“There was a time when it was thought almost indecent to suggest that judges make law; they only declare it. Those with a taste for fairy tales seem to think that in some Aladdin’s cave there is hidden a common law in all its splendour and that on a judge’s appointment there descends on him knowledge of the magic words, ‘Open Sesame’. Bad decision are given when the judge has muddled the password and the wrong door opens. But we do not believe in fairy tales anymore.” - Lord Reid
“There was a time when it was thought almost indecent to suggest that judges make law; they only declare it. Those with a taste for fairy tales seem to think that in some Aladdin’s cave there is hidden a common law in all its splendour and that on a judge’s appointment there descends on him knowledge of the magic words, ‘Open Sesame’. Bad decision are given when the judge has muddled the password and the wrong door opens. But we do not believe in fairy tales anymore.”
- Lord Reid
Let me start with the centuries old Kautilyan philosophy, he said, the fact that a judge is called a ‘dharmastha’- upholder of dharma - indicates that the ultimate source of all law is dharma. So long as every Arya follows his svadharma having due regard to his varna & ashram & the king follows his rajadharma, social order will be maintained (See Kautilya-The Arthashastra, Part VIII p. 349). In the Constituent Assembly, one of the most erudite member, K.M. Munshi tried to convince the Constituent Assembly that the judiciary would never assert its authority over Parliament and hence there was no danger of the substitution of parliamentary supremacy for judicial supremacy (K.M. Munshi, CAD, Vol. IX, No.32, 12 September 1949, p. 1300-01). Granville Austin in his book The Indian Constitution-Cornerstone of Nations (1966) at p. 12 wrote, “Indeed, the judiciary was seen as an extension of the Rights, for it was the courts that would give the Rights force. The judiciary was to be an arm of the social revolution upholding the equality that Indians had longed for during colonial days, but had not gained-not simply because the regime was colonial, and perforce repressive, but largely because the British had feared that social change would endanger this rule.” Blackstone says, law is a rule of civil conduct, prescribed by the Supreme Court power of the State, commanding what is right & prohibiting what is wrong. Roscoe Pound in one of his essays (More about Nature of Law-1935 at p. 513-515) talked about two kinds of law, One, an imperative rule laid down by a law-making organ of a politically organised society deriving its force from the authority of the sovereign (legislation) &the other, being a rational or ethical idea of the rule of right or justice, deriving authority from its intrinsic reasonableness-which is “recognised” as law, though not made by sovereign. One of the greatest Judges of all times, Late Justice Krishna Iyer observed “Every Judge is an activist either on the forward gear or on the reverse.”
Historical Background & Concerned Laws
Aristotle, in his treatise ‘Politics’ in 4th Century B.C., defined three organs of the State viz., the General Assembly, the Public Officials & the Judiciary. John Locke, in his Two Treatise of Government (1689) propounded the three divisions as, viz., the Legislature, the Executive & the Federative. Although Judicial independence had been established in England with the Act of Settlement (1701), it was only after Montesquieu who in his treatise ‘The Spirit of the Laws’ (1748) defined three organs viz., the Legislature, the Executive & the Judiciary & its only after his model the third organ of the government-the Judiciary, emerged as an independent governmental structure. But it remained abstract till the American Revolution presided over by the Massachusetts Political leaders, John Adams and others. It was there agreed that the Legislature, Executive and the Judicial powers shall be placed in separate departments to the end that it might be a government of law and not men. A system of checks and balances was introduced into the US Constitution in 1787. Art.16 of the French Declaration of the Rights of Man (1784) also stated, “Any society in which the safeguarding of rights is not assured, and the separation of power is not observed, has no constitution.” Indian Constitution is based on the same noting, it says that the Legislature, the Executive & the Judiciary are the three separate organs or agencies of the State entrusted with sovereign powers of the State. Art. 50 of the Indian Constitution emphasises the principle of separation of powers, particularly of the judiciary from the executive. And as we all know that Executive & the legislature are all the same as far as India is concerned. In fact the Legislature is Executive in disguise. The debates in the Constituent Assembly on separation of powers took place on 24th and 25th November, 1948 (Constituent Assembly Debates Vol VII-A (p. 582 - 593). Several reports of the Law Commission of India, in particular, the 14th, 37th& 41st Reports have dealt with the subject of separation of judiciary from the executive and the need to implement the same expeditiously.
Now the primary question is, “Do Judges make laws”? The answer to that is, Yes, they do, they have been making it & shall always be making it for the good of the society and to keep the constitutional balance. Just before entering the office, the Judges of the Supreme Court take oath which says, I, …, having been appointed Chief Justice (or a Judge) of the Supreme Court of India do swear in the name of God/solemnly affirm that I will bear true faith & allegiance to the Constitution of India as by law established, [that I will uphold the sovereignty and integrity of India,] that I will duly and faithfully and to the best of my ability, knowledge and judgement perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws (III Schedule, Part IV). High Court Judges take same oath under (III Schedule, Part VIII). Judges are called as the “watch-dogs of the Constitution.” The Constitution places implicit faith & trust in judicial law-making. Judicial law-making is concerned with & essentially restricted to interpretation of the Constitution though & the laws & conflict with the Legislature becomes inevitable when judicial law making transgress such limits. Nevertheless, we must not forget that the Constitution itself gives the powers to the Courts to make laws. Arts. 32, 136, 141, 142, 144, 226 & 227 of the Constitution are to be taken into consideration. They can’t be studied in isolation, a holistic view needs to be taken into consideration. Law pronounced, proclaimed and declared by the Judiciary in India & the Supreme Court in particular-namely “judicial law”-is as much a part of the law of the land, as legislation is & therefore the Legislation is not the only source of law in India. Law under Art. 13(3)(a) of the Constitution of India is defined inclusively. Hence, judge-made or judicial law “declared” under Art. 141 r/w Art.144 of the Constitution being both binding & enforceable is law as defined in the Constitution.
When the Emergencies are being proclaimed one after the other on the bogus grounds, be it may be State or National, I think thats’ the Lakshman Rekha & thats’ the infringement of the Lakshman Rekha. It doesn't happen when the Judiciary delivers a Landmark like Kesavanada Bharti (1973) which protected the Constitution & its basic features & tenets against any possibility of encroachment by the Legislature. Constitution is not in a State of being, but becoming, a prophetic comment made by S.N. Dwivedi J. in the same case. Maneka Gandhi (1978), where the meaning of life & liberty was expanded & subjected to not merely any procedure by law, but by the procedure established by law which means the due process of law which should be just, fair, reasonable & not arbitrary. S.P. Gupta (1982), where the rule of locus standi was stretched & two new standings were propounded viz., the Representative Standing & the Citizens Standing. Rudul Shah (1983), where the S.C. for the first time awarded the compensation for violation of rights guaranteed under Part III. Vishaka (1997), where guidelines are made by the Supreme Court for protection of working women against sexual harassment at work places. Vineet Narain (1998), where after the discovery of “the Jain Diaries”, the sluggish investigations by the CBI & the revenue authorities appeared to be intended to protect the political Executive in power & to scuttle its proper outcome, the Supreme Court under the combined reading of Arts. 32 & 142 innovated the procedure of “continuing mandamus” to bring the investigations on their proper track & to proceed expeditiously, so as to bring the guilty to book. Sakshi (1999), Supreme Court gave directions to prevent sexual abuse of children. Prakash Badal (2006), where Supreme Court gave the directions to Centre & State Govts.’ for reforms in police. In Coalgate Scam Case (2012) the Supreme Court canceled the allotment of 194 coal blocks on grounds of arbitrariness, illegality, unconstitutionality and public interest. Abhay Singh (2013), Supreme Court gave directions on misuse of red-beacons. T.S.R. Subramunium (2013), where Supreme Court directed the Centre and the States to set up a Civil Services Board (CSB) for the management of transfers, postings, inquiries, process of promotion, reward, punishment and disciplinary matters. It also said bureaucrats should not act on verbal orders given by politicians and suggested a fixed tenure for them. Lily Thomas (2013), the Supreme Court of India, in this judgment, ruled that any member of Parliament (MP), member of the legislative assembly (MLA) or member of a legislative council (MLC) who was convicted of a crime and awarded a minimum of two-year imprisonment, would lose membership of the House with immediate effect. NALSA (3rd gender case) (2013), in a landmark judgment the Supreme Court in April, 2014 recognised transgender as a third gender and ordered the government to treat them as minorities and extend reservations in jobs, education and other amenities. NOTA (2013), the Supreme Court recognised the right to negative vote for the electorate in the country. The voters will now have a “None of the Above” option if they don’t feel that the candidates deserve a vote. “Negative voting will lead to systemic change in polls and political parties will be forced to project clean candidates. If the right to vote is a statutory right, then the right to reject candidate is a fundamental right of speech and expression under Constitution,” the court said. Curbing the sale of Acid (2013), 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 model rules framed by Centre to regulate the sale of acid at the earliest and possible. Rajeev Kumar Gupta (2016), Supreme Court directed the Govt. to extend 3% Reservation for disabled Persons in all posts.
All of these are the classic examples of the judicial law making. Have the Courts done anything wrong by legislating for the welfare of the society keeping in mind the ethos of the constitution where there was no legislation put in place by the legislatures competent to legislate. Answer is No, they haven’t done anything wrong. Judges ultimately are bound to uphold their oath. The general impression that the business of the governance of the State is cast upon one particular organ or agency of the State under the Constitution is erroneous. In complexity of situations which the modern day Government has to face, often one organ or agency of the State may be required to function as another (Halsbury Laws-Vol. 7, Art. 409). The expression ‘Court of Law’ can never be construed in a literal manner, ‘Law’ includes ‘Justice’ also, which founding fathers were also aware of & thats’ the reason they inculcated a cherished provision like Art.142 in the Constitution, which gives a unique power to the Supreme Court to do the complete justice. Let me conclude it by saying that, Had Sita not crossed the Lakshman Rekha, Ravana would never have been killed. So sometimes even crossing the Lakshman Rekha is good, if it is crossed with bonafide in order to do the welfare of the society by keeping in mind the ethos & objectives of the Constitution.
Mohit Sharma is a Lawyer practising in the High Court of Himachal Pradesh.
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