classical literature is accordingly a literature of obligation.

In ordinary legislation, the tradition has been displaced by express words, and this is the decisive legislative fact. Section 4 of the Hindu Marriage Act, 1955, provides that any text, rule or interpretation of Hindu law or any custom or usage in force immediately before the commencement of the Act ceases to have effect with respect to any matter for which provision is made in the Act. The Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956, and the Hindu Adoptions and Maintenance Act, 1956, carry corresponding provisions. Where the codes speak, the Dharmashastras do not.

Where custom survives, it survives on the statute's terms. Section 3(a) of the Hindu Marriage Act preserves a custom only if it is continuously and uniformly observed, certain, not unreasonable and not opposed to public policy.

And where the tradition conflicted with equality, the Constitution rejected it. Article 15 forbids discrimination on grounds of caste, Article 17 abolishes untouchability, and the Hindu Succession (Amendment) Act, 2005, made a daughter a coparcener by birth and abolished survivorship, reversing one of the oldest rules of the classical law.

But where a practice claiming the authority of tradition conflicts with the Constitution, the courts have set it aside. Shayara Bano v. Union of India, (2017) 9 SCC 1, held talaq-e-biddat unconstitutional despite long observance. Madhu Kishwar v. State of Bihar, (1996) 5 SCC 125, shows the opposite technique, working within a tribal custom rather than striking it down, which demonstrates that the courts treat custom as evidence rather than as authority.

The Supreme Court's own motto, Yato Dharmastato Jayah, where there is dharma there is victory, states the connection the question asks about more directly than any judgment.

The two perspectives, worked

The legislative perspective is dominated by one provision. Section 4 of the Hindu Marriage Act, 1955, provides that any text, rule or interpretation of Hindu law, or any custom or usage, in force immediately before the commencement of the Act ceases to have effect with respect to any matter for which provision is made in the Act. The Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956, and the Hindu Adoptions and Maintenance Act, 1956, carry corresponding provisions. Where the codes speak, the Dharmashastras do not.

But where a practice claiming the tradition's authority meets the Constitution, it is set aside, as talaq-e-biddat was in Shayara Bano v. Union of India, (2017) 9 SCC 1.

Where the tradition is used, and where it is refused

The courts use dharma for principle and never for rules, and the two halves of that proposition both need authority.

Used for principle. 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. S.R. Bommai v. Union of India, (1994) 3 SCC 1, explains secularism as a positive obligation of equal respect for all faiths rather than as State indifference, which is closer to a tradition in which the ruler protected the observance of every group's dharma than to the French model.

Conclusion. Dharma is a foundation of justice in India in the sense that it supplies the two ideas the system is built on: that duty precedes entitlement, and that the ruler is subject to a law he did not make. Judged from the legislative perspective, its reflection is confined to principle, because the codes displaced the classical rules by express words and the Constitution rejected the parts of the tradition that were incompatible with equality. Judged from the judicial perspective, its reflection is real but indirect: the courts reason in ways the tradition would recognise, and cite it for principle, while consistently refusing to treat any practice as valid merely because it is old. The accurate answer to how far is therefore that dharma is foundational to the Indian idea of justice and is not a source of Indian law.

Efficiency. Settled questions need not be reargued, which matters in a system carrying the case load of the Indian judiciary.

Uniformity across a large jurisdiction. With twenty five High Courts, Article 141 is the only mechanism that keeps the law the same across the country.

A discipline on judicial law making. A judge who must reason from earlier decisions is visibly constrained by something other than his own preference, which is a large part of the answer to the objection that judges make law.

The demerits are five.

Perpetuation of error. A wrong decision governs until a larger Bench corrects it, and the correction may take decades: E.V. Chinnaiah v. State of Andhra Pradesh, (2005) 1 SCC 394, stood for nineteen years until State of Punjab v. Davinder Singh, 1 August 2024.

Rigidity. A rule suited to earlier conditions binds later ones, and the technique of distinguishing produces artificial reasoning where a court wishes to escape without overruling.

(b) Interrelationship between Law and Justice

Three relations are possible. That they are identical, the strict positivist view, on which the merit of a law does not affect its validity. That justice is a condition of law, the natural law view, on which an unjust law is not law. That they are distinct but connected, which is Hart's position and that of Indian constitutional law, and the only one on which a law can be valid and unjust, which is what makes judicial review necessary.

The theories supply the content. Aristotle's distributive and corrective justice map onto Articles 14, 15(4) and 16(4) on one side and tort and restitution on the other. Bentham's utilitarian measure gives a criterion for legislation but permits the sacrifice of an individual, which Part III forbids. Rawls's principles chosen behind a veil of ignorance describe the structure of Part III with Part IV. Sen's distinction between niti and nyaya explains why a formally correct system may still fail those inside it.

Aristotle's distributive justice explains why Articles 15(4) and 16(4) are applications of Article 14 rather than exceptions, which is how Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, reasoned.

Bentham's greatest happiness explains regulatory legislation and fails where a bill of rights begins, which is why Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, held that majority morality is not a constitutional justification.

Rawls describes the architecture of Parts III and IV.

Sen's distinction between niti and nyaya explains Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545: correct institutions, and no justice realised in the lives of the people affected, until the Court held livelihood to be part of life.

The merits set against the demerits, and the mitigations

The doctrine's merits are certainty, equality of treatment as Article 14 requires of courts themselves, efficiency, uniformity across twenty five High Courts, and a visible discipline on judicial law making.

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

(a) Judicial restraint

Judicial restraint is the disposition to decide no more than the case requires and to leave contested questions of policy to the elected organs. It is not passivity and it is not a refusal to decide; it is a view about the proper limits of the judicial function.

Its justifications are three. The separation of powers, stated in Asif Hameed v. State of Jammu and Kashmir, 1989 Supp (2) SCC 364, that the three organs must function within their spheres and that the judiciary has no power over the sword or the purse. Institutional competence, since a court hears two parties on a record they choose, cannot consult those affected, cannot cost a proposal and cannot revise its order as conditions change. Democratic legitimacy, since judges are neither elected nor removable for their decisions.

Its limit is that restraint can become abdication. The majority in ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521, holding that no person could move a High Court for habeas corpus during the Emergency, is the standing Indian example of deference in a case where the whole point of the jurisdiction was to refuse it. It was expressly overruled in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

(b) Role of judiciary in constitutional adjudication

Constitutional adjudication is the determination of disputes by reference to the Constitution itself, and the judiciary's role in it has five components.

Interpreting the Constitution, and doing so as a living document, which produced the expansion of Article 21 from Maneka Gandhi v. Union of India, (1978) 1 SCC 248, to K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, and to M.K. Ranjitsinh v. Union of India, 21 March 2024.

Guarding fundamental rights, under Article 32, which is itself a fundamental right, and Article 226.

Umpiring the federation, through Articles 131, 245 and 246 and the doctrines of pith and substance and repugnancy, and through decisions such as S.R. Bommai.

Reading down, which preserves the enactment while removing the unconstitutional application. Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, read down section 30(2) of the Prisons Act, 1894, holding that the confinement it authorises applies only after a sentence of death has become final, conclusive and indefeasible, rather than striking the section down.

Deciding on the narrowest available ground, and refusing to examine the wisdom of policy as distinct from its legality, which is what S.R. Bommai v. Union of India, (1994) 3 SCC 1, did in reviewing a Proclamation under Article 356 for the existence of relevant material while declining to substitute its own political judgment.

Declining relief that would require administration rather than adjudication, as in Supriyo v. Union of India, decided on 17 October 2023.

ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521. During the Emergency the right to move any court for enforcement of Article 21 had been suspended by Presidential order. The majority held that in consequence no person had locus to move a High Court for habeas corpus, even to allege that the detention was wholly illegal or mala fide or not in compliance with the statute. Khanna J. dissented, holding that Article 21 is not the sole repository of the right to life and liberty, and he was superseded in the succession to the office of Chief Justice.

That is deference in the one case where the whole point of the jurisdiction was to refuse it, and it is why restraint cannot be stated as a general virtue. The decision was expressly overruled in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

The correct formulation is therefore conditional: restraint is the performance of the judicial duty where the question is a choice among lawful policy options, and its abandonment where a constitutional guarantee is engaged and those entitled to it cannot enforce it themselves.