Source: Hindustan Times

Introduction

• "Judicial legislation" is a term used to describe situations where courts, particularly higher courts, are perceived as overstepping their traditional role of interpreting and applying the law and instead making law-like decisions.
• In other words, it suggests that the judiciary is engaging in a legislative function.
• It refers to a situation where judges are making decisions that effectively create new laws rather than interpreting existing ones.
  • This might occur when a court, through its rulings, establishes legal principles or interpretations that go beyond the specific language of the statutes or precedents involved in a case.
• Concerns over judicial legislation were raised in the case of Supriyo v. Union of India (2023) where the Supreme Court did not recognize same-sex marriages as the relief which was prayed for by the petitioners would result in judicial legislation.

What are the Views of Jurists upon Judicial Legislation?

• Montesquieu advocated the doctrine of Separation of Powers which restricts the encroachment in the functions of different branches of government that are Executive, Legislature and Judiciary.
• Charles Taylor said that in judicial decisions either of the parties will get the case in its favor however the legislature covers each possible aspect.
• Bentham in the 19^th century denied judge-made law by stating that “Nothing but the greatest integrity in a tribunal can prevent the judges from making an unwritten law a continual instrument of favor and corruption”.
• Gray favors judicial legislation by stating that “It has sometimes been said that law is composed of two parts, legislative law and Judge-made law, but in truth, all the law is Judge-made law".

What are the Opinions of Judges upon Judicial Legislation?

• Justice Y V Chandrachud in the case of Bachan Singh v. State of Punjab (1980) said that “The highest judicial duty is to recognize the limits on judicial power and to permit the democratic processes to deal with matters falling outside of those limits”.
• Justice K Ramaswamy in the case of C Ravichandran Iyer v. Justice A M Bhattacharjee (1995) said that “The role of the Judge is not merely to interpret the law but also to lay new norms of law and to mould the law to suit the changing social and economic scenario to make the ideals enshrined in the Constitution meaningful and a reality”.
• Justice Markandey Katju in the case of Aravali Golf Club v. Chander Hass, (2008) said that “Judges must know their limits. They must have modesty and humility, and not behave like emperors”.
  • The legislature, the executive and the judiciary all have their own broad spheres of operation. It is not proper for any of these three organs of the State to encroach upon the domain of another, otherwise the delicate balance in the Constitution will be upset, and there will be a reaction.

When has the Supreme Court Resorted to Judicial Legislation?

• Vishakha v. State of Rajasthan (1997):
  • The judiciary in this case said that there is a necessity of law for safety of women which led to enactment of a legislation in judicial compulsion.
  • The court’s decision in this case impacted penal laws, service laws and the introduction of a whole new statute.
• D Velusamy v. Patchaiammal (2010):
  • The SC in this case interpreted Protection of Women from Domestic Violence Act, 2005 and recognized the palimony rights of a partner in live-in relationship.
  • The court also categorized which kind of relationship would fall into the ambit of live-in relationships.
• Retired Justice K S Puttaswamy v. Union of India (2019):
  • The court in this case determined that Right to Privacy is an inherent right under Article 21 of the Constitution of India, 1950.
• Joseph Shine v. Union of India (2018):
  • The SC decriminalized the age-old Section 497 of the Indian Penal Code, 1860 (IPC) which created discrimination between male and female spouses.
  • The Court did this to tackle an age-old social evil.
• Navtej Singh Johar v. Union of India (2018):
  • The SC in this landmark judgment dived into decriminalizing same-sex relations by partially decriminalizing Section 377 of the IPC adjudging it as constitutionally void.
  • However, the court failed to adopt the same approach when it was prayed to interpret the constitutional validity of the Special Marriage Act, 1969 (SMA).

What are the Arguments Criticizing Judicial Legislation?

• Critics of judicial legislation argue that it can undermine democratic processes because judges, who are not elected, are not directly accountable to the public in the same way as elected legislators.
• It is criticized because making and changing laws should be left to the legislative branch, which is accountable to voters.

What are the Arguments in Favor of Judicial Legislation?

• Supporters of an active judicial role argue that the interpretation and application of laws sometimes require judges to fill gaps, resolve ambiguities, or adapt legal principles to changing societal circumstances.
• It is supported as a necessary part of the judiciary's function in ensuring justice and fairness.

Conclusion

The topic of judicial legislation is a complicated and debated part of legal discussions. While critics argue that it may disrupt democratic processes, proponents assert that it is an essential tool for adapting the law to the evolving needs of society. The delicate balance between the judiciary, the legislature, and the executive must be maintained to ensure a harmonious functioning of the democratic system while upholding the principles enshrined in the constitution.