LLM Notes: Concept of Judge as Law maker and Judge-Made Law in Indian Law

 The concepts of judge as lawmaker and judge-made law are rooted in the dynamic role of the judiciary in interpreting, applying, and shaping laws. In India, these concepts are particularly significant due to the judiciary's active involvement in addressing legislative gaps, protecting constitutional principles, and adapting laws to societal changes.

Judge as Lawmaker

Traditionally, judges are seen as interpreters of law rather than lawmakers. However, in practice, judges often engage in lawmaking through judicial decisions that establish new legal principles or clarify existing ones. This happens when:

1. Legislative Gaps: Judges address situations where laws are silent, ambiguous, or inadequate. For example, landmark cases such as Vishaka v. State of Rajasthan led to the creation of guidelines against sexual harassment at workplaces due to the absence of specific legislation.

2. Judicial Activism: Indian courts have actively interpreted constitutional provisions to expand fundamental rights and enforce social justice. For instance, in Kesavananda Bharati v. State of Kerala, the Supreme Court established the Basic Structure Doctrine, shaping constitutional law significantly.

3. Equity Legislation: Judges rely on principles of fairness and justice when laws fail to address unique situations. This discretionary role allows them to mold existing laws to suit evolving societal needs.

Judge-Made Law

Judge-made law refers to legal principles developed through judicial decisions rather than statutory enactments. It is a hallmark of common law systems like India’s, where precedents play a crucial role. Key aspects include:

1. Precedent-Based Decisions: Courts rely on previous judgments (stare decisis) to resolve cases, thereby creating binding legal norms for future cases.

2. Judicial Review: The Indian judiciary has the power to invalidate executive or legislative actions inconsistent with the Constitution under Articles 13, 32, 136, 141, 142, and 226. This ensures constitutional supremacy and often results in judge-made law.

3. Landmark Cases:

   • Vishaka v. State of Rajasthan: Established guidelines for workplace safety for women.

   • Second Judges Case: Introduced the collegium system for judicial appointments despite no constitutional provision explicitly prescribing it.

   • Maneka Gandhi v. Union of India: Expanded the scope of Article 21 (Right to Life) by interpreting it broadly.

4. Role in Social Justice: Judge-made laws often fill legislative voids in areas like environmental protection, gender equality, and human rights enforcement.

Constitutional Basis for Judicial Lawmaking

The Indian Constitution implicitly recognizes judicial lawmaking through provisions such as:

• Article 141: Declares that Supreme Court judgments are binding on all courts.

• Article 142: Empowers the Supreme Court to pass orders necessary for complete justice.

• Article 144: Mandates all authorities to act in aid of Supreme Court orders.

Debate on Judicial Lawmaking

While judicial lawmaking is celebrated for addressing legislative shortcomings and ensuring justice, it also raises concerns about separation of powers:

• Critics argue that judges should exercise restraint and avoid encroaching on legislative functions.

• Proponents emphasize the judiciary's role in adapting laws to societal needs and protecting constitutional values.

Conclusion

In India, judges play a dual role as interpreters and creators of law. Through judicial review, precedent-setting decisions, and equity legislation, they contribute significantly to legal development while ensuring justice and constitutional supremacy. However, this power must be exercised judiciously within constitutional boundaries to maintain the balance between the judiciary and legislature.

Print Page