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JUDICIAL LAW MAKING IN INDIA: CATALYST FOR JUSTICE DELIVERY AND SOCIAL MOBILIZATION: A COMPREHENSIVE ANALYSIS
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JUDICIAL LAW MAKING IN
INDIA: CATALYST FOR JUSTICE DELIVERY AND SOCIAL MOBILIZATION: A COMPREHENSIVE
ANALYSIS
AUTHORED BY - PRATIKSHA
PRAVIN BARVE
ROLL NO: 23, LL.M (1st Year
Sem. 2)
PROGRESSIVE EDUCATION
SOCIETY’S
MODERN LAW COLLEGE, PUNE
SAVITRIBAI PHULE PUNE
UNIVERSITY, PUNE
ABSTRACT
Judicial law making, often
characterized as the process by which judges interpret statutes and legal
precedents to create new legal principles, plays a pivotal role in shaping the
landscape of justice delivery and social mobilization. This research article
delves into the intricate interplay and profound significance of judicial law
making in contemporary legal systems. Through an extensive review of legal
literature, case studies, and comparative analyses, this study explores how
judicial decisions not only influence the development of legal doctrines but
also contribute to broader societal transformations.
The article begins by
elucidating the theoretical underpinnings of judicial law making, highlighting
its evolution from traditional positivist approaches to more dynamic and
contextual interpretations of law. It then delves into specific examples of
landmark judicial decisions across various jurisdictions, examining their
impact on legal principles, societal norms, and the mobilization of social
movements. By analyzing the mechanisms through which judicial decisions
interact with legislative enactments, societal values, and public opinion, this
article sheds light on the multifaceted role of courts in shaping legal and
social landscapes.
Furthermore, this research
elucidates the challenges and controversies associated with judicial law
making, including debates over judicial activism versus restraint, the role of
judicial discretion, and the limits of judicial authority in a democratic
society. By critically evaluating these issues, the article seeks to contribute
to ongoing discussions within legal scholarship and public discourse regarding
the role of the judiciary in promoting justice, equality, and social change.
In conclusion, this
research underscores the pivotal role of judicial law making as a catalyst for
enhancing justice delivery and fostering social mobilization. By bridging the
gap between legal theory and practical application, this article aims to provide
insights that can inform policymakers, legal practitioners, scholars, and the
broader public on the transformative power of judicial decisions in shaping a
more just and equitable society.
KEY WORDS
Judiciary, Law, Law
making, Decision making, Court, Judges, Indian Constitution, Constitutional
Provisions, Judge made laws, Judicial functions, Legislative powers, Law making
power, Judicial Interpretation.
INTRODUCTION –
It is widely accepted that
for the government to run smoothly, there must be a division of powers among
its various organs. This is done to ensure that the legislature, executive
branches, and judiciary have an equitable distribution of powers. While the
theory of separation of powers is not codified in the Indian Constitution, the
way the Constitution was designed implies it.
After reading its wording,
it is reasonable to conclude that the Indian court system is responsible for
all "legislative powers," as well as all adjudicatory and
"judicial functions." The enumeration of the numerous functions
undertaken by these organs makes it clear that the judicial system has been
granted autonomous status, rendering its actions 'independent' and immune from
inspection by the executive or legislative branches.[1]
However, these statutorily
recognised functions are not entirely reliable. There is ample evidence to
suggest that there may be 'incidental invasion' or 'functional overlaps'
resulting in spells of conflict amongst the three organs indicated before.
The Indian courts have significantly contributed
to such recognition by periodically providing guidance to the administration in
search of consistency under its scorn power, as well as numerous occasions by
administering precisely in the manner of the governing body. Such circumstances
of legal intercession entail a necessity to closely analyse the embodiment and
established point of view of the 'lawmaking' power of judges in differentiation
from the historically presented legislative forces of the assembly.[2]
Interpretation is the
Court's primary function. Law should be interpreted in accordance with the will
of the legislature. Sometimes the judge's responsibility shifts from
interpreter to giving life to the law and making the rule of law functional.
This is judicial activism. Judge-made laws are legal doctrines established by
judicial precedent rather than a statute. A judge interprets a law in such a
way as to create a new law. Judge-made laws are founded on stare decisis, which
means standing by the decision.[3]
Judges swear an oath to
preserve the constitution and laws. So he should keep this in mind when
carrying out his job. A judge must administer justice. If a judge determines
that the established law is insufficient to achieve the goals of justice, it is
the Constitutional Obligation of the court to render justice in conformity with
constitutional principles. A judge must fill up the gaps. This process is known
as judicial legislation.
The judge bridges the gap
in our administrative structure. Here, the judge participates in the
legislative process. Lawmaking is an intrinsic and unavoidable aspect of the
judicial process. The judge adds life and blood to the dry skeleton provided by
the legislator, making the law adequate to fulfil the needs of the society.
It is clear that
legislation plays an important role in the Indian Constitution, serving as a
key source for enacting laws and dealing with changing social conditions. The
role of the judiciary is also widely recognised since judges, while dealing
with day-to-day issues, have opportunities to comprehend and modify present
laws and apply them in specific cases in order to stay up with societal
changes.
The primary argument
behind such an important characteristic of legal capacity is the undeniable
fact that because law is subjective by definition, no one can predict the
future or approaching potential outcomes that the law aims to address. For a
variety of reasons, a review of any sanctioned law will disclose some gaps on
which the legal executive will rely upon understanding to fill. Anyway, this
topping off is expected to be conducted in compliance with the divine
instructions and is mandated to the extent authorised by the Constitution.
PHILOSOPHY BEHIND THE JUDICIAL
LAW MAKING
The Indian Constitution
drew inspiration from both the United States and the British Constitutions, as
it incorporates England's parliamentary and cabinet forms of law, federalism
with its distinctive system for the dispersion of constitutional authorities,
and the United States Constitution's judicial review provisions. Because
realistic theory of law and analytical positivism draw substantially from the
respective constitutional systems of the United States and the United Kingdom,
it is natural for the two theories of law and jurisprudence to influence one
another in the implementation and amendment of the Indian constitution.
Legal rationalism
emphasises that law can only be properly understood or defined through the
judicial process. The written law differs greatly from the laws in action. It
states that once the government has established legislation, it is only a
promise about what the courts will eventually do because the rule remains
unknown to the people until the courts deliver a final judgement on it. To
interpret law on an issue and determine whether 'the rule' is in question,
counsel, the regulator, or the person involved may look at the established rule
(defined by legislation), but they will eventually determine how it has already
been defined by the courts and whether they are likely to understand the same
when the matter comes before them.
In recent times,
'democratic decision-making' has been pushed as a means of overcoming the
solidity of the Constitution and its laws, as their established meanings fail
to meet the new social or welfare state economic principles. It will evolve in
time and space to meet the changing requirements of society; thus, law is a
tool for Indian legal thought in social engineering that recognises 'the
complex character of law'. However, realistic theory of law takes a
non-doctrinaire or politically neutral approach to legislation and the
Constitution. It focuses on the legal system through which the constitution and
law function in practice.[4]
JUDICIAL LAW MAKING: AN INCEPTIVE NOTION
Traditionally, legislature
is tasked with developing legal norms governing its subjects' relationships
with the state or between subjects. The judiciary was tasked with interpreting
the law and resolving conflicts between parties. However, legislative enactments
are frequently insufficient to address all facets of human life. As a result,
the legislative and executive leave a void that the judiciary must fill.
Sometimes the letter of the law does not meet the changing conditions of the
moment and needs to be updated.
In these situations, the
judiciary, as a defender of the people's fundamental rights and the
constitution, steps in and enacts a judicial law. The globe is ruled by at
least two legal systems: common law and civil law. The common law system, which
includes the Indian legal system, is distinguished by the judiciary's active
role. The court is critical to common law because it formulates, develops, and
re-models the law. Commenting on the role of the common law judiciary, a
learned author stated that "common law is predominantly judge-made
law." Under it, the judge is responsible for creating, interpreting, and
modifying laws.
SCHOOLS OF JURISPRUDENCE AND JUDICIAL LAW MAKING
Various schools of
jurisprudence have expressed differing perspectives on the role of the
judiciary in lawmaking. The natural law school represents physical law of
nature based on moral values that are universally applicable in all places and
eras. However, the phrase "natural law" has diverse connotations
throughout history. The analytical positivists emphasise the role of the
sovereign in lawmaking.
Bentham, who is considered
the real founder of positivism in the modern sense of the term, defined law as
"an assemblage of signs declarative of a volition conceived or adopted by
the sovereign in a state, concerning the conduct to be observed in a certain
case by a certain person or class of persons, who in the case in question are
or are supposed to be subject to his power: such volition trusting for its
accomplishment to the expectation of certain events which it is intended should
act as a motive upon whose conduct is in question.”[5]
According to Austin, law
is the sovereign's order, backed up by the prospect of consequence for
noncompliance. Thus, positivists emphasise the sovereign or state as the
lawmaker. The historical school focuses on the organic process or development
of law. According to Savigny, law develops in the same way as language,
manners, and political organisations do; law grows alongside people's daily
lives like language. The historical school of thought holds that law is
discovered rather than created. The philosophical school holds that law is an
evolutionary outcome of reason. Hegal believes that both state and law are
evolutionary outcomes of reason.
Hegal believes that both
state and law are evolutionary outcomes of reason. Immanual Kant defined law as
the conditions under which a man's personal wishes can be recognised alongside
the personal wishes of another man in accordance with a general law of freedom.
[6]
According to the
sociological school of law, the purpose of law is to express the common
interactions of individuals in social organisations. According to Dean Roscoe
Pound, "the sociological jurist look more for the working of law for its
abstract consent" 11 The realist school places a strong focus on judicial
lawmaking. Grey, one of the proponents of this school of thought, believed that
law is defined by judges. According to Jerome Frank, law is what the court has
decided in relation to a certain set of circumstances prior to making such a
determination. The lawyers' opinions are more than just guesses as to what the
courts would decide, and they cannot be considered law unless the court
determines by judicial declaration.[7]
The realism school focuses on extralegal elements that impact judicial
decisions.
MEANING OF JUDICIAL LAW
MAKING
Judicial legislation is simply law pronounced,
proclaimed, and declared by the judiciary, notably the Supreme Court; it is
often referred to as "judicial law" or "Judge-made law".
Despite the fact that the legislature has the constitutional authority to enact
legislation. There may be instances where the existing laws enacted by the
legislature prove insufficient in the administration of justice. It is claimed
that even if Parliament and State Legislatures in India produce laws 24 hours a
day, 365 days a year, the volume of law cannot meet the changing needs of
modern society.
The legislative frequently fails to keep up with
changing needs and values, and it is unrealistic to expect it to have planned
for all possibilities and scenarios. As a result, it is not only essential but
also mandatory for the courts to step in and fill the gap." In such cases,
the higher judiciary's directives to fill the void until the legislature enacts
substantive law are likewise a constitutional prerogative to achieve the goals
of justice. As a result, in order to suit the demands of society, judges write
laws, which are now accepted everywhere.
However, this should not be interpreted as
activism, as judge-made or judicial law is also formally recognised under
Article 133, where legislature or "other competent authority"
includes the judiciary, and even considering the Court's broad powers under
Articles 324, 226, 227, 141, and 144, it is clear that the Constitution has
bestowed the power on the courts to legislate wisely. The Supreme Court of
India's early years saw the adoption of the British tradition of limited
judicial review with a cautious attitude. Later on, the struggle for supremacy
became widely known. In the 1960s and 1970s, the Court issued important
decisions that altered the trajectory of Indian judiciary and politics.
Maneka Gandhi's decision expanded the scope of
many constitutional clauses in the post-emergency era, thereby advancing human
rights jurisprudence. For example, judicial inventiveness has significantly
broadened Articles 141 and 211. Later, public interest litigation was a
stepping stone devised by the constitutional courts for ameliorating the social
and economic conditions of the society, which culminated in the formation of
human rights, environmental, compensatory, and, more so, poverty jurisprudence.[8]
The beauty of social dynamics through judge-made
law is that it seeks for evolution rather than revolution, which is why it has
gained widespread acceptance. "The problems before the Supreme Court
require the economist's understanding, the poet's insight, the executive's
experience, the politician's scientific understanding, and a historian's
perspectives"; in addition, legislative duties are often necessary.
Through its interpretation, it has essentially rewritten the Constitution and
breathed new life into existing legislation.
JUDICIAL LAW MAKING
Judicial law making is
primarily based on the creative interpretation of fundamental texts such as the
Constitution and legislation. The judiciary lacks the authority to enact laws
that are not based on basic texts. As a result, the judiciary's legislative
powers are limited.
Judges undoubtedly make
law while interpreting and determining situations. The Courts' ability to
determine what the law is, if it is unwritten, or what it means, if it is
written, gives them authority that, in effect, whether in form or not, is that
of a lawmaker. The English Judge has more authority and creativity than a
Continental Judge. C.K. Allen, comparing legislation to judge-made law, states
that "the creative power of the courts is limited by the existing legal
material at their command." They discover and shape the material.
The legislator may create
wholly new material." It might be claimed that there are basically three
ways in which judges make law in the course of exercising their judicial
powers;
i)
Interpreting ambiguous or contradictory statutes;
ii)
Gradually giving meaning to broad terms in a statute through
interpretative rulings;
iii)
Expanding common law to meet changing demands.
This is the power that
courts have claimed and wielded in all free countries based on a few maxims or
general principles. As a result, a large, flexible, complicated system of law
known as common law has been and continues to be constructed. This has always
been regarded as part of judicial power and process, both in the common law
tradition and in civil law jurisdictions, and is widely accepted as quite
valid.
This type of judge-made
law is created and exists when judges make law by interpretation, changing
their minds, or overturning previous rulings. This process shapes and, on
sometimes, changes the law. The common law, in its everlasting youth, evolves
to fit the needs of society. This level of inventiveness and innovation is not
new. Learned Hand described the common law as a coral reef, with each judge
contributing a few stones and mortar.
Law making in the common
law tradition is not done anonymously. Even the nomination of a judge to the
higher judiciary signals the emergence of a new judicial personality.
All of this occurs as circumstances change and the Courts respond to the perceived needs of the time. In this context, I vaguely recall Seervai's advice that responding to the "felt necessities of the times" is acceptable for great Judges, but it can be harmful in the hands of lesser ones. This type of judge-made law is, of course, subject to legislative review and can be overruled by the legislature by enacting a new law.
All of this occurs as circumstances change and the Courts respond to the perceived needs of the time. In this context, I vaguely recall Seervai's advice that responding to the "felt necessities of the times" is acceptable for great Judges, but it can be harmful in the hands of lesser ones. This type of judge-made law is, of course, subject to legislative review and can be overruled by the legislature by enacting a new law.
JUDICIAL LEGISLATION AND
JUDICIAL LAW-MAKING
In general, courts are
called upon to decide a legal dispute between parties by applying the law to
the facts. The top court, on the other hand, must always make law by
definition. This is accomplished by 'interpretation', in which the court
integrates, shapes, modifies, or explains the law. In other cases, the court
establishes entirely new legislation during the interpretation process, such as
the reading-in of the 'basic religious practices doctrine' or 'absolute
liability' in the oleum gas leak case. This aspect of the court's job is known
as 'judicial law-making', which must be distinguished from 'judicial
legislation'.
To be clear and brief,
"judicial legislation" refers to the conclusion when the judiciary
adopts rules, laws, or recommendations that have the effect of creating rights
and liabilities for a wide segment of society.[9]
COMPARATIVE
ANALYSIS: JURISPRUDENCE AND JUDGE-MADE LAW
In the nineteenth century, English jurists Bentham
and Austin established classical positivist jurisprudence, whereas Bentham's
legal concept "utilitarian individualism" opposed Judge-made law.
Even Austin's approach does not allow for judge-made law. Hart, Kelsen, and
others expanded on this in the twentieth century, teaching that the
legislative, not the court, is responsible for making laws. The latter's sole
responsibility is to interpret and enforce the law enacted by the
legislature.16 Judges can, and do, legislate, according to the sociological
school of jurisprudence, which began in Europe at the close of the nineteenth
century by Geny, Duguit, and others and later developed in the United States by
Roscoe Pound and others.
Pound's functional theory laid the groundwork for
the most severe school of sociological jurisprudence in the United States, the
realist school. According to Grey, one of the founders of the realism school,
statutes, rules, and so on are not law, but the material that the judge employs
in establishing law. Grey pointed out that "it has sometimes been said
that law is composed of two parts, legislative law and Judge-made law, but in
truth, all the law is Judge-made law" . Frank Llewelyn went so far as to
claim that the only true law is Judge-made law, and that Judges were the
creators rather than discoverers of the law18. According to the declaratory
approach, judges are nothing more than law discoverers. They uncover and
declare the law on a certain point. Many writers, jurists, and judges agree
with this point of view.[10]
SIGNIFICANCE OF JUDICIAL
LEGISLATION
There
is a limit to how far the courts can go when creating legislation. They must
operate within the scope of the constitution and cannot question it. However,
the legislation may have outlived its usefulness or is not consistent with the
current dominant ideology and outcomes that are unacceptable to society's
morality. Such legislation must be corrected, and only the legislative body can
do so. Furthermore, law may be modified to address changing demands and widen
its reach to include new areas. The appeal to the legislative body must always
be made for this purpose.
There
is a potential that the legislation itself will be unjust, which presents a
challenge for the judge. While law has traditionally been considered as a
strong supporter of freedom and a vital method of achieving personal freedom,
preserving human rights, and promoting broad social goals such as equality and
well-being, this is not always the case. The legislation has also been viewed
as an effective tool for political supremacy, a method by which certain
segments of society can establish social and economic power over others,
creating a system with significant potential for autocratic rule. Increased
rights for some people will almost always result in restrictions on the rights
of others.
PERSPECTIVES OF LEGAL
SCHOLARS ON JUDICIAL LEGISLATION
·
Montesquieu believed in the idea of Separation of Powers, which limits
interference with the functions of the executive, legislative, and judicial
departments of government.
·
According to Charles Taylor, judicial rulings can favour any party, but
the legislature takes into account all relevant factors.
·
In the 19th century, Bentham argued that judge-made law might be a tool
for favouritism and corruption, highlighting the importance of judicial
integrity.
JUDGES' PERSPECTIVES ON JUDICIAL LEGISLATION
§
In Bachan Singh vs. State of Punjab (1980), Justice Y V Chandrachud stated that "the highest judicial duty is to recognise the
limits on judicial power and to permit the democratic processes to deal with
matters falling outside of those limits".
§
In the case of C Ravichandran Iyer v. Justice A M Bhattacharjee
(1995), Justice K Ramaswamy stated that the role
of a judge is not only to interpret the law, but also to create new norms to
align with changing social and economic conditions and make the Constitution's
ideals a reality.
o
In the 2008 case of Aravali Golf Club v. Chander Hass, Justice Markandey Katju stated that judges should be aware of
their limitations. They must be modest and humble, and not behave like
monarchs."
o
The legislative,
executive, and judiciary each have a vast scope of action. It is not proper for
any of these three organs of the State to trespass on the jurisdiction of
another, as this will disrupt the delicate balance in the Constitution and
cause a reaction.[12]
INSTANCES OF JUDICIAL
LEGISLATION BY
THE SUPREME COURT
§
In the case of Vishakha
v. State of Rajasthan (1997) -
The judiciary deemed it necessary to
create legislation to ensure women's protection, resulting in judicial
compulsion. The court's verdict had a significant impact on penal and service
legislation, as well as the creation of a new statute.[13]
§
D Velusamy v.
Patchaiammal (2010) -
The Supreme Court construed the Protection of Women from Domestic
Violence Act, 2005 to recognise palimony rights for partners in live-in
relationships. The court determined which kind of relationships are considered
live-in.
§ Retired Justice K S Puttaswamy v. Union of India (2019) -
The court ruled that the Right to Privacy is an inherent right
under Article 21 of the Indian Constitution, 1950.
§ Joseph Shine v. Union of India (2018) -
The Supreme Court decriminalised Section 497 of the Indian Penal
Code, 1860 (IPC), which discriminated between male and female spouses. The
Court took action to address a longstanding social issue.
§ Navtej Singh Johar v. Union of India (2018) -
In
a landmark decision, the Supreme Court partially decriminalised same-sex
encounters by declaring Section 377 of the IPC constitutionally
unconstitutional.
However, the court did not follow the same method while interpreting the constitutionality of the Special Marriage Act, 1969 (SMA).
However, the court did not follow the same method while interpreting the constitutionality of the Special Marriage Act, 1969 (SMA).
JUSTIFICATIONS FOR JUDICIAL LEGISLATION
Supporters of active judicial roles claim that courts must
interpret and apply laws to address gaps, ambiguities, and changing
socioeconomic situations. It is recognised as a crucial aspect of the
judiciary's role in guaranteeing justice and fairness.
SUPREME
COURT‘S RULE AS A "LAW-MAKING AUTHORITY"
It should be noted that if a slip in judgement occurs[14]
as a result of a failure on the part of Parliament, the corrective action is
usually administrative in nature. It can be accomplished by the legislative,
not the judiciary. However, the Indian Constitution does not impose a clear
duty on the entire judicial branch to 'directly' or 'implicitly' determine the
appropriateness, or even the veracity, of executive and legislative directives.
However, the presuppositions in support of legitimacy may be lower in the case
of direct unilateral executive orders, especially where individual rights are
at risk.
Clearly, the Constitution does not expressly authorise the
judiciary, based on certain inherent characteristics, to declare any
governmental action illegal or in violation of its tenets. In the landmark case
of Golak Nath v. State of Punjab, the Legislature was rendered powerless
because its authority was limited to the scope of Article 368. This had an
impact on constitutional liberties because the exercise of specific authority
may have been enshrined in a constitutional statute, and these rights were more
or less virtual and unenforceable. Perusing an array of modern jurisprudential
philosophy developed by prominent academicians such as Dworkin, Hart, Bentham,
and Austin, it is fairly obvious that the entire exercise of enacting and
adopting laws is to be limited to The legislative authorities. Such discretion
should not be subject to the whims and desires of the legal system.
The Supreme Court's sole responsibility is to interpret and direct
the application of the law passed by the legislature. According to the Supreme
Court's decision in Joginder Kumar vs. State of Uttar Pradesh, no instant
arrests were to be conducted in circumstances when a person was accused of a
criminal act. In a similar decision, Arnesh Kumar vs. State of Bihar, the
Supreme Court ruled that it was required to arrest individuals in circumstances
where the accused was charged under Section 498A of the IPC for extraordinary
and written reasons only. In Lalita Kumari vs. State of Uttar Pradesh, The
Supreme Court acknowledged that the police and investigation agencies are
completely within their powers to undertake a "preliminary inquiry"
before reporting some violations if the complaint with the police did not show
a cognizable crime.
It is possible that some judges will have unrestricted discretion
because practically all situations can be brought under the jurisdiction of
Article 21. However, Justice A.S. Anand has stated on multiple occasions that
the judiciary's regulatory operations are not unregulated weapons and should
not be construed as 'legal adventurism'. Judicial verdicts should generally
focus on case law, with public policy issues kept for other governmental
institutions.
CONSTITUTIONAL
INTERPRETATION ON JUDICIAL LEGISLATION
Judges traditionally 'interpret' rather than ‘making’ laws.[15] The
judges not only create and state the law using interpretative techniques, but
they also assert what it should be. The scope of judicial activism has
broadened all around. The important legal resolution, the Maneka Gandhi case,
has provided a new boost to Articles 14 and 21, making them more beneficial for
judicial law making. The Supreme Court's decision in the Maneka Gandhi case has
explicitly confirmed the view that Indian Supreme Court judges do more than
only implement or interpret the law; they actively build the Constitution. The
Supreme Court has thereby converted itself into an ongoing constitutional
assembly.[16] In
Kameshwar Singh v. State of Bihar, the Patna High Court established the right
to ownership, whereas the Bihar Land Reforms Act 1950 was challenged under
Article 14 rather than Article 31 of the Constitution. This decision resulted
in the first amendment to the Constitution in 1951. In State of West Bengal vs.
Beta Banerjee,
The Court overturned the West Bengal Land Act, ruling that
'compensation' meant only equal or complete reimbursement. This case was
followed by the Court in State of West Bengal v. Subodh Gopal[17] and Dwarkadas Shrinivas v. Solapur Spinning and Weaving Co.[18]
The Constitution (Fourth Amendment) Act of 1955 overturned these findings. This
order regarding compensation acceptance raised an unjustified issue. However,
in the Bank Nationalisation Case, the Supreme Court ruled by a ten-to-one
margin that the Constitution preserves the right to compensation for the
monetary equivalent of compulsory acquired property.
Judicial proceedings in India are not simplified; it is dependent
on the psychology of the judges. The council's involvement looks to be nearly
as important in decision making. Saheli[19]and Premchand v. State of Haryana[20] were ruled
by a court that included Justices B C Ray and S Ratnavel Pandian. In this
instance, the judges changed the obiter into a ratio, while in the latter case,
a clear legislative provision was ignored, demonstrating the Supreme Court of
India's law-making ability.
Alarmingly, the harms of horrific acts against women have
increased. Custodial rapes are likewise increasing at an alarming rate.
However, the judiciary's stance has remained unchanged, and judges have
followed age-old laws and understandings of criminal law and evidentiary law.
This claim is substantiated by evidence in the instance of Tuka Ram v. State[21]
where two police officers molested one youngster at a police station and were
prosecuted with a sexual offence but acquitted for various reasons. This
sparked widespread demonstrations and outrage across the country.
The Court may derive a notion for transformation from the
Constitution, but it cannot overrule legislative function. Judicial restraint
is particularly important in PIL cases. If self-restraint is not exercised, the
Court will have to take over administrative and judicial functions.[22] It
is difficult to implement social and political legislation reforms through the
judicial system. The judicial process must work within the current social,
economic, and political environment.
CONSTITUTIONAL DIMENSIONS
The Indian constitution makes no distinction
between ratio decidendi and obiter dictum when laying down the legal validity
of judicial pronouncements. (The ratio decidendi, according to established
theories of law, refers to the rationale behind the judgement in a particular
case; the obiter dictum, on the other hand, refers to all the passing
observations, principles, and opinions that are made by judges in their
judgements that do not directly impact the rule Because of this, obiter dictums
in several Supreme Court decisions have been viewed as legally enforceable over
successive benches.
The Constitution's many
provisions for the operation of the judiciary have been used as the basis for
providing obiter dictums a legal binding status, and the Supreme Court has gone
ahead with the execution of several judicial legislations through these obiters.[23]
According to Article 142 of the Indian
Constitution, "the Supreme Court may, in the exercise of its jurisdiction,
pass such decree or make such order as is necessary for doing complete justice
in any cause or matter pending before it." The courts have liberally
interpreted the term 'doing complete justice' in this article, passing many
judicial legislations and legally binding guidelines over the years with the
intent of ensuring 'complete justice,' even though these
legislations/guidelines have fallen outside the scope of the ratio in the
respective cases.
Furthermore, Article 32 of the Indian
constitution, which paves the way for the supreme court's writ jurisdiction,
has led to the judiciary formulating judgements in which the legislature has
been instructed, through issuing writs, to set up committees, formulate
guidelines, or even properly implement a scheme, despite the fact that these
judicial instructions in the particular cases are less of ratios and more of
orders directing the Legislature to take up appropriate Finally, Article 141 of
the constitution specifies that "the law declared by the Supreme Court
shall be binding on all courts within the territory of India". Although,
if the positivist rule were strictly followed, the ratio decidendi in Supreme
Court cases would only apply to all courts, different benches over the years
have interpreted the term 'law declared by the Supreme Court' to include even
obiter dictums. To that end, the various High Courts and even the Parliament
have treated the obiter dictums established in numerous SC instances as legally
enforceable legislation.
The
Supreme Court's practice of treating even obiters as legally binding principles
was clear in the case of IC Golaknath v. State of Punjab. In this decision, the
court ruled that the constitution could not be used to modify fundamental
rights. Even though this proclamation was merely part of the dictum and not the
ratio, it was understood as having legally enforceable implications. As a
result, the successive benches of the Supreme Court considered this as an
atrocious finding that could have far-reaching consequences for the operation
of the legislature and attempted to overrule the obiter dicta in Keshavananda
Bharati v. State of Kerala.
Another notable case in which the Supreme Court
established judicial guidelines by obiter dicta was Laxmikant Panday v. India.
In this case, in order to cover a legislative gap, the court established
guidelines, which were part of the obiter dicta of the decision, to govern the
procedure of adopting Indian children by foreign parents.
The creation and expansion of Public Interest
Litigation has only complicated the distinction between ratio and obiter
dictum. As a result, the Supreme Court now has wider leeway in legitimising
judicial lawmaking. According to SP Sathe, a well-known legal scholar,
"the traditional legal theory of judicial process envisioned a passive
role for the courts … [and] postulated that courts merely found the law or
interpreted it, but did not make it." According to Sathe, PILs transformed
the judicial process by imbuing it with legislative qualities. Thus, Public
Interest Litigations have only served to devalue the practice of distinguishing
ratio decidendi from obiter dictum.
The best example of a case in which the judiciary
used the PIL system to create judicial legislation through obiter dicta is the
1997 case of Vishaka v. State of Rajasthan. Bhanwari Devi, a woman from a
Rajasthan hamlet, was subjected to caste-based sexual harassment and rape while
working for the Rajasthan government's Women's Development Project. As a
result, Vishaka, a group of non-governmental organisations, filed a public interest
litigation (PIL) in the Supreme Court, requesting judicial intervention to
solve the statutory gap in addressing workplace sexual harassment. The Supreme
Court used its powers under Article 32 to develop rules for protecting women
from sexual harassment at work. The ruling went on to state that under Article
141, these principles were to be deemed the law of the nation and thus legally
enforceable until complete legislation to address the matter was passed.
Although allowing the judiciary to pass
legislative guidelines and orders through obiter dictums may be in
contravention to the principles of legal positivism laid down by John Austin
and other prominent legal minds and may indeed be seen as acts of judicial
overreach, we can see that through the evolution of practices like PILs and by
undertaking a broader interpretation of the constitutional provisions that deal
with the powers of the judiciary, Indian courts have been able to provide sound
legal justification for the process of judicial law-making and, in terms of the
morality and common sense of such acts of judicial activism, incidents like
Vishaka highlight the significance of judicial action in bringing about fast
justice by judicial legislation in areas without competent legislative
procedures. If the courts were to sit idle and wait for the legislature to
meet, debate, and approve laws before adjudicating on the cases, the inevitable
adjournments and delays would be a farce of justice.
CRITICAL ANALYSIS
Critics of judicial legislation claim that it has
the potential to undermine democratic processes since judges, unlike elected
politicians, are not directly accountable to the public. Critics argue that the
legislative branch should be responsible for making and modifying laws, as it
is accountable to voters.[24]
As per the Court‘s decision in Suraz India
Trust v. Union of India[25],
There was an application to review the process of selecting and transferring
justices in the legal system. In this case, the petitioners argued that the
Court had mistakenly changed constitutional provisions, therefore violating the
theory of separation of powers. It is generally recognised that the procedure
for transferring and appointing judges will be presided over by the Chief
Justice of India, who will meet with appointed government officials to offer
recommendations. On the contrary, the Suraz judgement gave the court system the
right to make these choices, resulting in a conflation of authorities.
One of the main points highlighted by the
appellants in this case was the 'virtual' accidental alteration of the
Constitution by delegating powers to the judiciary to pick and even transfer
judges. The Supreme Court uses a few tools on occasion to exercise its
discretion in "judicial law-making". One approach to accomplish this
is to "indirectly vest themselves with the powers of the executive and
legislature" to address specific concerns that may have arisen as a result
of a legislative gap. The Court's second and less common way is to directly
scrutinise the issues of law (in dispute) and, if they violate constitutional
principles, alter or repeal them.
LANDMARK
JUDGMENTS OF JUDICIAL LEGISLATION
River Ganga[26] water
pollution guidelines[27] Advocate M.C. Mehta filed
a mandamus writ petition to restrict leather tanneries from discharging
residential and industrial waste and effluents into the Ganga River. The
Supreme Court agreed with the petition to make the environment a graded subject
in schools and colleges in order to raise general awareness, and also established
rules for preventing Ganga water pollution.
The Bhopal tragedy[28] Following the Bhopal
disaster in 1984, the legal structure was insufficient to hold a fair
prosecution against Union Carbide. To address this issue, the Union of India
adopted the Bhopal Gas Leak Disaster (Processing of Claims) Act, 198531, which
made the Union of India the representative of the victims under the doctrine of
parens patriae. This was then challenged before the Supreme Court. The Court
ordered Union Carbide to pay US $470 million for all of the damage caused by
the methyl isocyanate (MIC) gas leak from the industrial premises. In his
reasoned ruling, Pathak, J. stated that it was the court's duty to seek urgent
remedy for the victims. He applied the polluters pay principle and decided the quantum
of compensation to be US $470 million.
The much needed sexual harassment at work place
guidelines[29]
women's rights group known as "Vishaka" filed a public interest
litigation (PIL) in response to an alleged brutal gang rape of a social worker
in a village in Rajasthan. Recognising international conventions and norms such
as the International Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW)35, the Court interpreted gender equality
in relation to work and held that sexual harassment of women at work is against
their dignity and violates Articles 14, 15(1)36, 19(1)(g)37, and 21 of the
Indian Constitution. The Court held that Sections 35437 and 354-A 38IPC, 1860
should be referred to in any matter of sexual harassment, but these sections
were not relevant to the subject at hand. As a result, the Supreme Court issued
detailed instructions to prevent sexual harassment in the workplace. The Court
held that the recommendations should be recognised as a declaration of law
under Article 141 of the Constitution until Parliament legislates on the issue.
These recommendations were effective for 15 years before the Sexual Harassment
of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013.
Guidelines for arresting a person [30] D.K. Basu, Executive
Chairman of Legal Aid Services of West Bengal, a non-political group, wrote to
the Supreme Court in response to a news item about deaths in police custody
published in The Telegraph newspaper. The Supreme Court treated his letter as a
public interest litigation. The Court evaluated several international
conventions, including the Universal Declaration of Human Rights (1984), the
International Covenant on Civil and Political Rights (1966), statutes like the
New Zealand Bill of Rights Act, and decisions like Miranda v. State of Arizona[31].
The Court provided a list of 11 rules for
arresting a person, which the police had to follow before making an arrest. The
Court also referred to its previous decision in Neelabati Behera v. State of
Orissa[32] in which it held that
prisoners and detainees should not be denied their right to liberty, and that
only legal restrictions could be imposed on the enjoyment of prisoners' and
detainees' fundamental rights. This case established "custody jurisprudence"
in India. The Court further ruled that failing to follow these rules results in
not only department actions, but also contempt of court proceedings against the
officers.
Anti-ragging guidelines[33] The Supreme Court, using
its jurisdiction under Articles 32 and 142 of the Indian Constitution, has
issued wide recommendations for colleges and educational institutions to combat
ragging. The guidelines include initiating an anti-ragging movement in colleges;
obtaining commitments from students and parents on college action in the event
of ragging incidents; establishing a redressal mechanism in the event of
ragging incidents; closely monitoring freshmen hostel accommodations;
withdrawing financial assistance from an institute if ragging is reported; a
reformative approach by police in cases involving ragging perpetrators, and so
on.
Legalising passive euthanasia[34] Aruna Ramachandra
Shanbaug worked as a nurse in Mumbai. A hospital sweeper attacked her and tried
to rape her by wrapping a dog chain around her neck and twisting it to keep her
from moving. The next day, she was found comatose on the floor, covered in blood.
It was assumed that the supply of oxygen to the brain was cut off as a result
of the chain's strangling, causing brain injury. This tragedy caused lifelong
brain injury and placed her in a persistent vegetative state (PVS).
Pinki Virani, an activist-journalist, later filed
a petition in the Supreme Court under Article 32 of the Constitution, claiming
that she will not be able to resuscitate and recover. So she should be able to
choose passive euthanasia and be free of her misery and agony. In the Aruna
Shanbaug case65, the Supreme Court established standards for passive
euthanasia, which allowed for the withdrawal of life support, resulting in
death. When an application for passive euthanasia is filed in the High Court,
the Chief Justice will form a Bench of at least two judges to decide the case.
The Bench will consider the views of a committee of three reputable doctors.
The doctors on the Committee will be nominated by the Bench after consulting
with the appropriate physicians. The Court is responsible for notifying the
State, relatives, kins, and acquaintances, as well as providing them with a
copy of the report prepared by a doctor's committee. Following all of these
procedures, the Court should issue its decision. These principles shall be
followed until the legislature addresses the issue66. Even though the Supreme
Court determined that the freedom to die is part of Article 2167, it was later
overturned in Gian Kaur v. State of Punjab.
In 2018, the Supreme Court issued another order in
Common Cause, A Registered Society v. Union of India69, in which the right to
die with dignity was reaffirmed, passive euthanasia was legalised, and
permission was granted to withdraw life support from those who are terminally
ill and in a lifelong coma.
Following Vishaka Guidelines[35] After a long-running
legal attempt to address the issue of sexual harassment of women at work in
India through Vishaka v. State of Rajasthan80, this lawsuit emerged when the
Vishaka guidelines were not effectively implemented in many Indian states. The
Court declared that the standards must be followed in form, substance, and
spirit in order to help achieve gender equality by guaranteeing that women can
work with dignity, decency, and respect. It also issued a number of directives
that must be followed by state officials as well as commercial and public
sector undertakings/organisations/bodies/institutions, among other things, to
guarantee that the Vishaka guidelines are fully implemented.
Judicial laws for Covid-19 In response to the
impact of Covid-19, the Supreme Court has received numerous applications from
individuals and organisations. Some prayers were frivolous, while others
required advanced medical or other knowledge. The Supreme Court has issued
quite aggressive instructions to reduce mortality. The Supreme Court's
orders/guidelines to ensure effective management of the Covid-19 outbreak were
also considered judicial law. Various petitions were submitted on either
legislative or executive matters, but the Supreme Court had to eventually deal
with them. In such petitions, many guidelines on factors such fixing pricing of
testing and kits, rules for equitable distribution of critical commodities and
services, preventing hoarding and illicit trading, safety and well-being of
children's protection homes, healthcare experts, orders to states/UTs to
release criminals on parole in order to relieve prison overcrowding, guidelines
for the Puri Jagganath Rath Yatra[36] and many more.
Installation of CCTVs in the police stations[37] the Supreme Court asked
States and Union Territories Governments to investigate compliance with the
directives granted in Shafhi Mohammad v. State of H.P.94, which directed the
installation of cameras with audio devices at police stations in their state.
Furthermore, the Court ruled that CCTV footage must be stored for at least six
months, and the victim has the right to have it secured in the event of a
breach of his human rights.
Whether Judges Find or Make the Law Based on the
preceding historic judgements, it is possible to conclude that judges make law
when there is a legal vacuum or no clear legal principles. However, when
existing laws do not provide all of the resources to deliver justice or
"complete justice," judges tend to find the law within the framework
of legislation through its interpretative techniques or judicial creativity,
and "the Judge infuses life and blood into the dry skeleton provided by the
legislature and creates a living organism appropriate and adequate to meet the
needs of the society.”[38]. Impact of Judge-Made Law
While judge-made law forces the legislature to reflect on its failings, it also
instills legitimacy and a sense of dependability in the people. On the other
hand, it creates a sense of uncertainty and unwanted strife between the State's
organs. Judge-made laws violate natural justice principles, which require that
the law be known before it is enforced. Judges' decisions are not intelligible
to the average person and are sometimes based on their subjective notions.
CONCLUSION
In addition to the legal
framework that resolves issues related to constitutional rights, it would be
advantageous for both the legislative and judicial branches to establish
standards necessary for the effective functioning of societal governance at
various levels. This would also help address any gaps or shortcomings that
governmental institutions may fail to address. The primary role of the
judiciary is to reinforce or reinterpret the provisions of the constitution,
sometimes by expanding the scope of articles governing civil liberties.
If citizens require a
legal framework for seamless operation and the legislature is unwilling or
unable to provide it for any reason, there should be remedial measures
available to them. A notable example from our country's judicial history is the
landmark ruling of the Supreme Court in Navtej Singh Johar v. Union of India,
which invalidated Section 377 of the Indian Penal Code. In cases where there is
a legislative loophole, judges may intervene to address the gap. While there
have been past judgments suggesting that courts should refrain from such
discretion, it is now widely accepted that the judiciary, including the Indian
Supreme Court, can exercise such broad discretionary powers.
There may also be other
scenarios where courts may need to legislate. However, it is important to note
that it is the responsibility of various governmental agencies to undertake
such actions, as the judicial branch does not possess the specific expertise or
resources. It is primarily for these crucial reasons that the Supreme Court
should exercise caution and refrain from engaging in legislative activities,
leaving this authority to the executive and legislative branches. The apex
court must prioritize the interests of citizens by understanding their concerns
and interpreting them in a manner that aligns with constitutional ideals, while
also ensuring accessibility to those at the grassroots level.
The essence of the
judiciary's role lies in its unwavering commitment to the principles upon which
it was established, in accordance with the Constitution. The Supreme Court must
recognize that the other branches of government are its partners, and therefore
it cannot assume legislative superiority under the guise of asserting its
authority.
Due to the near breakdown
of effective governance in India and the burden on the judiciary to provide
assistance, it is compelled to respond and make constitutional and political
decisions. Public interest litigation on purely procedural matters often distracts
the judiciary from its core responsibilities and encroaches into areas where it
lacks authority or clear criteria for intervention.
In summary, when judges
engage in lawmaking, it is essentially a constrained form of legislation that
cannot exceed the boundaries of the statutes themselves. Such judicial
legislation serves as a tool for implementing and administering statutory law
to resolve disputes between parties. It is an extension of statutory law, with
the flexibility to address complex situations. However, this does not grant
judges the authority to create laws of a substantive nature that extend beyond
the Constitution's framework. Any practice that transgresses the boundaries set
by the Constitution is disruptive, as it undermines the balance and unity of
the state's respective branches. Therefore, judicial lawmaking is a nuanced
process that requires careful consideration from judges. Nonetheless, it also
offers benefits in addressing contemporary socio-economic challenges that may
not have been adequately addressed through traditional forms of law.
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[3] Kairali, Judges And Law
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[8] S.K. Verma and Kusum, Fifty years of the Supreme
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[18] AIR 1954 SC 119.
[19] AIR 1990 SC 513.
[20] AIR 1989 SC 937.
[21] 1979 2 SCC 143.
[22] Sachidananda v. State of West
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[24] Judicial Legislation, Edititorial, Hindustan Times, https://www.drishtijudiciary.com/editorial/judicial-legislation
[25] MANU/SC/0336/2011
[26] Prof. Dr G.B. Reddy* and Pavan
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(last accessed on 25/03/2024)
[27] M.C. Mehta (2) v. Union of India, (1988) 1 SCC 471
[28] Union Carbide Corpn. (2) v. Union of India, (1989) 2 SCC 540
[29] Vishaka v. State of Rajasthan, (1997) 6 SCC 241
[30] D.K. Basu v. State of W.B., (1997) 1 SCC 416
[31] 1966 SCC OnLine US SC 112 : 16 L Ed 2d 694 : 384 US 436
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[32] (1993) 2 SCC 746
[33] Vishwa Jagriti Mission v. Central Govt., (2001) 6 SCC 577
[34] Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC
454
[35] Medha Kotwal Lele v. Union of India, (2013) 1 SCC 297
[36] Odisha Vikash Parishad v. Union of India, (2020) 7 SCC 264
[37] Paramvir Singh Saini v. Baljit Singh, (2021) 1 SCC 184
[38] P.N. Bhagwati, Judicial Activism in India (last
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Article Information
JUDICIAL LAW MAKING IN INDIA: CATALYST FOR JUSTICE DELIVERY AND SOCIAL MOBILIZATION: A COMPREHENSIVE ANALYSIS
Authors: PRATIKSHA PRAVIN BARVE
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/10
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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