Judicial Legislation in India: Can Judges Make Laws? 

The role of the judiciary in India has been a subject of heated debate for decades. A recurrent question is whether judges should merely interpret the law or, in some instances, effectively make law. 

What is Judicial Legislation?

Judicial legislation is a term used to describe instances when courts, particularly higher courts, are perceived as exceeding their role of interpreting statutes by creating law-like rules. In essence, it suggests that judges are engaging in a legislative function rather than merely applying existing legal norms. This phenomenon becomes apparent when judicial rulings establish new legal principles or expand the interpretation of a statute beyond its plain language.

Key Features of Judicial Legislation

Key features of judicial legislation include:

• Creation of New Norms: When a court’s decision results in the establishment of new legal standards that effectively fill gaps left by the legislature.
• Law-Making from the Bench: Often referred to as “hudges made laws,” this is a controversial aspect where judicial decisions resemble law-making, thereby blurring the traditional separation between the legislature and the judiciary.
• Impact on Governance: Such decisions can have far-reaching implications on governance, affecting areas as diverse as workplace equality, privacy rights, and personal freedoms.

A contemporary example of the debate can be found in the case of Supriyo v. Union of India (2023), where the Supreme Court refrained from recognising same-sex marriages. Critics argued that any judicial move in this context could amount to judicial legislation, suggesting that the court was stepping into the domain of law-making.

The Theoretical Underpinnings on Judge Made Laws

The debate over whether judges can or should make laws is rooted in the broader discussion of the separation of powers—a doctrine that has shaped modern constitutional democracies. Several jurists and philosophers have expressed varied opinions on this matter:

Montesquieu

The French political philosopher Montesquieu famously advocated for the separation of powers. He maintained that the functions of the executive, legislature, and judiciary should be distinct, with each branch operating within its defined limits. According to Montesquieu, any encroachment by one branch upon the domain of another disrupts the balance essential for a free society.

Charles Taylor

Taylor observed that judicial decisions, while resolving disputes in favour of one party, are inherently limited. In contrast, legislatures are expected to address all potential scenarios and societal interests comprehensively. This observation implies that judges may only provide piecemeal solutions rather than systematically covering all eventualities.

Jeremy Bentham

In the 19th century, Bentham was a staunch critic of what he termed “judge-made law.” He warned that without the strictest integrity, judges might manipulate unwritten laws to serve personal or even corrupt interests. Bentham’s perspective underscores the need for a clear demarcation between judicial interpretation and legislative function.

Gray’s Perspective

An alternative view is offered by Gray, who argued that in practice, all law is, to some extent, judge-made. This perspective posits that judicial interpretation is an inevitable aspect of the legal system, and the distinction between written legislative law and judicially crafted law is more theoretical than practical.

These diverse views illustrate that the issue of judicial legislation is far from settled. The underlying question remains: should judges exercise a measure of law-making power to ensure justice in an evolving society, or must they confine themselves strictly to the role of interpreters of the law?

Judicial Opinions on Law-Making

Opinions among judges themselves reflect the complexity of the issue. Several landmark judgements provide insight into how Indian judges view their role in relation to law-making:

• Justice Y.V. Chandrachud in Bachan Singh v. State of Punjab (1980):
  Justice Chandrachud emphasised that a judge’s highest duty is to recognise the limits of judicial power. He argued that when matters fall outside the judicial domain, the democratic process must be allowed to take precedence. His view underscores the principle that while interpretation is vital, the creation of new law is primarily the province of the legislature.
  
• Justice K. Ramaswamy in C Ravichandran Iyer v. Justice A.M. Bhattacharjee (1995):
  In this case, Justice Ramaswamy asserted that the role of a judge is not confined to merely interpreting the law. According to him, judges may also need to establish new legal norms to address changing social and economic realities. This perspective acknowledges the evolving nature of society and the occasional necessity for judicial intervention.
  
• Justice Markandey Katju in Aravali Golf Club v. Chander Hass (2008):
  Justice Katju cautioned that judges must be mindful of their limits. He stressed the importance of modesty and humility, warning against the temptation to behave like emperors by overstepping judicial boundaries. His remarks serve as a reminder of the potential risks associated with judicial activism.
  

These judgements collectively reflect the inherent tension in judicial function—balancing the need to adapt to contemporary issues while respecting the constitutional limits of judicial power.

Notable Instances of Judicial Legislation in India

India’s judicial history is replete with instances where the Supreme Court has been accused of engaging in judicial legislation. Let us explore some key cases:

Vishakha v. State of Rajasthan (1997)

In this landmark case of Vishakha v. State of Rajasthan, the Supreme Court addressed the absence of a specific law to protect women from sexual harassment at the workplace. The Court laid down detailed guidelines for preventing sexual harassment and ensuring a safe working environment for women.

The guidelines were so influential that they compelled the legislature to enact specific laws addressing the issue. This decision is often cited as an example of the judiciary engaging in law-making, as it effectively resulted in the creation of a new legal framework in the absence of a statute.

Advocate on Record Association v. Union of India (1994) and Special Reference No. 1 of 1998

These cases pertained to the appointment and transfer of judges.

The Supreme Court’s decisions in these cases shifted significant power to the judiciary itself, effectively altering the constitutional provisions concerning judicial appointments. Critics argue that these rulings amounted to judicial legislation because they redefined the powers originally allocated to the government in consultation with the Chief Justice of India.

Suraz India Trust v. Union of India

In this case, a petition was filed challenging the manner in which judges are appointed and transferred. The petition contended that previous judgements had virtually amended constitutional provisions by transferring the power from the executive to the judiciary.

The controversy here centres on whether such judicial decisions should be seen as an encroachment on the legislative domain, raising serious constitutional questions about the separation of powers.

D Velusamy v. Patchaiammal (2010)

D Velusamy v. Patchaiammal case involved the interpretation of the Protection of Women from Domestic Violence Act, 2005.

The Supreme Court extended the ambit of the Act to recognise palimony rights for partners in a live-in relationship and clarified the definition of such relationships.

By interpreting and expanding the scope of the law, the Court engaged in what some may view as judicial legislation, effectively moulding the law to better reflect contemporary social realities.

Retired Justice K.S. Puttaswamy v. Union of India (2019)

Justice K.S. Puttaswamy v. Union of India case is significant for its recognition of the Right to Privacy as an inherent part of Article 21 of the Constitution.

The decision redefined the understanding of personal liberty and privacy in India, influencing numerous subsequent legal debates and policies. The Court’s reasoning here has been viewed as a transformative interpretation, contributing to what critics and supporters alike may consider as judge-made law.

Joseph Shine v. Union of India (2018)

In a bid to eliminate gender discrimination, the Supreme Court in Joseph Shine v. Union of India decriminalised Section 497 of the Indian Penal Code, 1860.

The ruling struck down a discriminatory law and was intended to tackle an age-old social injustice. Critics have argued that by doing so, the Court engaged in judicial legislation to address a social evil that the legislature had not adequately reformed.

Navtej Singh Johar v. Union of India (2018)

This landmark decision of Navtej Singh Johar v. Union of India partially decriminalised Section 377 of the IPC concerning consensual same-sex relations.

Although the Court’s reasoning in decriminalising certain aspects of Section 377 has been lauded for its progressive stance, it drew criticism for not extending similar judicial activism to the interpretation of other related statutes, such as the Special Marriage Act, 1969.

The Delicate Balance: Judicial Activism vs. Judicial Restraint

One of the most critical issues in this debate is finding the right balance between judicial activism and judicial restraint. On one hand, an overly active judiciary risks usurping the powers of the legislature. On the other hand, excessive judicial restraint may prevent the courts from fulfilling their role as guardians of justice and protectors of fundamental rights.

Points to Consider:

• Institutional Integrity: The three branches of government—legislature, executive, and judiciary—each have a specific role to play. Any overreach by one branch can upset the constitutional balance, leading to conflicts and inefficiencies in governance.
• Dynamic Interpretation: The Indian Constitution is a living document. Its interpretation should not be static. In this light, judicial interpretation that adapts to contemporary circumstances can be seen as a necessary evolution rather than an overstep of judicial power.
• Checks and Balances: Ideally, the legislative branch should rectify any judicial overreach through subsequent legislation. However, the process of amending laws and rectifying judicial decisions can be protracted and politically challenging. This underscores the need for a judicious approach to judicial decision-making that carefully considers long-term implications.
• Public Confidence: For the judiciary to maintain its legitimacy, it must exercise its powers responsibly. Both judicial activism and restraint, when taken to an extreme, can erode public confidence in the legal system. Judges must therefore remain mindful of the broader societal impact of their decisions.

Conclusion

The question of whether judges can make laws is both complex and nuanced. On the one hand, judicial decisions that adapt legal principles to modern realities are indispensable in a dynamic society. On the other, such interventions risk encroaching upon the domain of the legislature, potentially undermining democratic accountability and the separation of powers.

Judicial legislation—or “judges made laws,” as it is sometimes referred to—remains a contentious issue. The Indian judiciary has, on several occasions, stepped beyond its traditional role of interpretation to establish new legal norms. From the transformative rulings in Vishakha, Bachan Singh, and Navtej Singh Johar, to the more controversial decisions affecting the appointment of judges, the judiciary has continually navigated a fine line between upholding the law and adapting it to contemporary needs.