List of top Legal Studies Questions

The requirement of balancing various considerations brings us to the principle of proportionality. In the case of K. S. Puttaswamy (Privacy-9J.) (supra), this Court observed: “310…Proportionality is an essential facet of the guarantee against arbitrary State action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law...” Further, in the case of CPIO v. Subhash Chandra Aggarwal, [(2019) SCC OnLine SC 1459], the meaning of proportionality was explained as: "225. It is also crucial for the standard of proportionality to be applied to ensure that neither right is restricted to a greater extent than necessary to fulfil the legitimate interest of the countervailing interest in question…”
The proportionality principle can be easily summarized by Lord Diplock‘s aphorism ‗you must not use a steam hammer to crack a nut, if a nutcracker would do?‘ [Refer to R v. Goldsmith, [1983] 1 WLR 151, 155 (Diplock J)]. In other words, proportionality is all about means and ends. The suitability of proportionality analysis under Part III, needs to be observed herein. The nature of fundamental rights has been extensively commented upon. One view is that the fundamental rights apply as ‗rules‘, wherein they apply in an ‗all¬ or ¬nothing fashion‘. This view is furthered by Ronald Dworkin, who argued in his theory that concept of a right implies its ability to trump over a public good. Dworkin‘s view necessarily means that the rights themselves are the end, which cannot be derogated as they represent the highest norm under the Constitution. This would imply that if the legislature or executive act in a particular manner, in derogation of the right, with an object of achieving public good, they shall be prohibited from doing so if the aforesaid action requires restriction of a right. However, while such an approach is often taken by American Courts, the same may not be completely suitable in the Indian context, having regard to the structure of Part III which comes with inbuilt restrictions. Source: Excerpt taken from a judgment delivered by the bench of N. V. Ramanna, R. Subhash Reddy, B.R. Gavai, J.J. on 10th January, 2020.
In taking this view, Justice Rajagopala Ayyangar, speaking for a majority of five judges, relied upon the judgment of Justice Frankfurter, speaking for the US Supreme Court in Wolf v Colorado, which held:
“The security of one's privacy against arbitrary intrusion by the police … is basic to a free society… We have no hesitation in saying that were a State affirmatively to sanction such police incursion into privacy it would run counter to the guarantee of the Fourteenth Amendment.”
While the Court observed that the Indian Constitution does not contain a guarantee similar to the Fourth Amendment of the US Constitution, it proceeded to hold that: 
“Nevertheless, these extracts would show that an unauthorised intrusion into a person‘s home and the disturbance caused to him thereby, is as it were the violation of a common law right of a man an ultimate essential of ordered liberty, if not of the very concept of civilisation. An English Common Law maxim asserts that ―every man‘s house is his castle‖ and in Semayne case [5 Coke 91: 1 Sm LC (13th Edn) 104 at p. 105] where this was applied, it was stated that ―the house of everyone is to him as his castle and fortress as well as for his defence against injury and violence as for his repose‖. We are not unmindful of the fact that Semayne case [(1604) 5 Coke 91: 1 Sm LC (13th Edn) 104 at p. 105] was concerned with the law relating to executions in England, but the passage extracted has a validity quite apart from the context of the particular decision. It embodies an abiding principle which transcends mere protection of property rights and expounds a concept of ―personal liberty‖ which does not rest on any element of feudalism or on any theory of freedom which has ceased to be of value.”
 Source: Excerpt taken from the Judgment delivered by a 9 Judge bench of the Supreme Court in 2017 and authored by Dr. D. Y. Chandrachud. J.
It will be relevant to refer to the statement made by the contemnor which was made and read out before this Court by the contemnor on 20.08.2020, which reads as under:
“I have gone through the judgment of this Hon‟ble Court. I am pained that I have been held guilty of committing contempt of the Court whose majesty I have tried to uphold - not as a courtier or cheerleader but as a humble guard - for over three decades, at some personal and professional cost. I am pained, not because I may be punished, but because I have been grossly misunderstood. I am shocked that the court holds me guilty of “malicious, scurrilous, calculated attack” on the institution of administration of justice. I am dismayed that the Court has arrived at this conclusion without providing any evidence of my motives to launch such an attack. I must confess that I am disappointed that the court did not find it necessary to serve me with a copy of the complaint on the basis of which the suo-motu notice was issued, nor found it necessary to respond to the specific averments made by me in my reply affidavit or the many submissions of my counsel. I find it hard to believe that the Court finds my tweet “has the effect of destabilizing the very foundation of this important pillar of Indian democracy”. I can only reiterate that these two tweets represented my bona-fide beliefs, the expression of which must be permissible in any democracy. Indeed, public scrutiny is desirable for healthy functioning of judiciary itself. I believe that open criticism of any institution is necessary in a democracy, to safeguard the constitutional order. We are living through that moment in our history when higher principles must trump routine obligations, when saving the constitutional order must come before personal and professional niceties, when considerations of the present must not come in the way of discharging our responsibility towards the future. Failing to speak up would have been a dereliction of duty, especially for an officer of the court like myself. My tweets were nothing but a small attempt to discharge what I considered to be my highest duty at this juncture in the history of our republic. I did not tweet in a fit of absence mindedness. It would be insincere and contemptuous on my part to offer an apology for the tweets that expressed what was and continues to be my bona-fide belief. Therefore, I can only humbly paraphrase what the father of the nation Mahatma Gandhi had said in his trial: I do not ask for mercy. I do not appeal to magnanimity. I am here, therefore, to cheerfully submit to any penalty that can lawfully be inflicted upon me for what the Court has determined to be an offence, and what appears to me to be the highest duty of a citizen.”
Source: Excerpt taken from the Judgment delivered by Arun Mishra, B. R. Gavai & Krishna Murari, J.J.
"9. We now come to the Division Bench judgment of this Court reported as Rajeev Kumar Gupta & Others v. Union of India & Others – (2016) 13 SCC 153. In this judgment, the posts in Prasar Bharati were classified into four Groups–A to D. The precise question that arose before the Court is set out in para 5 thereof in which it is stated that the statutory benefit of 3 per cent reservation in favour of those who are disabled is denied insofar as identified posts in Groups A and B are concerned, since these posts are to be filled through direct recruitment. After noticing the arguments based on the nine-Judge bench in Indra Sawhney vs. Union of India, 1992 Supp (3) SCC 217, this Court held:
14. We now examine the applicability of the prohibition on reservation in promotions as propounded by Indra Sawhney. Prior to Indra Sawhney, reservation in promotions were permitted under law as interpreted by this Court in Southern Railway v. Rangachari, AIR 1962 SC 36. Indra Sawhney specifically overruled Rangachari to the extent that reservations in promotions were held in Rangachari to be permitted under Article 16(4) of the Constitution. Indra Sawhney specifically addressed the question whether reservations could be permitted in matters of promotion under Article 16(4). The majority held that reservations in promotion are not permitted under our constitutional scheme. 
15. The respondent argued that the answer to Question 7 in Indra Sawhney squarely covers the situation on hand and the reasons outlined by the majority opinion in Indra Sawhney at… must also apply to bar reservation in promotions to identified posts of Group A and Group B. 
16. We do not agree with the respondent‟s submission. Indra Sawhney ruling arose in the context of reservations in favour of backward classes of citizens falling within the sweep of Article 16(4). 
21. The principle laid down in Indra Sawhney is applicable only when the State seeks to give preferential treatment in the matter of employment under the State to certain classes of citizens identified to be a backward class. Article 16(4) does not disable the State from providing differential treatment (reservations) to other classes of citizens under Article 16(1) if they otherwise deserve such treatment. However, for creating such preferential treatment under law, consistent with the mandate of Article 16(1), the State cannot choose any one of the factors such as caste, religion, etc. mentioned in Article 16(1) as the basis. The basis for providing reservation for PWD is physical disability and not any of the criteria forbidden under Article 16(1). Therefore, the rule of no reservation in promotions as laid down in Indra Sawhney has clearly and normatively no application to PWD."
Source: Excerpt taken from a Judgment of three judge bench comprising of R.F. Nariman, Aniruddha Bose & V. Ramasubramaniyam., JJ.
"The main argument on behalf of the Respondents was that the Government was bound by its promise and could not have resiled from it. They had an indefeasible legitimate expectation of continued employment, stemming from the Government Order dated 20.02.2002 which could not have been withdrawn. It was further submitted on behalf of the Respondents that they were not given an opportunity before the benefit that was promised, was taken away. To appreciate this contention of the Respondents, it is necessary to understand the concept of legitimate expectation. 14. The principle of legitimate expectation has been recognized by this Court in ―Union of India v. Hindustan Development Corporation & Ors.‖ If the promise made by an authority is clear, unequivocal and unambiguous, a person can claim that the authority in all fairness should not act contrary to the promise.
15. M. Jagannadha Rao, J. elaborately elucidated on legitimate expectation in ―Punjab Communications Ltd. v. Union of India & Ors.‖ He referred to the judgment in 2 (1993) 3 SCC 499 ―Council of Civil Service Unions and Ors. v. Minister for the Civil Service‖ in which Lord Diplock had observed that for a legitimate expectation to arise, the decisions of the administrative authority must affect the person by depriving him of some benefit or advantage which, (i) he had in the past been permitted by the decision- maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn. 
Rao, J. observed in this case, that the procedural part of legitimate expectation relates to a representation that a hearing or other appropriate procedure will be afforded before the decision is made. The substantive part of the principle is that if a representation is made that a benefit of a substantive nature will be granted or if the person is already in receipt of the benefit, that it will be continued and not be substantially varied, then the same could be enforced. 
16. It has been held by R. V. Raveendran, J. in ―Ram Pravesh Singh v. State of Bihar‖ that legitimate expectation is not a legal right. Not being a right, it is not enforceable as such. It may entitle an expectant: (a) to an opportunity to show cause before the expectation is dashed; or (b) to an explanation as to the cause of denial. In appropriate cases, the Courts may grant a direction requiring the authority to follow the promised procedure or established practice."
Source: Excerpt taken from the judgment delivered by the bench of L. Nageshwar Rao & Hemant Gupta, J.J. in Kerala State Beverages (M and M) v. P P Suresh & Ors.,(2019) 9 SCC 710.
Read the piece written by Prof. Upendra Baxi and answer the questions below:
No matter how the matters are for the time being resolved (and swiftly on all indications), the present crisis in the Supreme Court involves mainly a contention on how judicial business should be conducted. The extraordinary movement of four justices in making public a letter addressed to the Chief Justice of India (CJI) in November 2017, and assorted observations at the press conference last week are very unusual judicial happenings. At that conference, Justice Chelameswar said that “less than desirable things have happened” and the protesting Justices vainly “tried to collectively persuade” the CJI to take “remedial measures”. These happenings are now made even more unusual by Justice Ranjan Gogoi reportedly denying any “crisis|” and Justice Kurian Joseph saying the matter is now settled leaving little scope for “outside intervention”. However, the letter released at the press conference said otherwise; it spoke of the ways in which “the overall functioning of the justice delivery system”, the “independence of the high courts”, and the functioning of the office of the CJI have been “adversely affected”. A moving appeal to the Indian “Nation" was issued at the press conference and Justice Chelameswar justified speaking out, lest ”wise people" say later that they were complicit. A situation where four senior-most justices went public to express their discontent with the present CJI‘s exercise of authority to constitute Benches raises grave constitutional questions. Although only an in-house rectification can save matters, it is an anti-democratic error of grave proportions to think that co-citizens should have no interest, stake, or say in the matter. Undoubtedly, the Chief Justices, whether of the High courts or the Supreme Court, have the power to order the roster. The question is whether that power is coupled with a constitutional duty to follow certain conventions. Obviously, there are a few: Chief Justices have a primary duty of accountability to the Brother Justices, the Bar, and a general obligation through the Bar to the litigating public and people at large. But when a letter by four Senior Justices has been ignored for about two months, is going public with a copy of that letter and holding even a press conference unjudicial? On this question opinions are varied. Some have lauded this step as heroic while others regard this as "sheer trade union tactics‖ and some even say the step was extremely unfortunate but now some institutional solidarity should pave the path ahead. What are the other conventions? First, a part-heard matter may not be divested from the co-justices who are seized with it. Second, the CJI may not deny a request for recusal on grounds of conflict of interest. Third, the Chief Justice may not ignore the requests by co-justices to form a larger Bench. Fourth, a Chief Justice may not selectively assign sensitive or important cases to the same judges. However, fifth, it is doubtful whether there is, or ought to be, a convention requiring such matters to be heard only by the senior-most justices. No, because the decision to elevate a citizen to judgeship
must involve all relevant considerations; once elevated, a justice is co-equal to all other brethren. Sixth, it is true that co-equality occurs within a hierarchy: Not every justice becomes a Chief Justice, and the SC collegium must comprise the five senior-most justices. Outside this framework, the question about the rank-ordering may not arise; all Justices speak for the constitutional court. Any discussion about benches headed by “junior” justices is therefore injudicious. The second issue looming large is the finalisation of Memorandum of Procedure (MoP). In early July 2017 (in Justice Karnan‘s case), at least two Justices observed a need “to revisit the process of appointment of judges and establishment of a mechanism for corrective measures other than impeachment”. The letter also suggests that the issue of MoP "cannot linger on for indefinite period" and since the government has not responded to the MoP sent as far back as March 2017, the Court must now presume this long “silence” amounts to acceptance. Convening a full court and/or an agreement of the Chief Justices‘ conference stand was suggested. The highest court in the land cannot endlessly wait for the government. The remedies of impeachment and removal for judicial misconduct and review, and now curative jurisdiction, constitutionally exist. And further, the spectre of the call of conscience to go to the  “Nation” will now haunt all Chief Justices. Informed criticism has some impact on judicial dispositions. But the ultimate guarantee of fairness as justice lie with the Justices themselves. As Eugene Ehrlich, a founder of European sociology of law, said: “The best guarantee of justice lies in the personality of the judge.” Justices must be seen practising what they preach to the other holders of public power. It is only when they collectively fail to do so that a democracy is truly imperilled.
The Archimedean point of Habermas‘ philosophy of law is not the concept of natural law. His approach to positive law differs from both Han‘s and Hobbes‘. For him, positive laws are democratically established human artifacts. In the democratic procedure for legislatures to make laws, even if there may be arguments appealing to the concept of natural law, democratically established positive laws are not duplications of natural laws. Instead, they differ from natural laws both in content and form. The legitimacy and validity of positive laws come exclusively from the democratic process in which laws are established and published. By the same token, the rationality of positive laws comes exclusively from a democratic legislature based upon rational communication under the guidance of the communicative rationality. In social management, morality is complementary to positive law. But positive law is not subordinate to [1]. Instead, the two are parallel institutions. Habermas shares with Han and Hobbes the view that positive laws have two salient features. First, they are written and publically published. Second, they are backed by those who have a monopoly on force. The second feature of positive laws is dubbed by Habermas as the ―facticity‖ of law. The facticity or social reality of positive laws is that they are compulsory and backed by sanctions. As Habermas puts it, ―Such laws appear as the will of a lawgiver with the power to punish those who do not comply; to the extent that they are actually enforced and followed, they have an existence somewhat akin to social facts.‖. Also, for Habermas, as it is for Han and Hobbes, positive law differs from natural law in the sense that positive law is a social institution, a human artifact, not a natural institution. Positive law comes into existence by a historical and public action—that is, the democratically legislation of it and its being publically published.