By Richa Pandit
The role of the judge in creating law in the process of adjudication is a subject of debate. According to Justice Cardozo “the theory of the older writers was that judge did not legislate at all. A pre-existing rule was there, imbedded, if concealed, in the body of customary law. All that the judge did was to throw off the wrappings and expose the statute to our view”. On the other hand the realists argue that judges produce law just as much as legislators do; in the view of Grey, they even make it more decisively and authoritatively than legislators, since statutes are construed by the courts and such construction determines the true meaning of the enactment more significantly than its original text. According to Bodenheimer, “In our own days the creative theory of the law must be regarded as the most widely accepted view of the judicial process, although disagreement may exist with respect to the volume and scope of judicial lawmaking”.
The judicial law-making differs greatly from legislative law-making. The judges cannot amend or alter the text of the enacted law. It may give it any meaning in the process of interpretation or construction. They may mean ‘and’ as ‘or’, ‘shall’ as ‘may’ or vice-versa. They may read certain words into the statute, as, for example, ‘reasonable’ where it is not there or they may ignore certain provisions as superfluous, having no meaning. The House of Lords in the landmark decision in the Anisminic case gave an interpretation which was just opposite to the meaning intended by Parliament which is sovereign and supreme in its operation.
In Constitutional interpretation apart from the use of analytical reasoning by deductive, inductive and analogical methodology, dialectical reasoning is often employed to resolve a controversy. Where there are:
- Novel situations in which no convenient rationale of decision is provided for by the law;
- Situations where two or more competing premises are available for the determination of an issue, among which a genuine choice must be made; and
- Instances in which a rule or precedent covering the case at hand exists, but where the court, in the exercise of a power granted to it, rejects its application as unsound, either generally or at least in the context of the litigated facts.
In all these situations, it is impossible for a court to dispose of the controversy by means of an analytic form of argumentation, that is, by deduction, induction, or the use of analogy. In cases of this nature, resort to dialectical persuasion also becomes unavoidable for an attorney trying to induce the court to arrive at a conclusion favorable to his client.
Principles of Interpretation
In the interpretation of the constitutional provisions there are two cardinal problems in the creative role of the judge. The first is the question of whether uncertainties regarding the meaning of a constitutional provision should be resolved by recourse to the understanding of the provision which was prevalent at the time of its adoption or whether a constitutional provision should be interpreted in the light of the knowledge, needs and experience existing at the time when the interpretative decision is rendered. The second pertains to the recognition or non-recognition of the issue of whether the meaning and scope of a positive constitutional command may be interpreted in the light of important principles of policy which have found no direct and immediate acknowledgment in the formal text of constitution.
Interpreting Statutes to Make New Laws
There are two types of broad approaches: one is the theory of historical interpretation, the other is the theory of contemporaneous interpretation. The theory of historical interpretation of constitutional clauses was enunciated by Chief Justice Taney in the case of Dred Scott v. Sandford, denying the Negroes their right to sue in the Federal Courts under clauses which gave to these courts jurisdiction in suits between citizens of different States. The same theory was advanced by Justice Sutherland in a dissenting opinion where the majority upheld the Minnesota Mortgage Moratorium Act, 1933, which gave relief to the mortgage debtors — a somewhat similar situation of economic meltdown existing now in the United States.
On the other hand the opposite theory, the theory of contemporaneous interpretation, was advocated by Chief Justice Marshall in the celebrated case of McCulloch v. Maryland. Marshall held that the American Constitution was intended to endure for ages to come and consequently, to be adapted to the various crises of human affairs. The same theory was followed in the Minnesota case by the majority as stated above.
The Blackstonian doctrine, according to Friedman, of the declaratory function of the courts, where the courts is not to ‘pronounce a new law but to maintain and expound the old one’, had long been little more than a ghost. From Holmes and Geny to Pound and Cardozo, contemporary jurists have increasingly recognized and articulated the law-making functions of the courts. The radical transformations which, for example, contracts, torts or family law have undergone at the hands of the courts have made it increasingly difficult to maintain the time-honored fiction of the declaratory role of the judge.
The profound effects, according to Friedman, in all walks of life of the interpretation of the constitution by the Supreme Court of America, a constitution which has in theory remained almost unchanged and yet governed the legal life of the country for almost two centuries — have long created in the United States a picture of the judge and his function very different from that traditionally cherished in England. The celebrated dictum that, ‘the constitution is what the courts say it is’ of Chief Justice Hughes has, if anything, been reinforced by the momentous decisions rendered in such matters as school segregation, voting rights and redrawing of election districts.
The Supreme Court of India has been playing a great role in maintaining the tempo of judicial law-making following the lead given by the superior judiciary in other systems, especially the Common Law systems of the USA, Australia, Canada and the U.K. In most of the cases the Supreme Court followed the important decisions from these systems with modifications suitable to the Indian conditions. But in some areas the court had made original contributions in developing the law. Some features of their judicial law-making in India have been critically analyzed here.
In the interpretation of the constitution, the Constituent Assembly debates have played an important role in India. Immediately after the commencement of the Constitution, in the famous case of A.K. Gopalan, the Supreme Court relying on the debates gave a literal and naive meaning to ‘personal liberty’ and ‘procedure established by law’ under Article 21 of the Constitution. The majority interpreted it as an ordinary statute rather than a written constitution — a living law — guaranteeing freedoms to its people.
In the first two decades their positivistic approach dominated the interpretation of the constitution, except in the right of property field where the court showed great zeal and enthusiasm in protecting this right. As a consequence a drastic and draconian provision in the form of Article 31-B and Ninth Schedule had to be introduced to protect the socio-economic legislations from the judicial onslaughts. Of course, this is also a part of judicial law-making, but negatively, by setting at naught the government’s efforts to reform the law.
But in the post Maneka Gandhi period, the Supreme Court by judicial creativity has brought the meaning of ‘procedure established by law’ at par with that of the American ‘due process’ clause. This is an apt example of how the meaning of legal language changes with the times by judicial law-making.
Making New Laws
One basic and fundamental question that confronts every democracy, run by a rule of law is what is the role or function of a judge. Is it the function of a judge merely to declare law as it exists or to make law? And this question is very important, for on it depend the scope of judicial activism. The Anglo-Saxon tradition persists in the assertion that a judge does not make law; he merely interprets. Law is existing and eminent; the judge merely finds it. He merely reflects what the legislature has said.
There can be no doubt that judges do take part in the law-making process. And even some judges have openly avowed their creative roles. Lord Reid considered that in a democratic society the legitimacy of judicial law-making had to be faced. Lord Denning also remonstrated that judges cannot afford to be timorous souls. They cannot remain sterile in the face of injustices.
No doubt, it is true that a judge has to interpret the law according to the words used by the legislature. It is for the judge to give meaning to what the legislature has said and it is this process of interpretation which constitutes the most creative and thrilling function of a judge. The gap in our system of administration of justice is filled by the judge. It is here that the judge takes part in the process of law-making.
Law-making is an inherent and inevitable part of the judicial process. 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. By thus making and molding the law he takes part in the work of creation. The judge is not a mimic. Greatness of the bench lies in creativity. It is for this reason that when a law comes before a judge he has to invest it with meaning and content.
The socio-economic and socio-political objectives enshrined in the constitution should be achieved mainly with the weapon of interpretation which is the mightiest in the armory of the Judiciary. Judicial interpretations are based on the realities of the situation. Every country has to work out its constitution according to its problems, needs and demands. As Justice Krishna Iyer once said, “Every new decision on every new situation is a development of law. Law does not stand still. It moves continually. Once this is recognized, then the judge is put on a higher plane”.
Judicial activism is a philosophy advocating that judges should reach beyond the Constitution to achieve results that are consistent with contemporary conditions and values. Most often, it is associated with (modern) liberalism that believes in broad interpretation of the constitution which can then be applied to specific issues. Judicial activism is sometimes referred to as the interference of the judiciary in the legislative and executive fields.
Sometimes, judicial activism means that instead of judicial restraint the Supreme Court and other lower courts become activists and compel the authority to act and may also direct the government regarding policies and matters of administration.
Judicial activism is gaining prominence in the form of Public Interest Litigation. Here lies the paradox: when it comes to the mainstream system of justice, the judiciary gets into a very ‘passive mode’. But the higher judiciary, functioning under the writ jurisdiction performs a very ‘activist’ role that could be seen as ‘judicial overreach’. Assertion of judiciary and its power is referred to as judicial activism. Few landmark cases that highlight judicial activism are Kesavananda Bharati v. State of Kerala, Minerva Mills v. Union of India, Indira Nehru Gandhi v. Raj Narain and S.P. Gupta v. Union of India etc.
Once it is recognized that the judges do make law, though not in the same manner as the legislature, it will immediately become apparent why judges can and should adopt an activist approach. There is no need for judges to feel apologetic about the law-creating roles. The independence ensured through the constitutional provisions in favor of the judiciary and subsequently strengthened by judicial interpretation has definitely contributed to the present status of the Indian Judiciary.
In the beginning, the PIL was confined only to improving the lot of the disadvantaged sections of the society, who by reason of their poverty and ignorance were unable to seek justice and, therefore, any member of the society was permitted to file a case for appropriate directions. Consequently the expectations of the public went high and the demands on the courts to improve the administration by giving appropriate directions for ensuring compliance with statutory and constitutional prescriptions increased.
A criticism that we often hear about judicial activism is, in the name of interpreting the provisions of the constitution, judiciary very often rewrites them without explicitly stating so. In the process, some of the personal opinions of the judges metamorphose into legal principles and constitutional values. As the constitution is a living organism, there is need to examine its successes and failures so that necessary course corrections can be introduced. Admittedly, the courts have used their powers to facilitate a modus vivendi rather than articulate clear constitutional principles. Judicial reforms are a must to strengthen the judiciary.
Judicial activist fervor should not flood the field constitutionally earmarked for the legislature and the executive. That would spell disaster. Judges cannot be legislators — they have neither the mandate of the people nor the practical wisdom to gauge the needs of different sections of the society.
Use of the power of ‘interpretation’ and ‘judicial review’ by the higher judiciary, including the medium of ‘Public Interest Litigation’ and the doctrine of ‘Public Trust’, poses the serious question as to whether the judiciary has crossed the boundary or limits propounded by Montesquieu and enshrined in the Constitution.
The power of the judiciary to review what the State does flows from the Constitution itself. In the constitutional scheme Parliament is not supreme. It is subject to a major limitation — that legislation does not violate any fundamental rights or constitutional values. The role of an impartial umpire is entrusted to the judiciary; it has to ensure that the fundamental rights are not breached and basic constitutional values are preserved.
Every fundamental right is not spelt out comprehensively in the Constitution. For instance, the Right to shelter, Right to privacy, Right to go abroad and Right to education have all been deduced through creative interpretation by judges over the years of Article 21 which merely guarantees ‘protection of life and personal liberty’. Similarly, though not mentioned expressly in the constitution, the Supreme Court has deduced the freedom of the press from the guarantee of Free Speech and thus press freedom has been given a constitutional status by creative judicial interpretation. That is certainly not overreach. If the fundamental rights are violated and laws are not equally enforced and the judiciary does not intervene, then it would be judicial abstention and not judicial restraint. While doing the intervention the judges should remain careful, so the judicial activism does not become judicial adventurism.
Conclusion
Thus we see that the Indian judiciary, especially the Apex Court, has made a great contribution in development and growth of the constitutional law by judicial creativity. Judicial law-making is mostly resorted to in those areas where there is no enacted law. The courts fill up this vacuum because of legislative indifference or unwillingness to make a law. That is how the courts justify their indulgence in filling up the gap.
According to Maitland, “law is a seam-less web”. In a closed legal system there shouldn’t be any gap in the law. Therefore, it is the responsibility of the judiciary to provide for the vacuum. The legislature is free to close this gap. The legislature needn’t fear the creativity of the Courts. They are free to supersede the law made by the judiciary subject to some exceptions.
Sometimes the judicial law-making happens unconsciously. The judges hold that they are simply declaring the correct legal position. In this context the value of semantics cannot be ignored. Recent studies in semantics have helped to analyze the legal concepts in the right perspective. Language changes with times, so does the legal language. It is for the judiciary to mould the law to keep pace with the changing needs of the society. For this purpose proper knowledge and understanding of the legal theory, legal language and principles of interpretation is essential.
So by the introduction and development of the new principles in the forms of excessive delegation, basic structure theory, prospective overruling, constitutional torts, law of standing etc. in the constitutional law by the dynamic interpretation, the credit must go to the judiciary for its creative role.