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.