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The Paradox of ‘Illegal but Permissible’: An Examination of Recent Jurisprudence


In the recent past, a unique trend has been observed in some of the Supreme Court’s decisions. Actions that are deemed illegal are paradoxically allowed to persist. This approach, often justified under the banners of Illegal but Permissible ie as “larger public interest”, “national interest”, or “balancing the equities”, presents an interesting facet of the legal landscape that warrants a closer look.

Understanding the Supreme Court’s Stance on ‘Illegal but Permissible’ Actions

Unraveling the ‘Illegal but Permissible’ Phenomenon

The case of ED Director Dr. Jaya Thakur vs Union of India provides a compelling example of this trend. The Supreme Court declared the extensions given for SK Mishra in 2021 and 2022 as illegal. However, in a surprising turn of events, the Court permitted him to continue in his post, invoking the “larger national interest”. While this decision might raise eyebrows, it also underscores the Court’s commitment to pragmatism in complex situations.

Kerala District Judges Selection Case

The case concerning the selection of District Judges in Kerala in 2017 (Sivanandan CT and ors vs High Court of Kerala) further illustrates this approach. The Supreme Court criticized the selection process as “arbitrary” and ultra-vires the relevant selection rules. However, the Court chose not to overturn the selection, arguing that the selected candidates had been serving as District Judges for a significant period, and displacing them would be unduly harsh.

The Maharashtra Shiv Sena Case

The Maharashtra Shiv Sena case (Subhash Desai vs Principal Secretary to Governor of Maharashtra) offers another perspective on this trend. The Court declared certain decisions as illegal, yet declined to grant relief to Uddhav Thackeray, stating that he couldn’t be reinstated as the Chief Minister since he had resigned before facing the floor test. This decision, while upholding the ‘illegal but permissible’ principle, also highlights the Court’s nuanced approach to complex political situations. 

The Ayodhya-Babri Masjid Case

The Ayodhya-Babri Masjid case (M.Siddiq vs Mahant Suresh Das) is a prime example of this approach. The Court ruled that the ouster of Muslims from the inner courtyard in 1949 was illegal. However, the Court sanctioned the construction of the temple at the site where the mosque had stood before its demolition. 


The Supreme Court’s decisions, while at times perplexing, reflect a delicate balancing act between various interests. The trend of upholding ‘illegal but permissible’ actions, though potentially controversial, underscores the Court’s commitment to pragmatism and the complexities of real-world situations. It is essential to remember that court judgments have the power to shape real-world outcomes and should strive to uphold justice, even as they navigate the intricate terrain of legality and permissibility. 

However, this trend does raise questions. While it may be driven by a desire to balance various interests, could it risk incentivizing injustice and undermining the rule of law? Is it possible that this approach could lead to a scenario where illegality is declared without tangible repercussions? 

These are questions that remain open, and the answers will undoubtedly shape the future of our legal landscape. Despite these concerns, we remain hopeful that the Court’s decisions will continue to uphold justice and the rule of law, even as they grapple with the complexities of ‘illegal but permissible’ actions. 

Author: Parthvi Patel, United World School of Law 



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