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Does the judiciary “make laws”?

A recent case before the Supreme Court has once again highlighted the issue of judicial decisions potentially replacing/ amending legislation enacted by Parliament.  The case importantly pertains to the judiciary’s interpretation of existing law concerning itself.  The eventual outcome of the case would presumably have important implications for the way the higher judiciary interprets laws, which according to some amounts to the judiciary “legislating” rather than interpreting laws.

 

This assertion has often been substantiated by citing cases such as Vishaka v. State of Rajasthan (1997) where the Supreme Court actually laid down the law pertaining to sexual discrimination at workplaces in the absence of a law governing the same.  In numerous other cases, courts have laid down policy guidelines, or have issued administrative directions to governmental departments.

 

In the recent case of Suraz India Trust v. Union of India, a petition has been filed asking the court to reconsider its own judgements regarding the manner of appointment and transfer of judges.  It has been contended that through its judgements in 1994 and 1998 (Advocate on Record Association v. Union of India and Special Reference No. 1 of 1998) the Supreme Court has virtually amended Constitutional provisions, even though amendments to the Constitution can only be done by Parliament.  This question arises since the Constitution provides for the appointment and transfer of judges by the government in consultation with the Chief Justice of India.  The two Supreme Court judgements however gave the primary power of appointment and transfer of judges to the judiciary itself.

 

Importantly, one specific question which has been raised is whether the judgements referred to above really amount to amending the relevant provisions of the Constitution.  Another question raised which is relevant to this discussion is whether the interpretation by courts can actually make provisions in the Constitution redundant.

 

In its judgement on the 4th of April, the Supreme Court referred this case to the Chief Justice of India for further directions.  The outcome of this judgement could potentially require the Supreme Court to define the circumstances when it interprets law, and when it “legislates”.  An indication of the Supreme Court’s attitude concerning this issue may be gleaned from the recent speech of the Chief Justice of India, Justice S.H. Kapadia at the M.C. Setalvad lecture.  The CJI unambiguously stated that:

…In many PILs, the courts freely decree rules of conduct for government and public authorities which are akin to legislation. Such exercises have little judicial function in them. Its justification is that the other branches of government have failed or are indifferent to the solution of the problem. In such matters, I am of the opinion that the courts should be circumspect in understanding the thin line between law and governance...”

 

 

  1. sriram
    April 21st, 2011 at 11:02 | #1

    It isan oldstory since gopalan 2951. In Golaknath case, where the apex court said what the Parl could not do. Kehava carried on with the same force- basic features are off-limits for Parl. Menaka, Minerva etc add to it –down till 9th schedule case 2007 and later. Either the courts uphold; modify;bar; direct to legslate etc – all that is a part of the judicial review power. if conventions are followed, it is viewd as normal. if new conventions are set, it is called activism. if bad faith is seen in the judicial behaviour, it is considered overreach(delhi ceiling case). genuine cases of apex court moving into the territory of th other organs are considered a blessing ( 2g). tough to say what is ” making laws” here?

  2. Amit Kumar
    April 21st, 2011 at 11:46 | #2

    Judiciary in the present scenario performing an important function. It is not only interpreting the laws but also fill the vocume wherever it is necessary. Judicial legislation is indespensable in the present social system. legislature can not redress through law every problem as immediately as it can be through judicial legislation . judiciary must respect the public recognisition to the temple of justice at the time of giving judicial legislation to the pulic.

  3. Tenzin Jangchup Khampa
    May 6th, 2011 at 23:27 | #3

    Does the judiciary “make laws”?

    The very first thing what i would like to remind is that Indian constitution functions according to Three organs of bodies- i. Legislative. ii. Executive and iii. Judiciary.

    The Judiciary and all the three different bodies have an independent way of functioning and as far Judiciary is not bound by Legislative or Executive functions, but may take suggestions when required and give, in order to have a Check and Balance Strategy.

    The very primarily thing to know is, how Judiciary functions in making of law, in that sense it interprets the law or the codified law, and evaluates its judgement by providing new dimension to deal with some technicalities of new arising problems with just, fair, equality hearing both the side, and taking the parties consent before providing a decree.

    The law is never made but it falls as a mandatory requirement according to the situation and circumstances, falling in that regard. Where it becomes necessary to codify a new law (norms) or rules.

    Overall, Judiciary does not make law. It is the legislative that makes law and judiciary interprets and executes it in a well designed manner for the concerned cases. Thats why when ever we need any changes in law, it is the parliament which passes the bill to make the necessary amendments in the law. This proves that it is not judiciary which makes law but it is legislative which does. After all, Judiciary can only suggest to the parliament to do and not to do, based on the law framed by our great leaders.

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