How far can the judges go?

Power is of an encroaching nature, wrote former US President James Madison. That is true of all power, judicial power is no exception
How far can the judges go?

In the process of interpretation and in deciding cases, judges, no doubt, make law. The power of the courts to determine what the law is, if unwritten, or what it means, if written, vests in them an authority which in effect, whether or not in form, is a law making one. This has always been recognised as part of the judicial power and is considered wholly legitimate.
Judges do and must legislate but they do so only interstitially. The law makers have put in place the major architectural features which judges preserve, adding only filigree. The limits for the judge are narrower, he legislates only between the gaps, he fills the open spaces in the law. Justice Cardozo perceptively observed, “Judges have, of course, the power, though not the right, to ignore the mandate of a statute, and render judgement in spite of it. They have the power, though not the right, to travel beyond the walls of the interstices, the bounds set to judicial innovation by precedent and custom. Nonetheless, by that abuse of power, they violate the law.”

Then you have judicial law making in constitutional interpretation and adjudication. By constitutional interpretation as in other areas, the court nudges the law a little forward. This again is on a case to case basis —filling the gaps, carrying the law a little further. For instance,  the concept of ‘state’ in Article 12 was widened, Arts. 14 and 21 were interpreted breathing new life and content into them. Judicial review in the area of constitutional law or constitutional adjudication institutionalised a process which may be called judicial constitution making.
Done wisely and with necessary circumspection, this is both laudable and legitimate. But in the guise of interpretation, the court cannot seek to rewrite a provision, however tempting it may appear. Such instances are not wanting. The II Judges’ case and the NJAC case are telling examples.

Judicial legislation is primary law making by the judiciary. The most vexed question is whether the court can undertake primary legislative activity. In other words, can the judiciary make a law where none exists. How far is such exercise legitimate?
In Vishaka and the cases following, it was posited: ‘That there are ample powers conferred by Art. 32 and Art.73 read with Art. 142 to make orders which have the effect of law by virtue of Art.141 and there is a mandate of Art.144 for all authorities to act in aid of the orders of the Supreme Court; that it is the duty of the executive to fill the vacuum by executive orders because its field is co-terminus with the legislature and where there is inaction even by the executive for whatever reason, the judiciary must step in, in exercise of its constitutional obligations to provide a solution till such time as the legislature enacts proper legislation to cover the field”.

This reasoning for judicial legislation is a constitutional conundrum. There does not seem to be any source of power for the courts to undertake primary legislation and the proposition that when there is no law, the executive must step in and when the executive also does not act the judiciary should do so is tenuous. Executive power is coextensive with legislative power. If the field is unoccupied by law, it is open to the executive to fill the gap. But there is no warrant that by virtue of those provisions the court can step in and legislate. The argument that the larger power of the court to decide and pronounce upon the validity of a law includes the power to frame schemes and issue directions in the nature of legislation is equally untenable. There is no jurisprudential foundation for the exercise of such power.

This is typically the converse case of bills of attainder. Legislative determination of disputes/rights has been held to be illegal and impermissible.  Ameerunnisa, Ram Prasad Narayan Sahi and Indira Gandhi are some of the telling cases. By the same logic and reasoning, judicial legislation which is judicial determination of policy and law is difficult to be sustained and justified jurisprudentially. “When in pursuit of truth we are obliged to investigate the grounds of the law, it is plain that the mere statement and re-statement of a doctrine, the mere repetition of the cantilena of lawyers, cannot make it law unless it can be traced to some competent authority and if it be irreconcilable to some clear legal principle.” This is the truth about judicial legislation which has also the effect of breaching many other constitutional limitations. Sometimes this also leaves many affected persons remediless.

Any support or justification for a constitutional adjudication and even more for judicial legislation will have to be premised on sound legal reasoning. It cannot be justified because it produces welcome and desirable results. For, then there will be no rules, but only passions. That marks off the line between judicial and legislative power.
Government is man’s unending adventure and there should be some free play in the joints. No system is perfect. The actual unfolding of democracy and the working of a democratic constitution and institutions may suffer from inadequacies and imperfections. But all this cannot be sought to be addressed and redressed by judicial drafting or redrafting of legislative provisions.
Power is of an encroaching nature, wrote US President James Madison. That is true of all power, judicial power is no exception. The best and complete answer is the self-imposed discipline of enlightened judicial restraint. We have a right to expect this from that organ of the state which must define the limits of all branches including its own. In the field of constitutional law, the delicate balance between the various institutions is maintained to a large degree by the mutual respect which each institution has for the other. This is as much a prescription for the future as it was for the past, profound and relevant everywhere.

V Sudhish Pai
An expert on the Indian Constitution
Email: vsudhishpai@gmail.com

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