Importance of Judicial Role in Law Making

In India, the successful functioning of Indian Judiciary over the years that fall fundamentally within the legislation raises some real and noticeable concerns such as ‘Judicial Activism.’ Similarly, this part of ‘Judicial Activism’ holds the distance from being a true field among others since the law made by the judge has got enormous recognition throughout the world. The Indian courts have added to such acknowledgement to an extremely huge degree by offering bearings to the administration now and then looking for consistence under its scorn power and numerous multiple times by administering precisely in a way similar to the governing body. Such cases of legal intercession require a need to intently examine the embodiment and the established point of view of the ‘law-making’ capacity of judges in differentiation with the historically presented legislative forces of the assembly.

It is, in fact, evident that in the Indian Constitution, legislation plays a vital role and is a primary source for sanctioning the laws and to cope up with the changing conditions of the general public. The job of judiciary is likewise, to a great extent recognized since judges while managing day to day circumstances to settle upon, do get chances to decipher and evolve the current laws and apply them in a particular case to keep up with the changes occurring in the society.

The fundamental reasoning that can be attributed to such an important feature of legal capacity is the undoubted reality that since the law is subjective by its very nature, and no one can predict the future and approaching potential outcomes that the law seeks to address. For all kinds of reasons, each sanctioned law on an examination will reveal certain holes on which the legal executive will be relying on the method of understanding to top off. Anyway, this topping off is supposed to be performed in compliance and consistency with the sacred guides and required to the extent allowed by the Constitution.

Philosophy of Judicial Law-making

The Indian Constitution took the core idea from both the U.S. and British Constitutions as it has England’s parliamentary and cabinet forms of law and federalism with its characteristic system for the dispersion of constitutional powers and the United States Constitution’s judicial review powers. Since the realistic theory of law and analytical positivism draws heavily from the respective constitutional systems of the U.S and U.K, it is natural that the two theories of law and jurisprudence can continuously affect one another in the implementation and modification of the Indian constitution.

Legal rationalism stresses that only in terms of the judicial process can the law be properly understood or defined. The written law and the legislation in action are very different from one another. It says that once the legislation has been established by the government, it’s nothing but the promise about what the courts are eventually going to do because as long as the courts have not issued a final judgment on it, the rule remains unknown for the people. In order to interpret the law on an issue, to see whether ‘the rule’ is in question, the counsel, the regulator or the person involved may look at the established rule (defined by legislation) but eventually they will figure out how it has already been defined by the courts and whether they are likely to understand the same when the matter comes before them.

In recent times ‘democratic decision-making’ is promoted for overcoming the solidity of the Constitution and rules as their established definitions fail to fulfil the new social or welfare state economic principles.  It will shift in time and space with the evolving needs of society; therefore the law is a tool for Indian legal thought in social engineering[1] that also acknowledges ‘the complex character of law’.[2] A realistic theory of law, however, has a non-doctrinaire approach or a politically neutral approach to the subject matter of legislation or the Constitution. It concentrates on the legal system through which constitution and law operate in reality.

Constitutional Interpretation

Since it is the tradition that judges ‘find’ and do not ‘make’ law.[3] The judges not only make and state what the law is by interpretative technique, but they also assert what it should be. The frontiers of judicial activism have expanded all around. After the great revolution in the legal world i.e. Maneka Gandhi case has given a new boost making Articles 14 and 21 favourable for judicial lawmaking. The apex court’s ruling in the case of Maneka Gandhi has explicitly authenticated the opinion that Indian Supreme Court judges do not merely enforce or interpret the law, but also develop the Constitution.

The Supreme Court has thereby transformed itself into an ongoing constitutional assembly.[4] The Patna High Court in Kameshwar Singh v. State of Bihar[5]  introduced the right to ownership, while the opposition to the Bihar Land Reforms Act 1950 was brought under Article 14 and not under Article 31 of the Constitution. This decision led to the first amendment to the Constitution in 1951.

In-State of West Bengal v. Beta Banerjee,[6] the Court overruled the West Bengal Land Act and ruled that ‘compensation’ included only equal or full reimbursement. This case was followed by the Court in State of West Bengal v. Subodh Gopal[7] and Dwarkadas Shrinivas v. Solapur Spinning and Weaving Co.[8] these rulings were set aside by the Constitution (Fourth Amendment) Act 1955. This order of compensation acceptability made an unjustifiable issue. But in the Bank Nationalization Case,[9] The Supreme Court declared by a majority of 10:1 that the Constitution protects the right to compensation for the equivalent in money of the obligatory acquired property.

Judicial proceedings were not streamlined in India, it depends on the psychology of the respective judges. It appears that the council’s role also plays nearly a pivotal role in decision making. Saheli[10]and Premchand v. State of Haryana[11] were decided by a bench consisting of Justices BC Ray and S Ratnavel Pandian. In this case, the judges have transformed the obiter into a ratio, and in the latter case, the clear legislative provision has been defied which clearly shows the law-making power of the Supreme Court of India.

Alarmingly, the evils of heinous acts against women have risen. Custodial rapes tragedies are also rising alarmingly. However, the attitude of the judiciary has not altered, and the judges have adhered to the age-old laws and understanding of criminal law and the law of evidence. This statement is supported by evidence in the case of Tuka Ram v. State[12] where two police constables assaulted one child at a police station and were charged with a sexual offence but acquitted for some reasons. This resulted in many protests and criticism from all parts of the country.

The Court may take an idea to the transformation from the Constitution but it can not overrule the legislative function. Judicial restraint is the need of the hour, particularly in PIL cases. If self-restraint is not observed, the Court will have to take upon them administrative and judicial functions.[13] It is difficult to introduce social and political legislative changes through the judicial process. The judicial process has to operate within the prevailing social, economic and political environment.

Relevance of Judicial Legislations

There is a limit to which the courts are permitted to go when it comes in making legislation. They have to function within the boundaries of the constitution, and they can’t challenge it. However, the legislation may be such that it has outgrown its utility or is not in line with the new dominant thought and effects that are unacceptable to society’s morality. Such legislation needs to be fixed and only the legislative body can do this. Furthermore, legislation may be such as changing needs and amending to broaden its scope and cover new areas. The appeal to the legislative body always clearly needs to be for this reason.

There are chances that the legislation itself will indeed be unjust and this poses a problem for the judge. While the law has largely been regarded as a strong ally of freedom and a significant means for achieving personal freedom, protecting human rights and promoting vast social goals of equality and general well-being, it is not always the case. The legislation also has been seen as an effective instrument for political domination, a mechanism by which some parts of society can assert social and economic dominance over others, a system of considerable potential for dictatorial rule. An increase in some individual’s rights will imply some restrictions on other’s rights.

By the near breakdown of the effective government in India and the burden on the judiciary to engage in assistance, the judiciary is compelled to react and make constitutional and political decisions. The public interest litigation in strictly procedural matters distracts the judiciary from its standard roles and responsibilities and occupies areas where it has no authority or reasonable criteria for judicial intervention. To sum up, it can be said that, when the judges make law, it is essentially a kind of restricted form of law that cannot go beyond the limits of the statutes themselves. Such legislation is a rulemaking power to be used as a judicial tool for implementing and administering the statute law to resolve disputes between the parties.

A judge-made law is an extended form of the statute law in its simplest form; its adaptability is decisive as the judge has the comfort of dealing with a complex situation. This advantage to a judge does not explicitly allow him to create laws of a reliable nature. Every practice that transgresses the Constitution’s four walls is disruptive because it disturbs the precious equilibrium and unity of the state’s respective bodies. Therefore, judicial law-making is a subjective process and requires a laborious work from the respective judges, on the other hand, it also benefits the current socio-economic situations which were not maintainable previously with the traditional form of law.


[1] G.S.Sharma, Horizons of Indian Legal Philosophy,2 Jaipur Law Journal 180 (1962).

[2] Gajendragadkar, The Indian Parliament and Fundamental Rights 190 (1972).

[3] HLA Hart, The Concept of Law (Oxford University Press, 1961), p. 12.

[4] Upendra Baxi (ed.) K.K. Mathew on Democracy, Equality and Freedom I (1978).

[5] AIR1951 Pat 91.

[6] AIR 1954 SC 170.

[7] AIR 1954 SC 92.

[8] AIR 1954 SC 119.

[9] R.C. Cooper v. Union of India, AIR 1970 SC 564.

[10] AIR 1990 SC 513.

[11] AIR 1989 SC 937.

[12] 1979 2 SCC 143 [2].

[13] Sachidananda v. State of West Bengal, AIR 1987 SC 1109.

Aum Purohit from Institute of Law, Nirma University

“Aum is passionate legal guy who is always ready to work hard when it comes to legal world.”

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