LLM Foundation Course Judicial Process 2022 Question Paper with Solutions

The concept of judicial process is the study of how courts decide, and specifically of what directs the choice when statute and precedent do not compel one. It is not the law of procedure. Its three components are a theory of sources, a theory of reasoning, and a theory of the judicial function, and it is on the last that Cardozo displaced Blackstone's declaratory account.

Social ordering means the arrangement of relations in a society by authoritative norms. The claim that adjudication does this, and not merely settles disputes, rests on the fact that a court declaring what a right means changes the position of everyone who holds it.

Four features of the Indian system convert adjudication into social ordering.

Article 141 makes the law declared by the Supreme Court binding on all courts in India, so a declaration operates as a general rule from the moment it is made.

Article 32 with Article 226 makes the remedy for a fundamental right itself a fundamental right, and after S.P. Gupta v. Union of India, 1981 Supp SCC 87, it can be invoked by any bona fide member of the public on behalf of those who cannot come to court.

The instances are exactly what Cardozo's welfare principle predicts. In M.C. Mehta v. Union of India, (1987) 1 SCC 395, the Court declined to apply the exceptions to Rylands v. Fletcher because a nineteenth century English rule could not serve an Indian society with hazardous industry beside dense population, and laid down absolute liability. In Vishaka v. State of Rajasthan, (1997) 6 SCC 241, it made binding rules for every workplace in the country because Parliament had made none, and those rules governed until the Sexual Harassment of Women at Workplace Act, 2013. In Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 81, it recognised a right to speedy trial and released undertrials who had been held longer than any sentence they could have received.

Since this paper is set for Group V, the criminal law illustrations are worth using. The rights of the arrested person developed in D.K. Basu v. State of West Bengal, (1997) 1 SCC 416, are judicial rules that were later given statutory form, and the whole of the modern law on prison conditions comes from Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, and Sunil Batra (No. 2), (1980) 3 SCC 488.

The welfare principle shown at work, with the facts

M.C. Mehta v. Union of India, (1987) 1 SCC 395, is the decision in which an Indian court applied Cardozo's criterion openly. Oleum gas escaped from a plant of Shriram Foods and Fertiliser Industries in a densely populated part of Delhi in December 1985, weeks after Bhopal. The Court was invited to apply Rylands v. Fletcher (1868) with its exceptions of act of God, act of a stranger, statutory authority and consent. It declined in terms, saying it was not bound to follow a rule evolved in nineteenth century England in the context of that society's stage of development, and laid down absolute liability: an enterprise engaged in a hazardous or inherently dangerous activity owes an absolute and non-delegable duty to the community, the liability admits of no exception, and compensation must be correlated to the magnitude and capacity of the enterprise so as to have a deterrent effect.

Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, read down section 30(2) of the Prisons Act, 1894, so that the confinement of a prisoner under sentence of death is not solitary confinement in the punitive sense and applies only after the sentence has become final, conclusive and indefeasible, and held that bar fetters under section 56 require recorded reasons and a hearing. Sunil Batra (No. 2), (1980) 3 SCC 488, treated a convict's letter about the torture of another prisoner as a petition and converted it into habeas corpus.

The limits, and where Cardozo himself placed them

Cardozo's welfare principle is a tie breaker among four methods and not a general licence, and the misreading is common enough to be worth correcting expressly.

His own limit is that 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, methodised by analogy, disciplined by system and subordinated to the primordial necessity of order in social life.

Conclusion. Cardozo's proposition that the final cause of law is the welfare of society describes the criterion Indian courts have in fact applied when the materials ran out, and M.C. Mehta is the clearest case of a court saying so in terms. The judicial process functions as an instrument of social ordering in India because the Constitution supplied the three things needed for it: a binding declaration under Article 141, an open remedy under Articles 32 and 226, and a text general enough to receive rights the framers never named. It functions as such only within limits, since welfare identified by a court still has to be funded and administered by organs a court cannot direct in detail.