Judge: A law Maker or a mere Declarer

For a really long time, from the time I had started hearing about Courts and Cases I had been hearing about Judges. When I enquired I was told they
are the ones who decide cases in courts. I thought a very simple task which any tom dick and harry could do. It was only when I decided to take up
Law as a profession and started preparing towards it that I realized importance of the place of Judges not only in the Judiciary but also in the society.
So this article is a dedication to all the members of our judiciary. In Hernett v. Fisher, Scrutton, L. J. said : "This court sits to administer the law; not to
make new law if there are cases not provided for.......― In Rajeshwar Prasad v. State of West Bengal 1, Justice Hidaya-tullah observed: "No doubt,
the law declared by this court (Supreme Court of India) binds courts in India, but it should always be remembered that this court does not enact." The
likes of Bentham and his disciple Austin have been in the forefront to criticize the theory that judges merely declare law. As such it is difficult to give a
definition to the term jurisprudence. Different jurists have given a variety of definitions based on his notion of the subject, his ideologies and the nature
of society of his times. According to Ulpian, jurisprudence is “the knowledge of things divine and human, the science of just and unjust―. In
England, the word jurisprudence meant little more than the study of or skill in law. It was only in the early 19th Century that the word got technical
significance among English lawyers. Jurisprudence is basically the science of law. It can also be said to be the study and systematic arrangement of
general principles of law.2 Jurisprudence also includes all the concepts of human order and human conduct in the state and society. So, anything that
concerns order in the state and society falls under the domain of jurisprudence. Jurisprudence and law go hand in hand. In order to sharpen the logic
of a lawyer an analysis of legal concepts is very necessary. So jurisprudence is very important. But where does this law come from? This is a question
that needs to be answered. There are various sources of law such as customs, international conventions, treaties, precedents, legislations, etc. Under
the heading precedents we have a situation when a judge becomes a law maker. It is interesting to note that judges whose purpose usually is to judge
the cases before them also make laws in the course of giving those decisions. These laws are taken from the judgments given by them. Lord Bacon
said that the points which the judges decide in cases of first impression are a "distinct contribution to the existing law" In his book, Dicey writes : "As all
lawyers are aware, a large part and as many would add, the best part of the law of England is judge-made law—that is to say, consists of rules to be
collected from the judgments of the courts. This portion of the law has not been created by Act of Parliament and is not recorded in the statute book. It
is the work of the courts; it is recorded in the reports; it is, in short, the fruit of legislation,."3 Prof. Gray goes to the extent of saying that judges alone
are the makers of law. He supports the proposition of Bishop Hoadly who says: "Whoever hath an absolute authority to interpret any written or spoken
laws; it is he who is truly the law-giver to all intents and purposes and not the person who first wrote or spoke them." Speaking on the role of the
judges, President Roosevelt in his message of 8 December, 1908 to the Congress of the United States, said: "The chief law-makers in our country
may be, and often are, the judges, because they are the final seat of authority. Every time they interpret contract, property, vested rights, due process
or law, liberty, they necessarily enact into law parts of the system of social philosophy; and as such interpretation is fundamental, they give direction to
all law making. The decisions of the courts on economic and social questions depend upon their economic and social philosophy; and for the peaceful
progress of our people during the twentieth century, we shall owe most to those judges who hold to a twentieth century economic and social
philosophy and not to a long outgrown philosophy which was itself the product of primitive economic conditions." A judge can both make laws as well
as declare laws. In common law countries, the role of the judges has been greatly creative. In countries where the law has been codified, the role of
the judges has been comparatively less creative. However, the difference between the two is not very great. The two views regarding the role of the
judges are rather complementary and not opposed to each other. A true picture of the judicial function lies in the synthesis of the two views. The
creative role of the judges in England has been so dominant that English law is sometimes referred to as judge-made law, but this does not mean that
judges in England have made the law in the same sense in which legislatures make it. Moreover, this view does not apply to other countries. A judge
may be said to be laying down law in cases of first impression, but while doing so he is guided by certain principles, conventions and ideals. Even in
countries where law is codified, a judge gives creative touches while applying the codified law. The result is that judges not only declare law but also
make law. However, the words make and declare should not be taken in their common meaning but in a special sense. There is not much difference
between declaring and making. Though these words are not synonyms, the difference is only that of degree. Declaring does not mean something
mechanical. It also involves a creative and intelÂ-ligent process by which the rules are applied to particular cases. Likewise, making does not mean
that judge make law in the sense in which legislators make law. A judge merely works upon the material given to him by the legislature. His function is
interpreÂ-tation only and while doing so, he plays a creative role. He gives life to the skeleton of law. He adapts it to the changed conditions and
causes its dynamic growth. Even if judges do not make law in the sense of promulgating it, it must be acknowledged that they develop the law. Lord
Reid said: "There was a time when it was thought almost indecent to suggest that judges make the law. They only declare it. Those with a taste for
fairy-tales seem to have thought that in some Aladdin's cave there is hidden the common law in all its splendour and that on a judge's appointment
there descends on him knowledge of the magic words 'Open Sesame'.... But we do not believe in fairy-tales anymore". Lord Denning has beautifully
classified judges into bold spirits and timorous souls. Timorous Souls always feared a new cause of action. Bold spirits because they went for judicial
creativity if it was required. It is to be not that judicial creativity is very important when a judge makes a law. Some classic examples of judicial law
making are as follows: Vishakha’case4:- Here the Supreme Court laid down a full length law penalizing sexual harassment. The court stressed
that this should operate as a binding law upholding gender equality. The decision in this case was sought to be treated as a law declared under Article
141 of the Constitution. Indira Swahney I5 and Indira Swahney II6 :- In these two cases law was declared that caste alone could not be the basis for
determining the socially and economically backward class. There was the creamy layer, those who were advanced socially and economically. They
would not come under back ward class irrespective of their caste. This again has been declared under Article 141. Shah Bano7 and Danial Latifi8: -
Law can be declared by interpreting religious texts, even when several interpretations are available. Raj Narain vs State of UP9: - In this case the
Supreme Court declared that Right to information is an integral part our fundamental right. The Hon’ble Court here said that every citizen has
freedom of speech and expression, but unless they know they cannot speak or express. LIMITATIONS Critics point out certain limitations on the
legislative powers of the judges. A judge cannot overrule a statute. Where a statute has clearly laid down the law, the judge has to enforce it. He has
to leave it to the legislator to deal with any unpleasant consequences not foreseen when the law was made. Authoritative precedents also limit the
law-making power of the judge as he cannot depart from them. The legislative power of the judge is restricted to the facts of the case before him. Any
ruling which do not form the ground of his decision and which are not applicable to the case under consideration are only obiter dicta. Lord Halsbury
observed: "A case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow
logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that law is not
always logical at all."10 The judge is confined to the facts of the case while enunciating legal principles. Within those limits alone it can be said that
judges make law. Prof. Allen writes: "The judge cannot, however much he may wish to do so, sweep away the prevailing rule of law and substitute
something else in its place. In this sense it is no childish fiction to say that he does not and cannot make law. The legislature, on the other hand, has
an entirely different preÂ-rogative. It is not confined to law in the present or the past, but may do as it wills with the future. It can make new law in a
sense which is quite precluded to the judge. It legislates where the judge interprets. The legislature can at any time project into the future a rule of law
which has never existed in England; the courts can do nothing of this kind."11 The view of Justice Cardozo is that "the judge, even though he is free, is
still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is
to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to
exercise a discretion informed by tradition, methodized by analogy, disciplined by system and subordinated to the primordial necessity of order in the
social life. Wide enough in all conscience he may lay down will be law only in so far as it is necessary for the decision of the case. Any principle lay
down by a judge is the field of discretion that remains."12 Again, "it is true that codes and statutes do not render the judge superfluous, nor his work
perfunctory and mechanical. There are gaps to be filled. There are doubts and ambiguities to be cleared. There are hardships and wrongs to be
mitigated if not avoided. Interpretation is often spoken of as if it were nothing but the search and the discovery of a meaning which, however obscure
and latent, had nonetheless a real and ascertainable pre-existence in the legislator's mind. The work of a judge is in one sense enduring and in
another sense ephemeral. What is good in it endures. What is erroneous is pretty sure to perish. The good remains the foundation on which new
structures will be built." According to Justice Holmes: "I recognise without hesitation that judges must and do legislate. A common law judge could not
say, I think, the doctrine of conÂ-sideration a bit of historical nonsense and shall not enforce it in my court." Lord Devlin said: "Judicial law-making
power must not be interpreted as implying that judges have the power, let alone the right to make any type of law they wish, some types of legal
regulations are inherently and completely outside their powers." The power to make laws is a very essential power given to the judiciary. When ever
the legislature fails to act, the judiciary must step in and provide a solution till the legislature acts.13 Using this power, whenever there is a vaccum,
directions can be issued by court to fill a vaccum or void till the enactment of a suitable laws.14 An interesting aspect of the power of judges to make
laws is that the legislature cannot nullify the directions issued by the judiciary.15 A major criticism of Judges as law makers is that the laws made by
them lack popular sanction. When passing any law other than through judges, there is a popular sanction as representatives of the citizens are also
present there. But in the case of laws made by judges such a thing does not happen. And in a country which follows the principles of; for the people,
by the people and of the people, popular sanction is very important. There are also chances that individual opinions of a judge which is not acceptable
to the others may be reflected and may turn out to become laws. Even an obiter dictum is expected to be obeyed and followed.16. The Bombay High
Court has held that the phrase law declared in Article 141 is of wide amplitude and that in ratio decidendi and obiter dicta17. Calcutta High Court has
laid down that even the Obiter Dicta of the Supreme Court are binding18. A similar view has been taken by the Kerala High Court.19 Even if an order
is improper and erroneous they cannot be substituted, altered, or modified by the executive authorities. A remedy in this regard can be had only from a
higher court or the same court20. Decisions of the judges are not available to a common. Even if he has access to it, he needs a competent lawyer to
understand it. It is usually only when the situation demands that judges make laws. They are never abreast the needs of time A way to solve the above
problem is to codify the laws. Very many uncertainties could be removed by codification on a point at certain point. But again new precedents may be
set up during this interval. Codification can also be done frequently, but that would be a costly affair. I do not intend to conclude by writing judges make
law. By doing so I would not be doing justice to the greats who are of the view that judges merely declare law. But at times I feel, am I not slightly
towards the likes of Bentham and Austin?....... 1 AIR 1965 SC 1887 2 Keeton 3 Law and Opinion in England, p.361 4 (1997) 6 SCC 241 5 1992 SCC
(L&S) Supp 1. 6 (2000) 1 SCC 168 7 (1985) 2 SCC 556 8 (2001) 7 SCC 740. 9 AIR 1975 SC 865 10 Quiinn v. Leathem 11 Law in the Making, p. 174.
12 The Nature of the Judicial Process,pg 141 13 Vineet Narain v Union of India, (1998) 1 SCC 226 14 Union of India v Assn for Democratic Rights,
(2002) 5 SCC 294. 15 PUCL, Loksatta and ADR V Union of India, (2003) 3 Supreme 93. 16 Sarwan Singh Lamba v Union of India,1995 SCC (L&S)
1064. 17 1979 Mah LJ 779 18 Aswini Kumar Roy v Kshitish Chandra Sen Gupta, AIR 1971 Cal 252 19 State of Kerala v Parameswaran Pillai, 1974
Ker LT 617. 20 S. Nagaraj v State of Karnataka, 1993 Supp (4) SCC 595.

About the Author

The author is a law student at the National University of Advanced Legal Studies situated in India.
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