The Paradox of ‘Illegal but Permissible’: An Analysis of Recent Supreme Court Jurisprudence

October 1, 2025 Chandni Joshi Constitutional Law > Supreme Court

Introduction

Contemporary Indian jurisprudence has witnessed the emergence of a peculiar judicial phenomenon where actions, decisions, or appointments deemed legally invalid continue to be permitted by the Supreme Court of India. This doctrine, often termed “illegal but permissible,” represents a pragmatic approach to complex legal situations where strict adherence to legal technicalities might result in greater injustice or administrative chaos. This judicial philosophy balances the sanctity of law with practical considerations of public interest, institutional stability, and the doctrine of fait accompli.

The Supreme Court’s approach in such cases reflects a nuanced understanding of constitutional governance, where rigid application of legal principles might sometimes conflict with broader public welfare. This paradigm has been manifested in several landmark cases where the Court has declared certain actions as procedurally or substantively illegal while simultaneously permitting their continuation on grounds of national interest, public welfare, or administrative exigency.

Understanding the Doctrinal Framework

Legal Foundation and Constitutional Principles

The “illegal but permissible” doctrine finds its roots in several established legal principles within Indian constitutional jurisprudence. Article 141 of the Constitution of India vests the Supreme Court with the power to declare law, and this power extends to situations where technical illegalities must be balanced against substantive justice [1]. The Court’s inherent jurisdiction under Article 142, which empowers it to pass any decree or make any order necessary for doing complete justice, often serves as the constitutional foundation for such decisions.

The doctrine also draws upon the equitable principle that courts must balance competing interests when determining appropriate relief. The maxim “ubi jus ibi remedium” (where there is a right, there is a remedy) is sometimes tempered by practical considerations where the remedy itself might cause greater harm than the original wrong. This balancing act requires courts to weigh the sanctity of legal procedures against the practical consequences of undoing completed actions.

Theoretical Underpinnings

The theoretical framework supporting this doctrine encompasses several jurisprudential concepts. The doctrine of laches suggests that delay in seeking relief may bar the remedy, particularly when third-party rights have crystallized. Similarly, the principle of estoppel prevents parties from claiming relief when their own conduct or acceptance of benefits makes such claims inequitable.

Administrative law principles also support this approach through concepts like legitimate expectation and the doctrine of promissory estoppel. When administrative decisions, though technically flawed, have been relied upon by individuals or institutions, courts may refrain from disturbing settled arrangements to prevent injustice to innocent parties.

Case Study Analysis

The Enforcement Directorate Director Extension Case

The case of the Enforcement Directorate Director extensions presents a paradigmatic example of this judicial approach. The Supreme Court declared the extensions given to SK Mishra on November 17, 2021 and November 17, 2022 as illegal [2]. However, the Court permitted him to continue serving until July 31, 2023, citing national interest and the ongoing Financial Action Task Force (FATF) peer review process.

The legal framework governing such appointments is primarily contained in the Delhi Special Police Establishment Act, 1946, and the Central Vigilance Commission Act, 2003. Section 4B of the Delhi Special Police Establishment Act mandates that the Director of the CBI shall hold office for a term of not less than two years, with provisions for extension under exceptional circumstances. However, the Supreme Court found that the extensions granted exceeded the permissible legal framework.

Despite this finding, the Court’s decision to allow continued tenure was based on several considerations. The ongoing FATF evaluation required institutional continuity, and disrupting the leadership during this critical period could have adversely affected India’s international standing in anti-money laundering efforts. The Court recognized that while the extensions were procedurally flawed, the abrupt removal of the Director would create administrative vacuum that could harm national interests.

This case illustrates how courts balance strict legal compliance with broader policy considerations. The judgment reflects the Court’s understanding that constitutional governance sometimes requires pragmatic solutions that prioritize substance over form, particularly when institutional stability and national interests are at stake.

Kerala District Judges Selection Case

The Kerala District Judges selection controversy of 2017 provides another compelling illustration of this doctrine. In Sivanandan C.T. and Others vs. High Court of Kerala and Others, the Supreme Court held as illegal the process followed by the Kerala High Court in fixing a cut-off mark based on viva-voce for the selection of District Judges [3].

The selection process was governed by the Kerala Higher Judicial Service Rules, 1961, which mandated specific procedures for recruitment. Rule 13 of these rules required that the selection committee follow predetermined criteria without arbitrary modifications during the selection process. The High Court’s Administrative Committee had fixed cut-off marks after conducting the viva-voce examinations, which violated the established procedure and the candidates’ legitimate expectations.

The Supreme Court found that the decision of the Administrative Committee was “manifestly arbitrary” and against the legitimate expectations of the candidates [4]. However, recognizing that the selected candidates had been serving as District Judges for over six years and had gained substantial judicial experience, the Court refrained from unseating them.

The Court’s reasoning reflected several important considerations. First, the doctrine of institutional continuity suggested that removing experienced judges would disrupt the judicial system’s functioning. Second, the selected candidates, though beneficiaries of a flawed process, were not personally responsible for the procedural violations. Third, their judicial performance over six years had validated their competence, making their removal counterproductive to public interest.

This decision highlights the tension between procedural fairness and substantive outcomes. While the selection process violated established rules, the practical result had been the appointment of competent judicial officers who had served the public effectively. The Court’s approach prioritized the continuity of judicial administration over strict adherence to procedural requirements.

The Ayodhya-Babri Masjid Judgment

The Ayodhya title dispute case, M. Siddiq (D) Through Lrs. vs. Mahant Suresh Das and Others, represents perhaps the most significant application of this doctrine in Indian legal history [5]. The Supreme Court’s five-judge Constitution Bench delivered a judgment that acknowledged historical wrongs while sanctioning present arrangements based on practical considerations and communal harmony.

The legal framework governing the dispute involved multiple statutes including the Places of Worship (Special Provisions) Act, 1991, which generally prohibits the conversion of religious places of worship. However, the Act specifically exempted the Ram Janmabhoomi-Babri Masjid dispute from its purview, allowing the Court to adjudicate the title question based on evidence and legal principles.

The Court acknowledged that the placement of Hindu idols in the mosque in 1949 was illegal and violated the mosque’s sanctity as a place of Muslim worship. The subsequent demolition of the mosque structure in 1992 was also found to be unlawful. Despite these findings, the Court awarded the disputed land to the Hindu parties for temple construction while directing the government to provide alternative land for a mosque.

This judgment illustrates the Court’s approach to resolving historically complex disputes where strict legal remedies might exacerbate communal tensions. The decision prioritized communal harmony and practical resolution over reversing historical wrongs. The Court recognized that while certain actions were legally impermissible, the passage of time and changed circumstances made restoration to the original position neither feasible nor desirable.

The judgment reflects the principle that courts must consider broader societal implications when crafting remedies for historical disputes. The “illegal but permissible” approach allowed the Court to acknowledge legal violations while preventing their correction from causing greater social disruption.

Legislative Framework and Regulatory Mechanisms

Constitutional Provisions

The constitutional foundation for the “illegal but permissible” doctrine rests primarily on Articles 141 and 142 of the Constitution. Article 141 declares that the law declared by the Supreme Court shall be binding on all courts within India’s territory. This provision enables the Court to develop jurisprudential principles that balance competing legal and practical considerations.

Article 142(1) empowers the Supreme Court to pass any decree or make any order necessary for doing complete justice in any cause or matter pending before it. This expansive power allows the Court to craft remedies that transcend strict legal boundaries when justice demands such an approach. The phrase “complete justice” has been interpreted to include not just legal correctness but also practical wisdom and equitable outcomes.

Statutory Interpretations

Various statutes provide the legal framework within which this doctrine operates. The Delhi Special Police Establishment Act, 1946, governs CBI operations and leadership appointments. Section 4B specifies the tenure and extension provisions for the Director, creating the legal parameters within which courts evaluate extension decisions.

The Central Vigilance Commission Act, 2003, establishes the framework for anti-corruption agencies’ functioning. The Act’s provisions regarding appointment procedures and tenure requirements form the basis for evaluating the legality of administrative decisions while allowing courts discretion in crafting appropriate remedies.

The Places of Worship (Special Provisions) Act, 1991, represents another crucial statutory framework. While generally prohibiting religious conversion of places of worship, its specific exemption for the Ayodhya dispute allowed the Supreme Court to adjudicate the matter based on evidence and legal principles rather than statutory prohibitions.

Administrative Law Principles

Administrative law provides crucial support for the “illegal but permissible” doctrine through several established principles. The doctrine of legitimate expectation protects individuals who rely on administrative decisions, even when those decisions are subsequently found to be legally flawed. This principle prevents administrative authorities and courts from causing injustice to innocent parties who acted in good faith.

The principle of proportionality requires that administrative actions and judicial remedies be proportionate to the objectives sought to be achieved. When correcting legal violations would cause disproportionate harm, courts may opt for alternative remedies that acknowledge the violations without reversing their effects.

The doctrine of promissory estoppel prevents public authorities from reneging on commitments that have been reasonably relied upon by affected parties. This principle supports the continuation of arrangements that, while legally questionable, have created settled expectations and rights.

Implications for Rule of Law

Positive Aspects

The “illegal but permissible” doctrine serves several positive functions within India’s constitutional framework. It provides judicial flexibility to address complex situations where rigid application of legal rules might produce unjust outcomes. This flexibility is particularly important in a diverse democracy where legal solutions must accommodate varied social, economic, and political realities.

The doctrine promotes institutional stability by preventing unnecessary disruption of established arrangements. When administrative decisions, though procedurally flawed, have created settled patterns of behavior and expectation, judicial intervention to preserve stability serves the broader public interest.

Furthermore, this approach demonstrates judicial pragmatism in recognizing that law serves society rather than existing as an abstract system of rules. The doctrine allows courts to consider the practical consequences of their decisions, ensuring that legal remedies enhance rather than undermine social welfare.

Concerns and Criticisms

However, the doctrine also raises significant concerns about the rule of law. Critics argue that permitting illegal actions to continue, regardless of justification, undermines the principle that law applies equally to all. This concern is particularly acute when the doctrine appears to benefit powerful institutions or individuals who have engaged in legally questionable conduct.

The doctrine may create moral hazard by reducing incentives for administrative compliance with legal requirements. If illegal actions can be subsequently legitimized through judicial intervention, administrators might be less careful about following proper procedures, knowing that practical considerations might prevent courts from reversing their decisions.

There is also concern that the doctrine’s application lacks consistent standards, leading to arbitrary judicial decision-making. Without clear criteria for when illegal actions should be permitted to continue, courts might appear to make ad hoc decisions based on political or practical considerations rather than legal principles.

Balancing Competing Interests

Institutional Considerations

The application of the “illegal but permissible” doctrine requires courts to balance competing institutional interests. On one hand, maintaining the integrity of legal procedures is essential for constitutional governance and public confidence in legal institutions. On the other hand, rigid adherence to procedural requirements might sometimes undermine the substantive goals that those procedures are designed to achieve.

Courts must also consider the institutional consequences of their decisions. Removing experienced judicial officers or administrative officials might serve procedural justice but harm institutional effectiveness. Similarly, disrupting established administrative arrangements might create governance gaps that ultimately harm public welfare.

Individual Rights and Public Interest

The tension between individual rights and public interest forms another crucial dimension of this balancing exercise. While individuals affected by illegal actions deserve appropriate remedies, the broader public interest in institutional stability and effective governance must also be considered.

This balance is particularly complex when third-party rights have crystallized based on illegal actions. For example, if administrative appointments lead to decisions that affect numerous individuals, reversing those appointments might harm innocent parties who relied on the validity of subsequent actions.

Temporal Considerations

Time plays a crucial role in the application of this doctrine. Actions that might be easily reversed immediately after they occur become increasingly difficult to undo as time passes and consequences multiply. The doctrine of laches reflects this temporal dimension, suggesting that delayed challenges to illegal actions should face higher barriers to success.

Courts must consider not only the original illegality but also the interim developments that have occurred since the illegal action. If substantial rights have been created, significant resources invested, or important public functions performed, the temporal element may weigh against reversing the original illegality.

Future Directions and Recommendations

Developing Consistent Standards

To address concerns about arbitrary application, the Supreme Court should develop more consistent standards for applying the “illegal but permissible” doctrine. These standards should identify the factors that courts will consider when determining whether illegal actions should be permitted to continue.

Such standards might include the severity of the legal violation, the extent of reliance by innocent parties, the availability of alternative remedies, the time elapsed since the violation, and the potential consequences of reversal. Clear guidelines would enhance predictability and reduce perceptions of arbitrary decision-making.

Strengthening Accountability Mechanisms

While permitting illegal actions to continue may sometimes serve the public interest, this approach should be accompanied by enhanced accountability mechanisms. Courts should ensure that acknowledgment of illegality is coupled with appropriate measures to prevent future violations.

This might include directions for administrative reform, enhanced oversight procedures, or compensation for affected parties. The goal should be to maintain institutional effectiveness while strengthening compliance with legal requirements.

Promoting Institutional Learning

The “illegal but permissible” doctrine should serve as a catalyst for institutional learning and improvement rather than simply excusing legal violations. Courts should use these cases to identify systemic weaknesses in administrative procedures and recommend reforms to prevent future violations.

Administrative agencies should be required to implement corrective measures that address the root causes of legal violations rather than merely accepting judicial legitimization of irregular actions. This approach would transform the doctrine from a mechanism for excusing violations into a tool for institutional improvement.

Conclusion

The “illegal but permissible” doctrine represents a sophisticated judicial response to the complexities of constitutional governance in a diverse democracy. While it raises legitimate concerns about the rule of law, the doctrine serves important functions in balancing legal formalism with practical justice. Its application in cases involving administrative appointments, judicial selections, and historic disputes demonstrates the Supreme Court’s recognition that law must serve society’s broader needs while maintaining its essential integrity.

The doctrine’s continued evolution will depend on the Court’s ability to develop consistent standards that preserve legal accountability while allowing necessary flexibility. The challenge lies in ensuring that pragmatic considerations do not completely override legal principles, maintaining the delicate balance between formalistic legality and substantive justice.

As Indian jurisprudence continues to mature, the “illegal but permissible” doctrine will likely remain an important tool for addressing complex legal situations. Its proper application requires judicial wisdom that combines legal expertise with practical understanding of governance challenges. The ultimate test of this doctrine’s validity lies not in its theoretical elegance but in its contribution to just and effective governance in India’s constitutional democracy.

The cases examined reveal that while the doctrine may appear paradoxical, it serves essential functions in maintaining institutional stability and preventing greater injustices. However, its application must be guided by clear principles and accompanied by measures to strengthen legal compliance, ensuring that pragmatic flexibility does not undermine the rule of law’s foundational importance to democratic governance.