Notes on “Judicial Process”

By; Praveen N Pillai (MBA, LL.B, LL.M (1 st Sem) BSOLS

INDEX

S no. Particulars Page No.

1 English and French legal system 2-5
2 Doctrine of Precedent 5-9
3 Doctrine of Stare Decisis 9-12
4 Ratio Decidendi and Obiter Dicta 13-19
5 Doctrine of prospective Over-ruling 20-21
6 Judicial Activism and Judicial Review( including PIL & SLP) 22-34
7 Law Making and Law Declaring function of judiciary (including Judicial 34-41
Restraint and Judicial Overreach)
8 Nature of Judicial Process” Benjamin Cardozo” 42-45
9 Logic and Growth in law “Julius stone” 46-47
10 Seriatim Opinion 48-49
11 Dissenting Opinion 50-53
12 Basic Structure Doctrine 54-61

1 Important concepts of Judicial Process

1.1 Intoduction “English Legal System”
Scholars of English legal and constitutional history are generally in agreement that King Henry II
(1133–1189) was the principal facilitator in the development of English common law and the
judicial machinery used to administer it. When Henry became king in 1154, he strengthens both
his political and economic positions and synthesized both old and new ideas with regard to
centralizing the administration of justice.

Supreme Court of United Kingdom; Until 2006, the “Lord Chancellor” was the head of the
judiciary of England and Wales and also charged with making all judicial appointments to the
courts. This changed with the passage of the Constitutional Reform Act (2005). The House of
Lords’ jurisdiction was almost entirely limited to civil and criminal appeals from the Court of

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Appeal and, in exceptional cases, from the High Court. The House heard only a limited number
of appeals approximately 50 a year. The amount was largely controlled by the House and the
Court of Appeal. These aforementioned duties were assumed by a new court, the Supreme Court
of the United Kingdom, which was created by the Constitutional Reform Act (2005).

Court of Appeal; The Court of Appeal is the intermediate appellate court for the entire English
system. It consists of a civil and a criminal division.

Hierarchy of Courts in England.

Supreme Court of United Kingdom (formally known as House of Lords)

Court of Appeal

High Court

Chancery Division Queen’s Bench Division Family Division

County Courts Crown Courts

Magistrates Courts

The High Court; The High Court is a single court with both original and appellate jurisdiction. It
is divided into three divisions: (1) Chancery, (2) Queen’s Bench, and (3) Family. The Chancery
Division has original jurisdiction in matters dealing with property, trusts, wills, and estates.
Although their jurisdiction is primarily original, they also hear appeals involving income tax and
bankruptcy. The Queen’s Bench Division is the largest division of the three because its
jurisdictional scope is broader. It is concerned with civil and criminal matters and has both
original and 80 appellate jurisdiction. Its original jurisdiction consists of actions in torts,
contracts, commercial, and admiralty cases. Its appellate jurisdiction is solely concerned with
criminal appeals from Crown courts and magistrates’ courts. The Family Division is the third
component of the High Court, and it has both original and appellate jurisdiction. Its original
jurisdiction includes matters involving matrimony, guardianship and wardship, and adoption.
Guardianship and adoption are also the principal sources of its appellate jurisdiction.

Crown Courts; The Crown courts have exclusive jurisdiction over all major criminal cases; they
also handle appeals from people convicted summarily in a magistrates’ court. Crown courts exist
in approximately 78 cities, but the Lord Chancellor has the power to order a court to sit
anywhere.

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County Courts; The jurisdiction of these courts is limited to civil matters. They are primarily
concerned with small claims arising from cases in contract or tort.

Magistrates Courts; The workhorse of the English court system is the magistrates’ courts. There
are more than 500 of these distributed among local government areas, and they handle about 96
percent of the criminal cases. Commonly referred to as the inferior criminal courts of the system,
magistrates’ courts also have some civil jurisdiction, including revocation and renewal of
licenses, enforcement of marital separation decrees, orders involving child custody, and some
adoption proceedings.

1.2 Introduction “France Legal System”

The French government is organized and administered according to the Constitution of the Fifth
Republic. This constitution is often referred to as Gaullist, because the document was essentially
the creation of General Charles de Gaulle. The Fifth Republic retained the bicameral parliament.
The parliament consists of the Senate (known as the upper chamber) and the National Assembly
(referred to as the lower chamber). Despite the inherent uncertainties of French politics and the
various changes regarding the basic method of governance, there had been one factor that
remained stable for more than 200 years: the bureaucracy or civil service.

Hierarchy of Courts in France

The Court of Cassation

Court of Appeal

Court of Major Jurisdiction Court of Assize

Court of Minor Jurisdiction

Court of Cassation; The Court of Cassation is the highest court for civil and criminal appeals in
France. The word “cassation” comes from the French casser, meaning “to shatter.” In the context
of judicial proceedings, this is figuratively what the court does, for it is responsible for ruling on
appeals that involve a point of law. The Court of Cassation either can agree with the lower
courts’ original interpretation of the law, or it can quash (or shatter) the opinion of the lower
court and have the case retried. Because, as a rule, the court entertains only issues involving a
point of law, the entire case is not heard by the court.

Court of appeal; There are 35 courts of appeal that handle civil and criminal appeals from the
lower courts. Each court is responsible for an area that usually encompasses between two and

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four departments. The issues brought before an appeals court can involve a point of law or some
factual discrepancy in a case. Generally, for those cases in which the appeal is based solely on
fact, this court will serve as the final arbiter. Issues involving law, however, can be appealed
further to the Court of Cassation. Courts of appeal consist of four chambers that specialize in
civil, social, correctional, and juvenile cases on appeal.

Court of Assize; in each of the 96 departments of France, a court of assize sits with appellate and
original jurisdiction in criminal matters. When the court hears appeals from a lower court, three
judges handle the matter. It is also the court of first instance for all major felonies, which are
referred to as crimes.

Courts of Major Jurisdiction; the next tier in the court hierarchy consists of the 181 courts of
major jurisdiction. Each court is divided into three chambers. When judges sit to hear a civil
matter, the court is called a civil court. Courts of major jurisdiction have unlimited jurisdiction in
civil matters throughout the department in which they are located.

1.3 Adversarial legal system vs. Inquisitorial legal system

Adversarial Inquisitorial
Presumption of innocence “ The accused is Presumption of guilt” The Court will presume
innocent until guilt proved” that the accused has committed the crime”.
The aggrieved person has to prove the guilt by It is the duty of the accused to prove his
evidence. innocence.
Lawyers are very active & play a very important Lawyers are not much active.
role in the administration of justice.
Judges are neutral in adversarial system, there Judges are very active and significant role in
decisions are mainly based on lawyers active administration of justice.
presence.
Precedents are binding on subordinate courts. Precedents are of little use, having insignificant
role.
It get the truth with the open competition between Generally get the truth with extensive
the prosecution and the defence investigation and examination of all the
evidence.

1.4 Principle of Per Incuriam

“Incuriam” literally means “Carelessness”. The English Court has developed this principle in
relaxation of the rule of “Stare Decisis”, Per incuriam, literally translated as "through lack of
care" is a device within the common law system of judicial precedent. A finding of per
incuriam means that a previous court judgment has failed to pay attention to relevant statutory
provision or precedents.

In Young v. Bristol aeroplane Co.Ltd (1944); The “quotable in law” is avoided and ignored if it
is rendered in ignorantiam of a statute or other binding authority.

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The Court of Appeal in Morelle Ltd v Wakeling (1955) stated that as a general rule the only
cases in which decisions should be held to have been given per incuriam are those of decisions
given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority
binding on the court concerned:

In Mayuram Subramanian Srinivasan v. CBI (2006); Article 141 of Indian Constitution, law
declared by Supreme Court has a binding precedent. To perpetuate an error is no heroism; to
rectify it is the compulsion of judicial conscience.

2, Doctrine of Precedents
Precedent means; previously decided cases which furnish a basis for deciding subsequent cases.
A subsequent court look at the cases decided at past which involves similar facts and similar
question of law, which furnish a basis for deciding subsequent cases.

2.1 Introduction
Precedents are previously decided cases that furnishes a basis for deciding subsequent cases of
similar nature, facts and similar question of law. In the judicial field, it means the guidance or
authority of past decisions for future cases. Only such decisions that lay down some new rule or
principle is called judicial precedents.
In England, the major sources of law are parliament and the judges of the superior courts. If an
English lawyer wants to know what the law is, the first enquiry will be whether the subject
matter is governed by statute and the second enquiry would related to the activity of the judges.
Under the doctrine of precedent, much English law is derived from the decisions and
observations of judges which are to be found in the different series of law reports.

The coercive nature of the English doctrine of precedent is due to rules of practice, English law
is to a large extent base on “case law”, it consist the rules and principles stated and acted upon by
judges giving decisions.

According to Gray; Precedent covers everything said or done, which furnishes a rule for
subsequent practice.’

According to Salmond; In a loose sense, it includes merely reported case law which may be cited
& followed by courts. In a strict sense, that case law which not only has a great binding authority
but must also be followed.
Rupert Cross and J.W.Harris, Precedent in English Law (1991),Judicial precedence have some
persuasive effect almost every were because stare decisis ( keep to what has been decided
previously) is a maxim of practically universal application. The peculiar feature of English
doctrine of precedent is its strongly coercive nature English judges are sometime obliged to
follow a previous case although they have what would otherwise be good reason for not doing
so. It is the basic principle of the administration of justice that “Like cases should be decided
alike”, in almost every jurisdiction or administration of justice, a judge tend to decide a case in
the same way as that in which a similar case has been decided by another judge. It may be the

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outcome of the positive obligation to follow a previous decision in the absence of justification
for departing from it.
Parke B, spoken substantially the same in Mirehouse v. Rennell (1833), Our common law
system consists in the applying to new combination of circumstances those rules of law which
we derive from legal principals and judicial precedents ; and for the sake of obtaining uniformity,
consistency and certainty, we must apply those rules where they are not plainly unreasonable and
inconvenient, to all cases which arise and we are not at liberty to reject them and to abandoned
all analogy to them in those to which they have not yet been judicially applied because we think
that the rules are not as convenient and reasonable as we ourselves could have devised.

The judges may oblige to consider the former decision as part of the material on which his
precedent decision could be based or he may be oblige to decide the case before him in the same
way as that in which the previous case was decided unless he can give a good reason for not
doing so. When the precedent is said to be binding or of coercive effect as contrasted with its
merely persuasive, the Judges in such case may be oblige to decide it in the same way as that in
which the previous case was decided, even if he can give a good reason for not doing so.

The common law is a monument to the judicial activity of the common law judge. He noted the
legislator or the scholar, created the common law. He still enjoys the prestige of that
accomplishment.

2.2 The English Doctrine of Precedent

The Doctrine of Precedent is based on the Latin term “stare decisis et non quieta movere” which
means to stand by previous decisions and not disturb the undisturbed.

C.Rickett in his book ‘Precedent in Court of Appeal’ the “Court of Appeal has a duty to apply
i.e. bound to follow any decision of House of Lords which actually settles or covers the
particular dispute before the court.”

• The doctrine of precedent refers that the legal decisions made by judges in higher courts
are remained as a precedent, so the decisions made by lower or equal courts in future are
needed to follow the earlier decision made in the higher courts in subsequent cases.

• It provides stability, certainty, uniformity and continuity in the legal system.

• The English Doctrine of Precedent was strongly coercive in nature .

• The doctrine states that within the hierarchy of English courts a decision by a superior
court will be binding on inferior courts.

Professor Sir Rupert Cross distinguishes three fundamental “rules of precedent” in English law.
These are:Rule 1; all courts must consider the relevant case law, Rule 2: lower courts must
follow the decisions of courts above them in the hierarchy, and Rule 3: appellate courts are
generally bound by their own decisions.

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In Mirehouse v. Rennell (1833); Parker B, Our common law system consist in the applying to
new combinations of circumstances those rules of law which we derive from legal principles and
judicial precedent and for the sake of obtaining uniformity, consistency, and certainty, we must
apply those rules where they are not plainly unreasonable and inconvenient, to all case which
arise and we are not at liberty to reject them, and to abandon all analogy to them, in those to
which they have not yet been judicially applied, because we think that the rules are not as
convenient and reasonable as we ourselves could have devised.

2.3 The Exception to English Doctrine of Precedent

In Bright v. Hutton (1852), Lord St. Leonards had used the following words when addressing the
House of Lords; You are not bound by any rule of law which you may lay down, if upon a
subsequent occasion you should find reason to differ from that rule; that is, that this House, like
every court of justice, possessed an inherent power to correct an error into which it may have
fallen.

In London Tramways v. London County Council (1898),1 the point at issue was the amount of
compensation to be paid to the appellant company on its being taken over by the London County
Council. The method of calculating this sum had been laid down four year earlier by the House
of Lord when hearing a Scots appeal turning on similar legislation,2 The rule was virtually
established in Beamish v. Beamish, has again found its ground after Sixty Eight years, That
House of Lords can’t bound by its previous decision, can deviate from its previous decision if it
is necessary or right to do so.

Sir Mathew Hale, writing in the seventeenth century, stated that the declaratory theory by
asserting that the decision of courts cannot make a law properly so called, for that only the king
and parliament can do; yet they have a great weight and authority in expounding, declaring and
publishing what the law of this kingdom is, especially when such decisions holds a consonance
and congruity with resolutions and decisions of former times and though such decisions are less
than a low, yet they are a great evidence thereof than the opinion of any private persons, as such
whatsoever.3

William Blackstone; the decisions of courts of justice are the evidence of what is common law.

In Davis v. Johnson (1979),4 Lord Denning argued that the 1966 practice Statement, show
conclusively that a rule as to precedent (which any court lays down for it) is not a rule of law at
all. It is simply a practice or usage laid down by the court itself for its own guidance and as such,
the successors of the court can alter that practice or amend it or set up other guidelines just as the
House of Lord did in 1966.

1
(1898) AC 375.
2
Edinburgh Street Tramways v. Lord Provost etc. of Edinburg (1894) AC 456.
3
History of the Common Law (6th edn) 90.
4
(1979) AC 264, 281.

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Schorsch Meier v. Henning(1975) and Miliangos v. George Frank Textiles Ltd(1976), the Court
of Appeal refused to follow the decisions of the House of Lords of Havana Railways(1961)
which said that the damages could only be awarded in sterling(English money).The doctrine of
binding precedent was adopted by the English common law in nineteenth and twentieth century’s
for the purpose of bringing certainty in law.

In Devki Nandan Aggarwal v. Union of India (AIR 1992 SC 96), The Supreme Court held that,
the power of judge to interpret statutes is not unlimited. The Court cannot rewrite, recast or
reframe the legislation for the very good reason that it has no power to legislate. The Court shall
decide what the law is and not what it should be. The Court cannot add the words to a statute or
read words into it which are not there. The Court will adopt a construction which will carry out
the obvious intention of the legislature but could not legislate itself.

2.4 The French Doctrine of Precedent

French law is not based on case-law ( la jurisprudence) at all. It means case-law or precedence is
not a source of law French legal system. The practice of the courts does not become a source of
law until it is definitely fixed by the repetition of precedents which are in agreement on a single
point.

Art.5 of the Civil Code forbids his laying down general rules when stating a decision, and it
would be possible for a French appellate court to set aside a ruling lacked an adequate legal
basis.

The Hierarchy and administration of the French Courts.

The French Judicial system is based on the division of the Country into Districts. French law
owes its uniformity to the various Codes in which it is declared and to “ la doctrine” the opinion
of jurists rather than to “ la jurisprudecce”. For Civil case, each district has a “Court of First
Instance” and “Court of appeal”.

 The district court of first instance are not bound by their own previous decision or those
of any other district court of first instance.
 The district court of first instance are not bound by the previous decision of their own
appellate court or that of any other district.
 The district appellate courts are not bound by there own past decisions or those of any
other district court of appeal.

The Highest Court of France is “ Court de Cassation”, There is a right of appeal on the point of
law from the district appellate court to Court de cassation in Paris.

 The Court de Cassation is not bound by any previous decision of its own.
 The district courts are not bound to follow any individual decision of the Court de
cassation.

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The French judges occupies a very different position from that of his English counterpart, There
are members of judiciary in “ Court de Cassation”, secondly French judiciary is not like our
recruit from the Bar but from the Civil Service. French judges and writers pay the gratest respect
to the past decision of Court de cassation.

The United State ‘ Supreme Court’ and the appellate Courts in the different state do not regard
themselves as absolutely bound by their past decision.

3, Doctrine of Stare Decisis

It is by this doctrine that the binding nature of precedent is established. The expression “ Stare
Decisis” means “ let the decision stand in its rightful place” or “ To stand by decision and not to
disturbed what is settled”.
It is a rule of self discipline developed gradually by the common law countries. The doctrine of
Stare Decisis promotes, Predictability, Certainty, Uniformity and Stability in legal system.
English law is to a large extent based on “case law” which consist of the rules and principles
stated and acted upon by judges in giving decisions. The judges may simply be oblige to
consider the former decision as part of the material on which his present decision could be based
or he may be oblige to decide the case before him in the same way as that in which the previous
case was decided unless he can give a good reason for not doing so.
Precedent or Judicial Precedent: “Previously decided case which furnish a base for deciding
subsequent cases”, Cross and Harris in “Precedent in English law” Judicial precedent has some
persuasive effect almost everywhere because Stare decisis, keep to what has been decided
previously is a maxim of practical universal application.

Sir George Jessel (1880); The only thing in a judge’s decision binding as an authority upon a
subsequent judge is the principle upon which the case was decided, but it is not sufficient that the
case should have been decided on a principle if that principle is not itself a right principle or one
not applicable to the cases and it is for a subsequent judge to say whether or not it is a right
principle and if not he may himself lay down the true principle. In that case the prior decision
cases to be a binding authority or guide for any subsequent judge, for the second judge who lays
down the true principle in effect reverse the decision.

Justice Parker B in ‘Mirehouse v. Rennell (1833), for the sake of obtaining uniformity,
consistency and certainity, we must apply those rules where they are not plainly unreasonably
and inconvenient, to all cases which arise and we are not at liberty to reject them and to abandon
all analogy to them.

In Attorney general v. Dean of winds (1860), Lord Campbell, laid down that the House of
Lords is bound to accept its own decision and its decisions are absolutely binding on all inferior
courts.

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In London Street Tramway Co. Ltd v. London County Council (1898), Lord halsbury, It
was laid down that once the law has been settled by the house of lords it is deemed always to
have been the law.

Donoghue v. Stevenson (1932),5The merit of this criticism of judge-made law may be

considered in the light of this famous case. The problem was whether the manufacturer owed a
duty of care to the ultimate consumer. Before 1932 most lawyers would have answered this
question in the negative. The manufacturer won in the Court of Session and when sitting as a
court, the House of Lords legislated retrospectively by overruling dicta

In Young v. Bristol Aeroplane Co. Ltd (1944), The English court of appeal is held bound by its
own previous decision irrespective of whether the law justice on the previous occasion sat in
divisions or as a full court.

3.1 The Practice Statement 1966.

The House of Lords Practice Statement of 1966 speaks of an intention to ‘depart’ from a
previous decision when it seems right to do so. The term ‘overrule’ has however been used in
this context in the House of Lords frequently since 1966.

In Boys v. Chaplain (1966), House of Lords announced the practice statements, that.

 Their lordships regard the use of precedent as an indispensable foundation upon which to
decide what is the law and its application to individual cases.
 Their lordships nevertheless recognize that too rigid adherence to precedent may lead to
injustice in a particular case and also unduly restriction to the proper development of the
law.
 In this connection they will bear in mind the danger of disturbing retrospectively the basis
on which contracts settlements of property and fiscal arrangements have been entered
into and also the special need for certainty as to the criminal law.

3.2, “Stare Decisis” in Indian context

Article 141 of the constitution of India, which replaced the predecessor, Sec. 212 of Government
of India act, 1935, says “Law declared by the Supreme Court shall be binding on all corts with in
the territory of India.

In Dwarkadas Shrinivas v. Sholapur Spg and Wvg Co. (1954), First time Supreme Court
consider the principle of over rule, Justice Das expressed the view that the Supreme Court is not
bound by its own decision especially when they focus on constitutional issue.

5
(1932) AC 562.

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In Bengal Immunity Company v. State of Bihar (1955), the supreme court held that, it is not
bound by its earlier decisions and in proper cases may over rule them. If the Supreme Court is
convinced of its error and its beneficial effects, it may depart from its earlier decisions.

In this case SC unanimously ruled that the expression ”Court” in Article 141cannot be
interpreted to include the Supreme Court, as such a construction would place necessary fetters
upon the powers of the highest judiciary to remove the errors which have crept into the law.The
view of Article 141 does not make the Supreme Court decision binding on the court itself has
been repeated in many other cases.

In P rathinam v. Union of India (1944), It was held that “ Right to life” in Article 21 includes “
Right to Die” and Sec.309 punishment for attempt to commit suicide of Indian penal code was
declared unconstitutional.

In Gain Kaur v. State of Punjab (1996), It was held that “Article 21 Right to life” does not
include “Right to Die” or “ Right to be killed” the decision of P Rathinam was over ruled.

The Supreme Court has not hesitated to overrule erroneous decisions or unhelpful precedents.

 K.K. Kochunni v. State of Madras (1959).

 Golak nath v. State of Punjab (1967).
 R.C. Cooper v. State of Punjab (1967)
 Sambhu Nath sarkar v. State of west Bengal (1973).
 Kesavanand Bharati v. State of kerala (1973)
 Samsher singh v. State of Punjab (1974)
 V. Tulsamma v. Sesha Reddy (1977)
 Maneka Gandhi v. Union of India (1978)
 Bangalore water supply & Sewerage Board v. A rajappa (1978)
 Supreme Court advocates on Record Association v. Union of India (1978)
 Pradeep Kumar Biswas v. Indian Institute of Chemical biology (2002), Supreme Court
overruled the decision of Sarabjit singh v. Union of India.

3.3, Difference between the doctrine of precedent and doctrine of stare decisis
 The Doctrine of Precedent is a common law doctrine where the judges are required to

decide the cases based on the judgements that have already been decided by the courts

placed higher in the hierarchy.

 The Doctrine of Stare decisis is a rule of self-discipline, developed gradually by the

common law courts, where the judges seldom disturb what is already decided.

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For example, the high courts are bound as a matter of precedent, by the decisions of the Supreme
Court on a particular point of law.Even a coordinate Bench of the Supreme court is also so bound
by a decision of another coordinate Bench.

In Rashmi Metallics Ltd v. Kolkata Metropolitan Development Authority (2013), the

Supreme court provided a succinct explanation of the doctrine of stare decisis. In this judgement
the Supreme Court criticized the practice of citing several cases as precedents even though they
may not be relevant to the factual matrix involved. According to the Supreme Court the correct
approach is to cite that one judgement as precedent, which holds the field firmly i.e., a precedent
that has been followed without fail. Even a single Judge Bench decision could be such precedent,
binding larger Benches, if it has ‘withstood the onslaught of time’ and has metamorphized into
high authority demanding reverence and adherence because of its vintage. This is a significant
characteristic of doctrine of stare decisis.

While the doctrine of precedent is a detailed framework of rules by which courts are bound to
adhere to previously decided cases of coordinate benches / larger benches/ higher courts,
doctrine of stare decisis is more of a self-imposed principle for judges whereby to ensure
stability in law judges refrain from modifying a well-established ruling even if it emanates from
a smaller Bench.

4, Element of Judgement i.e Ratio decidendi and obiter dictum.

4.1 Ratio decidendi
Ratio Decidendi, The expression literally means “reasons for the decisions”. It includes the rule
or principle established and formulated by means of decision. The principle is applicable in all
future judgments that compose similar facts. Whenever a case comes before a judge for
adjudication, he is bound to decide the whole matter before him. He cannot leave a case
undecided on the ground that there is no law covering the point. If the case before him is not
covered by any existing law, then he will have to make a legal principle and apply the same to
decide the case in hand. The principle which governs his decision is called ‘Ratio-Decidendi’.
The Ratio decidendi in the decision become the law for subsequent cases and ratio decidendi is
binding on all the lower courts of the country.

The ratio decidendi can be defined as the material fact of the case and the decision thereon. Ratio
decidendi refers to the legal, moral, political and social principles on which a court’s decision
rests. It is the rationale for reaching the decision of a case. It is binding on lower courts through
the principle of Stare decisis.

In the case of B. Shama Rao v. UT of Pondicherry(1967), Justice Subba Rao, it was observed
that any of the decisions of a court which is binding as a precedent is not because of the end
result or the order of that decision but based on the reasons and principles referred to in such a

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decision. The ratio in deciding a case would evolve from the interpretation of a statute,
principles of natural justice, and the common law principles.

Though it is difficult to pick a ratio from a judgment, the primary duty of judges while arriving at
a decision is to determine a ratio, and the court’s duty while citing a case as precedent is to
identify what is the ratio in such a case. Ratio decidendi can be determined by,

 prioritizing the material facts and leaving the unimportant facts behind.
 Another way to identify ratio is to narrow down the precedents which could be applicable
in determining the case.

Barwick v. The English Joint Stock Bank (1866), Willes J said; The general rule is that the
master is answerable for every such wrong of the servant or agent as is committed in the course
of the service and for the master’s benefit though no express command of the master be
provided.

 The broad proposition that a master is answerable for the fraud of his servant committed
in the course of the service.
 The narrow proposition that the master is only liable for such a fraud if he benefits from
it.

In Donoghue v. Stevenson (1932), in this case The House of Lord was concerned with the civil
liability of the manufacturer of a bottle of ginger beer to the ultimate consumer with whom he
has made no contract. If the consumer become ill in consequence of the presence of a
decomposed snail in the bottle, can he recover damage from the manufacturer if he can prove
that the manufacturer or his servant was negligent?

Raylend v. Fletcher (1868), In this case the House of Lords laid down the rule of “no fault
liability” or “Strict Liability”, “harm caused by escapes from land applied to exceptionally
hazardous purposes”, The landmark judgment played a vital role in law of torts. The rule of strict
liability propounded in this case has been instrumental in solving many disputes where the
damage is caused without any negligence on part of defendant.

In Scruttons v. Midland Silicons,(1962), The House of Lords refuse to follow its decision in the
Elder Dempster Case, 1924 on the ground that the ratio of that case was “obscure”.

Jagdish Lal v. State of Haryana, (1997); Essence of the decision is the ratio. Every observation
found in a judgment is not the ratio. Ratio decidendi is based upon the facts actually decided. It is
an authority for those facts.

Descriptive Ratio; is the rationale or the reason which helped the court to arrive at a decision. It
is the original ratio and is used as an aid in future cases.

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Prescriptive Ratio; the prescriptive ratio is the way in which the descriptive ratio is used as a
precedent in a future case. No case is totally similar to the facts or the law. Due to this reason,
there arises a problem in the application of the principle as it is laid down in a future case.
Hence, the descriptive ratio is slightly altered by using the level of generality so as to apply it as
a prescriptive ratio.

4.1.1 Ratio Decidendi in India contest.

Post-independence, the Constitution of India, 1950 established the Supreme Court, and Article
141 of the Constitution promulgates that “the law declared by the Supreme Court shall be
binding on all courts within the territory of India”.

In Bimal Devi v. Chaturvedi. Justice Agarwala held that law declared includes ratio decidendi
as well the obiter dictum is raised and argued. But it is to be understood that all contents of a
judgment cannot be deemed to be binding under Article 141, only the statements made by the
court in the usual course of giving a judgment have the obligatory force.

4.1.2 Wambaugh’s Test of “Ratio Decidendi”.

In order to determine this aspect, one of the well-established tests is "The Inversion Test"
propounded inter alia by Eugene Wambaugh, a Professor at The Harvard Law School, who
published a classic text book called "The Study of Cases"25 in the year 1892. This text book
propounded inter alia what is known as the "Wambaugh Test" or "The Inversion Test" as the
means of judicial interpretation. "The Inversion Test" is used to identify the ratio decidendi in
any judgment.

Test which helps in making good judgments by the courts. The inversion test propounded by
Wambaugh is based on the assumption that the Ratio decidendi is a general rule without which a
case must have been decided otherwise. Inversion test is in the form of a dialogue between him
and his student. He gave following instructions for this:

(a) Frame carefully the supposed proposition of law

(b) Insert in the proposition a word reversing its meaning

(c) Inquire whether, if the court had conceived this new proposition to be good and had it in
mind, the decision could be the same

(d) If the answer is affirmative, the however excellent the Original proposition may be, the case
is not a precedent for that proposition.

(e) But if the answer is negative, the case is a precedent for the original proposition and possibly
for other proposition also.

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Thus, when a case turns on one point the proposition or doctrine of the case, the reason for the
decision, the ratio decidendi, must be a general rule without which the case must have been
decided otherwise. A proposition of law which is not ratio decidendi under the above test must,
according to Wambaugh, constitute a mere dictum.

However, Ruper Cross criticized the Inversion test on the ground that ‘the exhortation to frame
carefully the supposed proposition of law and the restriction of the test to cases turning on only
one point rob it of most of its value as a means of determining what was the ratio decidendi of a
case, although it has its uses as a means of ascertaining what was not ratio. Thus, the merit of
Wambaughs test is that it provides what may be an infallible means of ascertaining what is not
ratio decidendi. It accords with the generally accepted view that a ruling can only be treated as
Ratio if it supports the ultimate order of the court.

4.1.2 Dr. Goodhart’s Method of determining the “Ratio Decidendi”

In 1929, Goodhart had argued that the ratio of the case must be in the reasons for the decision
and there is no necessary connection between the ratio and the reasons. He laid down following
guidelines for discovering the ratio dcidendi of the case:

1. Ratio decidendi must not be sought in the reasons of which the judge has passed the decision.

2. The reasons given by the judge are of peculiar importance, for they may furnish us with a
guide for determining which facts he considered material and which immaterial.

3. A decision for which no reasons are given does not necessarily lack ratio, furthermore, the
reasons offered by the court in reading a decision might be considered inadequate or incorrect,
yet the courts ruling might be endorsed in later cases- a bad reason may often make good law. It
is by his choice

4. Thus ratio decidendi is whatever facts the judge has determined to be the material facts of the
case, plus the judge’s decision based on those facts of the material facts that the judge creates
law. Goodhart test of the ratio is ratio decidendi = material facts + decision. Goodhart states that
"It is by his choice of material facts that the judge creates law."

The Goodhart test involves taking into account facts treated as material by the judge who
decided the case cited as precedent. The Goodhart’s theory is also known as Material fact theory.
The ratio is to be determined by ascertaining the facts treated as material by the judges together
with the decision on those facts. Advantages of the test are as follows;

a. It is the only way of finding out the ratio when no judgement is given

b. It stresses the point that a proposition of law is authoritative only to the extent it is relevant to
the facts in issue in the case.

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c. It is valuable in pointing out that we cannot always rely on the judge’s reasoning in a case
since this may be patently faulty. This is likely to happen where the judge supports his decision
with arguments of policy and justice.

The only drawback of the test is that the test is not in actual use by the judges. In practice, the
courts seem to be paying more attention to the judges own formulation of law than that permitted
under the test.

4.1.4 Lord Halsbury Test of “Ratio Decidendi”

The concept of precedent has attained important role in the administration of justice in modern
times. The case before the court should be decided in accordance with law and the doctrines. The
mind of the court should be clearly reflected on the material in issue with regard to the facts of
the case. The reason and spirit of the case make law and not the letter of a particular precedent.

 Lord Halsbury explained the word ‘ratio decidendi’ as, it may be laid down as general
rule that, that part alone of a decisison by a court of law is binding upon courts of
coordinate jurisdiction and inferior courts which consists of the enunciation of the reason
or principle upon which the question before the court has really been determined. This
underlying principle which forms the only authoritative element of a precedent is often
termed as Ratio Decidendi.
 In the famous case of Quinn v. Leathem, Lord Halsbury said that ‘ now, before
discussing the case of Allen v. Flood and what was decided therein, there are two
observations of general character which I wish to make, and one is to repeat what I have
very often said before, that every judgement must be read as applicable to particular facts
proved, or assumed to be proved, since the generality of the expression which may be
found there are not intended to be expositions of the whole law, but governed and
qualified by the particular facts of the case in which the expressions are to found. The
other is that a case is only an authority for what it actually decides. I entirely deny that it
can be quoted for a proposition that may seem to follow logically from it. Such a mode of
reasoning assumes that the law is necessarily a logical code, whereas every lawyer must
acknowledge that the law is not always logical at all. Thus according to Lord Halsbury, it
is the choice of material facts that the court create law.
 In Halsbury’s Laws of England it has been observed that ratio decidendi are the general
reasons given for a decision or the general grounds upon which it is based, detached or
abstracted from specific peculiarities of a particular case which gives the rise to a
particular decision.

4.2 Obiter Dictum

It is a concept derived from English common law, whereby a judgment comprises only two
elements: ratio decidendi and obiter dicta. For the purposes of judicial precedent, ratio
decidendi is binding, whereas obiter dicta are persuasive only.

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Obiter dictums are legal principles discussed in the judgment but not applied to the case. In the
course of judgment, the judge may declare certain principles to be applied in a hypothetical
situation. An obiter dictum is a legal principle enunciated by the judge but not applied by him for
deciding the case in hand. It has only little legal authority; it shall have only a persuasive effect.

Among the prepositions of law enunciated by a judge, only those which he appears to consider
necessary for his decisions are said to form part of the ratio decidendi and thus to amount to
more than an obiter dictum, for example, if a court dismisses a case due to lack of jurisdiction
and offers opinions on merits of a case, then these opinions constitutes obiter dicta.

The so-called Wambaugh's Inversion Test provides that to determine whether a judicial
statement is ratio or obiter, you should invert the argument, that is to say, ask whether the
decision would have been different, had the statement been omitted. If so, the statement is crucial
and is ratio; whereas if it is not crucial, it is obiter.

4.2.1 Obiter Dictum in England

Under the doctrine of stare decisis, statements constituting obiter dicta are not binding, although
in some jurisdictions, such as England and Wales, they can be strongly persuasive. In England an
Obiter Dicta has no binding effect either upon a Coordinate Court or upon a Subordinate Court.
Obiter Dicta of the House of Lord were undoubtedly be entitled to the highest respect but a
Judgement in England have binding force.

In Barwick v. The English Joint Stock Bank (1866),6 Willes J said, With respect to the question
whether a principal is answerable for the act of his agent in the course of his masters business,
and for his matter’s benefit, no sensible distinction can be draw between the case of fraud and the
case of any other wrong. The general rule is that the master is answerable for every such wrong
of the servant or agent as is committed in the case of the service and for the master’s benefit
though no express command or privities of the master be proved.

In broad proposition that a master is answerable for the fraud of his servant committed in the
course of the service or for the narrower proposition that the master is only liable for such a fraud
if he benefits from it. The ‘ratio decidendi’ applied in Loyd v. Grace, smith & Co. to form a
binding Precedent and Stare decisis.

The Austinian theory of legal positivism developed by John Austin, which treats law as a
domain of the political sovereign (i.e., the legislature) does not ascribe any law-making powers
to the courts. In strict positivist terms, the courts are to merely apply the statutory provisions to
the cases at hand and any additional opinions mentioned in the obiter dictum are not considered
to be binding on the future cases.

6
(1866) LR 2 Ex 259.

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4.2.2 Obiter Dictum and Constitution of India
The Indian constitution does not make any distinction as such, between ratio decidendi and
obiter dictum when laying down the legal validity of judicial pronouncements (The ratio
decidendi, according to established theories of law, refers to the rationale behind the judgement
in a particular case; The obiter dictum on the other hand, refers to all the passing observations,
principles and opinions that are made by judges in their judgments which do not directly impact
the ruling in the case). Because of this, even the obiter dictums in many cases decided by the
Supreme Court have been interpreted as being legally binding over subsequent benches.

Article 142 of the Indian constitution states "The Supreme Court in the exercise of its
jurisdiction may pass such decree or make such order as is necessary for doing complete justice
in any cause or matter pending before it". The courts have liberally interpreted the term 'doing
complete justice'. Over the years Supreme Court has passed many judicial legislations and
legally binding guidelines with the intent of ensuring 'complete justice' even though, these
legislations/ guidelines have fallen outside the ambit of the ratio in the respective cases.

Article 141 of the Indian constitution states "The law declared by the Supreme Court shall be
binding on all courts within the territory of India". Although, if the positivist rule were to be
followed strictly, this would only mean that the ratio decidendi in the Supreme Court cases
would apply to all courts, the different benches over the years have in various cases construed
the term 'law declared by the Supreme Court' as including even the obiter dictums. To that
extent, the various High Courts and even the parliament has followed the obiter dictums laid
down in various SC cases as legally binding laws.

This practice of the Supreme Court to treat even the obiters as legally binding principles was
evident in the case of IC Golaknath V. State of Punjab (1967). In this case the court had held that
the fundamental rights could not be amended by the constitution. Even though this
pronouncement was only a part of the dictum and not a part of the ratio, it was interpreted as
having legally binding basis. Therefore, the subsequent benches of the supreme court saw this as
an egregious ruling that could have far reaching impact on the functioning of the legislature
and sought to overturn the obiter dictum in the case of Keshavananda Bharati V. State of Kerala.

In Mohandas Issardas v. A.N. Sattanathan (1954), “Justice Chagla” obiter dictum is defined as
the opinion expressed by judges in the court during pronouncement of judgment which does not
have any importance in the decision. This is not an important constituent to arrive at a decision
but is just used to describe the circumstances. They are the incidental remarks made by the court
while dealing with the actual conflict between parties.

In the case of Sarwan Singh Lamba v. Union of India (1995), the SC observed that in general
circumstances, even the obiter dictum mentioned in a decision of the court is expected to be
followed. Moreover, the Supreme Court’s obiter dictum carries a considerable weightage. But
such weightage depends upon the kind of dictum given by the court. If the dictum is a casual

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remark by the court, it does have any effect on the parties or the subsequent cases. In another
scenario, certain obiter dicta have recommendatory or persuasive value but do not bind anyone.
Hence, the ratio decidendi is an important constituent of judgment rather than obiter dicta.

In Jaiwant Rao & Others v. State of Rajasthan (1961); the court observed that a dictum, which
does not form a integral part of the chain of reasoning, directs the questions decided may be
regarded as ‘Obiter’.

In Basant Kumar Pal v. Chief Electric Engineer & others (1956); It was held that, even an
‘obiter’ of the Supreme Court is binding upon the High Court.

In Nuruddin Ahmed v. State of Assam (1956); It was laid down that “ The observation of their
Lordship of the Supreme Court if they were made ‘Obiter’ would be entitled to the highest
esteem for the High Court.

In Ashok Letyland (1957); It was held that ‘Obiter Dicta’ of a judge of the supreme Court, even
in dissenting judgment are entitled to higher respect, especially if there is no direct decision to
conclude the question at issue.

5, Doctrine of Prospective Overruling

Over-ruling of a decision means declaring a precedent as invalid. When a decision is overuled , it
will have retrospective effect. Over-ruling a decision with retrospective effect may cause
injustice, to avoid hardships, the court which decides the case will apply the principle evolved in
the precedent which is over-ruled in deciding the case in hand and declaring a new principle for
future transactions.

In Golaknath case, Subbarao CJ; Observed that Article 32, Article 141 and 142 of Constitution
of Indoia, are couched in such wide and elatic terms as to enable the Supreme Court to formulate
legal doctrines to meet the end of justice. The expression “Law Declared” in Article 141 is wider
than word “found” or “made”. Indeed the word “Declare” refers to a process which necessarily
must mean a creative adoption of law. The power of supreme court to declare law under Article
141, must logically include a power to direct that the law declare shall have prospective effect
only.

5.1 Prospective Overruling in the American Constitution.

This doctrine ”Prospective Overruling” was applied first time by the Supreme Court of United
State in “ Great Northern Railway co. V. Sunburst Oil & Refining co. (1932). The remarkable
decisions of Cardozo J in this famous judgement, The prospective overruling has earned a
hallmark place in American Jurisprudence

Justice Cardozo in “ The Nature of the Judicial process (1921)” He pointed out that in the vast
majority of cases, a judgement would be retrospective. It is only where the hardship is too great

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that retrospective operation is withheld.City of Dubuque (1863), refused to give retrospective
effect to a decision.

Prospective overruling has been used in Johnson v. New Jersey (1966) by overruling the decision
in widell v. Holy trinity Catholic Church (1963).

In Linkletter v. Walker (1965) the court had prospectively overruled the decision made in Mapp
v. Ohio (1961). In several occasion, the U.S supreme Court has restricted the retroactive effect of
an overruling.

The Alabama Supreme Court in “ Jones v. Woodstock Iron co. (1892), on the vesting of legal
title to property, took care to give the rule prospective application only.

In 2002 the Houe of Lord in “ Royal Bank of Scotland plc v. Etridge (2002), The House set out
the steps to be followed by a Bank with regard to “future transactions”.

5.2 Prospective Overruling in India.

The doctrine of prospective overruling was first applied in India by the eleven judge bench that
decided Golak nath v. State of Punjab (1967), by a majority of 6:5. It was held that fundamental
rights are outside the amendatory process and parliament has no power to amend or abridge the
provisions of part III of the constitution.

Chief Justice Subba rao pointed out that between 1950 to 1967 various states had made laws
bringing about agrarian reforms by abolishing zamindari estates, inams and other intermediary
estates, agrarian structure of the country had been on the basis of these two judgements”Sankari
Prasad Singh Deo v. Union of India (1951) and Sajjan singh v. State of Rajasthan (1965)”. If
Golaknath judgement apply retrospectively, it would introduce chaos, Therefore the Court had to
evolve the doctrine which had “its roots in reason and precedent so that the past may be
preserved and the future protected.

 The doctrine of prospective overruling can be invoked only in a matters arising under
our constitution.
 It can be applied only by the highest court of the country i.e the Supreme Court as it has
the constitutional jurisdiction to declare law binding on all the court in India.

In Ganga Ram Moolchandani v. State of rajasthan (2001), the supreme Court of India has
observed that the doctrine of prospective overruling extended to interpretation of ordinary
statutes.

In Synthetics & Chemicals Lts v. State of U.P (1990), The S.C held that, the state government
could levy duty only on potable alcohol. They did not have the legislative competence to levy
any duty on “Industrial alcohol” as this would be covered by entry 84, List 1.

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In Kailash Chand Sharma v. State of Rajasthan (2002), The Supreme Court explain the doctrine
of prospective over-ruling as follows,” The sum and substance of the doctrine of prospective
over-ruling is that when the court finds or lay down the correct law, in the process of which the
prevalent understanding of the law undergoes a change, the court, on consideration of justice and
fair deal, restrict the operation of new found law to the future so that its impact does not fall on
the past transaction”.

5.3, Application of this doctrine by the High Courts.

In State of H.P v. Nupur (P) Bus Operators Union (1999), The Himachal Pradesh High Court had
invalidated certain amendments to the Himachal Pradesh Passengers and Goods Taxation Act,
1955. The High Court had directed that the invalidation could take effect only from the date of
its judgment viz 01/10/1992.” The Supreme Court failed to note that it was not a case of
prospective overruling but a case where the High Court give prospective effect to its decision.
The power to declare a statute invalid is possessed by the High Court under Article 226 in the
same manner as the Supreme Court can do so under Article 32”.

ESI Croporation v. Jardine Henderson Staff Association (2006), The division bench of Calcutta
High court had directed that even though a notificationwas valid (in 1997), it would apply only
from the date of its judgement delivered(in 2004).

In Raymonds Ltd. V. M.P. Electricty Board (2001), The full bench of the Madhya Pradesh High
Court had overruled an earlier judgement but held that the new interpretation would apply only
prospectively.

Conclusion.

Golaknath case is still the law under Article 141. At the same time, the High Court have the
inherent power under Article 226 to give “prospective effect” to their decisions if this is
necessary to prevent the miscarriage of justice.

The principle of prospective overruling will apply only where an earlier judgement is to be
overruled. At that time the Supreme Court can declare that its judgement will apply
prospectively.

The Golak Nath case does not restrict the inherent powers in the High Court under Article 226 to
give prospective effect to their decisions which is but one methods of moulding the relief to meet
the ends of justice.

6, Evolution of Judicial Activism in India.

The concept of Judicial Activism, which is another name for innovative interpretation, is not of
recent past. It was born in 1804, when John Marshal CJ, one of the greatest judgement of the
world, decided Marbury v. Madison (1803). In this case the court held that if there was a conflict

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between a law made by Congress and the provision in the constitution, it was the duty of the
court to enforce the Constitution and ignore the law.The twin concept of Judicial Review and
Judicial Activism were thus born.7

Our Constitution establishes a federal parliamentary form of government in which the roles of
executive, the legislature and the judiciary are clearly defined and delineated. The Prime
Minister and the council of ministers take executive action on behalf of the Head of the state”
The President of India”.The legislature consisting of the President, The Central Parliament ( The
Lok Sabha and Rajya sabha) and the state legislatures.

Unlike in England , the parliament is not supreme in India, It is the constitution which is
supreme, the Indian parliament draw all its powers from the constitution and in that sense it is
not a sovereign body.

In India, there is one unified judicial system with the Supreme Court as the Highest or Apex
Court followed by High Court of each states, followed by District Court (Civil & Criminal) and
at bottom level Munciff/Magistrate Court at each Taluk.

The Supreme Court is an impartial and independent authority and has been mandated to decide,

 Disputes between the centre and the states or between the various states, as the guardian
and interpreter of the constitution.
 To consider the validity of constitutional law and various constitutional amendments
passed by the parliaments.
 The Supreme Courts is the guardian of the basic rights of its citizens.

S C Kashyap; noted constitutional expert says, In a representative democracy, administration of

justice assumes special significance in view of the rights of individuals which need protection
against executive or legislative interference. An independent and supreme judiciary is also an
essential requirement of a federal polity when there is a constitutional division of powers
between the federal government and governments of the constitutional units and a functional
division of powers between the executive, legislature and the judiciary.

Justice Anand; Judicial activism in India encompasses an area of legislative vacuum in the field
of human rights; judicial activism reinforces the strength of democracy and reaffirms the faith of
common man in the rule of law.

K H Nazar v. Mathew K Jacob (2020),The cardinal principle of the construction of statutes is to

identify the intention of the legislature and the true legal meaning of the enactment 8. Legislations
must be read in view of the evolution of society from the time of enactment. The literal

7
M.M Rao, “ Judicial Activism”, (1997) 8 SCC –J.
8
KH Nazar v. Mathew K Jacob, (2020) 14 SCC 126.

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construction of beneficial legislations must be avoided, and they ought to be given a purposive
interpretation, Heydon’s case.

In Navtej Singh johar (2018),( Sec.377 IPC “Unnatural Offences”), this court emphasized the
transformative nature of our constitution. Transformative constitutionalism promotes and
engenders social change by ensuring that every individual is capable of enjoying the life and
liberties guaranteed under the constitution. This Court observed that transformative
constitutionalism places a duty on the judiciary to ensure and uphold the supremacy of the
Constitution.

6.1 Judicial Activism is an inherent feature of Judicial Review.

Article 13 (1); All law in force in the territory of India immediately before the commencement
of this constitution, in so far as they are inconsistent with the provision of this part, shall to the
extent of such inconsistency, be void.

Article 13 (2); The State shall not make any law which takes away or abridges the rights
conferred by this part (Part III fundamental rights) and any law made in contravention of this
clause, shall to the extent of the contravention, be void.

An inference can be drawn from Article 13(1) &13(2) that, If any of the fundamental rights are
infringed by any legislative enactment, the court has always the power to declare the enactment
to the extent that it transgresses the limits, invalid. In other words, the court took upon itself the
responsibility of Judicial Interpretation of Constitution and Judicial Review of legislation.

S.P Sathe; There are two models of judicial review. One is a technocratic model in which judges
act merely as technocrats and hold a law invalid if it ultra vires the power of the legislature. In
the second model a courts interprets the provisions of a constitution liberally and in the light of
the spirit underlying it keeps the constitution abreast of the times through dynamic interpretation.

Supreme Court started judicial review with “A.K Gopalan v.State of Madras (1950)” Article
32 Habeas Corpus. Sec.3(1) Preventive detention Act, 1950, contravens the provision of Article
13, 19, 21 and 22 of the constitution. It was held that Preventive Detention Act, 1950 was intra
vires but the validity of Sec.14 and 12 are ultra vires.

I C Golak Nath v. State of Punjab (1967); Subba Rao, C.J, Judiciary has struck down
executive action by a majority of Six to Five, the power to amend the constitution by removing
property from the list of fundamental rights and held that “Fundamental rights cannot be abridge
or taken away by the amending procedure in Article 368 of the Constitution.

 Punjab Security of Land Tenures Act, 1953 which acquired the land of Golaknath was
challenged on the ground that it deprive them from their constitutional right to acquire
and hold property and practice any profession guaranteed by article 19(f) and (g).

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  They also challenged the legality of 17th Constitutional Amendment (1973) which placed
the Punjab Act, in the 9th schedule of the constitution.

Keshavananda Bharati v. State of Kerala (1973); The thirteen judge bench with 7:6 overruled
the decision of Golaknath case , saying that it had been wrongly decided, but at the same time it
held that Article 368 of the constitution did not permit the parliament to enact any legislation,
which destroy the basic features or basic structure of the constitution.

 The validity of the Constitution 24th amendment Act, 1971 was challenged in this case,
Article 368, making it explicit that parliament would have the constituent power under
that article to amend by way of addition or variation or repeal any provision of the
Constitution and that Article 13 would be inapplicable to such amendment.
 Petitioner challenged the validity of The Kerala Land reform act, 1963. The petitioner
was permitted to challenge the validity of 25th and 29th amendment of the Constitution.
 Sikri C.J indicated the basic structure means: The supremacy of the Constitution, a
republican and democratic form of government, The secular character of the
constitution, maintenance of the separation of powers, the federal character of the
constitution, The sovereignty of the country, maintenance of the unity and integrity of
India.

Minerva Mills Ltd v. Union of India (1980), In this case a petition arose out of the takeover by
the Central Government of the management of the mill under “Sick Textile Undertakings
(Nationalization) Act, 1974. The petitioner challenged the Constitutional validity of 39 th and 42nd
amendment of 1976, which effected changes in validity of clause (4) and (5) of Article 368,
Article 31C and Sec.55 of the 42 amendment.

 It was held that Sec.4 of 42nd amendment Act is beyond the amending power of the
parliament and is void since it damages the basic or essential features of the constitution,
it takes away or abridges rights conferred by Article 14 or Article 19 of the constitution.
 Sec.55 of the 42nd amendment Act, is also beyond the amending power of the parliament
and is void since it removes all limitations on the power of the parliament to amend the
constitution.
 Article 31C (Amended) is unconstitutional since it destroys the basic features of the
constitution by totally excluding from challenge any law giving effect to directive
principles, even if they are inconsistent with rights under article 14 and 19.

This case is significant because while maintaining the basic structure doctrine, it ensured that the
Supreme Court was an essential foundation India’s constitutionalism.

The question that arose after these cases was as to how an unelected body i.e Supreme Court,
could decide what the constitution should contain and how could it overrule the decision of an
elected parliament which represented the will of the people at large.

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Indira Nehru Gandhi v. Raj Narain (1975); An appeal was filed by the appellant against the
decision of the Allahabad High Court invalidating Mrs. Gandhi’s election on the ground of
corrupt practices. In the meanwhile parliament enacted the 39th amendment Act, 1975, to
overcome the effect of the high court judgement by withdrawing the jurisdiction of all courts
over election disputes involving the prime minister.

 The court struck down the clause 4 of 39th constitutional amendment act, 1975, on the
ground that it violates the free and fair elections which were an essential feature forming
part of the basic structure of the constitution. The exclusion of judicial review in
election dispute in this manner damages the basic structure.
 The Supreme Court added the following features as basic feature to the list laid down in
the kesavanand case.1, Rule of law, 2, Judicial Review, 3, democracy, which implies
free and fair elections, 4, Jurisdiction of Supreme Court under Article 32.

S.R. Bommai v. Union of India (1994); On 21st April 1989, the President issued a proclamation
under Article 356(1) dismissing the Bommai Government and dissolving the Legislative
Assembly of the state of Karnataka. The Court held that imposition of president’s rule in
Karnataka in 1989 (Nagaland in 1988 and Meghalaya in 1991) was unconstitutional and
therefore liable to be struck down.

It was held that the president shall exercise the provision of Article 356 (1), only after the
proclamation has approved by both house of parliament under clause (3), it is a check on the
power of the president and also as a safeguard against abuse. In case both house of parliament
disapprove or do not approve the proclamation, it lapses at the end of two months period.

Mahendra Vishwanath Kawchale v. Union of India (2022); The Supreme Court declare
Section 376DA IPC Unconstitutional For Prescribing Mandatory Life Sentence For Remainder
Of One's Life. The Court said that Mandatory life sentence without remission violates Article 21.
The mandatory sentence of life imprisonment for the remainder of one's natural life prescribed
by Sec. 376DA, IPC takes away a convict's hope of ever being released and reintegrated into
society. The prescription of life-sentence for the remainder of life is unreasonable as it takes
away the judicial discretion.

6.2 Post Emergency judicial activism

When the judiciary began the transition to an independent institution of governance, In vastly
expanding its powers to encompass PIL(Public Interest Litigation), the Supreme Court provided
social activists, lawyers and journalists with recourse to the protection of law against abuse of it
by other institutions of governance.

In Hussainara Khatoon (I) v. State of Bihar (1979): The inhuman and barbaric conditions of the
undertrial prisoners reflected through the articles published in the newspaper. Under article 21

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of the Indian Constitution, the apex court accepted it and held that the right to speedy trial is a
fundamental right.
In Sheela Barse v. State of Maharashtra (1983): A letter by Journalist, addressed to the
Supreme Court addressing the custodial violence of women prisoners in Jail. The court treated
that letter as a writ petition and took cognizance of that matter.
Unni Krishnan J.P v. State of Andhra Pradesh (1993); It was held that, Every child has a right to
free education up to the age of 14 years. State is obliged to follow directions contained in Article
21 to be construed in the light of Article 41, 45 and 46.

After so many years of discussion and struggle, after the judgement in Unnikrishnan case, the
86th Constitutional amendment Act, 2002, making education a fundamental right for children of
the age of Six to Fourteen years by introducing a new Article 21A.

Court also affirmed that, the provision of part III and IV are supplementary and complimentary
to each other and that fundamental rights are but a means to achieve the goal indicated in part IV
of the Directive Principles.

In G. Satyanarayana vs Eastern Power Distribution Company (2004), Justice Gajendragadkar

ruled that a mandatory enquiry should be conducted if a worker is dismissed on the ground of
misconduct, and be provided with an opportunity to defend himself. This judgement added
regulations to labour law which was ignored by legislation.
Justice K.S. Puttaswamy (Retd.) v. Union of India (2017);

Issue: Right to privacy has constitutionally protected value.

Held that:

 Decision of M.P. Sharma case overruled which held that right to privacy is not protected
by constitution.
 Decision in kharak singh overruled to extend that it held that right to privacy is not
protected by constitution.
 Article 21 Right to privacy is protected as an intrinsic part of right to life and personal
liberty.Privacy right connote to be left alone, privacy includes at its core the preservation
of personal intimacies, the sanctity of family life, marriage, procreation, the home and
sexual orientation, privacy safeguard individuals autonomy and recognise the ability of
the individual to control vital aspect of his or her life.

6.3 Public Interest Litigation.

An exaggeration to assert that the expanding horizon of Judicial review has taken in its fold the
concept of social and economic justice, One sphere where the judiciary has won accolades and
honour is the area of Public Interest Law/ Public Interest Litigation (PIL), where it has proved to
be tool to secure social justice to large masses of people by liberalising the principle of locus
standi.

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In Black’s Law Dictionary, “Public Interest” means; something in which the public, the
community at large has some pecuniary interest, or some interest by which their legal rights or
liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests
of the particular localities, which may be affected by the matter in question. Interest shared by
citizens generally affairs of local State or National Government.

American Bar association; Public law involving lawyers in the pro bono process, Legal service
provided without fee or at a substantially reduced fee which falls into one or more of the
following area,

 Poverty Law;
 Civil Right Law;
 Public Rights Laws;
 Charitable organisation representation;
 Administration of Justice;

Rajeev Dhawan : Public Interest Law is part of the struggle by, and on behalf of, the
disadvantaged to use ‘Law’ to solve social and economic problems arising out of differential and
unequal distribution of opportunities and entitlements in society. It is also concerned with
preventing the present and future needless exploitation of human, natural and technological
resources.

In Janata Dal v. H.S. Chowdhary ( 1992); PIL has been defined thus: Lexically, the expression
PIL means a legal action initiated in a court of law for enforcement of public interest or general
interest in which the public or a class of the community has pecuniary interest or some interest
by which their legal rights or liabilities are effected.

In ICICI Bank Ltd (2006) case Allahabad High court observed that “ a litigation does not
become a PIL merely because a question of law of general public importance is raised in a
particular case. A PIL is where the interest which the court pronounces upon is itself in a
representative capacity a public interest. The agreement between ICICI Bank and its collecting
agent was sought to be declared as void and contrary to public policy.

In Sep 2022, The Madhya Pradesh High Court, Indore Bench recently dismissed a Public Interest
Litigation seeking directions to restrain celebrities from Cinema and sports from promoting
online gaming and further to enact strict penal laws for prohibition of online games. Examining
the submissions of parties and documents on record, the Court held that it cannot direct the
Legislature to enact a law. It further noted that currently, online gaming was not prohibited in
India and that enacting a law to regulate the same is within the domain of the Parliament and
legislature.

In State of Jharkhand vs Shiv Shankar Sharma (2022); The Supreme Court observed that the
bona fide of the petitioner who files the Public Interest Litigation (PIL) is an extremely relevant

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consideration and must be examined at the very threshold itself.This has to be done irrespective
of the seemingly high public cause being espoused by the petitioner in a PIL, the bench of CJI
Uday Umesh Lalit, Justices S. Ravindra Bhat and Sudhanshu Dhulia observed. In this case,
one Shiv Shankar Sharma and another had filed PILs which sought probe against Soren for
alleged money laundering through shell companies and obtaining a mining lease while he was in
power. Holding that these PILs are maintainable, the High Court observed that an extremely
serious matter has been raised in the PILs, where there are allegations of largescale corruption at
the hands of the Chief Minister of Jharkhand. The High Court also observed that even though
there may be some procedural irregularities in filing of the public interest litigations that should
not come in the way of the Court in entertaining the petition,

6.3.1 Public Interest Litigation in U.S

Public Interest Litigation has been a uniquely American Development. These effort go back to as
early as 1876, when the first legal aid office was established in New York city, there were many
events on record that helped in later years to develop modern Public Interest Law.

In 1897 , Luis Brandeis, a prominent lawyer in Boston, started the fight as a “public spirited
person”. Brandeis said that lawyers have a social obligation as an economic, intellectual and
managerial gentry with exclusive licence to engage in their profession, to act independent of
their clients.

In 1916, the American Civil Liberty Union(ACLU) began functioning with its incertitude over
government abuse. The ACLU was the first Public interest legal organisation which took up
many constitutional rights cases in the period up to the 1960s.

In 1919 an advocate R.H Smith form Boston published a work “Justice and the Poor”, which
gave way to some outstanding new ideas, the important idea was that there was a “collective
social responsibility”, on the Bar to provide opportunities for the unrepresented masses to secure
access to the justice system and it was indeed a crucial development in public interest law.

In United State v. Raines (1960); The U S Supreme Court had relaxed the “traditional rule of
locus standi” by holding that where a person had suffering a legal wrong or legal injury, or his
legal right and liberty were violated and he is entitled to approach the court, but on account of
some disability, or because it is not practical for him to move the court, or for such other reasons
such as socially or economically disadvantaged position, some other person may invoke
assistance of the court for the purpose of providing judicial redress so that justice is done to him.

In Flast v. Cohen (1968); Warren CJ, expanded the conventional concept considerably and open
the doors of the court for challenges resting on specific guarantees of the bill of rights and
directed at congressional expenditure under its taxing and spending powers.

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6.3.2 Public Interest Litigation in England
Till the mid of 20th century, the legal fraternity in England was reluctant to change the vintage
well settled rule of standing precedents.

Sir William Blackstone; It would be un reasonable to multiply suits, by giving every man a
separate right of action for what dignifies him in common only with the rest of his fellow
subjects.

The scenario in England changed after 1960s with innovative judgement and judicial activism of
Lord Denning. He while denouncing the thinking that judicial activism has a role to play only in
common law jurisprudence and has hardly any place in statute covered areas.

In Attorney General of Gambia v. N Jie (1961); Lord Denning held that, The word ‘person
aggrieved’ are of wide important and should not be subject to a restrictive interpretation. They do
include a person who has a genuine grievances because an order has been made which
prejudicially affect his interest.

In R v. Commr. Of police of Metropolis (1968); Lord Denning held that, a member of public
could obtain mandamous to compel the police to enforce the law against the gambling clubs.

In Attorney General Ex.rel Mcwhiter v. Independent Broadcasting Authorities (1973); an action

was brought by a member of the public for an injunction to prevent the telecast of a film on the
basis that it was likely to be offensive to public feelings.

6.3.3 Public Interest Litigation in India

The preamble of Constitution of India is the fundamental instrument to bring about social change
and write into the constitution JUSTICE in capital latter. JUSTICE means “Social, Economic
and Political”, Social justice is the main plank on which our constitutional edifice is built, In fact,
justice is the most positive aspect of our social and political philosophy.

In D.S. Nakara v. Union of India (1983); Desai J. Said” Recall at this stage the Preamble, the
flood light illuminating the path to be pursued by the state to set up a Sovereign, Social, Secular
Democratic republic. The principle aim of a Socialist state is to eliminate inequality in income
and status and to provide a decent standard of life to its citizen. This is a blend of Marxism and
Gandhism leaning heavily towards Gandhian Socialism.

The Supremr Court in Guruvayoor Devaswom Managing Committee v. C.K. Rajan (2003);
further clarified the PIL.

 The Court in exercise of power under Article 32 and Article 226 of the constitution of
India can entertain a petition filed by any interested person in the welfare of the people

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 who is in a disadvantaged position and thus, not in a position to knock the dor of the
court.
 Issue of public importance, enforcement of fundamental rights of a large number of
public, the constitutional duty and functions of a state, if raised, the court treats a letter or
a telegram as a public interest litigation upon relaxing “procedural law as also the law
relating to pleading”.
 Whenever injustice is meted out to a large number of people, the court will not hesitate
in stepping in, Article 14 and Article 21 of the constitution of India as well as the
International convention on Human Rights provided for reasonable and fair trial.
 The common rule of “Locus standi” is relaxed so as to enable the court to look into the
grievances of poor and deprived section of society who cannot vindicate the legal wrong
or legal injury cause to them.
 The dispute between two warring groups purely in the realm of private law would not be
allowed to be agitated as a public interest litigation.

The general rule is that only a person whose fundamental rights are infringed has “locas standi”
or “the right to move” the Supreme Court (Article 32) or High Court (Article 226) for a writ to
enforce his fundamental rights. A petition for the writ of habeas corpus may be made by the
person illegally detained or if he is not in a position to make the application, it can be made by a
near relative or a friend who has interested in his welfare. In a large number of cases the supreme
court and various high courts have issued writs allowing the petitions filed by voluntary
associations, lawyers, Journalists and social workers for the enforcement of fundamental rights.

In Muncipal Council, Ratlam v. Vardichan (1980); The residents of locality within limits of
Ratlam Municipality tormented by stench and stink caused by open drains and public excretions
by nearby slum dwellers. Moved to Magistrate U/S 133 Cr.P.C, 1973, gave direction to the
Municipality to draft a plan within six month was challenged before Session Court , High Court
and finally to Supreme Court. Justice Krishna Iyer observed” If the centre of gravity of justice is
to shift, as the preamble of the constitution mandates, from the traditional individualism of locus
standi to the community orientation of public interest litigation, court has power to force public
bodies under public duty to implement specific plan in response to public grievances.

In Sunil Batra v. Delhi Administration (1980); A letter from Sunil Batra, a prisoner from Tihar
Jail, delhi, complaining that the jail warden had subjected another prisoner serving life term in
the same jail to inhuman torture. The Court treated that latter as a writ petition by an elaborate
judgement.

In S.P. Gupta and Others v. President of India and Others (1982); In this case the Supreme Court
upheld the right of a practising lawyer to maintain a writ petition under Article 32 challenging
the validity of transfer of High Court Judges which effected independence of judiciary.

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In Olga Tellis v. Muncipal Corporation of Bombay (1985); The Supremecourt entertained the
petition filed by a journalist who challenged the order for evection of pavement dwellers in
Bombay.

In Upender Baxi and Others v. State of U.P (1987); a letter written by two law professors to the
supreme court was treated as a writ petition and give directions to the government to give
sufficient protections to those girls who had been remanded to a protective home set up under the
suppression of immoral traffic in women and girls Act, 1956.

In Sheela Barse v. Union of India (1988); Freelance Journalist Sheela Barse, Member of
Maharashtra State Legal Aid and advice Committee filed writ petition and made grievances
about improper working and legal validity of employment of Children without any remuneration
in Observation Homes at Bombay. The Supreme Court of the view that in a PIL the relief to be
granted looks to the future and is generally, corrective rather than compensatory, more
importantly court is not merely a passive, disinterested umpire or onlooker, but has a more
dynamic and positive role with the responsibility of organising of the proceedings, moulding the
relief and equally important, is supervising thereof.

In People’s Union of Democratic Rights v. Union of India (1982); An NGO write a letter to
Justice Bhagawati, treated as a writ petition,pointed out that the provision of various labour laws
were not being observed in relation to the workmen employed in the construction workof various
project connected with Asian Games. The court directed the government to see that various
labour laws are followed by the contractors who are engaged by the government for the
construction work. The workers engaged without paying minimum wages and medical aid and
other minimum basic facilities. Childrens below 14 years were also employed in the construction
works.

In M.C. Mehta v. State of Tamil Nadu (1991); The Supreme Court entertained a petition filed by
a social activist lawyer to protect interest of children employed in match factories and the
minimum wages for child labour should be fixed.

In Nelabati Behera v. State of Orissa (1993); The SC while awarding a compensation of Rs.1.5
lakh in case of custodial death of a 22 year old boy, the court observed that defence of sovereign
immunity is not available if there is contravention of Human Rights and fundamental freedom by
the state and its agencies.

In Gaurav jain v. Union of India (1997); On a PIL, SC issued several direction for rescue and
rehabilitation of child prostitutes and children of fallen women.

In Murali S. Deora v. Union of India (2001); A PIL was filed by Mr.Murali S deora against
public smoking. The Supreme Court held that public smoking is injurious to health of non
smokers and passive smokers. Non smokers and passive smokers are compelled to be victims of
pollution caused by cigarette smokers. It is indirect deprivation of their right to life guaranteed

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under Article 21 of the constitution. The Court directed central and state governments to prohibit
smoking in public places.

In Avinash Mehrotra v. Union of India (2009); a PIL was filed seeking fraiming of rules for safe
education and to strengthen law to protect children in school building in case of fire and other
hazards.

Suo Motu v. Secretary to Government, Social Justice Justice Department (2022); The
Kerala High Court on Oct 2022 initiated suo motu Public Interest Litigation captioned
'Protection and Rehabilitation of Children in Streets' on noting the plight of the nomadic children
begging or selling knick-knacks at busy junctions and tourist spots. The Suo Motu PIL has been
initiated with the intention that such children ought to be taken care of, sent to shelter homes or
repatriated. The Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P.
Chaly, initiated the proceedings after the emergence of several news reports highlighting the
plight of such children. Some reports also showed that the children were sleeping on platforms or
roads.

6.3.4 Limitation and Misuse of PIL

In Bandhua Mukti Morcha v. Union of India (1984); Pathak J, The court must never forget that
the jurisdiction extends no further than the legitimate limits of its constitutional power and avoid
trespassing into political territory which under the constitution has been appropriate to other
organs of the strate.

G Krishnamurty v. Govt of T.N (2011); a writ petition was filed for the issuance of the writ of
mandamus to forbear the respondents from reshifting the secretariat and the tamilnadu legislative
assembly from the new secretariat complex to old place. The writ petition filed was contended to
illegal, arbitrary, unauthorised and against public interest. The court in the instance case held that
it would not interfere with the administrative and policy decision of the government.

In G V Rao v. Union Government of India ( 2014); A PIL was filed to declare that the Andra
Pradesh Reorganisation Bill 2013, which was placed before the president cannot be construed as
bill being in violation of Article 3 of the constitution. The dismissed the petition, observed that
this was not the stage for scrutiny by the court and the action of the petitioner was premature.

In Subhash Kumar v. State of Bihar (1991); It was held that PIL cannot be invoked by a person
or body of person to satisfy his or its personal grudge and enmity. If such petitions are
entertained, it would amount to abuse of process of the court under article 32. It is the duty of
this court to discourage such petitions so that the very object of PIL must not polluted by
unscrupulous litigants.

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In Dattaraj Nathuji Thaware v. State of Maharastra (2005); The High Court dismissed the PIL by
holding there was no public interest involved and imposed a penalty of Rs.25,000.

The Supreme Court's decision in the case of State of Uttranchal Vs. Balwant Singh Chaufal
(2010) 3 SCC 402, the Court observed that frivolous vexatious petitions and petitions which seek
to serve personal interest should not be entertained, rather such petitions should be dismissed at
the very threshold.

Chief Justice Dipak Misra, Nov 2017, dismissed “frivolous” Public Interest Litigations filed by
BJP leader Subramanian Swamy against Home Ministry’s National Security Policy. “Look
where it has come to..PIL was originally conceived for the poor and marginalized …you
are seeking a policy on national security matters..we refrain from entering into the arena”

6.3.5 Conclusion
The 3-judge bench of N.V. Ramana, CJ* and A.S. Bopanna and Hima Kohli, JJ., in Esteem
Properties Pvt. Ltd. v. Chetan Kamble, (2022), urged the Courts to be cautious when
examining locus standi in Public Interest Litigations in order to ensure that frivolous or private
interests are not masqueraded as genuine claims.
The Court observed that,
“Although the jurisprudence of Public Interest Litigation has matured, many claims filed in the
Courts are sometimes immature. Thousands of frivolous petitions are filed, burdening the docket
of both this Court and the High Courts. Noble intentions behind expanding the Court’s
jurisdiction to accommodate socially relevant issues, in recent decades, have been critically
analyzed”.

6.4 Special Leave application to Supreme Court;

Article 136 of the constitution of India confers discretionary jurisdiction to supreme court to
entertain appeals from any Judgement, decree, determination, sentence or order in any case made
by court or tribunal in the territory of India.

Even if there is no regular right of appeal or even in the High Court has not granted a certificate,
an appeal may be carried to the supreme court by special leave.

In Delhi Judicial Service Association v. State of Gujarat (1991); the supreme court held that
under article 136 the court has made power to interfere and correct the judgement and orders
passed by any court or Tribunal in the country.

In Mohinder Singh v. State (1953); ‘M’ was charged with the offence of murder. It was alleged
that he has shot the deceased with a gun on the chest. He was convicted by Session Judge and the
conviction was upheld by the High Court of Punjab. In appeal to supreme court by special leave,
it was pointed out that the High Court was doubtful where the injuries of the deceased was
caused by a gun or rifle.The doubt would be removed only by evidence of a duly qualified

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experts. The prosecution in those circumstances cannot be said to have proven the guiltof the
accused beyond doubt. In such a situation interference by Supreme Court against the order of the
High Court confirming the sentence of the session judge was held to be warranted.

In X v. The Principle Secretary, Health and family welfare Department,Govt. Of NTC of

Delhi & Anr. (2022); This appeal arises out of the judgment of a Division Bench of the High
Court of Delhi dated 15 July 2022, a Special Leave to Appeal (Art. 136) was filed on 21 July
2022 before Supreme Court of India.

 This Court, by its order dated 21 July 2022 modified the order of the Delhi High Court
and permitted the appellant to terminate her pregnancy.
 We request the Director of the All India Institute of Medical Sciences, Delhi to constitute
a Medical Board in terms of the provisions of Section 3(2D) of the MTP Act.
 In the event that the Medical Board concludes that the fetus can be aborted without
danger to the life of the petitioner, a team of doctors at the All India Institute of Medical
Sciences shall carry out the abortion. Before doing so the wishes of the petitioner shall be
ascertained again and her written consent obtained after due verification of identity.

7 Law making and Law declared function of the judiciary.

7.1 Law Making Function of Judiciary
This is Judicial activism. Judge made laws are the legal doctrines established by judicial
precedents rather than by a statute. Judge interpret a law in such a way to create a new law.
Judge made laws are based on “stare decisis”, which means to stand by the decision.

A judge has to administer justice. If a judge finds that enacted law is inadequate to meet the ends
of justice it is the Constitutional Obligation and the court to render justice in accordance with the
Constitutional principles. A judge has to fill up the gaps. This process is known as Judicial
Legislations.

The Gap in our system of administration is filled by the judge. It is here that the judge take part
in the process of Law making. Law making is an inherent and inevitable part of Judicial process.
Judge gives flesh and blood into the dry skeleton provided by the legislature and make the law
adequate to meet the needs of the Society.

Lord Denning: According to him, law is not at all certain. There is merely a very less chance that
it may cover up the all situations. Now again judges and practitioners are there to face new
situations. No one can tell you what the law is until the courts decide. Judges make laws every
day.

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Dicey: An English Professor in his book ‘Law and opinion in England’ remarked, “ a large part,
and as many would add the best part of the law of England is judge-made law, that is to say,
consist of rules to be collected from the judgments of the courts”.
In D. K. Basu v. State of West Bengal (1997); the executive chairman of Legal Aid Services, a
registered non-political organization submitted a letter to the Chief Justice of India regarding the
deaths that occurred in police custody and lock-ups. It was also mentioned to examine the matter
seriously and to introduce “custody jurisprudence”. Court issued General guidelines;

 It is the duty of the police officers not to use third-degree methods while having
investigation and interrogation from the accused.
 Attention must be required in checking the working environment, training, and
orientation of the police officials with the basic human values.
 The legislature must adopt the recommendations suggested by the law commission
report by inserting Section 114-B.
 A balanced approach should be used by the police to extract the information from
hardened criminals.
 There must be a memo made by the police officer in charge at the time of arrest and at
least one family member of the accused must be present when the arrest is made.
 The requirements under the Constitution under Art. 21 and 22(1) must be followed by
police officers.
 Awareness must be created to the arrestee so that he can understand his basic rights at
the time of the arrest.
 Also, the court has given certain preventive measures that must be followed by the
police officer in charge at the time of the arrest of an accused.

In another case of A.D.M Jabalpur v. Shiv Kant Shukla (1976), Justice H.R Khanna observed
that “no one can be deprived of his right to life and personal liberty arbitrarily without the
provisions of the law. And it extended the meaning of the term “life” which is something more
than mere animal existence.” The procedure must be followed in accordance with the law which
must not be arbitrary. Thus, the procedure adopted must be fair and reasonable and in conformity
with Article 14 of the Indian Constitution.

In the case of Sunil Batra v. Delhi Administration(1979), “it was observed by the court that
inhuman torture and treatment is against Article 21 of the Constitution of India which includes
right to live with human dignity. The rights guaranteed under Article 21 are not merely a
fundamental right but also a human right.”

In the case of Vinay Tyagi v. Irshad Ali (2012), it was held by the court that the investigation
must be honest, just, fair and reasonable, and in accordance with the law.

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in Laxmi Kant Pandey v. Union of India (1984); where the court issued certain guidelines which
need to be followed while adopting Indian children by foreign adoptive parents. The judgment
delivered by Justice Bhagwati in Lakshmi Kant Pandey vs. Union of India aims to ensure welfare
of children by providing them a congenial environment where they can be loved. If the child is
supposed to be given in adoption, first priority should be to ensure that the child gets adopted
within his/her own native country. However, if the child cannot be placed within a suitable
family in his/her own country, then, inter-country adoption is the next best alternative. In order to
protect the child against exploitation, human- trafficking, certain safeguards and procedures have
been mentioned in the judgment. The judgment aims to protect children against the horrendous
activities carried out under the guise of inter-country adoption. Inter-country adoption is
considered to ensure welfare of children because people in India are hesitant to adopt children
because they do not want to raise someone else’s child. As a result, most of the children are
abandoned and lead the life of a destitute or become beggars, criminals or prostitutes in future.
Therefore, inter-country adoption ensures the welfare of children.

Vishaka v. State of Rajasthan (1997); various women's groups filed Public Interest Litigation
against the state of Rajasthan and the central Government of India to enforce the fundamental
rights of working women under Articles 14, 19 and 21 of the Constitution of India. The petition
was filed after Bhanwari Devi, a social worker in Rajasthan, was brutally gang raped for
stopping a child marriage. The court decided that the consideration of "International Conventions
and norms are significant for the purpose of interpretation of the guarantee of gender equality,
right to work with human dignity in Articles 14, 15, 19(1)(g) and 21 of the Constitution and the
safeguards against sexual harassment implicit therein." The petition, resulted in what are
popularly known as the Vishaka Guidelines. where the Supreme Court actually laid down the
law pertaining to sexual discrimination at workplaces in the absence of a law governing the
same.

Joseph Shine v.Union of India (2019), a non-resident Keralite, filed public interest litigation
under Article 32 of the Constitution. The petition challenged the constitutionality of the offence
of adultery under Section 497 of the IPC read with Section 198(2) of the Criminal Procedure
Code, 1973. The Court reviewed the correctness of the precedents – Yusuf Abdul Aziz,
Sowmithri Vishnu and V. Revathi – which had in the past upheld Section 497 as constitutionally
valid.

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7.2 Law declaring function of Judiciary
This theory is commonly called Declaratory Theory. According to this theory, judges do not
make laws they just declare the existing laws. They say that judges are nothing more than
discoverers of the law. As soon as they discover the law they declare it. This is how it works at
all.

William Blackstone: As Blackstone was English by origin, he was of the opinion that common
law has been made from customs and customs were identified from the various decisions of the
English courts.

Lord Esher: This learned judge while delivering one of his judgments said, “There is nothing
called judge-made law, as judges do not make law, what they do is that they simply apply the
given law in the situation or the circumstances given to them”.
In Lochner vs. New York 198 US 45(1905) Mr. Justice Holmes of the U.S. Supreme Court in his
dissenting judgment criticised the majority of the Court for becoming a super legislature by
inventing a `liberty of contract theory, thereby enforcing its particular laissez faire economic
philosophy.
Similarly, in his dissenting judgment in Griswold vs.Connecticut 381 U.S. 479, Mr. Justice Hugo
Black warned that unbounded judicial creativity would make this Court a day-to-day
Constitutional Convention.
In `The Nature of the Judicial Process Justice Cardozo remarked: “The Judge is not a Knight
errant, roaming at will in pursuit of his own ideal of beauty and goodness.”
Justice Frankfurter has pointed out that great judges have constantly admonished their brethren
of the need for discipline in observing their limitations (see Frankfurter s `Some Reflections on
the Reading of Statutes).

In Rajeshwar Prasad V. The State of West Bengal(1965); In this case Hidayatullah, J. Said that
there is no doubt that law declared by the apex court bounds all other courts in India but we
should also keep in mind that this court does not enact law.
In Union of India v. Deoki Nandan Agarwal (1991); court observed that “The Court cannot
rewrite, recast or reframe the legislation for the very good reason that it has no power to
legislate. The power to legislate has not been conferred on the courts…Courts shall decide what
the law is and not what it should be.”

In Divisional Manager, Aravali Golf Club & Anr. v. Chander Hass & Anr.(2007) It was
observed by Markandey Katju, J., that “if there is a law, judges can certainly enforce it, but
judges cannot create a law and seek to enforce it”. “Judges must know their limits and not try to
run the Government. They must have modesty and humility, and not behave like Emperors.
There is broad separation of powers under the Constitution and each organ of the State, the

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legislature, the executive and the judiciary, must have respect for the others and must not
encroach into each others domains.

Similarly in Asif Hameed vs State of J&K, 1989, the Supreme Court observed: “The legislature,
executive and judiciary have to function within their own spheres demarcated under the
Constitution. No organ can usurp the functions assigned to another.”

7.3 Judicial Restraint

7.3.1 Introduction
Judicial Restraint is the antithesis of Judicial Activism. Judicial Restraint is a theory of
judicial interpretation that encourages judges to limit the exercise of their own power. In
short, the courts should interpret the law and not intervene in policy-making.
Judges should always try to decide cases on the basis of:
The original intent of those who wrote the constitution. Precedent, past decisions in earlier
cases. Also, the court should leave policy making to others.
Here, courts “restrain” themselves from setting new policies with their decisions.

7.3.2 Importance of Judicial Restraint

Judicial restraint helps in preserving a balance among the three branches of
government, judiciary, executive, and legislative.
To uphold the law established by the government in the legislature.it show solemn respect for
the separation of governmental problems. To allow the legislature and the executive to follow
their duties by not reaching in their arena of work. To mark a respect for the democratic form
of government by leaving the policy on policymakers.
In S.R. Bommai v Union of India (1994); is a famous example often stated to show restraint
practiced by Judiciary. The judgement stated that in certain cases the judicial review is not
possible as the matter is political. According to the court, the power of article 356 was a
political question, thus refusing judicial review. The court stated that if norms of judiciary
are applied on matters of politics, then it would be entering the political domain and the
court shall avoid it.
In Almitra H. Patel Vs. Union of India (1998); the Supreme court refused to direct the
Municipal Corporation on the issue of assigning responsibility for cleanliness of Delhi and
stated that it can only assign authorities to carry out duty that is assigned as per law.
In X v. The Principle Secretary, Health and family welfare Department,Govt. Of NTC of Delhi
& Anr.(2022). This appeal arises out of the judgment of a Division Bench of the High Court of
Delhi dated 15 July 2022, a Special Leave to Appeal (Art. 136) was filed on 21 July 2022 before
Supreme Court of India.

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  This Court, by its order dated 21 July 2022 modified the order of the Delhi High Court
and permitted the appellant to terminate her pregnancy.
 We request the Director of the All India Institute of Medical Sciences, Delhi to constitute
a Medical Board in terms of the provisions of Section 3(2D) of the MTP Act.
 In the event that the Medical Board concludes that the fetus can be aborted without
danger to the life of the petitioner, a team of doctors at the All India Institute of Medical
Sciences shall carry out the abortion. Before doing so the wishes of the petitioner shall be
ascertained again and her written consent obtained after due verification of identity.

The Court further held that, It seems to us that to give Rule 3B a restrictive and narrow
interpretation would render it perilously close to holding it unconstitutional, for it would deprive
unmarried women of the right to access safe and legal abortions between twenty and twenty-four
weeks if they face a change in their marital circumstances, similar to married women. The court
expressed its desire to modify the law rather than declare it unconstitutional.

7.3.3 Conclusion
It limiting the powers of the judges to strike down a law. The judges and the court encourage
reviewing an existing law rather than modifying the existing law, Judges should look to the
original intent of the writers of the Constitution or Statute. Judicial restraint helps in preserving
a balance among the three branches of government, judiciary, executive, and legislative.
However, in a democracy, it is important to maintain the principle of separation of powers and
uphold the legitimacy of the three organs of government. It can be possible only when the
executive and legislature are attentive and functional. At the same time, the Judiciary should be
cautious of stepping into spheres of activity that does not belong to it.

7.4 Judicial Overreach

7.4.1 Introduction
When Judicial Activism goes overboard, and becomes Judicial Adventurism, it is referred to as
Judicial Overreach. In simpler terms, it is when the judiciary starts interfering with the proper
functioning of the legislative or executive organs of the government. Judicial Overreach is
undesirable in a democracy as it breaches the principle of separation of powers. In view of this
criticism, the judiciary has argued that it has only stepped when the legislature or the executive
has failed in its own functions.
The direct effect of legislative and executive negligence or inability is "judicial overreach".
Weak and injudicious results, not only in the making of laws, but also in their application. The
Indian judiciary has been criticized by many legal scholars, lawyers and judges themselves, for
playing an exceedingly activist role and overreaching.

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7.4.2 Impact of Judicial Overreach

There is a thin line dividing judicial activism and judicial overreach. While the former implies
the use of judicial power to articulate and enforce what is beneficial for society in general, the
latter is when judicial activism crosses its limit. Judicial overreach is when the judiciary starts
interfering with the proper functioning of the legislative or executive organs of the government,
i.e., the judiciary crosses its own function and enter the executive and legislative functions.
Since the legislature is lagging behind in its function, the judiciary tends to Overreach from
its function causing a conflict between legislature and judiciary. The clear impacts from such
an Overreach of Judiciary are as follows:
1, There is a threat to the doctrine of separation of powers which undermines the spirit of the
constitution. There is a lack of harmony between legislature and judiciary and an impression
on the public of inaction by the legislature.
2, In certain scenarios like that of environmental, ethical, political, expert knowledge is
required which the judiciary might not possess. If it renders judgement while having no
experience in these domains, then it not only undermines expert knowledge but also can
prove harmful to the country.
3, Judicial Overreach can lead to an expression of disregard by the judiciary in the elective
representation. This can decrease the faith of the public in the institution of democracy.
A famous case of Judicial Overreach is censorship of the Film Jolly LLB II. The case was filed
as a writ petition, and alleged that the film portrayed the legal profession as a joke, making it an
act of contempt and provocation. The Bombay High Court appointed a three person committee
to watch the movie and report on it. This was viewed as unnecessary, as the Board Of Film
Certification already exists and is vested with the power to censor. On the basis of the report of
the committee, four scenes were removed by the directors. It was seen as violative of Article
19(2), as it imposed restriction on freedom of speech and expression.
On a PIL about road safety, the Supreme Court banned the Sale of Liquor, at retail shops,
restaurants, bars within 500m of any national or state highway. There was no evidence
presented before the court that demonstrated a relation of ban on liquor on highways with the
number of deaths. This judgement also caused loss of revenue to state governments and loss of
employment. The case was seen as an Overreach because the matter was administrative,
requiring executive knowledge.
The Supreme Court on December 2016, passed its judgment in the case of Shyam Narayan
Chouksey v. Union of India, which makes it mandatory, that:

 All the cinema halls in India shall play the National Anthem before the feature film starts.
 All present in the hall are obliged to stand up to show respect to the National Anthem.

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  The entry and exit doors shall remain closed prior to the National Anthem is played or
sung in the cinema hall so that no one can create any kind of disturbance.
 The doors can be opened after the National Anthem is played or sung.
 The National Flag should be displayed on the screen while the National Anthem is played
in the hall.

The Vice-President of India in the event of the 80th All India Presiding Officers’ Conference in
November 2020 termed the Supreme Court’s banning of firecrackers during Diwali as Judicial
Overreach. The aspirants must note that there are mixed views on the Supreme Court’s actions
hence, one must learn to critically examine a notion.

It stemmed from a group of petitions challenging the validity of the Constitution (Ninety-Ninth
Amendment) Act, 2014 (99th Amendment) along with the National Judicial Appointments
Commission Act, 2014 (NJAC Act). These Acts sought to replace the prevailing collegium
system used for making appointments to the higher judiciary with the National Judicial
Appointments Committee (NJAC). The NJAC proposed a greater role for the executive in
making judicial appointments. This was allegedly to introduce transparency and accountability in
the selection process. However, the Supreme Court found the NJAC to be in violation of the
principles of separation of power and independence of judiciary that formed part of the basic
structure of the Constitution, and a five Judge Constitution Bench struck down the 99th
Amendment and consequently the NJAC Act by a majority of 4:1, declaring the Acts
unconstitutional.
Allahabad High Court Order; In 2015, the Allahabad High Court passed an order stating that
children of public functionaries/ bureaucrats in Uttar Pradesh should be enrolled only in
government schools.
The cancellation of telecom licenses in the 2G case; After the CBI registered FIR against the
officials of the Department of Telecom in 2G scam case, the Supreme Court ordered to cancel of
122 telecom licenses and spectrum allocated to eight companies. The Supreme Court held that
the process of allocation was flawed. It further directed the government to allocate national
resources through auction only.

7.4.3 Conclusion
Hence, It is an obligation on the part of courts to remain under their jurisdiction and uphold
the principle of separation of powers. The Supreme court has itself reminded other courts, in
2007, to practise Judicial restraint. It stated "Judges must know their limits and must try not
to run the government. They must have modesty and humility, and not behave like
emperors." Further, it said, "In the name of judicial activism, judges cannot cross their limits
and try to take over states which belong to another organ of the state".

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8 Nature of Judicial Process by Benjamin Cardozo
8.1 Introduction
Benjamin Nathan Cardozo ( 24 May 1870 to 9 July 1938) was an American lawyer and Jurist
who served on the New York Court of Appeal from 1914 to1932, he was the Chief Justice of the
NCA and as a associate justice of the Supreme Court of The United State from 1932 to 1938.
Cardozo is remembered for his significant influence on the development of American Common
Law in the 20th century.

In 1932 he was appointed to the Supreme Court to succeed Oliver Wendell Holmes Jr. Cardozo
served on the court until his death in 1938 and formed a part of the liberal block of Justice
known as The Three Musketeers” Justice Luis Brandeis, Benjamin N Cardozo and Harlan
Fiskestone”.

Cardozo leading cases

In Palsgraf v. Long Island Rail Road co.(1928); Is a leading case in American tort law on the
question of liability to an unforeseeable plaintiff, the case was heard by New York Court of
Appeal, Cardozo wrote for a 4-3 majority of the court of appeal, ruling that there was no
negligence because the employees in helping the man board did not have a duty of care to
Plasgraf as injury to her was not a foreseeable harm from aiding a man with a package. The
original lower court verdict was overturned ($6000 verdict).

In Nexon v. Condon (1932); was a voting rights case decided by the United States Supreme
Court, which found “the all white democratic party” primary in taxes unconstitutional.

In Steward Machine Company v. Davis(1937); Was a case in which the U.S Supreme Court
upheld the unemployment compensation provisions of the social security Act of 1935.

In Meinhaed v. Salmon (1928); the fiduciary duty of business partner not honesty alone, but the
punctilio of an honor the most sensitive.

In Palko v. Connecticut (1937); the due process clause incorporated those rights which were
implicit in the concept of ordered liberty.

In Welch v. Helvering (1933); was a decision by the United State Supreme Court on the
difference between business and personal expenses and the difference between ordinary business
deductions and capital expenses. It is one of the most important Income Tax law cases.

8.2 The Nature of Judicial Process

It begins with a series of question asking precisely what a Judge does when he decides a case.
According to Cardozo Judge made law is one of the existing realities of life. There are certain
subconscious forces which lie behind a judge’s decision; it is through these subconscious forces

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that Judges are kept consistent with themselves and inconsistent with each other. Every person
has a philosophy of life which gives a logical ideas”Coherence” and direction.

 Where do the Judges find the law to be applied while deciding a case? Cardozo accepts
that when the source is obvious, when the Constitution and Statutes are clear, the
judge’s search is at an end. In that situation the role of judges become secondary.
 There may be gaps to be filled; there may be doubts and ambiguities to be cleared.
There may be hardship and wrongs to be mitigated and even avoided. In such situation
the judges may have to interpretation and discovery of a meaning which had a real and
ascertainable intention of legislator’s mind.
 The difficulty before a Judge arises when the legislator has had no meaning at all and
when it become so necessary to guess what the legislator would have indented on an
issue not presented to their mind. Here Cardozo advocates “the method of free decision”
as suggested by “”Francois Geny, Ehrlich and Gmelin. The method of Free decision
gives a system of living law.
 Cardozo urges, when the Constitution and Statutes are silent the judges reaches the land
of mystery. It is at this point that the judges must look to the common law. Cardozo
freely admits the “Stare Decisis” is the working rule of the law.
 Cardozo does not means that precedents are the ultimate sources of the law, back of
precedents are the basic judicial conceptions. Precedents fix the point of departure from
which the labor of judges begin. Judges must first extract from the precedents the
underlying principle, the ratio decidendi, he must then determine the path or direction
along with the principle.

8.3 Cardozos methods of judicial process

In his book “Nature of Judicial Process” Benjamin Cardozo discussed Four methods or
principles of selection guiding the judges in the path of developing the system of living law.

8.3.1 The Method of Philosophy/Logic or Rule of analogy.

 Cardozo Cardozo treats the method of philosophy first because it has a certain
presumption which comes from natural , logical and orderly succession. He views the
philosophical methods for judging case as a series of logical steps.
 When a Judge first gets and learn about a case, the first obvious step to take is to looking
at the rulings of similar or related cases and see if a decision can be made of precedent.
 Precedents helps keep the people’s faith in the judicial system by keeping the law true in
its responses to deep seated and imperious sentiments. He consider that adherence to
precedent was a logical and hence a philosophical approach.
 Attitude and opinion towards an event cannot yield to logic and the reason for logic
controlled by sentiments would be arbitrary.

In Schenck v. United States (1919);

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  Schenck was against the first world war and mailed out pamphlets who had been drafted
into the armed forces, stating that the government had no right to send people to kill in
another country.
 Schenck was charged with Espionage Act.
 The defense tried to argue that this was a violation of free speech, the Supreme court
ruled that it supported Schenck’s conviction saying it did not violate the first amendment
because it could affect recruitment.
 Justice Oliver Wendell Holmes spoke as a majority that Individuals who interfered with
the draft were subject to Criminal charges.

In Debs v. United States (1919);

 Debs give many speeches in Ohio opposing the war and preached about socialism. Debs
was found guilty and sentenced to 10 years in prison attempting to incite in subordination
in the military by giving a speech.
 The Supreme Court ruled that a petitioner could not attempt to obstruct the recruiting
service of the United State.
 Justice Oliver Wendell Holme said that, those who were speaking out against the war
were not protected by the first amendment and also subject to Criminal charges.

8.3.2 The Method of History

 According to Cardozo the method of History is predominantly an investigation of origin.
 Cardozo limits the method of history to clarify a problem in law rather than solve it and
refuse to approve of the historical school of Jurisprudence.

In Gitlow v. New York (1925);

 Gitlow was charged with criminal anarchy for publishing a communist newspaper, which
advocated the violent of the U.S Government.
 Does the deprived people of their first amendment right to prohibit someone from taking
part in a certain activity.
 The court ruled that it does not violate the first amendment. The state can take certain
measures and perform regulations in order to protect the general welfare of its citizen.

8.3.3 The Method of Custom/Tradition

 According to Cardozo “ in these days, at all events, we look to custom and the traditions,
not so much for the creation of new rules, but for the tests and standards that are to
determine how established rules shall be applied.
 According to Cardozo, if Custom is to obtain the dignity of positive human law, must do
so through legislation.
 According to him, the potential of custom to be extend until it becomes identified with
“Customary Morality”, the prevailing standard of right conduct.

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8.3.4 The Method of Sociology
 According to Cardozo, Welfare of society is the final cause of law and all other methods
are dominated by this cause. When social needs demand one settlement, the judges must
bend Philosophy, History and Custom in the pursuit of larger end.
 According to him, the method of sociology is the method par excellence for filling up the
gaps in the written law.
 The concept of social welfare is in many respects analogous to the “bonum commune” in
the definition of law by Saint Thomas Acquinas. It does not concern with the size of the
gap to be filled. He is more concerned with the principle that shall determine how the gap
is to be filled; the emphasis is on the method of selection.
 The standards or patterns of utility and morals will be found by the judge and the
legislators in the life of the community. The legislators creates by framing new rules
suited to the needs of the community for which he legislate, the judges legislate only in
the gap left by the legislation, but cannot be blind to the need of the community.
 The social served by symmetry and certainty must be balanced against the social interest
served by equity and fairness or other elements of social welfare is the hallmark of
judicial process.

In Rose v. Wade (1973);

 An unmarried pregnant Texas resident, Jone Rose found it was illegal in the state of
Taxes to have an abortion. Texas law only permits abortion if it was to save the life of
mother. Rose filed a law suit against Wade the district attorney of Dallas cou ty on the
ground of it violating personal liberty and the right to privacy. They argued that the first,
fourth, ninth and fourteenth arguments were involved in the decision.
 The State argued that, it was a state matter and should be left up to the people of the state
to decide.
 The supreme Court invalidated any state law that prohibit first trimester abortions.

8.4 Conclusion
Cardozo does not take sides with Coke, Blackstone and Hale who held that judges did not
legislate. He also does not take sides with Austine, Holland, and Gray who held that in reality
there is no law except the decisions of court.

Cardozo places stress upon the First and Fourth Method i.e The method of philosophy and the
method of sociology. The method of philosophy give the law stability, certainty and
predictability. The method of sociology gives room for the exercise of judgement by the court to
mitigate the harshness of strict application of a rule which would work a hardship.

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9 Logic and growth in law by Julius Stone.
Julius stone (1907- 1985), Professor of Jurisprudence and international law at University of
Sidny (1942 – 1975). He was disciple of Sir Roscoe Pound. He is the author of several scholarly
books, among which the most important is “Legal System and Lawyers reasoning (1964), The
Province and Function of Law (1947), Human Law and Human Justice (1965), Social Dimention
of Law and Justice (1966).

Julius Stone effectively correlated the effect of Jurisprudence in the light of application of law
“Jurisprudence is the lawyer’s extraversion. It is the lawyers examination of the precepts, idea
and techniques of the law in the light derived from present knowledge in discipline other the
law”.

9.1 Version Ratio Decidendi

Professor Stone distinguishes two version of ratio decidendi namely, Prescriptive Version and
Descriptive version.

 Prescriptive Version means; “ How the ratio may be applied to a future case”, the phrase
ratio decidendi refers to a normative judgement requiring the later court to choose the
particular ratio decidendi as legally required i.e. as the binding ratio decidendi.
 Descriptive Version means; “Ratio from the original case”, the phrase imports an
explanation of the court's reasoning to its conclusion based on sociological, historical and
even psychological inquiry. And the finding from such an inquiry is true or untrue as a
matter of fact. This may be sought at various levels. The Descriptive Ratio the rule that
the judge who decides the case intended to lay down and apply to the facts.

We may be able to identify the ratio in the precedent case but it is not possible to directly apply it
to a future case. Reason being, the precedent case and the future case will never be precisely
identical. There will always be distinctions between the two. There are very slim chances that
identical facts in the past will occur in the future,Thus, there needs to be a level of generality.

Prescriptive Ratio is the rule that a latter court concedes him to have power to lay down. Julius
Stone observes that an automobile in bad repair is not the same thing as opaque bottle containing
dead snail. Yet judicial creativity has made it possible to extend the similar thrust of Donoghue
v. Stevenson to a wide range of differing decisional situations.

We cannot be dogmatic or rigid in insisting that there is only one or single ratio decidendi which
must inevitably follow once the material facts are sifted as day follows night. Classical theory;
the wide-spread view is which considers the whole notion that a single case could stand for a
single ratio decidendi as a complete illusion.

Professor Julius Stone has listed a number of ways in which the level of generality could be
formulated from the case Donoghue v. Stevenson (1932);

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 (a) Fact as to the Agent of Harm. Dead snails, or any snails, or any noxious physical
foreign body, or any noxious foreign element, physical or not, or any noxious element.

(b) Fact as to Vehicle of Harm. An opaque bottle of ginger beer, or an opaque bottle of
beverage, or any bottle of beverage, or any container of commodities for human
consumption, or any containers of any chattels for human use, or any chattel whatsoever,
or anything (including land or buildings).

(c) Fact as to Defendant’s Identity. A manufacturer of goods nationally distributed through

dispersed retailers, or any manufacturer, or any person working on the object for reward,
or any person working on the object, or anyone dealing with the object.

(d) Fact as to Potential Danger from Vehicle of Harm. Object likely to become dangerous
by negligence, or whether or not so.

(e) Fact as to Injury to Plaintiff. Physical personal injury, or nervous or physical personal
injury, or any injury.

(f) Fact as to Plaintiff’s Identity. A Scots-woman or a woman, or any adult, or any human
being, or any legal person.

(g) Fact as to Plaintiff’s Relation to Vehicle of Harm. Donee of purchaser, from retailer
who bought directly from the defendant, or the purchaser from such retailer, or the
purchaser from anyone, or any person related to such purchaser or other person, or any
person into whose hands the object rightfully comes, or any person into whose hands it
comes at all.

(h) Fact as to Discoverability of Agent of Harm. The noxious element being not
discoverable by inspection of any intermediate party, or not so discoverable without
destroying the saleability of the commodity, or not so discoverable by any such party who
had a duty to inspect, or not so discoverable by any such party who could reasonably be
expected by the defendant to inspect, or not discoverable by any such party who could
reasonably be expected by the court or a jury to inspect.

(j) Fact as to Time of Litigation. The facts complained of were litigated in 1982, or any
time before 1932, or after 1932, or at any time.

While it is impossible to determine the exact level of generality, common sense suggests the
prescriptive ratio will inevitably fall in the middle ground. The ratio decidendi becomes useless
if it is restricted to the precise facts of the precedent and also becomes useless if it is widened
infinitely.

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10 Seriatim Opinion
A seriatim opinion is an opinion delivered by a court with multiple judges, in which each judge
reads his or her own opinion rather than a single judge writing an opinion on behalf of the entire
court. A seriatim opinion refers to the practice in appellate courts for each judge on the bench to
write, and deliver, individual opinions detailing his or her views on a case, as opposed to having
a single opinion delivered by one Justice on behalf of the entire court.

Before Chief Justice John Marshall came to the bench in 1801, each justice would typically write
his own separate opinion. The default rule was a series of opinions, called seriatim opinions (a
series of opinions). This meant that there were many more opinions than decisions. Once the
justices published their opinions, the lawyers would have to count the justices to try to figure out
what propositions of law did the majority support and which propositions were dictum. John
Marshall foresaw that the Court would be stronger if it could speak with one voice and, by force
of his will, he persuaded the others to agree.

He began this practice in Talbot v. Seeman (1801), the very first case that Chief Justice Marshall
decided. The issue was whether Captain Talbot was entitled to any salvage in the ship, The
Amelia. Marshall spoke for the Court and there were no dissents. Nowadays, seriatim opinions
are rare, but they do occur. Van Orden v. Perry (2005) is a modern example. The Supreme Court
opinions in Van Orden along with its companion case, McCreary County v. ACLU (2005) was
also five opinions.

As a matter of thumb rule, constitutional courts in common law countries have preferred
writing seriatim judgments, or ‘By the Judges’ form of writing judgments. This means that every
judge on the bench puts forth his reasoning and application of law behind the arrival at his
judgment. Following which, the observers would have to go through each of those individual
reasoning’s and determine the central premise which led to that specific conclusion.

10.1 Seriatim Opinion in India

Article 145 (5) of the constitution of India, No Judgment or no such opinion shall be delivered by
the Supreme Court save with the concurrence of a majority of the judges present at the hearing of
the case, but nothing in this clause shall be deemed to prevent a judge who does not concur from
delivering a dissenting judgment or opinion.

However, things are quite different when it comes to common law countries like India, where a
Judge is not merely a functionary or a civil servant. His position can be understood in words
of Professor Roger Perrot (esteemed lawyer and Senior Partner at Ozannes)“The judge has the
immense power to transform a readymade garment (legislated law) into a tailor-made suit at the
price of alterations that may be considerable and sometimes rather unexpected. From this, it has
often been deduced that the judicial authority is thus able to perform a work of
rejuvenation”. Thus, as opposed to civil law countries, judges of common law countries have a
greater role to play in not just maintaining the stance of law but also aiding in its evolution.

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During this period Indian Supreme Court was blessed with some democratic Chief Justices who
created the ambience where dissent was flourished viz. Justice H.J. Kania, Justice Patanjali
Shastri, Justice M.C. Mahajan, and Justice B.K. Mukherjee etc.]. Justice S. B. Sinha, one of the
contemporary dissenters of the Indian Supreme Court argues that "Dissent means existence of
democracy." He said, "Dissent means expression of own opinion by the judge. It does not affect
the verdict.

For instance the one possible reason behind the high rate of dissent in the year 1950, 1951 and
1952 was the presence of one such judge i.e. Justice Fazl Ali who was known for his dissenting
opinions[His dissenting opinions in A.K. Gopalan v. State of Madras, Romesh Thaper v. State of
Madras and Brij Bhusan v. State of Delhi are quite famous in the legal fraternity]. Similarly,
Justice A. K. Sarkar and Justice K. Subba Rao made their presence felt in the legal academia
through their dissenting opinions which is clearly visible in the data of years 1961, 1962, 1963
and 1964. Justice Hidaytullah and Justice J. C. Shah also contributed in this high rate of dissent.
It would be pertinent to mention that Justice A. K. Sarkar has maximum dissents (49 dissenting
opinions) to his credit

A dissent, therefore, is a valuable tool that opens the door for the evolution of law. Many times,
dissenting opinions have been adopted as a majority opinion in subsequent judgments; the most
famous instance being the dissenting opinion of J. Fazl Ali in A.K. Gopalan v. State of Madras,
which was later adopted in the case of Maneka Gandhi v. Union of India. The decision in the
former case was overruled and dissent of Fazl Ali led to the adoption of a procedure that must be
“just, fair and reasonable”.

RIT Foundation v. Union of India (2022); On May 2022, The Two judge bench of Delhi High
Court passed a “split verdict” on a batch of petitions challenging the exception to Sec.375 of the
Indian Penal code, which exempt forceful sexual intercourse by a man with his own wife forms
the offence of Rape. Justice Rajiv Shakdher has held that the exemption to the husband from the
offence of marital rape is unconstitutional. Exemption 2 pf Sec.375, 376B IPC, Sec.198B of
Cr.P.Cwas there fore struck down by him as violation of Article 14.

However Justice Hari Shankar said, that he does not agree with Justice Shakdar, Justice Hari
Shankar has held that exemption 2 of Sec.375 does not violate Article 14, and that the exception
is based on an intelligible differentia. Both the judges granted certificate to appeal to Supreme
court saying Substantial question of law is involved.

In ADM Jabalpur v. Shivakant Shukla AIR 1976 SC 1207. In this case, Justice H.R.Khanna
delivered his famous dissenting opinion which took a strong stand that Article 21 is not the sole
repository of the right to life and personal liberty, and such right could not be taken away under
any circumstance without the authority of law, in a society governed by rule of law.

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In 2020, The Permanent Court of Arbitration, in Enrica Lexie case, has unanimously held that
India is entitled to claim compensation from Italy. It also held (by 3:2 majority) that the Marines
are entitled to immunity in relation to the acts that they committed during the incident of 15
February 2012,The Tribunal pronounced an Award in Enrica Lexie Case holding that Italy has
acted in breach of the Article 87, paragraph 1, subparagraph (a), and Article 90 of the United
Nations Convention for the Law of the Sea and that India is entitled to payment of compensation
in connection with "loss of life, physical harm, material damage to property.

In sep 2018, The very act of passing the Aadhaar Act 2016 as a money bill was held to be
unconstitutional by Justice Chandrachud, dissenting from the majority view expressed through
Justice Sikri's judgment that there was no impropriety in introducing it as money bill.

11 Dissenting Judgements
The judgments made by one or more judges of a particular court who disagree with the majority
opinion and so convey their opinions on the case, which differ from the majority opinion of the
bench. Furthermore, by publishing such dissent, the writer can define his or her position on the
subject and the necessity for a distinct viewpoint.

According to Professor John H Merryman ( Professor of Stanford Law School), Judges function
is merely to find the right legislative provision, couple it with the fact situation, and bless the
solution that is more or less automatically produced from such a union.

Justice N.V Ramanna; I feel after 22 years as a Judge, we need to think about writing judgments.
The consumer of justice must know what the end result is. That is more interesting. Reasoning
and conclusion must be clear.

In New Maneck Spinning v. The Textile Labour, AIR 1961 SC 867. In this case, the dissenting
opinion of Justice Subba Rao laid the foundation of the Payment of Bonus Act, 1965

11.1 Dissenting Judgment in a Democracy

The Right to Freedom of Speech and Expression is guaranteed by the Indian Constitution to
every citizen, and this freedom includes the ability to openly express one’s ideas, opinions, and
thoughts through speech or text. This right also involves the ability to think and organize one’s
thoughts; the ability to be unaffected by outside influences and to have a wholly independent
viewpoint. This necessitates a discussion of the importance of the right to freedom of speech and
expression, as well as dissenting judgments, as a benchmark of democracy. The significance of
recognizing dissenting viewpoints is closely related to judicial independence and democracy in
its purest form.

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Article 145 ( 5) of Indian Constitution “ No Judgment and no such opinion shall be delivered by
the Supreme Court save with the concurrence of a majority of the judges present at the hearing of
the case, but nothing in this clause shall be deemed to prevent a judge who does not concur from
delivering a dissenting judgment or opinion.

In Plessy v. Ferguson (1896); the issue was whether there should be separate compartments for
white persons and persons of coloured races in trains. The use of a compartment meant for
another race could entail the imposition of a fine or punishment. The U.S Supreme Court (7:1)
majority upheld this policy of segregation. Justice John Marshall Harlan was the lone dissenter
and argued that there should be no discrimination and all citizens are equal before the law. This
dissenting opinion leads to 14th U.S constitution amendment (1868) “ State That granted
citizenship and equal civil and legal rights”.

Brown v. Board of Education of Topeka (1954), The view of Justice Marshall in Plessy v.
Ferguson has been upheld in this case in which, the U.S. Supreme Court ruled unanimously (9–
0) that racial segregation in public schools violated the Fourteenth Amendment to
the Constitution, which prohibits the states from denying equal protection of the laws to any
person within their jurisdictions. The decision declared that separate educational facilities for
white and African American students were inherently unequal.

11.2 Dissenting Judgment in Indian

Article 145 (5) of the constitution of India, No Judgment or no such opinion shall be delivered by
the Supreme Court save with the concurrence of a majority of the judges present at the hearing of
the case, but nothing in this clause shall be deemed to prevent a judge who does not concur from
delivering a dissenting judgment or opinion.

The practice of writing per curiam judgments can also be seen as violative of Article 145 (5) of
the Indian Constitution. This empowers a Judge, who does not concur with the majority opinion,
to deliver a dissenting judgment or opinion. While delivering a dissenting opinion is the
complete discretion of the judge, yet if the current trend continues then there will be no scope left
to exercise that discretion.

In A.K. Gopalan v. The State of Madras (1950); held by 6 judge bench, in which the Preventive
Detention Act IV of 1950 was challenged, Justice Saiyid Fazl Ali defied his fellow justices and
delivered a strong exposition. He said that the constitution’s essential rights do not operate as
separate rules, but rather must be viewed collectively because they overlap. Interpretation of
fundamental rights ( article 19 (1)(d), Article 21) is now widely accepted, but at the time, his
exposition was merely dissent from the majority.

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In Kharak Singh v. State of Uttar Pradesh (1962); held by 6 judge bench, was concerned with
police monitoring and domiciliary visits. Justice Subba Rao wrote in his dissenting opinion: “It is
true that our constitution does not directly identify a right to privacy as a fundamental right(
Article 21), but the claimed right is an essential part of personal liberty,”. Only in 2017, a four
judge bench of the Supreme Court, in the landmark case of K.S. Puttaswamy and Ors. v. UOI
and Ors., strike down the Kharak Singh decision and rule that, the right to privacy is a
fundamental right under the Indian constitution (Article 21 and article 14), confirming what
Justice Subba Rao had said in his dissenting opinion in the Kharak Singh case.

In ADM Jabalpur v. Shivkant Shukla (1976), Held by 7 Judge bench, Justice H.R. Khanna
disagreed with the majority judges, who decided to hold that “ Section 16A(9) of the
Maintenance of Internal security Act(MISA) 1971, was constitutionally valid, in view of
presidential order under Article 352 (1) read with Article 359 (1), no person has locus Standi to
move any writ petition under Article 226 before High Court for Habeas Corpus or any other writ
or order or direction to challenge legality of order of detention on ground that order is not in
compliance with Act.thus Article 14, Article 21 and Article 22 become suspended”.

In Justice K.S Puttaswamy(Retd). V. Union of India (2017); The government had certified the
Aadhaar Bill as a money bill, allowing it to be passed without a majority vote in the Rajya
Sabha. In a 4:1 decision, a five-judge bench led by then-Chief Justice Dipak Misra maintained
the Aadhaar Act. The majority view expressed through Justice Sikri’s opinion indicated that
there was nothing wrong with presenting and pushing the Aadhaar Act through Parliament as a
money bill, whereas Justice Chandrachud’s dissent begins with the legislative process that
kicked off the Aadhaar Act, 2016. Chandrachud has called it a “fraud on the Constitution”. In his
dissenting opinion, Justice Chandrachud said the Aadhaar ruling addressed two important
questions: (1) Whether the Speaker’s decision to certify a bill as a “Money Bill” under Article
110(1) is final and binding, and (2) Whether such decision could be challenged in court; and, if
yes, whether the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits, and
Services) Act, 2016 (the Aadhaar Act) was correctly certified as a ‘Money Bill’.” He further
claimed that the Aadhaar initiative infringes on fundamental rights such as the right to privacy
and equality, protected by Article 21.

That the accused cannot choose investigating agency is a settled principle. However, in
exceptional circumstances, the Court can order change of investigating agency, if there are
circumstances to show that investigation is biased. In the Narmada Bai v State of Gujarat
(2011), the SC ultimately ordered investigation by CBI in a case where the local police had
already submitted charge sheet.

Justice D Y Chandrachud expressed a strong dissent in the Bhima Koregaon (2018), case to hold
the arrests of five activists to be wholly baseless and politically motivated. While the majority of
CJI Dipak Misra and Justice A M Khanwilkar turned down the plea for a probe by Special

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Investigation Team, Justice Chandrachud opined that an SIT was necessary as Maharashtra
police was biased in the matter.

In Bengal Immunity Co. v. State of Bihar & ors (1955); It’s a case of levy of Sales Tax on Inter
State Sales and Purchase of goods and servoices, the freedom of trade referred to in article
301 has been made to give way to the States' power of imposing non-discriminatory taxes
by article 304 so must article 286(2) be regarded as subject to the States' taxing power, for the
protection of article 286(2) could not have been intended to be larger. This argument was refuted
by the dissenting judgment in that “The State of Bombay v. The United Motors (India)
Ltd.(1953) and also by the dissenting judgment in The State of Travancore Cochin v.
Shanmugha Vilas Cashew Nut Factory (1954).

In Janhit Abhiyan v. Union of India (2022); The Supreme Court by 3:2 majority upheld the
validity of the 103rd Constitutional Amendment which introduced 10% reservation for
Economically Weaker Sections (EWS) in education and public employment. Justices Dinesh
Maheshwari, Bela Trivedi and JB Pardiwala upheld the 103rd Constitution Amendment, Justice
S Ravindra Bhat wrote a dissenting judgment, which was concurred with by the Chief Justice of
India Uday Umesh Lalit. Justice Bhat concurred with the majority opinion to the extent that
economic criteria can be a basis for affirmative action with respect to affirmative action under
Article 15 of the Constitution (such as reservation in education).

11.3 Conclusion
There is no denying that the majority opinion lays the foundations of law, but the dissenting
opinion lays the road for its evolution. A dissent, therefore, is a valuable tool that opens the door
for the evolution of law. Often, a dissenting opinion in one case gets adopted as a majority
opinion in a subsequent one. For instance, the dissenting opinion of Justice Fazl Ali in A.K.
Gopalan v. State of Madras, was adopted later in the case of Maneka Gandhi v. Union of India.
The decision in the former case was overruled and dissent of Fazl Ali led to the adoption of a
procedure that must be ‘just, fair and reasonable’.

12 The emergence of Basic Structure Doctrine

The word Basic Structure is not mentioned in the constitution of India. The concept developed
gradually with the interference of the judiciary from time to time to protect the basic rights of the
people and the ideals and the philosophy of the constitution.
The phrase ‘basic structure’ was introduced for the first time by M.K. Nambiar and other
counsels while arguing for the, petitioners in the I.C.Golak Nath and Ors. v. State of Punjab and
Anr (1967) case, but it was only in 1973 that the concept surfaced in the text of the apex court’s
verdict. a Special Bench comprising 13 Judges of the Supreme Court of India ruled by a majority
of 7:6 that Article 368 of the Constitution “does not enable Parliament to alter the basic structure
or framework of the Constitution. The “Basic Structure doctrine” is the judge made doctrine
whereby certain features of the Constitution of India are beyond the limit of the powers of
amendment of the parliament of India.

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Article 39 (b) & (c) of the Directive Principles of State Policy that required equitable distribution
of resources of production among all citizens and prevention of concentration of wealth in the
hands of a few. The land owners who were adversely affected by such laws challenged the same
and the courts declared these laws as unconstitutional. Parliament by reacting to the decisions of
the courts placed these laws in the ninth schedule of constitution and thus making them immune
from judicial review through first and fourth constitutional amendment (1951 and 1952
respectively). Questions regarding the limitations on the constitution amending power were
raised before the Supreme Courts since 1951 through Shankari Prasad vs. Union of India AIR
1951.
A petition was filed in the Supreme Court of India challenging Article (s) 31A and 31B on the
ground that they abridge or take away rights guaranteed under Part III of the Constitution which
is against the spirit of Article 13(2) and hence should be declared void. In this case, the Hon’ble
Supreme Court held that the power to amend the Constitution including the Fundamental Rights
is conferred under Article 368, and the word ‘Law’ as mentioned under Article 13(2) does not
include an amendment of the Constitution. There is a distinction between Parliament’s law-
making power, that is, the legislative power and Parliament’s power to amend or constituent
powers.
After this, several amendments were brought to the Constitution and once again the scope of
amendments was challenged in the ‘Sajjan Singh v. State of Rajasthan AIR 1965’. The five-
judge bench in ‘Sajjan Singh’ dealt with the validity of the 17th Constitutional Amendment
which had added around 44 statutes to the 9th Schedule. Though all of the judges agreed with the
decision of Shankari Prasad but for the first time in the concurring opinion by Hidyatullah and
Mudholkar JJ doubts were raised on the unfettered power of Parliament to amend the
Constitution and curtail the fundamental rights of the citizens.
Again in Golak Nath v. State of Punjab (1967), 17th Amendment Act, 1964 was challenged in a
very vigorous and determined manner. The Supreme Court ruled by a narrow majority (6:5) that
the Fundamental Rights were non-amendable through the constitutional amending procedure set
out in article 368, (SC prospectively overruled the earlier decisions in cases of Shankari Prasad
& Sajjan Singh Case). 24th Amendment in 1971, 25th Amendment in 1972 & 29th Amendment
in 1972 was carried out.
The doctrine of basic structure had been invoked under the Weimar (German) Constitution. The
German Constitution, 1949 sets out that certain portions of law are immune from amendment in
order to overcome the defects of the Weimar Constitution exploited during the Hitler years.
The judgement of Kesavananda Bharati v.State of Kerala (1973) 4 S.C.C. 225,
In 1970 Sri Kesavananda Bharati, Senior head of a Hindu Mutt situated in Edneer, a village in
District of Kerala, challenged the Kerala governments attempts, under the two State land reform
acts, to impose restrictions on the management of its property. The state government of Kerala
introduced the Land Reforms Amendment Act, 1969. According to the act, the government was
entitled to acquire some of the selected land of which Bharti was the chief. Therefore, on 21st
March 1970 the petitioner moved to Apex Court under Article 32 for the enforcement of rights
under

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● Articles 25 (Right to practice and propagate religion),
● Article 26(Right to manage religiously affairs),
● Article 14(Right to Equality),
● Article 19(1) (f) (Freedom to acquire property),
● Article 31(Compulsory Acquisition of Property).
Meanwhile, when the petition was under consideration by the Court the State Government of
Kerala passed Kerala Land Reforms (Amendment) Act, 1971.
The petitioner in the instant case challenged the validity of Kerala Land Reforms Act , 1963
passed by the state government as unconstitutional. He contended that the impugned Act violated
his fundamental rights guaranteed under articles 14, 19(f), 25, 26 and 31. While the case was
pending in the Supreme Court the parliament passed 24th, 25th, 29th amendments (1971, 1971,
1972 respectively).
In order to sustain his claim before the court, the petitioner amended the petition and challenged
the validity of 24th, 25th, and 29th Amendments. The case was heard by bench of 13 judges of
Supreme Court. 11 judges delivered separate judgments.
24th Amendment Act, 1971
● neutralize the effect of Golak Nath case,
● Parliament introduced certain modifications in Article 13 and Article 368 to assert the
parliament’s amending power and get over the Golak Nath case.
25th Amendment Act, 1971
● inserted a new article 31C
29th Amendment Act, 1972
● The Kerala Land Reforms (Amendment) Act, 1969 and 1971 were included in the Ninth
Schedule of the Constitution in order to making them immune from attack on the ground of
violation of fundamental rights.
Majority of seven judges upheld the validity of constitutional 24th , 25th, and 29th Amendments
overruled its earlier decision in Golak Naths case. Court held that parliament can amend any part
of the constitution including the preamble but the amending power should not affect the basic
features of the constitution. The court stated that the word ‘amend’ in Article 368 does not
provide the Parliament the power to alter the basic structure of the Indian Constitution.
Therefore, In other words parliament by exercising its amending power can not destroy the basic
features of the constitution. Majority of the judges observed that there are certain basic features
of the constitution which cannot be altered in by exercising the powers under article 368;
constitutional amendment which seeks to alter or destroy the basic structure of the constitution is
ultra vires.

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Some of the components of basic structure are:

● Supremacy of the Constitution,

● Rule of law,

● Separation of Powers,

● Judicial Review,

● Articles 32 and 226,

● Federalism,

● Secularism,

● Sovereign,

● Democratic,

● Objectives specified in the Preamble to the Constitution,

● Principle of equality, not every feature of equality but the quintessence of equal justice,
‘essence’ of other Fundamental Rights in Part III,

Republican structure Freedom and dignity of the individual,

● Unity and integrity of the Nation,

● Concept of social and economic justice, Part IV in total,

● Independence of judiciary etc.

The judgments delivered by Chief Justice Sikri, Justices Shelat and Grover, Hegde and
Mukherjea and Jagannathan Reddy belonged to the first category and they held that the
amending power was limited by various inherent and implied limitations in the Constitution
including Fundamental Rights.

Six other judges Justices A.N. Ray, Palekar, Mathew, Dwivedi, Beg, and Chandrachud belonged
to second category and in six separate judgments held that there were no limitations on the
amending power of Parliament.

Justice Khanna held that the amending powerw as plenary in every sense, but the word
“amendment” in Article 368 by its limited connotation did not lend itself to abrogating the
Constitution. Any amendment to the Constitution had necessarily to retain “the basic structure
and framework of the Constitution after the amendment and cannot have the effect of destroying
or abrogating the basic structure or framework of the Constitution.”

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They in their conclusions observed that Article 368 did not include the power to damage,
abrogate, emasculate, destroy, change or alter the basic features elements, fundamental features
or framework of the Constitution.

Sikri, CJ. explained that the concept of basic structure included:

Supremacy of the Constitution

Republican form of government, Secular character of the Constitution, Maintenance of

separation of powers, Federal character of the Constitution.

Shelat, J. and Grover, J added two more basic features to this list:

The mandate to build a welfare state contained in the Directive Principles of State Policy.

Unity and integrity of the nation.

Hegde, J and Mukherjea, J. identified a separate and shorter list of basic features:

Sovereignty of India, Democracy Unity of the Nation, Essential Individual Freedoms, Mandate
to build a welfare state.

In I.C. Golak Nath and Ors. v. State of Punjab and Anr, AIR 1967 SC 1643

That it is laid down by the Supreme Court that Fundamental rights cannot be abridge or take
away by exercise of a mandatory process in Article 368, any further proceeding in these direction
would be unconstitutional and illegal unless Part III in general and Article 13(2) in particular
complied with.

In Indra Sawhney v. Union of India (1992).

Issue before S C was, Validity of Mandal Commission Report and scope and extent of Article
16(4) of constitution. Backward class in Article 16(4) is not similar to as socially and
educationally backward in Article 15(4). Backward class of citizen cannot be identified only and
exclusively with reference to economic criteria. Social, educational and economical background
to be taken in account. Reservation shall not exceed 50%.

Unamendability of basic structure in itself constitutes basic structure of constitution.

In Minerwa Mills v.Union of India AIR 1980 SC 1789,

The issue before SC was, whether Sec.4 of constitution (42 nd Amendment) act of 1976 amending
article Article 31C of Constitution is constitutionally valid.

It was held that sec.4 of the 42nd Constitutional amendment Act, is held by court beyonding the
amending power of parliament and void. It damage the basic or essential feature of constitution

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and destroy its basic structure by totally exclusion of challenge to any law being inconsistent
with, or take away or abridge any rights conferred by article 14 or Article 19 of Constitution, if
law is to giving effect to state policy towards securing all or any of the princioles laid down in
part IV of Constitution.

 Limited power of parliament to amend the constitution.

 Harmony and balance between fundamental rights and directive principles.
 Power of judicial review were observed and identified to be the basic structure elements
In Waman Rao v. Union of India (1981) 2 SCC 362, a ceiling was imposed on agricultural
holdings by the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961. While this
act’s validity had been challenged for years, the court rejected the idea that the verdict of
Kesavananda Bharati could apply retrospectively, as in, on amendments and legislation
introduced prior to when the judgement was made.
The validity of Article 31B read with ninth schedule is concerned, we hold that all Acts and
Regulations included in the Ninth Schedule prior to April 24, 1973 will receive full protection of
Article 31B.Those laws and regulations will not be open to challenge on the ground that they are
inconsistent with or take away or abridge any of the rights conferred by any of the provisions of
part III of the constitution. The various constitutional amendments by which additions were
made to the ninth schedule on or after 24th april 1974, will be valid if they do not damage or
destroy the basic structure of Indian Constitution.
M. Nagraj v. Union of India AIR 2007.Doctrine of equality under article 14 came to be
recognized as basic element of constitution in the case.
APPLICATION OF BASIC STRUCTURE THEORY

In Indira Gandhi v. Raj Narayan AIR 1975 SCC 2299 ; popularly known as Election Case. In
this case the appellant Mrs. Indira Nehru Gandhi the then prime Minister filed an appeal before
the SC from the judgments of Allahabad HC, wherein the election of the appellant to the lok
sabha was invalidated on the ground of malpractice and corrupt practice Under the
Representation of Peoples Act, 1951. During the pendency of appeal the parliament passed the
Constitution 39th Amendment Act, 1975 which inserted article 329A in the constitution to
nullify the effect of Allahabad HC judgment and also withdraw the jurisdiction of all the courts
including SC over the disputes related to elections involving speaker and prime minister,
including the present appeal which was sub-Judice before the SC.

Clouse (4) of newly inserted article 329A, which directly concerned the pending appeal stated
that no law made prior to the commencement of 39th Amendment in so far as it relates to
election petitions apply or would be deemed to have applied to election of the prime minister to
either house of parliament, it further provided that such election would not deemed to be void or
ever to have become void and that notwithstanding any decision of any court before 39th
Amendment , declaring such amendment to be void, such election would continue to be valid.
The Supreme Court applied the theory of basic structure and struck down clause (4) of Article

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329-A, on the ground that it was beyond the amending power of the Parliament as it destroyed
the basic structure of the constitution, it was interpreted to include democracy in the sense of free
and fair elections. Equality in the sense of rule of law and the principle of separation of powers.

The constitutional basis of the basic structure was taken to be binding precedent by the court in
Raj Narayan case and the court confirmed itself to apply the doctrine to a new set of legal and
factual circumstances.

In L. Chandra Kumar v. Union of India(1997) 3 SCC 261 stated that the power of judicial review
under Article 32 of the Supreme Court and Article 226 of the High Court is part of the basic
structure doctrine and these powers cannot be diluted by transferring them to administrative
tribunals.

In M. Nagraj v. Union of India (1999) 7 SCC 580, the court reviewed the 77th, 81st and 85th
Amendments with regards to the retroactive introduction of Articles 16(4A) and 16 (4B) to
provide reservations. While the contention was that the right to equality is part of the basic
structure of the constitution and thus, these amendments cannot be made, the Court was of the
opinion that the basic structure doctrine is uncalled for in this case as while the right to equality
does remain part of the basic structure, the ability to introduce seniority or create equity is not.

In R. Coelho v. State of Tamil Nadu (2006) 8 SCC 212 ; the court established that any and all
legislations that pose a threat to the basic structure of the Constitution are subject to judicial
review, not just constitutional amendments. Here changes made to the Ninth Schedule were
brought in contention and the court ruled that when such changes are infringing upon the
Fundamental Rights, they are subject to judicial review and can be struck down.

State of West Bengal v Committee for Protection of Democratic Rights, West Bengal, AIR 2010
SC 1476; The fundamental rights, enshrined in Part III of the constitution, are inherent and
cannot be extinguished by any constitutional or statutory provision. Any law that abrogates or
abridges such rights would be violative of the basic structure doctrine.

Parliament’s amending power is not absolute Article 368 and the supreme court is final
interpreter of the constitution. In essence basic structure theory is a limitation on Parliament’s
amending power. There is no hard and fast rule for basic feature of the Constitution. Different
judge keep different views regarding the theory of basis structure but at one point they have
similar view that parliament has no power to destroy the 'basic structure' or framework of the
constitution.

Rajeev Dhavan observed that even the nine judges who subscribed to some versions of the
doctrine of implied limits did not do so for the same reasons.

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Mr Seervai observed that it is difficult to discover the ratio decidendi of the case in Kesavananda
Bharati. At best, it may be possible to elucidate set of principles and to indicate the weight of
agreement or disagreement attached to each principle.

Prof. Upendra Baxi emphatically denies that such theories are analytically possible and he
further maintains that it is a mistake to think (with respect) that where eminent jurists fail to
systematise the holding of a case, eminent judges will some how succeed.

In Janhit Abhiyan v. Union of India (2022); The Supreme Court by 3:2 majority upheld the
validity of the 103rd Constitutional Amendment which introduced 10% reservation for
Economically Weaker Sections (EWS) in education and public employment. In order to examine
the proposition - whether economic criteria as the sole basis for affirmative action is violative of
the basic structure doctrine, Justice Maheswari referred to a catena of judgments of the Apex
Court.

 Kesavananda Bharati v. State of Kerala And Anr, the Apex Court had held welfare state
to be one of the main objectives of the Constitution. He observed that in its effort to
ensure all-inclusive social-economic justice, the State cannot deny affirmative action to
the economically disadvantaged merely because they are not suffering from any other
disadvantages.
 M.R. Balaji And Ors. v. State of Mysore And Ors., to note that the Court had stated that
affirmative action must be based on an objective approach, free from external pressures,
and intended to do social and economic justice.
 R. Chitralekha And Anr. v. State of Mysore And Ors., where the definition of
'backwardness' acknowledged by the Apex Court was devoid of any caste consideration,
but included criteria like, occupation, income and other economic factors. It was asserted
that mere exclusion of caste would not render a classification unconstitutional if it
satisfies the other tests.
 Janki Prasad Parimoo And Ors. v. State of J&K And Ors. was also relied upon, wherein
the Apex Court had noted that India social and educational backwardness is associated
with economic backwardness.
 He emphasised on the observation of CJ, AN Ray in State of Kerala And Anr. v. N.M.
Thomas And Ors. on substantive equality; that equality of opportunity for unequals
furthers inequality. And thus, differential treatment in standard of selection falls within
the concept of equality. Justice Ray had also noted that the Government's affirmative
responsibility to eliminate social, economic and other inequalities is crucial to the
Constitutional law.

CONCLUSION

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The basic structure to the Constitution is well established as its contents cannot be completely
determined with any measure of finality until a judgement of the Supreme Court spells it out.
Since Kesavananda Bharati case overruled Golaknath case it cleared the Parliament’s way to
fulfill their obligations to create a welfare state and an egalitarian society. Nevertheless the
sovereign, democratic and secular character of the polity, rule of law, independence of the
judiciary, fundamental rights of citizens etc. are some of the essential features of the Constitution
that have appeared time and again in the apex court's pronouncements. In spite of the severe
criticism of the so-called “view of the majority”, the acceptance of “basic structure doctrine” in
cases subsequent to Kesavananda Bharati this “view of the majority” is the law of India, clearly
and emphatically expressed. If the historical background, the preamble, the entire scheme of the
constitution and the relevant provisions there of including article 368 are kept in mind then there
can be no difficulty in determining the basic structure theory.

Praveen N Pillai (MBA, LL.B, LL.M (1st sem) BSOLS Page 61