Can Judges Legislate? The Supreme Court Sets the Record Straight.

Its judgment on Section 498A of the IPC dealing with marital cruelty reverses earlier judicial directives that the court overstepped its remit in prescribing.

This week’s judgment of the Supreme Court in Social Action for Manav Adhikar vs Union of India by a three-judge bench relating to Section 498A of the Indian Penal Code on dowry harassment raises two important questions:

  1. Can judges legitimately legislate?
  2. If they can, are there any limits to judicial legislation, and if so, what are they?

The judgment reversed the court’s earlier dilution of the powers of the police to act against husbands accused of harassing their wives.

Classical positivist jurisprudence created by the 19th century English jurists Bentham and Austin, and developed in the 20th century by Hart, Kelsen and others, taught that law making is the task of the legislature, not the judiciary. The latter’s job is only to interpret the law made by the legislature, and direct its enforcement.

In England, this principle was strictly enforced because there was no written constitution, and parliament was supreme. Hence law making by judges would violate the principle of parliamentary supremacy. Thus, in Magor and St Mellons RDC vs Newport Corporation, the House of Lords overruled the decision of Lord Denning in the Court of Appeals, holding it to be “a naked usurpation of legislative powers”.

But sociological jurisprudence, created in Europe towards the end of the 19th century by Jhering, Geny, Duguit etc and developed in the United States by Roscoe Pound and others said that judges can, and in fact do, legislate. The ‘realist school’ in the US of Gray, Frank and Llewelyn went to an extreme, and said that the only real law was judge made law, while statutes by the legislature were only the raw material which a judge uses to make law.

My own view is that ordinarily judges should not legislate, though in exceptional cases they can.

When I became a judge of the Supreme Court, I was deeply concerned about the widespread tendency of some judges not to exercise restraint and instead make laws and exercise functions belonging to the executive. Some judges were issuing directives on how the Yamuna river was to be cleaned up, others on the building of an abattoir in Delhi, yet others making rules for admissions to nurseries in Delhi schools, others dealing with the monkey and cattle menace, and laying down speed limits for vehicles, etc all of which I regarded to lie exclusively in the legislative or executive domain. The judiciary neither had the technical or administrative expertise nor the financial resources for this.

For instance, in one case, the Supreme Court ordered the linking up of all the rivers in India. However well intentioned this order may have been, it was, in my opinion uncalled for, and in fact unimplementable. It envisages linking 30 major rivers in India, and is estimated to have financial implications of Rs 11 lakh crore (i.e. $168 billion). There may be insuperable technological and administrative difficulties in giving effect to it. And many state governments may not agree to it.

So in Divisional Manager Aravali Golf Course vs Chander Haas, a bench of Justice A.K. Mathur and myself wrote a detailed judgment saying that there is separation of powers in the constitution between the three organs of the state, and one organ should not ordinarily encroach into the domain of another, otherwise there will be chaos. Of all the three organs of the state, it was only the judiciary which can define the limits of all three. This great power must therefore be exercised by the judiciary with the utmost humility and self restraint.

In Rajesh Sharma vs State of UP,  a two-judge bench of the Supreme Court held that section 498A IPC was being grossly misused by vindictive wives, and so it issued eight directives to prevent this. The very first directive was that in every district in India a family welfare committee should be set up by the District Legal Service Authority, and all complaints under section 498A should be referred to it, and no arrest should be made before receiving its report.

There is no law for setting up such family welfare committees. How could the court create it? As observed in District Manager, Aravali Golf Course, “If there is a law, judges can certainly enforce it, but judges cannot create a law and seek to enforce it “.

Hence in Social Action for Manav Adhikar, the three-judge bench rightly set aside the above mentioned directive of the two-judge bench. It also set aside the directive empowering district judges to quash proceedings under Section 498A when the parties had reached a compromise, since section 498A is a non compoundable offence.

What about the other directives in Rajesh Sharma, which were upheld in Social Action for Manav Adhikar? They too are legislative in nature, but they merely protected the right to liberty guaranteed by Article 21 of the constitution of India, and they merely followed earlier decisions of the court, to which I think no exception could be taken.

Thus, in Joginder Kumar vs State of UP, the Supreme Court directed that arrests should not be done in every case disclosing a cognizable offence. In Arnesh Kumar vs State of Bihar, it ordered that arrest in cases under Section 498A IPC should only be done in exceptional cases and for reasons to be recorded in writing. In Lalita Kumari vs State of UP, it held that if the complaint to the police did not disclose a cognizable offence, the police must make a preliminary enquiry before registering the offence under section 498A. In D.K.Basu vs State of West Bengal, it prescribed certain procedural safeguards before making an arrest (like the US Supreme Court judgment in Miranda vs Arizona). All these directives were given to prevent misuse of Section 498A, and to protect the right to liberty guaranteed by Article 21 of the constitution. Hence in my opinion they were legitimate judicial legislation.

Apart from judicial legislation being permissible to fulfil constitutional rights, in my opinion it would also be legitimate if it is done to create a norm which is essential for society for its smooth functioning at a particular stage of its historical development, and for some reason the legislature is unwilling or unable to create it. Let us consider some examples.

In modern society, the right of a woman to have sex without having pregnancy is a basic right. Often people do not want to have more than one or two children because a lot of money is required for raising children properly. So it is necessary to practise contraception.

In Ireland there was an archaic law against the sale and use of contraceptives because Ireland is a Catholic country, and the Catholic Church is against the use of contraceptives. Irish politicians were unwilling to bring a bill in the Dail to repeal this antiquated law, out of fear that if they did, the Catholic Church would use its enormous influence to destroy the political careers of such politicians. The law was challenged in 1973 before the Irish Supreme Court in McGee vs Attorney General and the court struck it down on the ground that it was against the right to privacy. Now there is no mention of any right to privacy in the Irish constitution. The court created this right by a judicial verdict.

Similarly, the US Supreme Court in Griswold vs Connecticut struck down a law in the state of Connecticut against the sale and use of contraceptives on the ground that it violated the right to privacy, though there is no mention of any right to privacy in the US constitution. In India too there is no mention of any right to privacy in the constitution, but a nine-judge bench of the Supreme Court in Justice K.S.Puttaswamy vs Union of India held that it is part of the right to life and liberty mentioned in Article 21.

In the US, some states did not permit women to have abortion, but in Roe vs Wade (1973), these laws were struck down by the US Supreme Court as violative of the right to privacy, and women were allowed to have abortions (though a law could forbid it after the second trimester i.e. after six months of pregnancy). This verdict was modified by the US Supreme Court in 1992 in Planned Parenthood vs Casey, which prescribed the viability and undue influence tests.

It can be seen from the above discussion that there are at least three situations where judges can legitimately legislate:

  1. Where such judicial legislation is for furthering the mandates of the constitution and breathing fresh life into them, e.g. decisions of the Indian Supreme Court expanding the scope of Articles 14 and 21 of the Constitution. The court has created a host of rights, holding that they are part of Article 21.
    The danger here is that some judges may run amuck, and hold almost everything under the sun to be part of Article 21. But as former Chief Justice of India Anand observed, judicial activism is not an unguided missile, and must not become judicial adventurism. Court decisions should ordinarily have a jurisprudential base, and policy matters are best left to the executive.
  2. Where a legal norm is required by society for its smooth running, and for some reason the legislature is unwilling or unable to create it. This has been explained above. The recent Supreme Court judgment reading down Section 377 of the Indian Penal Code is an obvious example from India itself.
  3. Where there is a gap in the statutory law, judges can fill in the gap. Earlier some judgments had held that it is for the legislature, not the judiciary, to fill in a c, but now the preponderant view is that it can be done by Courts, as was done by the Indian Supreme Court in D. Velusamy vs D. Patchiammal.

Conceivably there may be other situations too where judges can legislate. But in general it must be said that courts should exercise restraint and avoid the temptation to legislate or exercise executive functions, not only because that is the function of other organs of the state, but also because the court is not equipped with the technical expertise or resources for this.

In his dissenting judgment in Griswold vs Connecticut, Justice Hugo Black of the US Supreme Court warned that “unbounded judicial creativity would make this Court into a day-to-day Constitutional Convention”. In his book, Nature of the Judicial Process, Justice Benjamin Cardozo of the US Supreme Court wrote, “The Judge is not a knight errant roaming at will in pursuit of his own ideal of beauty and goodness”. Justice Frankfurter of the US Supreme Court pointed out in his reflections on the reading on statutes that great judges have constantly admonished their brethren of the need for discipline in observing their limitations. As Chief Justice Richard Neely of the West Virginia State Supreme Court observed: “I have very few illusions about my own limitations as a Judge. I am not an accountant, electrical engineer, financier, banker, stock broker, or systems management analyst. It is the height of folly to expect judges to intelligently review a 5000 page record addressing the intricacies of a public utility operation. It is not the function of a judge to sit as a super board or with the zeal of a pedantic schoolmaster substituting his own judgment for that of an administrator.”

Markandey Katju is a former judge of the Supreme Court of India.