Judge: A law Maker or a mere Declarer

IN THIS ARTICLE WE TRY TO CRITICALLY ANALYZE IF THE JUDGES ACTUALLY MAKE LAWS OR ONLY DECLARE LAW OR IS IT A FINE MIX OF THE TWO. A CRITICAL ANALYSIS OF THE VARIOUS JUDGMENTS OF INDIAN COURTS SHOW THAT THIS IS HIGHLY DEPENDENT ON THEJUDGE, THE PREVAILING JUDICIAL ENVIRONMENT AND THE SOCIO-POLITICAL SCENARIO PREVAILING.

For a really long time, from the time I had started hearing about Courts and Cases I had been hearing about Judges. When I enquired I was told they are the ones who decide cases in courts. I thought a very simple task which any tom dick and harry could do. It was only when I decided to take up Law as a profession and started preparing towards it that I realized importance of the place of Judges not only in the Judiciary but also in the society. So this article is a dedication to all the members of our judiciary. In Hernett v. Fisher, Scrutton, L. J. said : "This court sits to administer the law; not to make new law if there are cases not provided for....... In Rajeshwar Prasad v. State of West Bengal 1, Justice Hidaya-tullah observed: "No doubt, the law declared by this court (Supreme Court of India) binds courts in India, but it should always be remembered that this court does not enact." The likes of Bentham and his disciple Austin have been in the forefront to criticize the theory that judges merely declare law. As such it is difficult to give a definition to the term jurisprudence. Different jurists have given a variety of definitions based on his notion of the subject, his ideologies and the nature of society of his times. According to Ulpian, jurisprudence is the knowledge of things divine and human, the science of just and unjust. In England, the word jurisprudence meant little more than the study of or skill in law. It was only in the early 19th Century that the word got technical significance among English lawyers. Jurisprudence is basically the science of law. It can also be said to be the study and systematic arrangement of general principles of law.2 Jurisprudence also includes all the concepts of human order and human conduct in the state and society. So, anything that concerns order in the state and society falls under the domain of jurisprudence. Jurisprudence and law go hand in hand. In order to sharpen the logic of a lawyer an analysis of legal concepts is very necessary. So jurisprudence is very important. But where does this law come from? This is a question that needs to be answered. There are various sources of law such as customs, international conventions, treaties, precedents, legislations, etc. Under the heading precedents we have a situation when a judge becomes a law maker. It is interesting to note that judges whose purpose usually is to judge the cases before them also make laws in the course of giving those decisions. These laws are taken from the judgments given by them. Lord Bacon said that the points which the judges decide in cases of first impression are a "distinct contribution to the existing law"

In his book, Dicey writes : "As all lawyers are aware, a large part and as many would add, the best part of the law of England is judge-made lawthat is to say, consists of rules to be collected from the judgments of the courts. This portion of the law has not been created by Act of Parliament and is not recorded in the statute book. It is the work of the courts; it is recorded in the reports; it is, in short, the fruit of legislation,."3 Prof. Gray goes to the extent of saying that judges alone are the makers of law. He supports the proposition of Bishop Hoadly who says: "Whoever hath an absolute authority to interpret any written or spoken laws; it is he who is truly the law-giver to all intents and purposes and not the person who first wrote or spoke them." Speaking on the role of the judges, President Roosevelt in his message of 8 December, 1908 to the Congress of the United States, said: "The chief law-makers in our country may be, and often are, the judges, because they are the final seat of authority. Every time they interpret contract, property, vested rights, due process or law, liberty, they necessarily enact into law parts of the system of social philosophy; and as such interpretation is fundamental, they give direction to all law making. The decisions of the courts on economic and social questions depend upon their economic and social philosophy; and for the peaceful progress of our people during the twentieth century, we shall owe most to those judges who hold to a twentieth century economic and social philosophy and not to a long outgrown philosophy which was itself the product of primitive economic conditions." A judge can both make laws as well as declare laws. In common law countries, the role of the judges has been greatly creative. In countries where the law has been codified, the role of the judges has been comparatively less creative. However, the difference between the two is not very great. The two views regarding the role of the judges are rather complementary and not opposed to each other. A true picture of the judicial function lies in the synthesis of the two views. The creative role of the judges in England has been so dominant that English law is sometimes referred to as judge-made law, but this does not mean that judges in England have made the law in the same sense in which legislatures make it. Moreover, this view does not apply to other countries. A judge may be said to be laying down law in cases of first impression, but while doing so he is guided by certain principles, conventions and ideals. Even in countries where law is codified, a judge gives creative touches while applying the codified law. The result is that judges not only declare law but also make law. However, the words make and declare should not be taken in their common meaning but in a special sense. There is not much difference between declaring and making. Though these words are not synonyms, the difference is only that of degree. Declaring does not mean something mechanical. It also involves a creative and intel-ligent process by which the rules are applied to particular cases. Likewise, making does not mean that judge make law in the sense in which legislators make law. A judge merely works upon the material given to him by the legislature. His function is interpre-tation only and while doing so, he plays a creative role. He gives life to the skeleton of law. He adapts it to the changed conditions and causes its dynamic growth. Even if judges do not make law in the sense of promulgating it, it must be acknowledged that they develop the law.

Lord Reid said: "There was a time when it was thought almost indecent to suggest that judges make the law. They only declare it. Those with a taste for fairy-tales seem to have thought that in some Aladdin's cave there is hidden the common law in all its splendour and that on a judge's appointment there descends on him knowledge of the magic words 'Open Sesame'.... But we do not believe in fairy-tales anymore". Lord Denning has beautifully classified judges into bold spirits and timorous souls. Timorous Souls always feared a new cause of action. Bold spirits because they went for judicial creativity if it was required. It is to be not that judicial creativity is very important when a judge makes a law. Some classic examples of judicial law making are as follows: Vishakhacase4:- Here the Supreme Court laid down a full length law penalizing sexual harassment. The court stressed that this should operate as a binding law upholding gender equality. The decision in this case was sought to be treated as a law declared under Article 141 of the Constitution. Indira Swahney I5 and Indira Swahney II6 :- In these two cases law was declared that caste alone could not be the basis for determining the socially and economically backward class. There was the creamy layer, those who were advanced socially and economically. They would not come under back ward class irrespective of their caste. This again has been declared under Article 141. Shah Bano7 and Danial Latifi8: - Law can be declared by interpreting religious texts, even when several interpretations are available. Raj Narain vs State of UP9: - In this case the Supreme Court declared that Right to information is an integral part our fundamental right. The Honble Court here said that every citizen has freedom of speech and expression, but unless they know they cannot speak or express. LIMITATIONS Critics point out certain limitations on the legislative powers of the judges. A judge cannot overrule a statute. Where a statute has clearly laid down the law, the judge has to enforce it. He has to leave it to the legislator to deal with any unpleasant consequences not foreseen when the law was made. Authoritative precedents also limit the law-making power of the judge as he cannot depart from them. The legislative power of the judge is restricted to the facts of the case before him. Any ruling which do not form the ground of his decision and which are not applicable to the case under consideration are only obiter dicta. Lord Halsbury observed: "A case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow

logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that law is not always logical at all."10 The judge is confined to the facts of the case while enunciating legal principles. Within those limits alone it can be said that judges make law. Prof. Allen writes: "The judge cannot, however much he may wish to do so, sweep away the prevailing rule of law and substitute something else in its place. In this sense it is no childish fiction to say that he does not and cannot make law. The legislature, on the other hand, has an entirely different pre-rogative. It is not confined to law in the present or the past, but may do as it wills with the future. It can make new law in a sense which is quite precluded to the judge. It legislates where the judge interprets. The legislature can at any time project into the future a rule of law which has never existed in England; the courts can do nothing of this kind."11 The view of Justice Cardozo is that "the judge, even though he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system and subordinated to the primordial necessity of order in the social life. Wide enough in all conscience he may lay down will be law only in so far as it is necessary for the decision of the case. Any principle lay down by a judge is the field of discretion that remains."12 Again, "it is true that codes and statutes do not render the judge superfluous, nor his work perfunctory and mechanical. There are gaps to be filled. There are doubts and ambiguities to be cleared. There are hardships and wrongs to be mitigated if not avoided. Interpretation is often spoken of as if it were nothing but the search and the discovery of a meaning which, however obscure and latent, had nonetheless a real and ascertainable pre-existence in the legislator's mind. The work of a judge is in one sense enduring and in another sense ephemeral. What is good in it endures. What is erroneous is pretty sure to perish. The good remains the foundation on which new structures will be built." According to Justice Holmes: "I recognise without hesitation that judges must and do legislate. A common law judge could not say, I think, the doctrine of con-sideration a bit of historical nonsense and shall not enforce it in my court." Lord Devlin said: "Judicial law-making power must not be interpreted as implying that judges have the power, let alone the right to make any type of law they wish, some types of legal regulations are inherently and completely outside their powers." The power to make laws is a very essential power given to the judiciary. When ever the legislature fails to act, the judiciary must step in and provide a solution till the legislature acts.13 Using this power, whenever there is a vaccum, directions can be issued by court to fill a vaccum or void till the enactment of a suitable laws.14 An interesting aspect of the power of judges to make laws is that the legislature cannot nullify the directions issued by the judiciary.15 A major criticism of Judges as law makers is that the laws made by them lack popular sanction. When passing any law other than through judges, there is a popular sanction as representatives of the citizens are also present there. But in the case of laws made by judges such a thing does not happen. And in a country

which follows the principles of; for the people, by the people and of the people, popular sanction is very important. There are also chances that individual opinions of a judge which is not acceptable to the others may be reflected and may turn out to become laws. Even an obiter dictum is expected to be obeyed and followed.16. The Bombay High Court has held that the phrase law declared in Article 141 is of wide amplitude and that in ratio decidendi and obiter dicta17. Calcutta High Court has laid down that even the Obiter Dicta of the Supreme Court are binding18. A similar view has been taken by the Kerala High Court.19 Even if an order is improper and erroneous they cannot be substituted, altered, or modified by the executive authorities. A remedy in this regard can be had only from a higher court or the same court20. Decisions of the judges are not available to a common. Even if he has access to it, he needs a competent lawyer to understand it. It is usually only when the situation demands that judges make laws. They are never abreast the needs of time A way to solve the above problem is to codify the laws. Very many uncertainties could be removed by codification on a point at certain point. But again new precedents may be set up during this interval. Codification can also be done frequently, but that would be a costly affair. I do not intend to conclude by writing judges make law. By doing so I would not be doing justice to the greats who are of the view that judges merely declare law. But at times I feel, am I not slightly towards the likes of Bentham and Austin?....... 1 AIR 1965 SC 1887 2 Keeton 3 Law and Opinion in England, p.361 4 (1997) 6 SCC 241 5 1992 SCC (L&S) Supp 1. 6 (2000) 1 SCC 168 7 (1985) 2 SCC 556 8 (2001) 7 SCC 740. 9 AIR 1975 SC 865 10 Quiinn v. Leathem 11 Law in the Making, p. 174. 12 The Nature of the Judicial Process,pg 141 13 Vineet Narain v Union of India, (1998) 1 SCC 226 14 Union of India v Assn for Democratic Rights, (2002) 5 SCC 294. 15 PUCL, Loksatta and ADR V Union of India, (2003) 3 Supreme 93. 16 Sarwan Singh Lamba v Union of India,1995 SCC (L&S) 1064. 17 1979 Mah LJ 779 18 Aswini Kumar Roy v Kshitish Chandra Sen Gupta, AIR 1971 Cal 252 19 State of Kerala v Parameswaran Pillai, 1974 Ker LT 617. 20 S. Nagaraj v State of Karnataka, 1993 Supp (4) SCC 595.

About the Author The author is a law student at the National University of Advanced Legal Studies situated in India.