Interpretation of statutes is a path towards judicial process. Outcome of the judicial process is justice.

22.08.2022
● DM Aravali v. Chander Hass
● Cardozo –
1. Principles of law – established/devised – due process, exclusion of extraneous
considerations.
2. Truth
3. Reason – Dignity, eliminating biases.
4. What are the sources of information that are relied upon?
5. Consistency – Importance of precedents.
23.08.2022
● Chander Hass
1. The SC reinstated the judgment of the trial court. The SC also quoted Cardozo. Balacing
b/w judicial restraint and judicial overreach.
2. Facts – The plaintiffs were appointed Mali (gardener) in the service of the defendant-
appellant, a golf club run by the Haryana Tourism Corporation in 1989 and 1988 respectively on
daily wages. Subsequently, in 1989, they were told to perform the duties of Tractor Drivers,
though there was no post for tractor driver in the employer's establishment. However, for a
number of years, they continued to be paid wages for the post of Mali.
3. Reference to Frankfurter, J. of the SCOTUS in Marbury v. Madison – Judiciary must be on
guard against encroaching beyond its proper bounds, and not the less so since the only restraint
upon it is self-restraint.
4. Tata Cellular v. UoI
● Cardozo –
1. The Constitution overrides a statute, but a statute, if consistent with the constitution,
overrides the law of judges. In this sense, judge-made law is secondary and subordinate to the law
that is made by legislators.
2. Cardozo quotes Gray to note – The difficulties of so-called interpretation arise when the
legislature has had no meaning at all; when the question which is raised on the statute never
occurred to it; when what the judges have to do is, not to determine what the legislature did
mean on a point which was present to its mind, but to guess what it would have intended on a
point not present to its mind, if the point had been present.

25.08.2022
● P Ramachandra Rao v. State of Karnataka – Reference to Salmond on Principles of Jurisprudence –
Legislation is that source of law which consists in the declaration of legal rules by a competent
authority. When judges by judicial decisions lay down a new principle of general application of the
nature specifically reserved for legislature they may be said to have legislated, and not merely
declared the law.
Judicial law-making is incidental to the solving of legal disputes; legislative law-making is the central
function of the legislator. (Important)
Paragraph 24 – “...courts lack the facilities to gather detailed data or to make probing enquiries.
Reliance on advocates who appear before them for data is likely to give them partisan or inadequate
information. On the other hand if courts have to rely on their own knowledge or research it is bound
 to be selective and subjective. Courts also have no means for effectively supervising and
implementing the aftermath of their orders, schemes and mandates.”
Paragraph 25 – “The primary function of judiciary is to interpret the law. It may lay down principles,
guidelines and exhibit creativity in the field left open and unoccupied by Legislation.”
Prof. SP Sathe on judicial activism – He cautioned against Court "legislating" exactly in the way in
which a legislature legislates. He observed by reference to a few cases that the guidelines laid down by
the court, at times, cross the border of judicial law making in the realist sense and trench upon
legislating like a Legislature.
● Padamasundara Rao v. State of TN (2002) –
“A statute is an edict of the legislature. The language employed in a statute is the determinative factor
of legislative intent. The first and primary rule of construction is that the intention of the Legislation
must be found in the words used by the Legislature itself. The question is not what may be supposed
and has been intended but what has been said.”
● Cardozo –
1. Methods of judicial process – Philosophy, history, tradition and sociology. He also talks
about adherence to precedents.
2. Legal Smithy – Precedents are not the sole authority of law (tools) needed for the legal
armory (smithy). Living Oracle of Law – Judges in Blackstone’s livid phrase – judges look to the
common law rules that fit the case in question.
3. Jus Scriptum –
Three forces – Inherited Instincts, Traditional Beliefs, and Acquired Convictions – If these three forces,
when combined together, explain how judges take decisions – “total push and pressures of the cosmos”
(James’ phrase). These factors should be balanced reasonably – the resultant is a conception of social
needs.

29.08.2022

Upendra Baxi, ‘On How Not to Judge the Judges’ (1 question in exam will be from this)
● Baxi talks about HM Seervai- voluminous work on Constitutional Law- he criticised Justice
Krishna Iyer’s judgements- Baxi has judged this criticism.
● He also talked about Indian academicians- pure is devoid of any contamination- classic scholarly
writing.
● He seeks to develop a theory of evaluation of the judicial process- what is the criterion of
evaluation of appellate judges- easy approach to criticism will lead to inconsistencies- judges must
be judged on certain criteria- need to remove undesirable elements from this process.
● In Part II he talks about Seervai’s criticism of Iyer on various grounds including-
○ Based on his style/language- he talks about “orthodox judges”- is Seervai appreciating
them or criticising them? Orthodox judges display judicial restraint and less
activism/adventurism. Does this make one ‘orthodox’? We cannot say that being
orthodox is bad in law. It is expected of judges to follow a set pattern and avoid
inconsistencies. Baxi criticises Seervai’s opinion of Iyer-
■ It is not based on evidence.
■ Further, Seervai’s own treatise disproves his objection of Iyer as he quotes Iyer
on many occasions. His problem is not the nation’s problem.
 ■ Good style and craftsmanship is necessary for both orthodox and
unconventional judges- clear expression and close reasoning does not
necessarily result in firm conclusions
■ Seervai trivialises historic phrases like “tryst with destiny” - Baxi finds this
annoying
■ This is vulgar abuse- unbecoming of Seervai
○ Seervai also criticises Iyer on the basis of his reliance on social science data and his
activist bent. (read article)

30.08.2022

Why interpretation of statutes is necessary

● HLA Hart- To address penumbra cases- not possible for parliament to envisage all possible
cases when drafting a statute- interpretation is a tool used to filled gaps- law can neither be too
vague nor too certain
● Joseph Raz- interpretation of law is different from other kinds of interpretation- we do not
interpret any other document out of respect or consequences that may be penal in nature

Difference between legal construction and legal interpretation-

● In the Indian legal system, Courts are only allowed to interpret the law- primary function of the
judiciary is to interpret the law.
● Words have inherent meaning- therefore, they have to be culled out by the interpreter- textualist
approach- for instance, words in common parlance have a predefined meaning.
● Stanley Fish challenges the idea that dictionaries are a reliable source of meaning of words- he
argues the dictionary is only a record of what previous speakers meant by the word- it is not
necessary that future speakers would follow the same meaning.
● The authorial intent approach criticises the textualist approach- they say that words do not
have meaning, they are given meaning by the interpreter.
● Context is the background or circumstances surrounding the law- the parliamentary
debate/constitutional assembly debates may be relied on.
● Textualists argue that if an ordinary meaning is not sufficient or if it gives rise to absurd
conclusions, interpreters must rely on context. They also recognise that intent is an aid to
interpretation. However, proponents of the authorial intent approach argue that interpretation of
text is not sufficient- intent of the author is to be relied on.
● Stanley Fish argues that the interpretation of the interpretive community only matters- lawyers,
judges and other stakeholders.

31/08/2022

Role of the Judge in contract law cases- every case brings forth something new, peculiar to the facts of
the case- the decision would bind only the parties to the contract- the outcome is something NEW.
Baxi says that Seervai’s model is not only theoretical underdeveloped, but also is misleading as a
description of the appellate process. (See highlighted article)
01/09/2022

Interpreting plain meaning of words- ironing of creases in interpretation- R Rudraiah case- “the
principle of ironing out the creases does not justify rewriting a clause or doing violence to its language”.

Tata Consultancy Services v S. o. AP.- Courts should not be overzealous in searching for ambiguities in
words that are plain. Simple words like ‘green ginger’ and ‘lemons’ shouldn’t be made ambiguous.

State of WB v Washi Ahmed- taxation statutes- principle of construction of words- meaning of green
ginger’ discussed- whether it is a vegetable, green or dried- goods described as ‘vegetable’, commonly
known as ‘sabzi’. Tax was levied on green ginger as ‘vegetable’- held that it is not vegetable as it is used to
flavour the food. Popular meaning must be given to the term- classes of vegetables which are grown in a
farm or kitchen garden to take on the table are vegetables- it may not be used as a principle item of the
meal but it should at least be a subsidiary item in the meal. Technical meaning of the term must be
interpreted as per the context.

Bharuch Coconut Trading Co v Municipal Corporation- the co was trading brown coconut and selling it
in Ahmedabad- the Municipal Corporation levied tax- held that brown coconut, though it is dried green
coconut, cannot be regarded as dry fruit.

Manglu Sahoo v Sales Tax Officer- whether chilis and lemons are vegetables- in 1961, Cuttack HC had
decided that they are not- it held that before an item can be considered as vegetable, it must be satisfied
that it is the principle item of meal- in the Manglu Sahoo case it was held that “Comparing the definition of
"spices" with that of "chillies", it would be clear that chillies can also come within the ambit of spices. By
the very mention of the expression spices in the registration certificate as coming within the definition of
grocery no point of law arises as to whether chillies are included within the meaning of "grocery". The
question should have been framed as to whether chillies would come within the definition of spices. We
accordingly reframe the question.

In view of our holding that chillies come within the definition of spices and as spices were entered in the
registration certificate of the purchasing dealer for being purchased tax-free, the petitioner is entitled to
sell chillies to the purchasing dealer free of sales tax.”

Oswal Agro Mills v Collector of Central Excise- Central Excise and Salt Act, 1944- categories of
‘household soap’ and ‘any other soap’- whether toilet soap would be ‘household soap’ or ‘any other soap’-
held, it is household soap. Cannot be considered as industrial soap.

Interpreting the simple meaning of terms used in common parlance should not be unnecessarily
complicated- interpret in light of common meaning- common parlance test- practice in the region must
be taken into account- SC in True Tough Safety Glass Industry said- while interpreting the entry for
taxation, recourse should be made to popular meaning (i.e. meaning attached by people dealing in them)-
should not consider technical/scientific meaning.

Every word can have a primary and a secondary meaning- the exact meaning should be preferred in place
of loose meaning- held in Prithi Pal Singh v UoI. In this case, the meaning of ‘contiguous’ was in
question. The exact meaning should be used- one should be careful not to mix up the secondary meaning
with the loose meaning and loose meaning should not defeat the secondary meaning. Wherever the
secondary meaning points to that meaning which the statute meant, preference should be given to that
secondary meaning.

Lt. Col. Prithi Pal Singh Bedi v. Union of India, (1982) 3 SCC 140-
Facts- The petitioners were officers in the Indian Army. They filed petitions under Article 32 challenging
the validity and legality of the order convening general court martial to try each of them on different
charges. They challenged the constitutional validity of Rules 22, 23, 25 and 40 of the Army Rules, 1954
("Rules' for short) as being violative of the fundamental rights of the petitioner guaranteed under Articles
14 and 21 of the Constitution.
They contended that provisions of the Army Act, 1950, insofar as they provided for deprivation of liberty
by Court Martial, must meet standards of just, fair and reasonable procedure under Article 21. It was
further contended that the restriction or abrogation of fundamental rights must be by Parliament itself
and cannot be done by delegated legislation such as Rules and Regulations. Another issue was how this
matter has to be interpreted in light of Article 33- Article 33 empowers Parliament to decide the extent of
restriction or abrogation of the rights under Part III to ensure the proper discharge of duties by the
Armed Forces and the maintenance of discipline among them.
Observations- Central issue was the interpretation of Rule 40- which provided for composition of court
martial- r 40 imposes two requirements in composition of the court martial-
a. Positive - shall be composed of officers of different corps and departments
b. Negative- it shall not exclusively contain officers from the delinquent officer’s corps or
department
Petitioners contended that “corps” should be read as “army corps”- but the court observed that -
expression ‘army corps’ should not be confused with the expression ‘corps’ as both connote a different
and distinct unit in the Army. The Units designated as “battalion” or “regiment” will be corps for the
purposes of the Act and the Rules. This interpretation would ensure that composition of the Court
Martial does not present great difficulty- the provision would be workable. But if it is interpreted in a very
wide manner- as suggested by the Petitioners- it would be unworkable because it would be impossible to
constitute court martial from different army corps altogether.
“The legislature speaks its mind by use of correct expression and unless there is any ambiguity in the
language of the provision the court should adopt literal construction if it does not lead to an absurdity. If
the literal construction leads to an absurdity, external aids to construction can be resorted to. To ascertain
the literal meaning it is equally necessary first to ascertain the juxtaposition in which the rule is placed,
the purpose for which it is enacted and the object which it is required to subserve and the authority by
which the rule is framed. This necessitates examination of the broad features of the Act.”

05/09/2022

Interpretation of presumptions- cannot be given special treatment. Tax statutes- Harshad Mehta v
Custodian 3 stages for imposition of tax identified- “There is the declaration of liability, that is the part of
the stature which determines what persons in respect of what property are liable. Next, there is the
assessment. Liability does not depend on assessment, that ex hypothesi has already been fixed. But
assessment particularised that exact sum which a person liable has to pay. Lastly, come the methods of
recovery if the person taxed does not voluntarily pay”. "Tax due" usually refers to an ascertained liability.
However, the meaning of the words 'taxes due' will ultimately depend upon the context in which these
words are used.
The natural meaning of the word has to be interpreted in lieu of the intent of the legislature- then that
interpretation has to be applied to the context. Intentment.
Difference between interpretation and construction (important)- construction may provide meaning
which does not exist- for instance, inclusion of right to health as part of article 21 is construction.
Interpretation is the art of finding out the true sense of any form of words, i.e. the sense that the
authors intended to convey- and enabling others to derive from the same idea which the author intended
to convey. Construction is the drawing of conclusions respecting subjects that lie beyond the direct
expression of the text from elements known from and given in the text, conclusions which are in the
spirit, not within the letter of law. Construction combines literal meaning and purposive
interpretation. Construction is a broader exercise than interpretation.
Jasbir Singh v Vipin Kumar Jaggi (2001)- intention of legislature
Text and the context- pari materia
Unjust laws- do not require interpretation- fundamental principles- unjust law is no law.
Bharat Petroleum co. v M Ratnavali (2007)-
Mischief rule- rectify mischief, redundancy (will be discussed later)

06/09/2022
Whether a court may stray from a statute’s text to prevent an unjust result?
When enforcement of a statute renders an absurd or unreasonable result, a court may interpret the statute
in a manner which displays the lawmaker’s true intention. Cardozo- conflicting principles in question-
must see which one has binding force. “The directive force of logic does not always exert itself, however,
along a single and unobstructed path. One principle or precedent pushed to the limits of its logic may
point to one conclusion, another principle or precedent, followed with like logic, may point with equal
certainty to another.” “Civil courts may not add to the pains and penalties of crime. You cannot claim
justice when you yourself are the wrongdoers”.
Riggs v Palmer- the Statute of Will was very clear- outlines who may inherit. Whether murderer can
reasonably inherit from the victim? Clear statutes may fail to have a reasonable result. Principle of ‘no one
can benefit from their own wrong’- this logic prevailed.
Equity- constructive trust- the formula through which the conscience of equity. Property is acquired in
such circumstances that the holder of the legal title may not in good conscience retain the beneficial
interest. Equity, to express its disapproval of his conduct, converts him into a trustee. Such formulae are
merely the remedial devices by which a result conceived of as right and just is made to square with
principle and the symmetry of the legal system.”
Microcosm- judicial process is there in the microcosm.
Jagbir Singh v Vipin Kumar Jaggi- interpretation of section 64 of NDPS Act- whether immunity from
prosecution means that respondent would be able to claim immunity any time during trial or only during
initiation of proceedings- statute must be interpreted contextually- word by word meaning may lead to
interpretation that is inconsistent with lawmaker’s intention- object of section 64 is same as similar
provision in CrPC- similar interpretation- ‘prosecution’ cannot be limited to initiation of proceedings.
Words take their colour from the context in which they are used. Prosecution means entire proceedings.
Bharat Petroleum v M Ratnavali- Burma Shell Act 1976- allowed acquisition and transfer of rights in
Burma Shell Co. to Bharat Petroleum- through the Act, a lease of 30 years was granted to Appellant, post
which they will get a right of renewal- asked for renewal after 30 years but Burma Shell did not agree as
rent had not been paid over 30 years- eviction suit filed by Burma Shell. SC discussed 2 principles- “the
law is harsh but it is law”- equity can supplant the law but not override it- “an unjust law is no law”- a
statute can never be exhaustive- there is always scope to review it in line with pragmatism. Here,
legislative intent was to be found and applied- held that statute must be tested on constitutionality.
Presumption of constitutionality- here right of property is a constitutional right- the Act therefore has to
be construed strictly and in line with the public interest.
“A page of history is worth a volume of logic”- Cardozo. Blackstone talks about common law and
custom- 3 categories of common law-
1. General custom
 2. Particular custom
3. Certain particular laws which by custom are adopted and used by some particular courts of
general and extensive jurisdiction
Goodwin v Roberts- (to be discussed)

07/09/2022

Midsem- Module 1 and 3

Bhatia International v Bulk Trading (2002 3JB SC)- application of Part I of Arbitration Act to
International Commercial Arbitrations- statute should be studied as a whole- contract had arbitration
clause- the clause specified that ICC rules would apply to the dispute- parties agreed that arbitration will
be held in Paris by sole arbitrator- section 9 application for appointment of arbitrators.
Issue- whether section 9 applies to arbitration seated in a foreign country? Para 15- “It is thus necessary
to see whether the language of the said Act is so plain and unambiguous as to admit of only the
interpretation suggested by Mr. Sen. It must be borne in mind that the very object of the Arbitration and
Conciliation Act of 1996, was to establish a uniform legal framework for the fair and efficient settlement
of disputes arising in international commercial arbitration. The conventional way of interpreting a statute
is to seek the intention of its makers. If a statutory provision is open to more than one interpretation then
the Court has to choose that interpretation which represents the true intention of the legislature.”
The legislature cannot foresee all situations that may arise in future- in such cases, duty of Courts is to
expound and not legislate- “The Courts have taken the view that the judicial art of interpretation and
appraisal is imbued with creativity and realism and since interpretation always implied a degree
of discretion and choice, the Court would adopt particularly in areas such as, constitutional
adjudication dealing with social and defuse rights. Courts are therefore, held as "finishers, refiners,
and polishers of legislatures which gives them in a state requiring varying degrees of further processing.”
“If a language used is capable of bearing more than one construction, in selecting the true meaning,
regard must be had to the consequences, resulting from adopting the alternative constructions. A
construction that results in hardship, serious inconvenience, injustice, absurdity or anomaly or which
leads to inconsistency or uncertainty and friction in the system which the statute purports to regulate has
to be rejected and preference should be given to that construction which avoids such results.”
(check final decision in Bhatia)

08/09/2022

What is the Judicial Process?

● What makes the judiciary independent of the State? Article 50 of the Constitution. Whether the
judiciary can be completely separate from the State? Article 50 is a DPSP- goals of the State.
Independence of the judiciary is also a task given to the State.

12/09/2022

(incomplete)

13/09/2022
State of UP v Babu Ram Upadhyay- Rule 1(486) of UP Police Regulations - whether shall can be read as
may - complainant was carrying currency notes of ₹650 in a bundle when he was stopped by the
respondent and searched. Section 7 of the Police Act

Thakur Pratap Singh v Sri Krishna- see

14/09/2022

General and Specific Laws

Whether provisions of the IPC would apply to army personnel? No- special laws may be enacted to apply
to certain laws to certain categories of persons. Generally, lex specialis prevails over lex generalis.
Exceptions- statute begins with a non-obstante clause.
Ajoy Kumar v Union of India 1984- where there are two applicable legislations, in order to determine
which one is applicable the following points must be kept in mind-
1. Legislature has right to alter a law already promulgated through subsequent legislation
2. Special law may be altered, abrogated, or repealed by a later general law by an express provision
3. A later general law will override a prior special law if the two are so repugnant to each other that
they cannot coexist even though no express provision in that behalf is found in the general law.
4. It is only in the absence of a provision to the contrary and of a clear inconsistency that a special
law will remain wholly unaffected by a later general law.
Maruti Udyog v Ram Lal- both statutes contained non-obstante clauses- where both are also special
statutes- an endeavour should be made to give effect to both of them- if still there is a conflict, the later
one shall prevail.
Though the workmen have the right to seek compensation under Workmen Compensation Act, they
cannot be barred from securing remedy under Fatal Accidents Act.
CPC vs Copyright Act- special law will prevail, however, general remedy under CPC cannot be barred
Whether special law is to be interpreted strictly or liberally? Generally, specific legislations have to be
constructed/interpreted strictly.
Important maxims-
a. Generalia specialibus non derogant-
b. Legis posterior priores contrarias abrogant- provisions of a subsequent law take precedent and
override a previous law (Nagendra Chandra v Prabhat Chandra)
Mahalaxmi Metal Industries v K Sushila Devi- TPA vs Tamil Nadu Buildings (Lease and Control) Act-
special provision causing inroads into general law as enunciated by TPA. A special legislation like this
cannot be interpreted in a wide way so as to further infringe the general rights available under the general
law. If this background is kept in mind, most of the problems would not arise.
Whether Landlord’s Act can be applicable to someone who is not a landlord anymore?
Kameshwar Singh v State of Bihar- different provisions of the same statute which are apparently
inconsistent with one another should be so construed as to give effect to all the provisions so as to avoid
a repugnancy.
In Re: B an Advocate of Banaras 1943- harmonious construction- conflicting statutes to be interpreted in
a manner that is consistent with each other.
State of WB v Mohd. Saifi 1966- same statute may have both general and specific provisions- the accused
was acquitted by a special court for lack of jurisdiction can be tried by the court later- after a notification
vesting that jurisdiction with the court. Whether he can be tried by the court now?
15/09/2022

Presumption wrt general and specific laws wrt repealing statutes-

Leela Gupta v Lakshmi Narayan 1978- HMA 1955- which was repealed in 1956- consequences of non-
compliances not provided- check.

21/09/2022

Dal Chand v Municipal Corporation of Bhopal- no formula to determine whether a provision is

mandatory or directory.
Mandatory vs directory provisions- need to differentiate “essence of the matter” - “mere matter of the
form”- when compliance with a particular provision of a statute is a matter of convenience rather than
substance or when the directions of a statute are given merely with a view to the proper, orderly and
prompt conduct of business, it is generally regarded as directory unless followed by words of absolute
prohibition and the same is true where no substantial rights depend on the statute, no injury can result
from ignoring it and the purpose of the legislature can be accomplished in a manner other than that
prescribed with substantially the same results.
3 fundamental tests to determine mandatory or directory nature of statute, culled out from 25
judgments on the point-
1. Consideration of the scope and object
2. Balance of convenience
3. Consideration of nature of particular provision- whether it grants powers/rights or imposes
duties
Two provisions in the same Act (like s 54, 56 of CrPC) that are in conflict- State v Ram Chandra 1955-
whether police officers can arrest without warrant.
Nasiruddin v Sita Ram Aggarwal 2003- provision of Rent Act was in question- whether section 5 of
Limitation Act [condonation of delay] can be applied if you have not complied with provisions of Rent
Act- need to know whether that provision was mandatory or directory. Court determined the amount of
rent- had to be paid within 15 days of determination, or within 3 months [subject to extension by court]-
benefits of Rent Act could be enjoyed only upon strict compliance with the provisions- therefore, it is
mandatory. Only where the act provides for extension of time or condonation of default, only there the
Court possesses a power and not otherwise. Section 5 of the limitation act cannot apply. The provision to
deposit rent is mandatory, not directory.
Can a committee report be used for interpretation of section 53A of TPA?
ABC v State (NCT of Delhi) 2015- Guardianship and Wards ct, 1890- mother applied requesting
declaration to the effect that she is the sole guardian- notice is to be given to parents before guardian is to
be appointed- father must be served notice- however, mother does not want father’s name to be disclosed
in the application as she is unwed. The HC decided that declaration of guardianship can be made only
after hearing the father. Interests of the child are paramount- revealing father’s identity may negatively
affect the child- see para 8-9- “given his lack of involvement in the child’s life, we find no reason to
prioritise his rights over those of the mother or her child”. The Court refers to Laxmi Kant Pandey vs.
Union of India- it reiterates that the welfare of the child takes priority above all else, including the rights
of the parents. They also refer to Githa Hariharan v. Reserve Bank of India. The Court held that “16.
Section 11 is purely procedural; we see no harm or mischief in relaxing its requirements to attain the
intendment of the Act. Given that the term “parent” is not defined in the Act, we interpret it, in the
case of illegitimate children whose sole caregiver is one of his/her parents, to principally mean that parent
alone. Guardianship or custody orders never attain permanence or finality and can be questioned at any
time, by any person genuinely concerned for the minor child, if the child’s welfare is in peril. The
uninvolved parent is therefore not precluded from approaching the Guardian Court to quash, vary or
modify its orders if the best interests of the child so indicate. There is thus no mandatory and inflexible
procedural requirement of notice to be served to the putative father in connection with a guardianship or
custody petition preferred by the natural mother of the child of whom she is the sole caregiver.” The
Law is dynamic- must keep up with societal changes. The best interests of the child and the intent of
the Act is the same, here.
Food Inspector, Punalur Municipality v K Hari Kumar (1991 Ker HC)- identical provisions of the Act
are directory- if mandatory, a substantial compliance is sufficient- the prosecution can fail only if
the non-compliance causes prejudice to the accused. (relies on Dal Chand test)

22/09/2022 [Shardool Kulkarni]

Article 13- supremacy of fundamental rights- how does this envisage the role of the SC? Check legislative
action insofar as they touch upon individual civil liberties- it is not envisaged as a political actor-
politicy measures are not included under “law” in article 13- constitutional amendments are also not
explicitly included.
The SC’s judicial review is seen as a check over decisions of lower courts. Its role has changed to some
extent- it is not just creating jurisprudence, it is also laying down demosprudence- improving life in a
constitutional democracy through judicial review. The Court’s perception of its own role has changed.
1967- Golaknath case- the Court was limited in its idea of judicial review- broadens its understanding of
“law”, but limits itself to what is the higher authority against which the validity of this law can be tested-
its conception of review was limited to Part III. While it asserted greater judicial authority, it still limits its
understanding of higher law to Part III- limited by the text of article 13.
Kesavananda Bharati- higher law is the basic structure- but there is no singular definition of what the
‘basic structure’ entails- ratio is very hard to ascertain. Amendment violating basic structure will be struck
down. The idea of ‘basic structure’ was developed by Prof. Conrad (German scholar)- the SC comes up
with implicit unamendability- implicit higher norms that are unamendable- departed from the German
notion that fundamental rights cannot be amended- they can be, as long as fundamental rights are not
violated. Very broad assertion of judicial review- strategic move to retain its institutional capacity. The
Constitutional Court operates as a strategic actor- it considers the political factors- we see trends of
American Legal Realism here. The basic structure is simply what the Court says it is. The Court
assumes the role of a final arbiter of the constitution. The Court becomes the legal sovereign.
Indira Gandhi v Raj Narain- All HC invalidated Indira Gandhi’s election- constitutional amendment to
undo it- this was a political issue- the SC struck down the Amendment but upheld the election- this was
to protect the position of its judges- only Matthew dissented- CJI Ray (Indira gandhi’s appointee) struck
down the Amendment but upheld the election. This shows that there is at least some degree of judicial
independence- the Court tries to preserve its position as a legitimate actor. The Court starts becoming a
political actor around this time.
ADM Jabalpur-
Maneka Gandhi- “due process” wording rejected by CA- due to the US experience- uncertain doctrine,
Courts resolved uncertainty- too much judicial discretion. But here, the Court says procedure established
by law must be just and fair- imports procedural due process (not substantive). The case concerned a
political question- the government has also started looking at the Court as a serious actor.
Minerva Mills 1980-
The nature of judicial review is highly intertwined with the country’s political setting- it is not a blind
adherence to precedent.
After these developments, Courts start allowing PILs. in Hussainara Khatoon, the Court assumed
epistolary jurisdiction under article 32- article 32 only says “appropriate proceedings”- the Court
broadened its meaning- by doing so, the Court exercises judicial review as a means to an end- not as
a procedural response to a petition. In Hussainara Khatoon, no specific law/rule was challenged- not
specifically covered under article 13- you are essentially challenging every order in every case dealing with
undertrials- a very broad network of law is being challenged. The Court has not only widened its
jurisdiction, it has also broadened the scope of “law”- it holds there is right to a speedy trial- article 21 is
expanded. Judges are becoming far more active political actors- not just an adjudicatory bureaucracy.
3 Judges Cases- ‘judicial independence’- idea derived from basic structure- there was no violation of Part
III- what is the ‘higher law’ then?
Courts have started exercising hegemony as constitutional interpretation.
Can the courts strike down a legislative/executive measure

28/09/2022 [Shardool]

Recap-
● Baxi article
● Chapter 1 of cardozo - close reading
Cardozo, ‘Nature of the Judicial Process’ [Chapter 1] (see highlighted PDF) (Cardozo in the Indian context)
Judges tend to deflect questions like how do you judge- they generally say that it is too complex for
outsiders to understand- so Cardozo tries to give an insider’s perspective.
He proceeds on the assumption that judge-made law exists- it is a reality. Judicial decision making is a
legal and social fact- something we cannot escape. Therefore, he looks at the proportions in which these
principles are employed. Some underlying principles underpin the judicial process.
First method he proposes- the method of philosophy- the judge is an interpreter for the community-
employs a method of deductive reasoning to reach a conclusion that is palatable to the community. The
second method is the method of evolution- why did the law come into being- look into the historical
context. The method of tradition- You look at customs, prevailing business practices- as a determinant
of how law is applied- the third method is the method of sociology- conceptions of morality and justice-
what social circumstances warrant- what law ought to be.
Sources of law, moths courts adopt to reach their decision-
● Customs- law is reinstitutionalisation of customs- that custom is translated into positive law-
because culture is ahead of society- this cultural lag is filled by new law.
Social transformation- law must lead from the front- try to alter the social reality- for instance,
abolition of untouchability, universal adult franchise- the constitution tries to address these
inequalities. However, this may be used in an adverse manner- Indira Gandhi’s regime saw
various amendments to further the ideals of socialism- for socio-economic transformation. So
the notion of transformation can be wielded in different ways- to restrict rights or to protect
them. So we need to look critically at how we view customs as a source of law. How should
judges interpret customs as a source of law? The jurisprudence of the Court in general shows a
sociological bend- PIL, broadening the scope of fundamental rights etc.

29/09/2022 [Shardool]

Chapter 1, Cardozo (see pdf)

Series of lectures at Yale- when he was a Judge at the NY CoA- when he was writing, it was the era of
formalism in the US due to the fall out of WWI, economic crisis etc- therefore, his work was considered
ground-breaking or revolutionary. Why adherence to precedent in the first place? Cardozo calls the
method of logical progression the ‘heir presumptive’ in judicial process- when a judge stretches the
boundaries of logic, he is electing between different rules- this involves a choice between alternatives.
Is institutional propriety the only reason why judges adhere to precedent?
There is a very clear legal realist stand in his writings- he recognizes that judges’ own morals play a role in
their decisions- he assumes judge-made law to be an existing reality. The Court’s decision making is
inconsistent over time- there are inconsistencies inter se on the same bench as well- this would happen in
any common law system of adjudication. Cardozo draws a distinction between conscious and
subconscious forces that affect a judge’s decision- in the American context, a lot of work has been done
on judicial behaviour- how the judicial subconscious affects the decision-making process. There are
factors that judges themselves are not conscious of- that’s why there is work exploring connection
between law and psychology- judges’ biography and their decisions.
Whether judges admit it or not, they are guided by an inherent theory of justice. These factors sometimes
determine where the balance will fall- no matter how objectively they try to rule, there is a subjective
element to judicial objectivity.
He says that quantitative/empirical work on judicial behaviour is required- literature on this is increasing-
biographical work on judges- till that work happens, Cardozo gives an insider’s perspective.
The issue is not just finding out the legislative intent- but sometimes the legislature cannot foresee the
situation- vacuum of legislative intent- what happens in such cases? The judge cannot determine what the
legislature meant- it must guess what it could have meant. For instance, in Navtej Johar, the Court observed
that the constitution is a transformative document- the CA, had it been aware of today’s social
circumstance, would have ruled a certain way.
Important tasks- discovery of latent meaning and filling of gaps in positive law (judicial
legislation).
Sociological approach- law cannot be seen in isolation- Courts are to search for light among social
elements of every kind that are the living forces behind the facts they deal with. It is an essential judicial
function to legislate when there is a gap in the law. This is why constitutional morality prevails- the
community’s sense of justice is given a wider meaning (not just social mores)- the farmers' sense of
morality as gathered from the structure of the constitution.
No matter how much parliaments legislate- the judicial function will remain important- society’s needs.
The judge is the ‘living oracle of law’.
First, the judge will compare the case with precedents- and meaning of certain fundamental conceptions
underlying that precedent. First step is identifying the ratio decidendi- this is a task in itself- see for
instance, Puttaswamy- this operative part is only one page.
Every precedent has a directive force for future cases of the same or similar nature- an incremental
change in approach towards adjudication will make a difference. The common law method is not
deductive, it is inductive- you are trying to make generalisations from particulars- it is slightly more
subjective that deductive reasoning. What happens when multiple rules are available?
Adherence to precedent is important because we need to ensure uniformity- underlying notion of justice
requires adherence to precedent and logical method of progression- this is not an end-all solution- we
need to know when to abandon it. In Riggs v Palmer the Court was faced with 3 contradictory
principles- one of them was a principle of greater generality- universal sense of justice that no one shall be
allowed to take advantage of his own wrong- the court is deciding which rule to apply- this election is based
on notions of justice and whether the result is socially desirable-