JGU Id. No.

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O.P. Jindal Global University

Jindal Global Law School
End-term Examination – Semester A

Course Name : Legal Methods

Programme : LL.B. - Year I (2020)

Question 1

(a)

I think Kamala has a sound grievance. Some arguments in favour of Kamala could be that the
limit prescribing 3 kms as the range defining neighbourhood school isn’t meant to limit kids to
the neighbourhood schools but to ensure that no kid is devoid of education in a certain
neighbourhood. Students are eligible for schools outside the range of 3 kms as well. The
argument that Simple global school is 4 kms away from Kamla’s home and hence she can not
study there is not a reasonable justification to deny admission to an underprivileged kid. There is
an apparent arbitrariness in this argument given by the school. The intention of creators of this
law must be looked into and they provided this law to ensure social justice, values of equality
and democracy as stated in the statement of object and reasons. Thus denying Kamla admission
grounds of her house being 4 km away is completely arbitrary and also discriminatory because
the school has students who come from further distances. Hence Kamla should argue that these
actions are violative of Right of Children to Free and Compulsory Education and also Article 14
of the Constitution. Section 9 (c) states that ensure that the child belonging to weaker section and
the child belonging to disadvantaged group are not discriminated against and prevented
from pursuing and completing elementary education on any grounds.

Some arguments that’s could be framed against Kamala’s arguments are that the law for schools
outside the neighbourhood schools only provides 25% reservations for underprivileged students
like Kamla. This means that the schools have authority and discretion to accept or deny

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admissions to students once they’ve satisfied the aforementioned criteria. Another argument
could be that as per Section 12 1(c) there is compulsory and free education only in
‘neighbourhood’ schools which excludes Simple Global Schools from this definition and
provides for discretionary authority. Moreover the quality if a neighbourhood school is a
subjective opinion based on which they can’t be compelled to provide education.

(B)

1. The appropriate forum would be a disciplinary committee set up by the municipality which
would have impartial people from the academic and judicial committee. Alternatively, since this
is an issue of fundamental rights, the municipal corporation can also take this to the supreme
court.

2. The arguments in favour of Municipality would be that underprivileged students were

discriminated against the principles of RTE act when they were made to study in a separate
section and a separate time and their section was named “underdogs” which is an insulting and
discriminatory term. This is also violative of Right against discrimination enshrined in the
Constitution of India,

3. Some arguments in favour of Mr. Talwar could be that he was allowed by the RTE act to
assess students and provide supplemental information to students. The students were classified
on the basis of their caste or any other unreasonable criteria but only the criteria of assessment
and it was completely unintentional on his part that the major chunk of the low scoring group
was from disadvantaged students. His intention was to provide supplementary education to them
to bring them at par with other students. His intention can be derived from the word “underdogs”
which means “a competitor thought to have little chance of winning a fight or contest” and that
he only wanted them to rise out of this perception about them. He will also argue that he is
empowered to do the same under Section 24 - Duties of teachers and redressal of
grievances: (1) A teacher appointed under sub-section (1) of section 23 shall perform the
following duties, namely:-- (d) assess the learning ability of each child and accordingly
supplement additional instructions, if any, as required.

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 Question 2

1) The ratio of the mentioned judgement is that Right to life does not mean living life in any
circumstances but also includes the right to live in a healthy environment. A polluted
environment substantially degrades the quality of life. Right to clean environment is
hence an integral part of right to life which is a constitutional right. And if there is an
option which provides for a better quality of life and pollution free environment, the same
should be provided as it is a constitutional guarantee. As we know, the foundation pillar
of the Preamble of the Republic of India is socio-economic fairness. Fundamental rights
such as the right to liberty, the right to democracy, the right against exploitation, the right
to freedom of worship, cultural and educational rights and the right to judicial redress are
discussed in Section 3 of the Indian Constitution. In order to promote environmental
equity, the Indian judiciary has thereby broadened the reach of these constitutional rights.

Today, for certain marginalised citizens, Article 21 has been a living reality, largely
because of the broad reading of that clause by the Supreme Court. The consequence was
a profound social justice movement that was always accomplished through nonviolent
means. It was, in reality, a judge-led revolt. This judicial rebirth is responsible for
broadening the enviro-justice horizons of India. Thus, after all the above cases, it
becomes evident that the Indian judicial system, though constrained in certain respects by
its judicial dynamism, has evolved as a saviour of humanity.

The main preferred for the expansion of the spectrum of interpretation of the provisions
of law is Article 21. In compliance with articles 32 and 226, the courts must therefore
fulfil the legislative goal of socio-economic justice. Via the friendly rulings of these
citizens, especially on this constitutional clause, the Supreme Court has conquered the
confidence of millions of Indians even though the verdict has been postponed. Let us all
applaud the establishment of this jurisprudence in the Neo-Indian Constitution.

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 2) Since this judgement is rendered by a constitutional bench sitting in the supreme court, it
shall overrule any contrary judgments of the past and shall render void any government
regulations that act contrary to it. This shall set a precedent that right to an environment
without pollution is an integral part of right to life under article 21 of the constitution.

3) In the case of Valliamma Champaka Pillai vs Sivathanu Pillai1 it was clarified by the
supreme court that the decision of one high court is not binding precedent on another
high court. At best it could only hold persuasive value but not a precedential value.
Hence it would not hold precedential value on high courts of other states.

Question 3

Literal interpretation- The judge assumes, under this provision, what the law really states,
rather than what it may suggest. In order to do this, the judge may assign a literal sense to the
terms in the law, that is, their simple ordinary daily meaning, even though the consequence of
this is to achieve what would be viewed as an unfair or unacceptable result otherwise. The literal
rule says that in the usual and normal sense of the terms used, Parliament's purpose is better
sought. The technique fits best when the terms used in the law do not contain any uncertainty.

The literal rule claims that terms have a set definition. Injustice stems from the literal law of
perception. When determining proceedings, there are risks of establishing false precedents. The
courts may not have the authority to amend the legislature's terms, it is not accessible to
inventions from the judiciary. Without the meaning in which it is said, the terms may not be fully
interpreted. Rigid obedience to this concept can trigger discrimination and often it can provide
outcomes that are somewhat contradictory to the basic purpose of the law or common sense. The
court can discern a literal sense that was not intended by the legislature because of the absurdity
that is prevalent in the literal rule of interpretation. If the court follows a literal law and assumes
1
Valliamma Champaka Pillai vs Sivathanu Pillai 1979 AIR 1937

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that the interpretation is morally false, so the interpretation will not be stopped. The laws should
not be read in their usual manner, i.e. by modifying and introducing different legislation and
legislatures, taking the literal sense of the language used. This then makes the literal law not
sufficient for the current scenario. It should be remembered that the English language is highly
vague in nature and also that the literal law requires the legislative draughtsman to reach
unattainable perfection.

Mischief rule- To cover the holes in the law, the second rule is essentially the method of
incorporating more meanings or concepts. In trying to figure out what loophole or misfortune the
bill was meant to fill, this provision allows the court to look at what the regulation was before the
statute was enacted. To guarantee that the void is filled, the court is then forced to read the law in
such a manner.

In the case of Corkery v Carpenter, an instance of the usage of the mischief clause is identified
(1951). Shane Corkery was sentenced to one month's incarceration in 1951 for being intoxicated
in public on a bicycle. About 2.45 p.m. The defendant was intoxicated on 18 January 1950 and
was riding his pedal bicycle down Ilfracombe's Broad Lane. Under section 12 of the Licensing
Act 1872, he was consequently charged with being intoxicated in possession of a carriage. No
actual relation to bicycles was provided by the 1872 Act. To resolve the case, the court elected to
use the mischief law. The aim of the Act was to stop individuals from utilising some mode of
transport when in a state of intoxicated on a public highway. The bicycle was simply a means of
travel, so the customer was duly paid.

Golden rule: A modification/qualification of the literal rule is this rule. It notes that if an
absurdity [completely nonsensical or unreasonable] is created by the literal law, then the court
should follow another interpretation of the terms to prevent the ridiculous outcome. In two
instances, the golden rule works:

If the interpretation of the terms in the Act is plain, the meaning will end in absurdity if followed.
The literal law is, however, not used. Sigsworth (1935), for instance, concerned a situation in
which a son had murdered his mother. The mother had not produced a will and her assets would

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be owned by her next of kin, including her son, under the Administration of Justice Act 1925. In
the terms of the Statute, there was little doubt, but the court was not prepared to allow his crime
favour the son who had murdered his mother. It was held that the literal law does not adhere and
that to avoid the repugnant condition of the son inheriting, the golden rule should be used.

Where there is an uncertainty in the constitutional language, judges may follow an understanding
that yields the least violated outcome on the grounds that it is not the parliament's purpose to
encourage absurdity.

Rule of purposive interpretation- This rule/tool is used by judges to look at the meaning of the
statute rather than at the literal facts. The constructive social intent of the law is based on this
rule. Here, the court is not only trying to see what the void in the old legislation was, it is seeking
a judgement as to what Parliament thought it needed to do. To uncover and carry out the purpose
of Parliament and ministers, and they do this best by filling the holes and making sense of the
enactment by opening it up to disruptive review.' "It is also a "contextual solution".

Justice Truepenny says that the statute is unambiguous and applies it literally and hence
uses the literal rule of interpretation. Justice Foster points out two key points of deciding why
the sentences can be reversed. Firstly, at the time of the killing, the defendants were in a "state of
nature" because the rules of nature apply to them. The rules of nature also made it necessary to
choose to kill one human for the others to live. Secondly, assuming that the laws of Newgarth is
valid, it is reasonable to understand the intent of the legislation in extending it to the
circumstances of the event. Justice Foster finds deterrent to be the primary objective, concluding
that, just as a prosecution concerning self-defense does not fulfil the purpose of the law, in the
present situation, so would a conviction. Since Justice Foster looks into natural law and
commonwealth law, he uses the mischief rule of interpretation and is also a purposive
approach. Justice keen also takes the literal approach. Justice Handy vouches for a
pragmatic common sense approach and applies a purposive interpretation.

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 Question 4

Vishaka Vs. State of Rajasthan (1997) 6 SCC 241 and Supreme Court Advocates-on-Record

Association v. Union of India (1993) 4 SCC 441 are two cases where the court stepped into the
shoes of legislator and formulated guidelines for arrest of women and appointment of judges
respectively. It must be noted that the court is not regular in taking an extreme activist stance but
only took it protect the rights and dignity of women, curb the abuse of power by executive and
legislature and to maintain judicial independence.

Judicial overreach or judicial over-activism is only the reverse of the idea of judicial activism,
although it is rather complicated to define a median line between these two terms. If the judiciary
crosses control by intervening with the appropriate workings of the government's legislative or
executive organs and creating a severe violation of the division of powers concept, judicial
activism becomes judicial adventurism, popularly referred to as judicial overreach. Judicial
advocacy is permissible where it is in the realm of lawful judicial oversight, as Mr. Chief Justice
J. S. Verma said. Neither judicial adhocism or judicial dictatorship can be the case.
In order to correct these forms of suffering, the supervisory authority is not endowed with
limitless prerogatives and must be restricted to instances of extreme dereliction of duty and
flagrant violation of basic standards of law and justice. The judiciary, however, cannot enact new
laws or change current laws in the name of understanding of the Constitution and the laws. More
precisely, the role of the court is to understand the legislation and not to interfere in the creation
of laws. And, in order to maintain the balance of forces between the three institutions delegated
to the Constitution, the judiciary must practise self-restraint. In order to achieve a clearer
interpretation, the US Supreme Court has laid down a pragmatic test in the Baker v Carr case for
judicial interference in a matter with a political tone that establishes that the precondition for
judicial intervention is that the conflict before the court must have a justifiable cause of action
and that it does not merely suffer from a lack of a standard judicially discoverable and
manageable standard Judicial advocacy can not, moreover, be used to contribute to eroding the
basic values of division of powers.

The development of the judicial system can be classified in two ways: strict meaning (i.e.
coherence between changing socio-economic ties and the resulting unchanged law regulation)

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and broad sense (i.e. alignment between changing socio-economic relations and the subsequent
unaffected legal regulation) (i.e. fetching the already regulated and unchanged legal norms). As a
consequence, judicial development by construction is known as analogialegis and iuris. It should
be regarded as advocacy when judges go into the historical, social and legal sense when fulfilling
the judicial job, and it should become law itself. For the proper implementation of human rights,
the judiciary must have rules which, before the ratification of the new legislation by the
parliament, may be regarded as law, and, moreover, by implementing judicial craftsmanship,
they must extend the rule of natural justice. In this way, judicial intervention is in the midst of
moral transgression and judicial passivity. Technically, there is no strict division of powers
except the obligation of the court not to eternalise the wrong rather than identify an essential way
to defend the public interest. Judges should be careful of passing judicial solutions in this case
and of doing such modifications and they can comply with just court problems instead of social
policies.

The judiciary has been denounced in recent years for its tendency to transcend the limits of other
legislative bodies. As judicial mariners, the judges have utilised the judicial creativities to shape
the laws by separating from prior rulings or implementing the current rules with a new
complexion, so they are not simply imitative. The judges use concrete interpretation to address
controversy and the sequel appears to be unjustified and unequal, so they take help of judicial
populism and impose a different understanding. Lastly, it is noted that, in order to address such
environmental problems, criminal matters and so on, which are contradictory to domestic rules,
the judiciary has introduced assistance and applied non-binding dispensations. As the neoteric
culture is progressive and the statutory body struggles to anticipate the future issues and might be
unable or unwilling to produce legislation, the idea of judicial activity is upgraded as a modern
tool for the judiciary. Judges which issue guidance for the fulfilment of the legislative lacunas,
and they will be successful before the legislature takes the appropriate measures. For example, a
variety of environmental cases have been settled by the courts, where no new legislation remains
or current regulations fail to offer sufficient remedy, and many directions have since been
recommended to the appropriate authority. Judicial advocacy implies that, recognising the
present socio-economic conditions, the judiciary voluntarily promotes societal objectives and

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allows the government more transparent, accountable and efficient. For eg, a decision was
released by the judiciary to search against violations of the due process of law.

The potential for judge-made legislation is generated by judicial activism and it is simply an
infringement of constitutional authority. It is imminently unconstitutional when, in the terms or
design of the Constitution, the judiciary takes measures to format laws with little to no
perceptible roots. Eventually, the parliament is exclusively tasked with creating legislation and
the court does not breach the legislator's jurisdiction. In addition, the court can invalidate laws,
but not change the constitution. Most notably, the judgement of the judge is influenced by the
various social and political variables that make it controversial. It is a general pattern that the
man with great power exercises his supremacy as long as it is obstructed by such boundaries. In
the judicial imagination, the expanded authority of the courts triggers a blaze that could trigger
misuse of control. Accountability and accountability are essential to the democratic structure,
which is why the courts should be responsible and open as well. Yet, sadly, the constitution
struggles to attach even the sovereign citizens to the judiciary as responsible and eventually
damages the system of checks and balances. Judicial advocacy, hypothetically, comes under the
issue of legitimacy.

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