In their traditional role, judges are mere interpreters of law. They do not make law. However, the judiciary has become so powerful these days that they do not mind occasional incursions outside their conventional territory. The judiciary abhors vacuum, as it were, and it makes law where there is none.
Most judges wear the conformist or activist hat depending on the occasion. In one recent judgment, a bench of the Supreme Court emphasised that “judicial legislation is an oxymoron.” But the same bench that made this remark delivered another judgment in which it said “we are laying down the law in this connection which will continue to be the law until Parliament makes a law on the subject.” (emphasis supplied). There is a glaring contradiction in this attitude of the Supreme Court.
In a judgment delivered last fortnight (B Premanand vs Mohan Koikal) the court was vehement that “there should be judicial restraint and the temptation to do judicial legislation should be eschewed by the courts. The court cannot legislate under the garb of interpretation.” A full-bench decision of the Kerala High Court was set aside for this reason.
However, a week earlier to the Kerala case, the court did exactly what it prohibited the judiciary from doing. In the Aruna Shanbaug case, it discussed euthanasia in great detail and then came up with a law, which will be in place till Parliament passed a regular legislation. It invoked an earlier Supreme Court judgment in the Vishaka case (1997) in which three judges laid down the rules to protect women in the workplace. It is ironical that what three judges drew up in that case without public discussion prevails as the law of the realm as 500-odd law-makers have not even considered the issue for nearly 15 years. By all accounts, the euthanasia law also will be left alone by the parliamentarians who are more concerned with existential issues.
In view of the lethargy of the parliamentarians who do not make laws to cover new social issues and the judiciary raring to don the lawmakers cap, one bench asked the chief justice a year ago to make the Supreme Court’s stand clear. In the case, University of Kerala vs Council of Principals, the bench was of the opinion that judges could neither make law nor take over executive functions, nor act as an “interim Parliament”. The case dealt with student violence and one bench had set up a commission to study the problem afflicting most campuses. Though the larger issue was referred to the chief justice, for some reason, it has not been given priority.
However, absence of light on this issue does not deter judges from legislating. In a recent judgment, the court tackled the mounting problem of bouncing cheques (Damodar Prabhu vs Sayed Babalal). According to official estimates, there were more than 3.8 million cheque-bouncing cases pending as of October 2008. So it passed a set of guidelines to solve the crisis.
The judges explained why they were doing so. “We are conscious of the view that the judicial endorsement of the guidelines could be seen as an act of judicial lawmaking and, therefore, an intrusion into the legislative domain. It must be kept in mind that the Negotiable Instruments Act does not carry any guidance on how to proceed with the compounding of offences under the Act.” Justifying their foray into codification, they wrote: “Even in the past, this court has used its power to frame guidelines where there was a legislative vacuum.” Another issue on which the country depends entirely on judge-made law is inter-country adoption. The guidelines were laid down in the 1980s in the L K Pandey cases.
All these judgments making laws invoke two provisions of the Constitution, which make the Supreme Court of India one of the most powerful courts in the democratic world. The first is Article 32, which confers writ powers on the court. The Vishaka judgment invoked it in the name of fundamental human rights of women in the workplace. The second is Article 142, which grants the Supreme Court discretion to pass any order to do “complete justice”. This power is rarely used. However, in exceptional instances the court has not stood idle bowing to the doctrine of “separation of powers”.
Renowned jurists and judges who developed English common law are on the side of judicial law-making. John Austin said: “I cannot understand how any person who had considered the subject can suppose that society could possibly have gone on if judges had not legislated, or that there is any danger whatever in allowing them that power which they have in fact exercised, to make up for the negligence or the incapacity of the avowed legislator.”
