Judicial legislation is nothing but law pronounced, proclaimed and declared by the judiciary–more particularly the Supreme Court, this is also known as “judicial law” or “Judge-made law”. Even though enacting legislation is the constitutional prerogative of the legislature. There may be circumstances where the existing laws made by the legislature prove to be inadequate in the process of administration of justice. It is said that even if Parliament and State Legislatures in India make laws for 24 hours a day and 365 days a year, the quantum of law cannot be sufficient to the changing needs of the modern society1.
“The legislature often fails to keep pace with the changing needs and values nor is it realistic to expect that it will have provided for all contingencies and eventualities. It is, therefore, not only necessary but obligatory on the courts to step in to fill the lacuna2.” In such situations, the directions issued by the higher judiciary, to fill the vacuum until the legislature enacts substantive law is also a constitutional prerogative to meet the ends of the justice. Hence to meet the needs of society, the Judges do make law and it is now recognised everywhere.
But this shall not be vented out as activism, as Judge-made law or judicial law is also formally recognised under Article 133, where legislature or “other competent authority” is inclusive of judiciary and even considering wide power of the Court under Articles 324, 2265, 2276, 1417 and 1448 it is quite clear that the Constitution has bestowed the power on the courts to legislate wisely9. The initial years of the Supreme Court of India were the adoption of the British tradition of limited judicial review with a very cautious approach. Later on, the struggle for supremacy is very well known. In the 1960s and 1970s, the Court delivered landmark judgments which changed the course of the Indian judiciary and political scenario.
In the post emergency era, Maneka Gandhi’s10 judgment brought human rights jurisprudence by widening the scope of various constitutional provisions. For example, Articles 1411 and 2112 has been expanded manifold by judicial creativity. Later on, public interest litigation was a stepping stone devised by the constitutional courts for ameliorating the social and economic conditions of the society resulted in the evolution of human rights, environmental, compensatory jurisprudence and more so the poverty jurisprudence13.
The beauty of social dynamics through Judge-made law is that it aims at evolution and not revolution and that is why it has come to be widely accepted14. “The problems before the Supreme Court require at times the economist’s understanding, the poet’s insight, the executive’s experience, the politician’s scientific understanding and a historian’s perspectives”15 to add to this sometime legislative duties are also required. In this process, it has in a way rewritten the Constitution and filled the existing laws with necessary lifeblood through its interpretation.
Jurisprudence vis-à-vis Judge-made law
In 19th century English Jurists Bentham and Austin created classical positivist jurisprudence, while Bentham’s legal philosophy “utilitarian individualism” condemned Judge made law. Even in Austin’s theory, there is no place for Judge-made law. Later this was developed in the 20th century by Hart, Kelsen and others, who taught that lawmaking is the task of the legislature, not the judiciary. The latter’s job is only to interpret the law made by the legislature and direct its enforcement.16
In sociological school of jurisprudence, which started in Europe towards the end of the 19th century by Geny, Duguit, etc and developed in the United States by Roscoe Pound and others opined that Judges can, and in fact do legislate. Pound’s functional theory paved the way for the more extreme school of sociological jurisprudence in the USA, the realist school.
According to Gray, one of the founders of the realist school, statutes, rules, etc. is not law but the material which the Judge uses in making law17. Gray observed, “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 to an extreme and said that the only real law is Judge-made law and that the Judges were creators rather than the discoverers of the law18.
In case of declaratory theory which states Judges are no more than the discoverers of law. They discover the law on a particular point and declare it. This view has been supported by many writers, jurists and Judges. Similarly this applies to original precedents according to Salmon which has an effect of the law for future. This declaratory theory has been criticised by Bentham as “a wilful falsehood having for its object the stealing of legislative power by and for hands which could not or durst not, openly claim it”.19
Landmark judgments of judicial legislation
Jurisprudence of State liability established20
Rudul Sah was arrested on charges of murdering his wife in 1953, later he was acquitted by an Additional Sessions Judge, in 1968, who directed his release from jail, pending further orders. But he was not released from jail even after 14 years of his acquittal order until his plight was highlighted in the media in 1982. This led to the filing of the public interest litigation (PIL) on his behalf21.
This is a landmark judgment in the jurisprudence of State liability22. It is considered particularly important as it led to the emergence of compensatory jurisprudence for the violation of fundamental rights under the Constitution. This decision overruled Kasturi Lal Ralia Ram Jain v. State of U.P.23 which held the State is immune and cannot be held liable for its tortious acts. Though there is no express provision for awarding compensation in the Indian Constitution, this judgment was based on the Court’s interpretation of the extent of its remedial powers. The Court held that “The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield”24.
The grant of such monetary compensation was in addition, and not to the exclusion, to the right of the aggrieved person to bring an action for damages in civil law or in tort.
Inter-country adoption guidelines25
Lakshmi Kant Pandey, an advocate, wrote to the Supreme Court alleging neglect and malpractice on the part of social organisations and private adoption agencies facilitating the adoption of Indian children to foreign parents. His letter was based upon the empirical investigation carried out by a foreign magazine, The Mail. Since there is no statutory enactment in India relating to the adoption of Indian children by foreign parents, the Court had to look into Section 8 of the Guardians and Wards Act, 189026. This laid down the normative and procedural safeguards to be followed in cases of adoption of children. The judgment27 stressed on policy towards securing children of tender age from abuse and precautions which can prevent them from being forced to enter into vocations unsuitable for their ages and strength.
The judgment was penned by Bhagwati, J. in order to protect the child against exploitation, human trafficking, certain safeguards and procedures have been mentioned. He opined that a congenial environment for the children could be given only by biological parents, but in case if a child is abandoned efforts should be made to trace biological parents. The next step would be looking for adoptive parents within the native country of the child. If adoptive parents within the native country of the child cannot be found within a maximum period of 2 months, then looking for adoptive parents outside the country is the best alternative. However, several other safeguards are also mentioned which have to be taken care of by the social and child welfare agency recognised by the Government before adopting a child to foreign parents. The Court also revisited Rasiklal Chhaganlal Metha, In re28 where a copy of the home study report was mandated to be issued to the Indian Council of Child Welfare or Indian Council of Social Welfare for careful examination of foreigner’s social and financial status.
River Ganga water pollution guidelines29
Advocate M.C. Mehta filed a writ petition in the nature of mandamus to prevent the leather tanneries from disposing of domestic and industrial waste and effluents in River Ganga. The Supreme Court agreed with the prayer that environment should be made a compulsory subject in schools and colleges in a graded system so that there would be a general growth of awareness and issued guidelines for prevention of Ganga water pollution.
The Bhopal tragedy30
After the Bhopal tragedy in 1984, the legal framework was inadequate to conduct a fair trial of Union Carbide. To overcome this challenge the Union of India enacted the Bhopal Gas Leak Disaster (Processing of Claims) Act, 198531 making the Union of India representative of the victims by the virtue of the doctrine of parens patriae. This was then challenged in the Supreme Court.
The Court ordered Union Carbide to pay US $470 million against all the destruction that the leak of methyl isocyanate (MIC) gas from the industrial premise. Pathak, J. in his reasoned order said that it was the duty of the court to secure immediate relief to the victims, he applied the polluters pay principle and decided the quantum of compensation to be US $470 million.
Placing limitations on President’s rule32
S.R. Bommai was the Karnataka Chief Minister of the Janata Dal Government, which was dismissed when the President’s rule (Article 35633) was imposed in Karnataka. When the Karnataka High Court dismissed his writ petition on the same, he then moved to the Supreme Court which discussed the grounds and the extent of the imposition of the President’s rule in a State. The Supreme Court in its judgments restricted the scope of Article 356 and laid several conditions which needed to be fulfilled such as President should use Article 356 only after his proclamation has been approved by both Houses of the Parliament. In case the proclamation disapproval of both the Houses, the dismissed Government is revived at the lapses of a period of two months. Such proclamation of the imposition of President rule is subject to judicial review.
The much needed sexual harassment at work place guidelines34
A PIL was filed by a women’s rights group known as “Vishaka”, the petition has been brought as a class action by certain social activists and NGOs in reaction to an incident of alleged brutal gang rape of a social worker in a village of Rajasthan. The Court recognising the International Conventions and norms such as the International Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)35, interpreted gender equality of women, in relation to work and held that sexual harassment of women at the workplace is against their dignity and violative of Articles 14, 15(1)36, 19(1)(g)37 and 21 of the Constitution of India. The Court opined that Sections 35437 and 354-A 38IPC, 1860 were to be referred in any case of sexual harassment but these provisions were not specific to the issue at hand. This resulted in the Supreme Court’s elaborate guidelines to keep a check on sexual harassment at workplaces. The Court stated that the guidelines are to be treated as a declaration of law in accordance with Article 141 of the Constitution until Parliament legislates on the subject.
These guidelines served their purpose for 15 long years until the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 201339.
Guidelines to be followed to arrest a person40
D.K. Basu, Executive Chairman of Legal Aid Services of West Bengal, a non-political organisation addressed a letter to the Supreme Court about a news item published in The Telegraph newspaper about deaths in police custody. His letter was treated as PIL by the Supreme Court. The Court considered various international conventions such as the Universal Declaration of Human Rights,1984, the International Covenant on Civil and Political Rights, 1966; statutes such as the New Zealand Bill of Rights Act and judgments such as Miranda v. State of Arizona41.
The Court issued a list of 11 guidelines regarding the arrest of a person which were to be followed by the police before proceeding to an arrest. The Court also referred to its earlier decision in Neelabati Behera v. State of Orissa42 in which it had held that prisoners and detainees shall not be deprived of their right to liberty and only the restriction permitted by law could be imposed on the enjoyment of the fundamental rights of prisoners and detained. This case introduced “custody jurisprudence” in India. The Court also held that failure to comply with these guidelines invites not only department actions but also contempt of court proceedings against the officers.
Jain Dairy — Guidelines to free the “caged parrot”43
In 1991 Ashfak Hussain, an alleged official of a terrorist organisation named Hizbul Mujahideen was arrested and interrogated regarding their funding source. He revealed the details of Surrender Kumar Jain and his brother’s involvement, subsequently when the Central Bureau of Investigation (CBI) raided their house and seized Indian and foreign currency along with two diaries. But due to political interference and pressure, the probe was left uninvestigated. In 1993 a PIL was filed by Vineet Narain demanding an honest probe in the hawala case, which had dangerous consequences for the nation’s security and finances.
The Supreme Court derisively referred to CBI as a “caged parrot”44 and directed that the Central Vigilance Commission (CVC) should be given a supervisory role over CBI. The Court using the power under Articles 32 and 142 of the Constitution of India45 issued certain guidelines to CBI and Enforcement Directorate and invented the procedure of “continuing mandamus” to bring the investigations on their proper track and to proceed expeditiously, so as to bring the guilty to book. Further, directives were issued for the establishment of nodal agency and prosecution agency for coordinated action in cases having politico-bureaucrat criminal nexus46.
A check on these government agencies was being placed by the Supreme Court to ensure that the agencies fulfil their part of legal obligation and work towards the erosion of corruption and upheld the law of the land.
In the Second Judges case49 (1993) the Supreme Court introduced the collegium system, holding that “consultation” really meant “concurrence”. It added that it was not the Chief Justice of India’s (CJI) individual opinion, but an institutional opinion formed in consultation with the two seniormost Judges in the Supreme Court. In the Third Judges case50 (1998), the Supreme Court on President’s reference expanded the collegium to a five-member body, comprising the CJI and four of his seniormost colleagues.
Through these cases, the collegium system of appointment of Judges was introduced by the Supreme Court which was not based on any provision in the Constitution. While Article 12451 prescribes the procedure for appointment of the Supreme Court Judges, it does not prescribe a collegium system. Yet, it is the collegium which decides the appointment of Judges. This is also a classic example of Judge-made law.
The Supreme Court, while exercising its jurisdiction under Articles 32 and 142 of the Constitution of India, has laid down broad guidelines for colleges and educational institutes to prevent ragging. The guideline includes initiating anti-ragging movement in the colleges; undertaking from students and parents on colleges action in case of ragging incidents; redressal mechanism in case of ragging incidents; hostel accommodation of freshmen shall be carefully guarded; withdrawal of financial assistance to an institute if ragging is reported; reformative approach by police in cases dealing with ragging culprits, etc.
Preventing smoking at public places53
Since the objects of both the Acts54 dealing with the tobacco products and advertisements discussed the health effects of smoking in public places but failed to place a ban. In an attempt to protect the health of non-smokers, the Supreme Court prohibited smoking at public places and held that it is an indirect violation of the right to life of non-smokers as passive smokers who were helpless victims of air pollution caused by smoking.
In 1996, retired Indian Police Service (IPS) Officer Mr Prakash Singh filed a public interest writ petition before the Supreme Court intending to free the police from the control of power wielders, primarily in relation to transfers and postings. Seven directives were issued by the Supreme Court in this regard, namely, setting up of State Security Commission (SSC); fixing the tenure and selection of the Director General of Police (DGP); a minimum tenure for the Inspector General of Police; separation of investigation and law and order functions; setting up of Police Establishment Boards; creating a Police Complaints Authority and forming a National Security Commission56. These directives pulled together the various strands of improvement generated since 1979. The Court ordered immediate implementation of the guidelines either through executive orders or new police legislation.
The Supreme Court directives to the Union and State Governments to carry out structural changes in the Police Department to insulate it from extraneous pressures and make it accountable to the people is a landmark judgment in the history of police reforms57.
Public distribution schemes matter58
A PIL was filed by the People’s Union for Civil Liberties contending that food grains which are overflowing in storage, especially of Food Corporation of India (FCI) godowns and which are abundant, should not be wasted and distributed to the below poverty line (BPL) groups. The Supreme Court had asked the Government to distribute food grains rotting in government godowns for free to the poor and hungry. Besides this, the Court
“suggested that the Government should increase the quantity of food supply to the people living below poverty line (BPL);
(ii) the Government should open the fair price shops for all the 30 days in a month;
(iii) the Government should construct at least one large Food Corporation of India godown in every State and also consider the possibility of constructing a godown in every division of every State if it was not possible to do so in every district.”59
Live-in relationships — Palimony eligibility60
The Supreme Court was hearing a dispute over maintenance between one D. Velusamy and D. Patchaiammal. The Court was dealing with the rights of an unmarried partner under the Protection of Women from Domestic Violence Act, 200561. It held that not all live-in relationships entitle a woman to palimony and the Court laid certain criteria in order to be eligible for “palimony”.
A relationship must comply with certain conditions such as the couple must hold themselves out to society as being akin to spouses; they must be of legal age to marry; they must be otherwise qualified to enter into a legal marriage, including being unmarried; and, they must have voluntarily cohabited for a significant period and held themselves out to the world as being akin to spouses for a significant period of time62. The Court even went a step ahead and said that “merely spending weekends together or a one-night stand would not make it a domestic relationship”.63
Since Parliament has used the expression “relationship in the nature of marriage” and not “live-in relationship”, the Court in the garb of interpretation laid conditions which are needed to be satisfied to get the benefit of the Act of 2005.
Legalising passive euthanasia64
Aruna Ramachandra Shanbaug worked as a nurse in Mumbai. A sweeper of the same hospital attacked her and he wrapped her neck with a dog chain and tried to rape her, to prevent her from moving he twisted the chain around her neck. The next day, she was found lying on the floor unconscious with blood all over. It was believed that the supply of oxygen to the brain stopped because of strangulation by the chain and hence, the brain got damaged. This incident caused permanent damage to her brain and led her into a permanent vegetative state (PVS). Later an activist-journalist Pinki Virani filed a petition in the Supreme Court under Article 32 of the Constitution alleging that there is no possibility for her to revive again and get better. So she should be allowed to go with passive euthanasia and should be absolved from her pain and agony. In Aruna Shanbaug case65, the Supreme Court laid down guidelines for passive euthanasia, which provided for the withdrawal of life support system which leads to death.
Whenever any application is filed in High Court for passive euthanasia, the Chief Justice of the High Court shall constitute a Bench of at least 2 Judges in deciding such an issue. The opinion of a committee of 3 reputed doctors shall be taken by the Bench. The doctors in the Committee are to be nominated by the Bench after discussing with the appropriate medical practitioners. It is the duty of the Court to issue a notice to the State, relatives, kins and friends and also provide them with a copy of the report made by a committee of doctors. After all these procedures the Court should deliver the judgment. These guidelines shall be followed until the legislature takes up the matter66.
Even though the Supreme Court held right to die is a part of Article 2167 it later overruled it in Gian Kaur v. State of Punjab68. In the year 2018, the Supreme Court passed another order in Common Cause, A Registered Society v. Union of India69, in which the right to die with dignity was again recognised and passive euthanasia was legalised and a permit was given to withdraw the life support system of those who are terminally ill and are in lifelong coma.
Criminals out of polls70
In 2005, Lily Thomas filed a writ petition in the Supreme Court to challenge Section 8(4) of the Representation of the People Act71 which protects the convicted politicians against disqualification from contesting the elections on the ground of pending appeals against their conviction in the appellate courts72. Although initially the petition was rejected after nine years, after constant attempts, the Supreme Court Bench comprising A.K. Patnaik and S.J. Mukhopadhaya, JJ. passed a verdict in 2013.
The 2-Judge Bench stepped into the boots of lawmaking and held that members of Parliament, Legislative Councils and Legislative Assemblies convicted of crimes where they had been awarded a minimum sentence of 2 years’ imprisonment would cease to be members of the house to which they were elected from the date of sentencing. It further struck down the provision, which allowed convicted members a 3 months’ time period for appeal against the conviction and sentencing and held that those convicted would suffer immediate disqualification. It held Section 8(4) is indeed ultra vires to the constitutional provisions.
Later in 2020, the Supreme Court in Rambabu Singh Thakur v. Sunil Arora73 passed another judgment74 whereby all candidates both at the State and Central level would have to publish their criminal records if they want to stand in elections. An earnest attempt was made by the Supreme Court to cleanse politics through its extraordinary powers.
Waiving the statutory period of divorce75
This landmark judgment was delivered by the Supreme Court wherein it was held that where the circumstances are such that continuing the ties of the marriage by applying Section 13-B of the Hindu Marriage Act, 195576, would only continue the agony of the parties, then the marriage must be dissolved and divorce must be granted to the parties. The Supreme Court by invoking their special powers under Article 142 of the Constitution, waived the statutory period of six months’ wait and granted a decree of divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955. Later in 2017 in Amardeep Singh v. Harveen Kaur,77 it has been held by the Supreme Court that the period of 6 months, as mentioned in Section 13-B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation78.
Following Vishaka Guidelines79
After a long-running attempt in courts to tackle the problem of sexual harassment of women at work in India through Vishaka v. State of Rajasthan80, this case arose when the Vishaka guidelines were not implemented properly in many States of India. The Court stated that the guidelines had to be implemented in form, substance and spirit in order to help bring gender parity by ensuring women can work with dignity, decency and due respect. It further issued various directives to which had to be followed by the State functionaries and private and public sector undertakings/organisations/bodies/institutions, etc. to ensure full implementation of Vishaka guidelines.
Misuse of red beacons on vehicles81
In this case, the Supreme Court gave directions to the Union Government to prevent the misuse of red beacons. The Supreme Court directed that the vehicles ferrying “high dignitaries” specified by the Central and State Governments may be fitted with red beacons but these can be used with or without flasher only when the dignitary is on duty. It had also directed the States to amend the Motor Vehicle Rules to restrict the use of the red beacon and impose an exemplary fine in case of misuse. It further held that “the use of red lights on the vehicles of public representatives and civil servants has perhaps no parallel in the world democracies.”
The NOTA case82
The People’s Union for Civil Liberties an NGO, filed a public interest litigation under Article 32 of the Constitution to challenge the constitutional validity of Rules 41(2) and (3) and 49-O of the Conduct of Elections Rules, 1961, challenging the provision in which one wishing not to vote for any candidate had to inform the Presiding Officer. On 27-9-2013, this was held ultra vires by the Supreme Court under Article 19 of the Constitution (protection of certain rights regarding freedom of expression) and Section 12883 (maintenance of secrecy of voting) of the Representation of the People Act, 195184. The Court also directed the Election Commission to make the necessary provisions in ballot papers and electronic voting machines (EVMs) to provide a “‘None of the Above” option for voters, this was to enable voters to exercise their right not to choose a candidate while maintaining their right to secrecy.
Legal declaration on transgender community’s identity and rights
The Court declared85 that the Union and State Governments must grant recognition to the third gender in the eye of the law. Further, they should get to enjoy healthcare, education, etc. and all government documents such as ration cards, passports, etc. should recognise the third gender. It also directed the Election Commission of India to take special measures to enroll.
Directions on acid sales86
Directions were issued to curb acid sales. The Court said that acid should be sold only to people who show a valid identity card. Buyers will also have to explain why they need the chemical and sales will have to be reported to the police. The Court directed the Chief Secretaries of all States and the administrator of the Union Territories to comply with the direction given in the order and frame rules in tune with the model rules framed by the Centre to regulate the sale of acid at the earliest and possible.
Shutting liquor vends near highways87
The Supreme Court considering the increase in the number of road accidents due to driving under the influence of alcohol and negative effects of the same both to the individuals and to the society and recognising that no method of restitution through monetary instruments can undo loss and the pain of suffering, issued the directions to shut down all liquor vends like bars, restaurants, shops, etc. which are situated within 500 meters of the outer edge of national/State highways and the ban extended to highways passing through city/town. Along with it, the States were barred from granting fresh licences under Article 142 of the Constitution. The Court justified its ruling by considering various issues of drunk driving and its social, economic and legal consequences.
Guidelines on honour killings88
The Supreme Court observing the petition and data collected by an NGO in its survey against the honour killings in Haryana, Punjab and Western Uttar Pradesh has issued guidelines to check unlawful interference in the lives of interfaith and inter-caste couples by khap panchayats and further directed the State Governments to constitute special cells in each district which can be approached by the couples for their safety and well-being.
Green crackers case89
The Supreme Court applied the precautionary principle and said scientific uncertainty should not be a reason for preventing action that may cause environmental harm. Guidelines were issued on bursting of crackers during Diwali. Concept of “green crackers” was introduced.
Witness Protection Scheme90
In this case, the Supreme Court observed that there is a paramount need to have witness protection regime, in a statutory form, which all the stakeholders and all the players in the criminal justice system concede and no such legislation has been brought about. Hence, the Supreme Court approved the Witness Protection Scheme, 201891 (as prepared by Union of India) and directed it to come “into effect forthwith” and that “it shall be the ‘law’ under Articles 141/142 of the Constitution, till the enactment of suitable parliamentary and/or State Legislations on the subject92.
Installation of CCTVs in the police stations93
The Supreme Court directed States and Union Territories Governments to look into the compliance on the directions issued in Shafhi Mohammad v. State of H.P.94 which directed installation of the cameras with audio devices at the police stations in their State. Further the Court held that CCTV footage shall be preserved for a certain minimum time period, which shall not be less than six months, and the victim has a right to have the same secured in the event of violation of his human rights.
Limit on arbitral bail conditions95
Looking at the bizarre bail conditions the Supreme Court issued a set of guidelines in order to regulate bail conditions to be imposed in cases relating to sexual offences, while setting aside a “rakhi for bail”96 condition imposed by the Madhya Pradesh High Court in a sexual harassment case97.
Judicial legislation in Covid-19
In connection with the impact of Covid-19, the Supreme Court has received a large number of petitions from individuals and organisations. Some prayers were frivolous, while others required high levels of medical or other expertise. The Supreme Court has passed very bold orders, to minimise fatalities. These orders/guidelines of the Supreme Court to ensure proper management of the Covid-19 pandemic were also a form of judicial legislation. As various petitions were filed which were either legislative or executive’s subjects, but the Supreme Court had to ultimately deal with it. In such petitions various guidelines on aspects like fixing prices of testing and kits98, guidelines for equitable distribution of essential supplies and services99, checking hoarding and illicit trade, safety and well-being of children protection homes100, healthcare professionals101, directives to the States/UTs to release prisoners on parole to decongest prisons102; guidelines to be followed for Puri Jagganath Rath Yatra103 and many more.
Judicial legislation v. Separation of power conundrum
Indian Constitution does not strictly accept the concept of separation of power, as laid down in Ram Sahib Ram Jawaya Kapur v. State of Punjab104. It has not indeed recognised the doctrine of separation of powers in its absolute rigidity105but the functions of the different parts or branches of the Government have been sufficiently differentiated.106Hence, the judiciary to indulge in lawmaking is to overstep its limitations.107 Moreover, allowing an unelected body like the judiciary to share the burden of lawmaking is always criticised as it is extraneous to that of the people’s will108.
Judicial legislation for the first time was checked by a 7-Judge Bench decision in P. Ramachandra Rao v. State of Karnataka109, wherein the Court held that giving directions of a legislative nature is not a legitimate judicial function. The Court was considering the question of whether the bar of limitation for criminal trials set by smaller Benches of the Supreme Court in “Common Cause”, A Registered Society v. Union of India110, Raj Deo Sharma (1) v. State of Bihar111 and Raj Deo Sharma (2) v. State of Bihar112 were valid. The Supreme Court held that the directions given in the aforesaid decisions were invalid as they amounted to directions of legislative nature which only the legislature could give113.
Even in Bachan Singh v. State of Punjab114 a five-Judge Bench headed by Y.V. Chandrachud, C.J. held that “We must leave unto the legislature, the things that are the legislature’s. ‘The highest judicial duty is to recognise the limits on judicial power and to permit the democratic process to deal with matters falling outside of those limits.’” Even with regard to Vishaka Guidelines115, the Court expressed its concern much later116 on being an interim Parliament.
But, in many PILs, the courts freely decree rules of conduct for government and public authorities which are akin to legislation. Such exercises have a little judicial function in them. Its justification is that the other branches of Government have failed or are indifferent to the solution of the problem. Sometimes failing to circumspect and understand the thin line between law and governance.117
Hence, allegations are made now and then on the judiciary in general and the Supreme Court in particular that it has entered into the domain of the legislature and “taken over” the administration of the country. But analysing various judgments of the Supreme Court, underlying reasons for expanding judicial review and its legitimacy can be understood.
The Judge-made law can be validated when there is serious lacuna or vacuum which has to be filled and left unattended by the legislature, as even “Judges cannot afford to be timorous souls. They cannot remain impotent, incapable and sterile in the face of injustice”118. Moreover, it is a constitutional obligation of the court to ensure justice is delivered. It is only the tradition that Judges “find” and do not “make” law119. But through interpretative technique, the Judges not only make and state what the law is but they also assert what it ought to be120.
In the same way,judicial creativity can also be justified if there is a peculiar issue at hand which has a dead end. For instance, in C. Golak Nath v. State of Punjab121, the Supreme Court has invented the doctrine of “prospective overruling” as it would have upset everything done so far in the agrarian field122. Even the basic structure123, doctrine of harmonious construction124, pith and substance125 etc., can also be categorised into this.
Laws enacted need to fulfil the needs of the people, with changing time, expanding the scope of existing provisions in the Constitution is also legitimate. For instance, in Maneka Gandhi v. Union of India126 and K.S. Puttaswamy v. Union of India127scope of Article 21 is expanded manifolds and new dimensions were mandated by the Court. Hence, by interpretative technique, the Judges not only make and state what the law is but they also assert what it ought to be128. Adding/subtracting legislation in the name of interpretation can be categorised as illegal129. Even an order “to do complete justice” under Article 142 cannot be “inconsistent with the substantive provisions of the relevant statutory laws.”130
Whether Judges find law or make the law
After analysing the above landmark judgments it can be inferred that Judges make law when there is a legal vacuum or no express principles of law. But when existing laws fail to provide all the resources to deliver justice or “complete justice”, Judges do 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”131.
Impact of Judge-made law
While Judge-made law pushes the legislature to introspect on its failures, it also creates credibility and a certain sense of reliability amongst the people. On the other hand it creates a sense of uncertainty and unwanted strife between the organs of the State, Judge-made laws are against the natural justice principles which demands that the law should be known before it is enforced, decisions of Judges are not intelligible to common man and sometimes are in accordance to their subjective notions.
Dichotomy of opinion: Conservative versus Activist Judges
The activist approach to the Judicial legislation suggests that interpretation of the constitutional and statutory provisions in such a way to meet the then contemporary needs or to lay down a new law, be it procedure or substantive, through in the form of guidelines or orders. In contrast, in the conservative/traditional approach to the judicial legislation suggests, the judiciary not willing or stepping into the legislative domain to interpret the constitutional provisions and statutes irrespective of needs in the system. The process of making law by Judges is also one of the many forms of judicial activism, and traditional approach to this can be put it loosely as judicial passivism.
For example, by analysing these two judgments, contrast of opinion can be understood: In Madhuri Patil v. Commr., Tribal Development132 K. Ramaswamy, J. issues 15 guidelines to prevent fraudulent and fabricated certificates being made by the forward communities to reap the benefits which were allocated to the reserved communities. Later in Dayaram v. Sudhir Batham133 doubted the correctness of the said judgment but R. Raveendran, J. speaking for the Bench came to a conclusion holding that they were not taking over the functions of the legislature but merely filling up the vacuum till legislature chose to make an appropriate law.
In contrast, in Rajesh Sharma v. State of U.P.134, a two-Judge Bench of the Supreme Court held that Section 498-A IPC135 was being misused by vindictive wives and 8 directives were issued. The very first directive was that in every district in India a Family Welfare Committee should be set up by the District Legal Services Authority, and all complaints under Section 498-A should be referred to it, and no arrest should be made before receiving its report. Since there is no such law for setting up family welfare committees, the 3-Judge Bench of Supreme Court in Social Action Forum for Manav Adhikar v. Union of India136, set aside the abovementioned directive of the two-Judge Bench.
The reason held is that the Court can only interfere if the policy framed is absolutely capricious or not informed by reasons or totally arbitrary, and the matters of policy should be left for the elected representatives of people to decide and no direction can be issued by the Court.
Reasoning from Activist Judges on judicial legislation
|Views on judicial legislation
V.R. Krishna Iyer137
|“The Judge is not a mimic. The greatness of the Bench lies in creativity….To meet the needs of the society, the Judges do make law and it is now recognised everywhere that Judges take part in this law-making function and, therefore, Judges make law.”
|“There is no need for Judges to feel shy or apologetic about the law creating roles….Lawmaking is an inherent and inevitable part of the judicial process….There is bound to be a gap between the generalities of law and the specifics of life…thus making and moulding the law he takes part in the work of creation.”
|“The role of the Judge is not merely to interpret the law but also to lay new norms of law and to mould the law to suit the changing social and economic scenario to make the ideals enshrined in the Constitution meaningful and a reality.”
|Justice Kurian Joseph140
|“I would like to sum up stating that judicial legislation is not necessarily an innovative role of an activist Judge, it is the solemn duty or role or function of Judge who has taken oath under the Constitution of India to uphold it…. He shall not non-suit a person crying for justice taking a technical approach that there is no enacted law to be applied in the given circumstances.”
Reasoning from traditional Judges on judicial legislation
|Views on judicial legislation
|“the Court must never forget that its jurisdiction extends no farther than the legitimate limits of its constitutional powers and avoid trespassing into political territory … excessively political role identifiable with political governance betrays the Court into functions alien to its fundamental character, and tends to destroy the delicate balance envisaged in our constitutional system between its three basic institutions”.
|“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.”
|“Judges ought to know their limits and must not try to run the Government; they must have modesty and humility, and not behave like emperors.”
|Justice S.B. Sinha144
|“The courts must exercise judicial restraint in this connection. The tendency in some courts/tribunals to legislate or perform executive functions cannot be appreciated. Judicial activism in some extreme and exceptional situation can be justified, but resorting to it readily and frequently, as has lately been happening, is not only unconstitutional, it is also fraught with grave peril for the judiciary.”
By comparing traditional and activist Judges, we can come to a conclusion that even in traditional Judges there is acceptance to judicial legislation to some extent, and which some Judges term it as legitimate judicial legislation145. Nonetheless, when it comes to the vacuum which needs to be filled, Judges did not hesitate in using their legislative powers. At the same time when there is a blank wall, courts were not reluctant to lay new doctrines/guidelines to cross the obstacles. The fundamental difference is that there is a tendency amongst activist Judges to pass orders which tend to cobble with policy decisions and lay guidelines which are sometimes against the statute laid. While traditional Judges refrain to comment on policy decisions and passing orders when there is a statute even sometimes ineffective to meet the needs.
Executive and legislature criticism on judicial legislation
For instance, if we look at the Supreme Court’s order in People’s Union for Civil Liberties v. Union of India146 against corruption in the Food Corporation of India, the Union Agriculture Minister, Sharad Pawar reacted147 by sayings that it was not possible to implement the “suggestion” made. The Supreme Court made it very clear that it did not make a “suggestion to the Government; it was an “order”148. The then Prime Minister Manmohan Singh said that the Supreme Court should refrain from interfering in policy issues149.
Similar criticism can be observed when the Supreme Court has directed the interlinking rivers in India150. In 1993, the Court’s order to conduct military operations in Hazratbal, Kashmir received a lot of criticism. Commenting on this, an Army General wrote: “for the first time in history, a court of law was asked to pronounce judgment on the conduct of an ongoing military operation. Its verdict materially affected the course of operation”. On the same lines, the Supreme Court’s order to Jharkand Assembly to conduct a motion of confidence and not to entertain any other business was criticised by the legislators as against the Article 212 of the Constitution151 which states that courts are not to inquire into any proceedings of the legislature152.
Even former Union Finance Minister, Mr Arun Jaitley vehemently criticised on this issue. In his words:
I have often heard (the) argument that judicial activism is born out of a phenomenon that when other institutions are not doing their job, somebody has to fill the gap. It is a flawed argument. It is flawed because if any organ of the State is not doing its duty, it can be directed to do its duty. Usurpation of power… by any other organ would never be the correct constitutional approach. What if the same argument was used the other way round against the judiciary? Arrears are pending, Judges are not doing the job. So must somebody step in and now exercise that power? The answer is no… And therefore, it is extremely important that the dividing line on separation of powers is maintained. And therefore, by creating arguments, the thin dividing line itself cannot be lost.153
Beneficiaries’ response on judicial legislation
Whether a law is passed through legislative route or from a judicial court, ultimately it is the people’s welfare which is relevant and should be predominant and not Montesquieu’s 18th century treatise on separation of powers154. Judge-made law has touched the lives of millions, it is because of this belief that people even today run to the courts when there is a mess. In many instances because of this trust, the Supreme Court was the first to be approached; this in many ways burdened the court and even led it to adventure in unwarranted domains. Time and again the Supreme Court saved the supreme aspirations of this nation’s founding fathers and mothers. Perhaps it is the Supreme Court which has transfused the vision of our Constituent Assembly.
“It is indeed possible to characterise with precision that (any particular) agency of the State is executive, legislative or judicial, but it cannot be predicted that a particular function exercised by any individual agency is necessarily of the character which the agency bears”155. Hence, every agency is under the Constitution, even Judges are under the Constitution, but Constitution is what Judges say156.
“Like it or not, the balance of constitutional power will remain in favour of the courts, but only so long as our Judges are perceived to be persons of exceptional competence and of high moral integrity. If that perception changes (God forbid), the constitutional system as it now operates will breakdown”157.
It is, therefore, necessary for academicians, lawyers and Judges to re-examine the roles postulated by the Constitution for the three wings of the State. If the Judges legitimately legislate and the Constitution recognises judicial legislation, then the limits to judicial legislation shall also be explored and reasoned out. Even if it is welcomed should it be permanent or interstitial should also be considered. Alike judicial review, Judge-made law shall also have to satisfy legitimacy. Ultimately Judges are not legislators, but finishers, refiners and polishers of legislation158.
*Professor at University College of Law, Osmania University, Hyderabad.
1I.P. Massey, Administrative Law (2005).
9 Mohit Sharma, Judicial Legislation: Whats’ The LakshmanRekha!, 10-12-2021, <https://www.livelaw.in/judicial-legislation-whats-lakshman-rekha/> (last accessed on25-6-2021).
14Justice R.C. Lahoti, ILI Foudation Day Lecture on “Law and Social Dynamics” ILI News Letter 5-10 (2004).
15Cornell Law Review, Vol. 45, Spring 1960, p. 3.
16 Markandey Katju, Can Judges Legislate? The Supreme Court Sets the Record Straight, The Wire, <https://thewire.in/law/can-judges-legislate-the-supreme-court-sets-the-record-straight>, (last accessed on 25-6-2021.).
18 Schools of Jurisprudence, <http://law.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-b9de496f8751/Custom/16.%20Schools%20of%20Jurisprudence.pdf>, (last accessed on 25-6-2021).
19V.D. Mahajan, Jurisprudence and Legal Theory, EBC Webstore, 5th Edn., p.201.
22A.R. Blackshield, Tortious Liability of Government: A Jurisprudential Case Note, Journal of the Indian Law Institute, Vol. 8, No. 4 (October-December 1966), pp. 643-659.
35CEDAW, <https://www.iimb.ac.in/sites/default/files/inline-files/iim-visakha-guidelines.pdf>, (last visited 7-7-2021).
44Abinav Garg, Nothing has Changed Since 1997 Judgment, Vineet Narain says, Times of India, 10-5-2013, <https://timesofindia.indiatimes.com/india/nothing-has-changed-since-1997-judgment-vineet-narain-says/articleshow/19978247.cms>, (last accessed on2-7-2021).
Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Bill, 2001.
56Divya Trivedi, Efforts to Implement Supreme Court Directives on Police Reforms “Largely Regressive”, The Frontline, <https://frontline.thehindu.com/dispatches/states-efforts-to-implement-supreme-court-directives-on-police-reforms-largely-regressive/article32684870.ece>, (last accessed on26-6-2021).
62 Manju Jamwal, Live-In Relationships in India, Legal Moves and Judicial Attitude, RGNUL Law Review,<https://www.rgnul.ac.in/PDF/d0fb7efc-5940-42a4-980f-7e5c2d565c44.pdf>, (last visited 7-7-2021).
72Remembering Adv. Lily Thomas, Supreme Court’s Seniormost Woman Advocate, SCC OnLine Blog, 10-12-2019, <https://www.scconline.com/blog/post/2019/12/10/remembering-adv-lily-thomas-supreme-courts-senior-most-woman-advocate/> (last accessed 26-6-2021).
78 Lucy Rana, India: Six months waiting period Section 13B (2) of Hindu Marriage Act for Divorce by mutual consent not Mandatory, Lexology, <https://www.lexology.com/library/detail.aspx?g=ec2ad7bb-cca0-4d40-aec9-98d5afc50daa>(last accessed on28-6-2020).
84 Richa Mishra, NOTA as a Right!, The Hindu, 29-4-2019, <https://www.thehindubusinessline.com/opinion/columns/nota-as-a-right/article26983554.ece>, (last accessed on2-7-2021).
92SC Approves Witness Protection Scheme, SCC OnLine Blog, (7-12-2018), <https://www.scconline.com/blog/post/2018/12/07/sc-approves-witness-protection-scheme-2018-directs-setting-up-of-vulnerable-witness-deposition-complexes-in-all-district-courts/> (last accessed on 7-7-2021).
97Leah Verghese, The Trend of Bizarre Bail Conditions, Live Law, https://www.livelaw.in/columns/trend-of-bizarre-bail-conditions-173453, (last accessed on 6-6-2021).
107Upendra Baxi, On the Shame of Not Being an Activist: Thoughts on Judicial Activism, (1984) 11 Ind. B. Rev. 259, 265.
108William S. Blatt, The History of Statutory Interpretation: A Study in Form and Substance, (1985) 6 Cardozo L. Rev. 799.
117 S.H. Kapadia, Judges Should Not Sit as “Super Legislature”: CJI, Hindustan Times, 16-4-2011, <https://www.hindustantimes.com/delhi/judges-should-not-sit-as-super-legislature-cji/story-wd0GjOVjD88IMY06HyPp7J.html>, (last accessed on7-7-2021).
118Lord Denning, “Freedom under the Law”, The Hamlym Lectures (1949).
122 V.D Mahajan, Jurisprudence and Legal Theory, EBC Webstore, 5th Edn., p.215.
128Siva Kumar, Journal of the Indian Law Institute, Vol. 58, No. 3 (July – September 2016), pp. 273-312.
131P.N. Bhagwati, Judicial Activism in India <https://media.law.wisc.edu/m/4mdd4/gargoyle_17_1_3.pdf> (last accessed on19-6-2021).
137 Esha Saha, Judicial Legislation – Boon or Bane?, Live Law, 18-7-2013, <https://www.livelaw.in/judicial-legislation-boon-or-bane/>, (last accessed on29-6-2021)
138P.N. Bhagwati, Judicial Activism in India <https://media.law.wisc.edu/m/4mdd4/gargoyle_17_1_3.pdf> (last accessed on 19-6-2021).
145Markandey Katju, Can Judges Legislate? The Supreme Court Sets the Record Straight, The Wire, <https://thewire.in/law/can-judges-legislate-the-supreme-court-sets-the-record-straight>, (last accessed on 25-06-2021).
147Dhananjay Mahapatra, Distribution of Foodgrains an Order, Not a Suggestion, SC Pulls up Pawar, Times of India (31-8-2010), <http://timesofindia.indiatimes. com/india/Distribution-of-food-grains-an order-not-a-suggestion-SC-pulls-up-Pawar/ articleshow/6467212.cms>(last accessed on 4-11-2021).
149 Siddharth, Order on free grain to poor can’t be executed, says Manmohan Singh, The Hindu, (6-9-2010), https://www.thehindu.com/news/national/Order-on-free-grain-to-poor-cant-be-executed-says-Manmohan-Singh/article15906394.ece, (last accessed on17-7-2021).
150Amitha Bhaduri, Citizens Voice Alarm over Recent Supreme Court Judgment on Interlinking of Rivers, India Water Portal (27-2-2012), <https://www.indiawaterportal.org/articles/citizens-voice-alarm-over-recent-supreme-court-judgement-interlinking-rivers>, (last accessed on7-7-2021).
152T.R. Andhyarujina, Disturbing Trends in Judicial Activism, The Hindu, (6-8-2012), <https://www.thehindu.com/opinion/lead/Disturbing-trends-in-judicial-activism/article12680891.ece>, (last accessed 7-7-2021).
153Ananthakrishnan G., National Law Day: Judicial Activism Based on Flawed Premise, says Arun Jaitley, (26-11-2017), The Indian Express, <https://indianexpress.com/article/india/national-law-day-judicial-activism-based-on-flawed-premise-says-arun-jaitley-4954840/, (last accessed on 7-7-2021).
156Justice Charles Evans Hughes.
157Fali S. Nariman, A Question of the Right Balance, The Hindu, 15-8-2007, <http://www. hinduonnet.com/af/india60/stories/ 2007081550270800.htm> (last accessed on 4-11-2010).