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Judges And Law Making

Our Constitution is 73 Yrs Young. This Visible Constitution floats in a vast deep ocean Crucially and invisibly in an ocean of ideas and experiences. It is by judicial interpretation that we breathe life into the Constitution.

Legislation is the Constitutional Prerogative of the Legislature. The role of Judiciary is to interpret, adjudicate and decide disputes in accordance with Law. It is the Constitutional prerogative of the superior courts to decide as whether the law is according to justice and if not it should be interpreted in accordance with justice.

Interpretation is the primary function of the Court. Law should be interpreted according to the will of legislature. Sometimes the role of the judge will shift from interpreter to that of giving life to law and make the rule of law functional.

This is Judicial activism.² Judge made laws are the legal doctrines established by judicial precedents rather than by a statute. Judge interpret a law in such a way to create a new law. Judge made laws are based on stare decisis, which means to stand by the decision.3

Judges while taking Oath swear that they will uphold the constitution and Laws. So this should be bore in mind while discharging his duties. A judge has to administer justice. If a judge finds that enacted law is inadequate to meet the ends of justice it is the Constitutional Obligation and the court to render justice in accordance with the Constitutional principles. A judge has to fill up the gaps. This process is known as Judicial Legislations.

The Gap in our system of administration is filled by the judge. It is here that the judge take part in the process of Law making. Law making is an inherent and inevitable part of Judicial process. Judge gives flesh and blood into the dry skeleton provided by the legislature and make the law adequate to meet the needs of the Society.4

In Rattan Chand Hira Chand v/s Askar Nawaz,5 the Supreme Court held as when court perform this function undoubtedly they legislate judicially.It is a kind of legislation which starts implicitly delegated to them to achieve the object of legislation and to promote the goals of the society.

In Canocraft Ltd v/s Pan American Airways Inc it is said that the duty of the court is to ascertain and give effect to the will of the Parliament.6 Interpretation of Statues is a craft and the judges as Craftsmen select and apply rules as tools of their trade.

Human rights in the Indian Constitution are divided into two separate parts part III and part IV. Fundamental Rights mentioned in part III are Justifiable and enforceable through Court of Laws. Part IV are Socio economic and Cultural rights.

There is no disharmony between the Directive Principles of State Policy and Fundamental Rights because they supplement each other in aiming at the same goal of bringing about a social revolution and the establishment of a welfare state which is contained in the preamble to the constitution.7

The social rights under the Constitution or Directive Principles of State Policy have been enforced or made Justifiable by the Supreme Court through an expansion of Fundamental Right's in part III, particularly the Right to Life guaranteed in Art 21. Right from late 1970's starting with Maneka Gandhi's Case started expanding the Guarantee of the Right to Life under Art 21.It is the most expanded interpreted article in the Constitution.8

The first and most important judgements of the SC which guaranteed that Right to Housing is the part of the Right to life was the Judgement delievered by Chandra chud.J in Olgatellis vs Bombay Municipal Corporation in the mid eightees.9 The guidelines with regard to Vishaka's Case undoubtedly constitute judge made laws.It was only after 15 years after the semiguidelines in Vishaka's Case10 protection of women against Sexual Harassment at workplace Bill was drawn up.

In Praksh Singh v/s Union of India11 directed the centre and state government to implement Police reforms based on long pending recommendation of various expert Committees. In MC Mehta Vs Union of India 12 court gave direction to the Government based on expert opinion given by the Central pollution control board and NEERI against large scale Construction activity in the close vicinity of two lakhs. NEERI had recommended green belt at one kilometer radius all round the two lakhs.

The Supreme court on two further occasions realized the Constraints on executive to initiate directives in Enviromental issues and took the responsibility to formation of Committees to function accordingly.

In MC Mehta v/s Union of India 13 is popularly known as the Delhi CNG Case. So from this background of the Constitutional mandate , the question is not what the Statute does say but what the Statute must say. If the Act or the Rules or the bye-laws do not say what they should say in terms of the Constitution, it is the duty of the Court to read the Constitution inspirit and Concept into the Acts. Judicial activism has distributed the delicate balance of Separation of powers enshrined in the Constitution.

Even though legislature and the judiciary are independent, yet judiciary is entrusted judicial review,interpretation and implementation of laws made by the legislature. The judge can interpret law but they should not create a law on their own.

The topic of judicial activism is incomplete without mentioning the contribution of Justice Krishna Iyyer. In Sunil Bhatra's14 case the court passed several order for providing humane condtions in jail. Under Art 37 of the constitution of India it is the duty of the state to apply Dpsp under part IV of the constitution while making laws. It is duty of the court to apply those principles in interpreting laws.

So I would like to conclude stating that judge made laws is not only an innovative role but his duty is to uphold the constitution. If the judge finds that enacted piece of legislation remains inadequate, he has to put life to the law and make it functional. Judge cannot remain impotent or incapable. The judges have to be alive to the reality that as society changes the norms, society changes, the norms acceptable to society also change and that while discharging the constitutional duties they have to develop the law on those lines.

The interpretation of the constitution must be in accordance with the intention of the original framers of the constitution. Framers could not have foreseen at that point of time, there may be issues that may not have fully discussed and even left as controversial. For example right to privacy was not found as an independent fundamental right in the constitution.

But a debate came in the year 2017 in Justice Puttasamy v/s Union of India 15. a bench consisting of 9 judges unanimously declared that right to privacy is a fundamental right so judges play a role in the development of law. His interpretation should not have personal philosophy. It should be what constitution says as he has undertaken oath.


  1. Scc 2015 volume 4 page 1-23.
  2. 2016 volume 2 page 18.
  3. https//definition
  4. Prof. Bhatta Charyya, The interpretation 10th Edition page 1.
  5. 1991 3scc 67.
  6. 1969 1qp 616 .1968, 3WLR at page 732.
  7. Unnikrishnan JP vs state of AP 1993 1scc 645, 730para.
  8. AIR 1978 597.
  9. 1985 3scc 545.
  10. 1997 6scc 241, 1997 scc (cri)932.
  11. 2006 8scc 1.
  12. 1997 3scc 715.
  13. 1987 scr (1)819, Air 1987, 965
  14. 1978 4scc 495, 1979 scc (cri) 155
  15. Justice puttasamy V union of India judgment delivered on 24th August 2017

Written By: Kairalivs Asst. Prof SRM School of law Chennai

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