Judicial Legislation: Will The Confusion End?

Parijata Bharadwaj

"...there is no liberty, if the judicial power be not separated from the legislative and executive."

Montesquieu [Spirit of Laws (Book XI, Ch. 6)]

Are these observations by the renowned political thinker still true? It is said that with time, everything changes: especially in the field of law. With a change in society there is always a need to change the legal system. According to Montesquieu to safeguard democracy it is necessary that there is a separation of power between the three different organs of the State. The doctrine of separation of powers envisages that the legislature should make law, the executive should execute it, and the judiciary should settle disputes in accordance with the pre-existing law (Sathe. S.P, Judicial Activism: The Indian Experience, 6 WAUJLP 29,2001).

Under the Indian Constitution the doctrine of separation of powers has not been rigidly stated as in the constitution of the United States or Australia 1. Does that mean that India does not follow the doctrine of separation of powers? It is not easy to answer this question. India, true to its nature of choosing the middle path, resorted to a balance even in this doctrine. The framers of our Constitution never wanted to introduce the doctrine of Separation of Powers rigidly to the extent of dividing the three organs into water-tight compartments 2.

India has followed a liberal approach, resorting to the doctrine of checks and balances. According to the Supreme Court in Asif Hameed v. State of Jammu & Kashmir 3:

"Although the doctrine of separation of powers has not been recognized under the Constitution in its absolute rigidity but the constitution makers have meticulously defined the functions of various organs of the State. Legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein."

The doctrine came in the limelight due to the recent spate of judgments wherein the judiciary has been said to have entered into the domain of the legislature. The era of judicial legislation may be said to have started with the landmark judgment of the Supreme Court in the case of Vishakha v. State of Rajasthan4 . In the said case the Supreme Court stated that in the absence of legislative and executive action, the judiciary may step in to fill the gap. The court gave certain directives in the said case for effective enforcement of gender empowerment of the right to gender equality and guarantee against sexual harassment. It was clarified that the Court was acting under Article 32 of the Constitution and the directions "would be treated as the law declared by the Court under Article 141 of the Constitution."

Though this does not mean that prior to this judgment there was judicial inaction. The court has given guidelines in various matters like inter-country adoption; environmental issues etc by reading it into Article 21 of the Constitution.

The reason why the Vishakha case is important is because it gave a rationale for the judiciary to intervene in the interest of justice when there is legislative inaction. The intervention of the court in the field of the legislature has been by and large appreciated not only in India but even abroad. Court Lord Woolf in his treatise The Pursuit of Justice [Oxford University Press 2008]:

...the proactive action taken by the Indian Supreme Court to protect the environment that I freely acknowledge could not be taken by English Courts. The Supreme Court of India has shown what can be done in the absence of `black letter weapons' in the judicial armoury.

The problem that exists is that the there is no uniformity or a standard on the extent of judicial intervention. For instance in a recent case

Common Cause v. Union of India 5 the Supreme Court refused to give any guidelines or directives to regulate road traffic. While in several cases relating to environment the Supreme Court has not only given directives but also asked the legislature to enact a law on the field.

Hence the confusion still exists. When can the judiciary intervene? In most cases of judicial intervention the Supreme Court exercises its power under Article 142. Article 142 confers the court with the power to do complete justice. The term complete justice is itself very vague, for it confers very wide powers on the Court. Though it is important to note that the second half of the article restricts this power to a certain extent:

"...any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order 103 prescribe."

The main reason behind the doctrine of separation is to prevent corruption as absolute power corrupts absolutely. Hence the power of judiciary also needs to be regulated for the tyranny of the judiciary is also against the fundamentals of democracy.

The ideal solution would be if every organ diligently exercised its powers there would be no need for any intervention. Sadly, we don't live in Utopia hence ideal solutions never succeed.

Recently a division bench of the Supreme Court in University of Kerala v. Council, Principals', Colleges, Kerala and Ors expressed its confusion over the validity of judicial legislation. The division bench referred the following questions regarding judicial legislation to a constitution bench:

Whether under our Constitution the judiciary can legislate, and if so, what is the permissible limit of judicial legislation. Will judicial legislation not violate the principle of separation of powers broadly envisaged by our Constitution;

Whether the judiciary can legislate when in its opinion there is a pressing social problem of public interest or it can only make a recommendation to the legislature or concerned authority in this connection;

It is interesting to note the views of the two judges in the said case. While Justice Katju voices his reservations against judicial legislation and goes on to question the validity of the Vishakha judgment; Justice Ganguly voices his praise for judicial intervention. But both the judges agree that confusion exists and there is a need to resolve it.

Till the judgment of the constitution bench it seems the confusion and the debate around judicial legislation will still exist. The important question though is whether the judgment of the Constitution Bench will solve the confusion. For the sake of justice let's hope it does.

1Minerva Mills v. Union of India (1980) 3 SCC 625

2University of Kerala v. Council, Principals, College, Kerala and Urs. Civil Appeal No.887 of 2009 with S. L. P. (C) Nos. 24296-24299 of 2004, 14356 of 2005 and Writ Petition (C) No. 429 of 2009

3AIR1989SC1899

4(1997)6 SCC 241

5(2008)5 SCC 511

Parijata Bharadwaj is a law student at Symbiosis Law College, Pune, India