Should Judicial Law be confined to filling up the Legislative vacuum only?

Satwik Singh


Editor’s Note: The paper deals with the question of whether the Judiciary should be confined to only interpret the laws or should it be able to fill the vacuum created by the legislature.”


One of the most important basic feature of the constitution is that of the Doctrine of Separation of Powers, which postulates that there must be an absolute separation of powers between the Legislature, Executive and the Judiciary, if the rule is strictly followed then the Legislature’s only job will be to make laws, the Judiciary’s only job would be to interpret them and the Executive will only look after the correct execution. However in recent times it is seen very frequently that the three organs are not separate as they were meant to be, in the sense that today it is not a surprise when the executive also makes laws through the doctrine of delegated legislation, similarly it is also seen that the judiciary is making laws on particular subjects by virtues of judicial review and judicial activism. The view about Judicial Activism depends upon the outlook of the people in the Judiciary, if a judge is conservative in his outlook then he would restrict himself to only applying the statute to the given fact situation and any attempt of interpreting of laws liberally by someone else will be equated with Judicial Activism. However on the other hand the people who believe that the role of the constitutional court is bigger than merely applying the statutes and that statutes ought to be interpreted according to the changing times and need of the society consider Judicial Activism to be a normal Judicial Process.

Our Judicial System is based on the Common law system of England and there were two very important and landmark cases on judicial law making. Rylands v Fletcher[1] and Donoghue v. Stevenson[2] in these cases the concept of negligence was extended to suit the needs and demands of a society which was quickly industrialising. In England the Parliament is supreme and thus the Judiciary does not play a very big role in creation of laws however the courts continued to play an important role in protecting the individual rights and liberties of the people and work for the strengthening the rule of law. The Judiciary’s role in England is not so active because the English people are very comfortable with the concept of a parliament which is all powerful.

Judicial Law Making in India.

In India there is an express provision in the constitution which provides for the Judicial Review under Article 13 Clause 1 and clause 2 which provide for the fact that the state cannot make any law which intrudes into the fundamental rights of the citizens and also is in  cases where the state made any law which took away the fundamental rights of the people. The courts have the power to strike down such laws as null and void.

In the beginning of the 1950s, the Supreme Court was strictly a follower of the precedents laid down by the British Courts and did not do much in the field of judicial activism. A.K. Gopalan v. State of Madras[3] is a perfect example of this position because in this case the court refused to allow the liberal interpretation of the constitutional provisions so as to stay within the text of the constitution and refusing to take in consideration the spirit of the constitution. The court gave a very narrow interpretation to Article 21 of the constitution.

The situation changed in the sixties, where the courts became lot more active and bolder in deciding cases, the Supreme Court started by challenging the power of parliament to amend the constitution in the case of Golaknath vs Punjab[4] where the court in a very thin majority of 6 to 5 ruled that the parliament does not have the power to amend the constitution where the fundamental rights of the citizens are subverted and this started an interesting war between the judiciary and the legislature because the parliament passed the twenty fourth amendment which clearly stated that the parliament would have unlimited power amendment power and it will not be restricted to the fundamental rights. This basically meant that the parliament was challenging the judiciary head on as it totally rendered the Golaknath judgment useless. Then it was the Judiciary’s chance to respond to the attack and the judiciary constituted the largest ever bench with 13 judges in the case of Keshvananda Bharati vs Kerala[5] ruled that though the parliament had the power to amend any provision of the constitution, such amendments will not be allowed if it changed the basic structure of the constitution. The Supreme Court stated that “It does not include the power to alter the basic structure, or framework of the Constitution so as to change its identity[6].” 

The 1975 emergency brought about the Judicial Activism of the courts to the forefront, the Indira Gandhi government was in absolute majority in the parliament at that time, and it passed many amendments which were draconian in nature unopposed due to the fact that there was hardly any political opposition present. The case of Indira Gandhi vs Raj Narain[7] was a very important case in this regard, in this case, the Allahabad High Court had given a judgment which had ruled that the election of Indira Gandhi was constitutionally wrong  but Indira Gandhi got an amendment passed that is the 39th amendment which had a retrospective effect and it tried to overturn the Allahabad High Court  decision of invalidating the election Mrs Gandhi, the Supreme Court struck down the amendment saying it to be unconstitutional.

The case of Vishaka & Ors. v. State of Rajasthan & Ors., AIR 1997 SC 3011, is a very good example of judicial activism, it interpreted the Article 32 to provide for enforcement of fundamental rights in the areas of legislative vacuum. It ruled  “In view of the above and absence of enacted law to provide for the basic human rights of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places we lay down the guidelines and norms specified hereinafter for due observance at all workplaces or other institutions until  legislation is enacted for the purpose . T his is done in exercise of the power available under Article 32 of the Constitution for enforcement of fundamental rights and it is further emphasised that this would be treated as the law declared by this court under Article 141 of the constitution”

Thus after the sixties and seventies the courts have become very active and with the advent of PILs its role has increased further. The courts to be confined to making laws to only fill up the legislative vacuum is not a good idea as it kind of does not allow the judiciary to utilise its full capacity and capability.

Personal View

Personally I am in favour of a very active judiciary and believe strongly that it should not be confined only to enacting laws to fill up the legislative vacuum though I agree that it would be intruding into the domain of the legislature. The main reason for this is I feel that the judiciary is better suited to understand and give expertise on legal matters because all the judges are eminent professionals in the field of law  so they must be allowed to frame laws more actively as those laws will be constitutionally strong and will lack loopholes which could be exploited by the legislature  which consists of politicians who mainly concentrate on capturing  and holding on to power and this most of the time defeats the purpose of having certain laws.  The Judiciary therefore must be allowed to make laws and I believe that nowadays the executives which makes laws with the help of the delegated legislation, should not do so without the active participation of the judiciary. The Judiciary should be allowed to involve itself more actively in the domain of law making in spite of the risk that it would become too powerful. The Judiciary has intervened time and again when the legislature tried to change the basic structure of the constitution and tried to take away the fundamental rights of the citizens so it has clearly emerged as the champion of the fundamental rights of the people. The courts through the powers of judicial review have been able to enforce the rights of the most disadvantaged people of the society. So Judicial Activism should be encouraged.

Edited By Amoolya Khurana

[1] Rylands v. Fletcher, 1861-73 Eng. Rep. I (H.L. 1868).

[2] Donoghue v. Stevenson, A.C. 562 (1932).

[3] A.I.R. 1959 S.C 27.

[4] A.R.1967 SC 1643

[5] A.I.R. 1973  S.C. 1461.

[6] Ibid

[7] A.I.R. 1975 S.C. 2299

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