Judicial Law Making Through Dictum In India: A Constitutionally Legitimized Practice

Prerana Srinath

7 Aug 2022 6:45 AM GMT

  • PIL | Delhi High Court

    The following article analyses whether the Indian Constitution permits judicial law making through dictum by referring to constitutional provisions and judicial precedents. It also critically examines whether the treatment of dictum as established and binding law, is consistent with common sense and sound judicial practice.

    In India, like in any other constitutional democracy, the executive's role is to implement the laws, the role of the judiciary is to interpret the laws and that of the legislature is to formulate the laws. And although the Indian constitution doesn't have a specific provision that deals with the separation of powers, the three organs in general (and the legislature and the judiciary in particular) have, largely maintained a respectful distance from each other's functioning. However, over the years, there have also been numerous situations wherein the judiciary has had to interfere in the working of the legislature and vice versa to prevent the abuse, misuse and disuse of powers. In the following few paragraphs, we will try to analyze, in the light of constitutional provisions and precedents, the legal rectitude of such instances wherein the judiciary, stepping beyond the circumscriptions of its power, has gone so far as to formulate binding laws – a function that otherwise falls in the territory of the legislature.

    The Austinian theory of legal positivism developed by John Austin, which treats law as a domain of the political sovereign (i.e., the legislature) does not ascribe any law-making powers to the courts. In strict positivist terms, the courts are to merely apply the statutory provisions to the cases at hand and any additional opinions mentioned in the obiter dictum are not considered to be binding on the future cases. However, the Indian constitution does not make any distinction as such, 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 judgments which do not directly impact the ruling in the case). Because of this, even the obiter dictums in many cases decided by the Supreme Court have been interpreted as being legally binding over subsequent benches. The Constitution's different provisions for the functioning of the judiciary, have been used as the basis for granting obiter dictums a legal binding status and the Supreme Court has gone ahead with the implementation of various judicial legislations through these obiters.

    Article 142 of the Indian constitution states "The Supreme Court in the exercise of its jurisdiction may 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 and have over the years passed many judicial legislations and legally binding guidelines with the intent of ensuring 'complete justice' even though, these legislations/ guidelines have fallen outside the ambit of the ratio in the respective cases.

    Further, Article 32 of the Indian constitution which paves the way for the writ jurisdiction of the supreme court has also led to the judiciary formulating judgements wherein 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 tasks.

    Finally, Article 141 of the constitution states "The law declared by the Supreme Court shall be binding on all courts within the territory of India". Although, if the positivist rule were to be followed strictly, this would only mean that the ratio decidendi in the Supreme Court cases would apply to all courts, the different benches over the years have in various cases construed the term 'law declared by the Supreme Court' as including even the obiter dictums. To that extent, the various High Courts and even the parliament has followed the obiter dictums laid down in various SC cases as legally binding laws.

    This practice of the Supreme Court to treat even the obiters as legally binding principles was evident in the case of IC Golaknath V.State of Punjab. In this case the court had held that the fundamental rights could not be amended by the constitution. Even though this pronouncement was only a part of the dictum and not a part of the ratio, it was interpreted as having legally binding basis. Therefore, the subsequent benches of the supreme court saw this as an egregious ruling that could have far reaching impact on the functioning of the legislature and sought to overturn the obiter dictum in the case of KeshavanandaBharati V. State of Kerala.

    Another prominent case in which the Supreme Court evolved judicial guidelines through obiter dictum was that of LaxmikantPandey v. India. In this case, in order to fill legislative lacuna, the court set up rules which were a part of the obiter dictum of the judgement, to regulate the process of adoption of Indian children by foreign parents.

    The development and evolution of the Public Interest Litigation has only further obfuscated the difference between ratio and obiter dictum. This has in turn provided more leeway for the Apex Court to legitimize judicial law-making. As noted by prominent legal scholar SP Sathe, "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." PILs subverted this process by bringing about a "radical metamorphosis in the nature of the judicial process, imbibing in it … legislative, [sic] characteristics" (Sathe). Thus, Public Interest Litigations have only further devalued the practice of differentiating ratio decidendi from obiter dictum.

    The best example for a case in which the Judiciary utilised the PIL system to give rise to judicial legislations through its obiter dictum is that of the 1997 case of VishakaV. State of Rajasthan. Bhanwari Devi, a woman from a village in Rajasthan, was a victim of caste-based sexual abuse and rape during the course of her employment under the Women's Development Project of the Rajasthan Government. Consequentially Vishaka, a collective of NGOs, filed a PIL in the Supreme Court which sought judicial intervention to address the statutory vacuum in respect of addressing cases of sexual harassment at workplace. The Supreme Court invoked its powers under Article 32 and formulated guidelines for protection of women from sexual harassment at workplace. The judgement further noted that under the provisions of Article 141 these guidelines were to be considered as the law of the land and therefore would be legally enforceable, until the passing of a comprehensive legislation to deal with the issue.

    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 also be seen as acts of judicial overreach, we can see that through evolution of practices like PILs and by undertaking a wider 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. Arguments that suggest that this would amount to judicial overreach too do not hold much water as the judicial legislations passed by the Supreme Court through obiter dictums are only intended to fill the gaps in policy making and are subject to being overruled by the legislative provisions, as and when they are passed. And as far as the morality and common-sense aspect of such acts of judicial activism is concerned, it can be said that cases like Vishaka underscore the importance of judicial intervention in bringing about speedy justice through judicial legislations in areas lacking proper legislative procedure. If the courts were to sit idle and wait till the legislature convened, debated and passed laws before they adjudicated on the cases, the adjournments and delays that would inevitably result from the same would undeniably amount to a severe travesty of justice.

    The author is a first-year law student at Jindal Global Law School and also the Campus Ambassador for LiveLaw at JGLS. Views are personal.


    1.Sathe, S. P. "Judicial Activism: The Indian Experience." Washington University Journal of Law & Policy, vol. 6, 2001.

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