Within the complex network of legal structures that regulate an entire
country, constitutional issues frequently engender bewildering complexities and
controversies. A constitutional quandary arises when there is significant
disagreement and controversy surrounding the interpretation, implementation, or
modification of a nation's fundamental legislation.
This article examines the intricacies associated with constitutional matters,
scrutinising significant instances and the ramifications they can impose on the
governance of a country. Judicial legislation, also known as "judicial law" or
"Judge-made law," comprises merely a decree, proclamation, or declaration of a
law by the judiciary, with particular emphasis on the Supreme Court. Although
the constitutional authority of the legislature is to enact laws.
There may be circumstances in which the current legislation passed by the
legislature is inadequate to ensure the proper administration of justice. There
is a contention that despite the calendar-breaking legislative activity of
India's State and Parliament Legislatures, the number of laws enacted annually
is insufficient to address the perpetually changing demands of modern society.
It is not feasible to anticipate that all potentialities and contingencies will
have been adequately accounted for in the legislation, as it often fails to
align with evolving needs and ideals. Therefore, not only must but they are
obligated to intervene in order to close the disparity. In addition, the
fulfilment of the objectives of justice is a constitutional right under such
conditions, which permits the superior judiciary to issue interim directives
until the legislature passes substantive legislation. Judges therefore establish
legislation in response to societal needs, and that legislation is presently
acknowledged on an international scale.
Nevertheless, this conduct ought not to be construed as activism, as Article 133
specifically acknowledges judge-made law, which is alternatively referred to as
"judicial law," and includes both the legislature and the judiciary as "other
Furthermore, considering the extensive jurisdiction of the Court as articulated
in Articles 32, 226, 227, 141, and 144, it becomes apparent that the judiciary
is endowed by the Constitution with the power to promulgate rational
legislation. In its nascent stages, the Supreme Court of India adopted the
British approach of limited judicial review, albeit with remarkable prudence.
Subsequently, the struggle for supremacy gained widespread recognition. During
the 1960s and 1970s, the Court rendered pivotal decisions that significantly
transformed both the political and judicial milieu of India.
Through the expansion of the applicability of a number of constitutional
provisions, Maneka Gandhi's decision propelled the field of human rights law
into the post-emergency era. To illustrate, the development of the judiciary has
led to the proliferation of amendments to Articles 14 and 21. Following this,
the constitutional courts strategically employed public interest litigation as a
catalyst to effectuate societal and economic progress. This resulted in the
formation of legal doctrines concerning human rights, the environment,
compensation, and destitution.
The widespread acceptance of the way in which judge-made legislation influences
social dynamics is due to the fact that it strives for progress rather than
revolution. "The Supreme Court's problems sometimes call for the knowledge of an
economist, the insight of a poet, the experience of an executive, the scientific
knowledge of a politician, and the perspectives of a historian." Furthermore,
legislative responsibilities may at times be required. It has essentially
rewritten the Constitution and invigorated the existing laws through its
- Dilemma of Interpretation:
Divergent understandings of the language of the constitution constitute a
significant contributor to constitutional conundrums. Diverse perspectives
may exist among legal scholars, justices, and policymakers regarding the
intent and significance of particular provisions within the Constitution.
Divergences concerning matters including individual liberties, governmental
authority, and the partition of labour may ensue, engendering a complex
labyrinth of legal ambiguity.
In the 19th century, conventional positivist jurisprudence was established
by English jurists Bentham and Austin. However, Bentham's legal theory,
referred to as "utilitarian individualism," held a dissenting view towards
judge-made law. Austin's perspective completely excludes judge-made law. In
the 20th century, Hart, Kelsen, and others further developed this notion by
arguing that the legislative branch, and not the judiciary, ought to have
the authority to enact laws. Their sole duty consists of supervising and
interpreting the implementation of the legislation that has been enacted by
Judges have the authority to legislate, according to the sociological school
of jurisprudence, which Geny, Duguit, and others established in Europe
towards the end of the 19th century and was founded in the United States by
Roscoe Pound and others. Functionalism, a more radical school of
sociological jurisprudence in the United States, was enabled by Pound's
Grey, one of the realist school's founders, asserted that justices construct
laws using non-legislative, non-guidance-based materials. Grey contends that
while it has been occasionally asserted that legislative law and judge-made
law are the two types of law, in reality, all law is judge-made law. Frank
Llewelyn even asserted that judges create the law, as opposed to merely
discovering it; judges are the genuine creators of the law.
As for the declaratory hypothesis, it posits that judges are solely the
individuals who initially established the law. They locate the law and
declare it regarding a particular matter. A multitude of authors, jurists,
and judges have conveyed their endorsement of this perspective. Salmon
asserts that this holds true for precedents from the past that have had
lasting legal ramifications. Bentham characterised this declarative doctrine
as "a deliberate fallacy whose purpose was to usurp legislative authority by
and for entities that were unable or unwilling to openly assert it."
Prominent rulings regarding judicial legislation.
Establishment of the jurisprudence of state liability.
In 1953, Rudul Sah was arrested on suspicion of homicide against his spouse.
In 1968, an Additional Sessions Judge dismissed him from custody pending
further orders after vacating him of all charges. Nevertheless, he remained
incarcerated until 1982, when the media became aware of his predicament,
despite the fact that his acquittal order had been in effect for fourteen
years. On his behalf, a public interest litigation (PIL) was subsequently
initiated. This is an unprecedented decision in the annals of State
liability law. It is particularly significant because it paved the way for
the development of compensatory jurisprudence for violations of
constitutionally protected rights.
Implementing restrictions on the executive branch.
S.R. Bommai assumed the position of chief minister of Karnataka during the
Janata Dal Government, which was deposed subsequent to the state's
implementation of President's Rule under Article 356. The Supreme Court then
deliberated on the legitimacy and limits of the President's imposition of
power in a state, following the denial of his writ petition by the Karnataka
High Court on the same grounds. The Supreme Court imposed restrictions on
the implementation of Article 356 and established several prerequisites,
including the President's proclamation obtaining approval from both houses
of Parliament prior to its use. The reinstatement of the terminated
government occurs two months subsequent to the declaration of disapproval by
Whether judges establish the law or determine it.
Analysing the aforementioned seminal decisions demonstrates unequivocally
that judges establish legislation in situations where explicit legal
principles are absent or there is a legal lacuna. However, judges
occasionally use their interpretive abilities or judicial ingenuity to
discern the law within the legislative framework when the legislature's
desiccated skeleton fails to provide justice or "complete justice." To put
it simply, "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."
- Obstacles to Amendment:
Constitutional dilemmas may arise in the course of endeavours to amend the
constitution. Developing amendments that effectively reconcile the changing
demands of society with the fundamental tenets of the constitution is a
nuanced undertaking. The ongoing discourse surrounding matters such as
marriage equality, voting rights, and the extent of presidential authority
has brought attention to the inherent conflict between safeguarding the
integrity of the Constitution and accommodating developments in society.
The process of amending a constitution is complex and requires thoughtful
deliberation of numerous elements. The constitutional dilemma emerges due to
the intrinsic conflict between the necessity for stability and the
criticality of adjusting to a rapidly changing society. Effectively managing
these obstacles necessitates a comprehensive comprehension of the
intricacies of legal, political, and social interactions, coupled with an
unwavering dedication to preserving the foundational tenets that underpin a
- The Judgement of Fundamental Rights:
Conflicts between societal interests and individual liberties frequently
lead to constitutional quandaries. Concerns such as privacy, the right to
bear arms, and free speech necessitate that societies find it difficult to
reconcile individual liberties with the need to ensure public safety. Courts
are often tasked with resolving such disputes, and their rulings
significantly influence the development of constitutional law.
The struggle to strike a balance between fundamental rights highlights the
intrinsic conflicts that exist within constitutional governance. This task
necessitates ongoing attentiveness, reflective consideration, and a
dedication to maintaining the fundamental values that underpin democratic
communities. To effectively address this dilemma, one must strike a nuanced
balance between safeguarding individual liberties and promoting the common
good, thereby preserving the robustness and adaptability of the
constitutional framework in the face of the constantly evolving dynamics of
the contemporary era.
- Federalism and the Rights of the States:
Constitutional complexities may arise in nations with a federal structure
due to the manner in which powers are distributed between the central
government and individual states. Challenges pertaining to matters including
healthcare policy, environmental regulations, and immigration underscore the
persistent rivalry between a robust central authority and state sovereignty,
thereby prompting inquiries into the appropriate extent and boundaries of
- Scenarios of Constitutional Crises:
Constitutional crises may arise as a result of political instability or
disputes surrounding election outcomes, among other extreme circumstances.
The potential consequence of failing to address these crises within the
current constitutional structure is a deterioration of the rule of law.
Maintaining constitutional order while ensuring the integrity of democratic
principles is a delicate balancing act in such circumstances.
A constitutional crisis transpires when the customary operations of a
nation's constitutional system are disrupted, frequently attributable to a
dispute or uncertainty within the constitutional structure. This predicament may
materialise in a multitude of situations, thereby exacerbating the
Divergent Interpretations: When critical institutions or branches of government
interpret the constitution inconsistently, a constitutional crisis may ensue.
Divergences concerning the interpretation of the constitution may impede the
process of making decisions, resulting in a condition where the country is beset
by unpredictability and a dearth of transparent governance.
Amending Unresolved Matters: Attempts to amend the constitution that generate
contention over proposed changes may become a source of contention. Divergent
viewpoints concerning amendments have the potential to erode public consensus,
thereby presenting the nation with a constitutional dilemma involving
conflicting conceptions of its foundational legislation.
Executive gridlock or overreach: A constitutional crisis may result when the
legislative branch veers significantly off course or when the executive branch
exceeds its constitutional authority. A constitutional conundrum may result from
the fact that legislative impasse can impede the operation of the government and
executive overreach can undermine the system of checks and balances.
The deterioration of fundamental rights A crisis could potentially arise in the
event that fundamental rights protected by the constitution are perceived to be
eroding. Unjustified encroachments on individual liberties that lack explicit
constitutional justification may result in disturbance among the public and
present a constitutional dilemma, necessitating a reassessment of the intricate
equilibrium between rights and the wider social fabric.
The inadequacy of constitutional mechanisms A constitutional crisis may ensue in
extreme circumstances when the established mechanisms designed to resolve
disputes or ensure accountability prove inadequate. Potential disruptions to the
nation's constitutional safeguards, such as the judicial system or electoral
processes, may result in a state of uncertainty and a constitutional conundrum.
A dedication to the rule of law, observance of constitutional principles, and a
readiness to engage in dialogue and compromise are critical when confronted with
these circumstances. The resolution of constitutional crises necessitates a
collaborative endeavour to reassert the fundamental principles that govern a
country's administration; this will alleviate the constitutional dilemma and
reinstate stability to the constitutional system.
In conclusion, constitutional dilemmas are intrinsic to the intricate process of
formulating and interpreting the foundational legislation that regulates an
entire country. A dedication to constructive discourse, adherence to legal
procedures, and a readiness to accommodate societal transformations all while
safeguarding the fundamental tenets enshrined in the constitution are imperative
for addressing these challenges. In tandem with societal progress,
constitutional frameworks must also undergo transformation; effectively
addressing these complexities is essential for the sustainability and
functionality of a country's governance.