Keith Mack
The Indian judiciary's ability to make laws has been a topic of debate, with some arguing that it oversteps its role and enters the domain of the legislature. However, the Supreme Court of India has asserted that the theory of the judiciary not making laws is a myth, stating that there is no strict separation of powers in the country. The Constitution grants the judiciary the power to invalidate laws or government actions that violate it, and judges may interpret and assert what the law ought to be. This is known as judicial law or judge-made law. While the legislature is responsible for enacting legislation, the judiciary steps in when existing laws are inadequate or fail to keep up with the changing needs of society.
| Characteristics | Values |
|---|---|
| Judiciary's role in law-making | The judiciary, particularly the Supreme Court, interprets existing laws and fills in gaps in legislation. |
| Judicial law-making recognition | Judge-made law or judicial law is recognised under Article 133, and the Constitution grants the judiciary the power to legislate. |
| Judicial review | The judiciary can review and declare laws made by the legislature as unconstitutional, ensuring laws align with the Constitution. |
| Separation of powers | While there is a separation of powers between the legislative and judiciary branches, there is no strict demarcation, and roles may overlap in a democracy. |
| Judiciary's obligation | The judiciary is obligated to fill legislative gaps and ensure justice is served, especially when existing laws are inadequate or fail to keep up with societal needs. |
| Independence of judiciary | The judiciary is independent, and Supreme Court judges have a secure tenure, removable only by a presidential order after an impeachment process. |
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What You'll Learn
The Supreme Court of India
The Supreme Court has extensive powers, including the power of judicial review, which allows it to interpret the Constitution and invalidate any laws or government actions that are found to be unconstitutional. This power is expressly provided in Article 13 of the Constitution, which establishes India as a sovereign, secular, democratic republic with a parliamentary form of government. The Constitution is the supreme legal authority and grants all citizens fundamental rights, empowering the judiciary to ensure that justice is delivered.
The Supreme Court's decisions are binding on all Courts within the territory of India. The Court has, on several occasions, asserted that the theory that courts cannot make laws is a myth. In certain situations, the Supreme Court has issued directions that carry the weight of legislation, particularly when filling a void in the law or addressing an issue not covered by existing legislation. This has led to allegations that the judiciary, and the Supreme Court in particular, has entered the domain of the legislature and taken over the administration of the country.
However, supporters of judicial legislation argue that it is necessary for the judiciary to step in when existing laws prove inadequate in administering justice. They contend that the legislature cannot keep up with the changing needs and values of society and that it is the duty of the courts to ensure justice is served. This is known as "judicial law" or "Judge-made law", and it is recognised under Article 133 of the Constitution.
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The independence of the judiciary
The Basic Principles on the Independence of the Judiciary, formulated by the OHCHR, provide guidelines for member states to secure and promote judicial independence. These principles emphasise the duty of all governmental institutions to respect the independence of the judiciary and guarantee the right to a fair trial, free from improper influences or interference.
In India, the question of judicial independence has been a subject of national debate, particularly during the Emergency declared by Prime Minister Indira Gandhi from 1975 to 1977. During this period, civil liberties were suspended, political opponents were jailed, and press freedom was curtailed. The judiciary's vulnerability to executive overreach was exposed, and its failure to protect fundamental rights during this time is considered a dark moment in Indian judicial history.
To preserve independence, India adopted the Collegium System, which gives primacy to the judiciary in the appointment and transfer of judges, insulating the process from political interference. This system, along with provisions in the Constitution, aims to safeguard the independence of the judiciary and ensure that judges can make decisions free from external pressures.
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Judicial review
The Indian Constitution establishes India as a 'Sovereign Socialist Secular Democratic Republic' with a Parliamentary form of Government. It is the supreme legal authority that binds the legislative, executive, and judicial organs of government. The Constitution grants all citizens Fundamental Rights and empowers the independent judiciary to invalidate legislations or government actions that violate the Constitution. The judiciary's independence is also part of the basic structure of the Indian Constitution.
The theory that the courts cannot or do not make laws is a myth, according to the Supreme Court. While enacting legislation is the constitutional prerogative of the legislature, there may be circumstances where the existing laws are inadequate in the process of administering justice. In such cases, the judiciary steps in to fill the vacuum. This is known as "judicial legislation", "judicial law", or "judge-made law". It is argued that the judiciary interprets the law and does not make it. However, through interpretative techniques, judges not only make and state what the law is but also assert what it ought to be.
The Supreme Court of India initially adopted the British tradition of limited judicial review. However, in the 1960s and 1970s, the Court delivered landmark judgments that changed the course of the Indian judiciary and political scenario. The power of judicial review is expressly provided in Article 13 of the Constitution. The Court can declare a law made by Parliament or the legislature as unconstitutional, and this power is within the bounds set by the Constitution. This power of judicial review is meant to prevent the tyranny of power flowing from the assumption of excess power in one source.
The Indian Parliament is competent to make laws on matters enumerated in the Union List. State Legislatures are competent to make laws on matters enumerated in the State List. Both the Union and the States can legislate on matters in the Concurrent List, but Parliamentary laws prevail over state laws in case of repugnancy.
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Separation of powers
The Indian Constitution establishes India as a 'Sovereign Socialist Secular Democratic Republic' with a parliamentary system of government. It is the supreme legal authority, binding the legislative, executive, and judicial branches of government. The Constitution also provides for the separation of powers between these three organs of government.
The Constitution grants all citizens Fundamental Rights and empowers the judiciary to invalidate legislation or government actions that violate it. The judiciary's independence is also guaranteed by the Constitution, with Supreme Court judges afforded protection from removal from office except in cases of misbehaviour or incapacity.
The Indian Parliament and State Legislatures are empowered by the Constitution to make laws. The Parliament may make laws on matters in the Union List, while State Legislatures do the same for the State List. Both branches can legislate on the Concurrent List, but Parliament's laws take precedence in the event of a conflict.
While the judiciary does not have explicit law-making powers, it plays a crucial role in interpreting and reviewing existing laws. In certain cases, the judiciary has been accused of "legislating" rather than interpreting laws. The Supreme Court has asserted that the notion of the judiciary not making laws is a "myth". They have justified their role by pointing out that there is no strict separation of powers in India, and that the legislature and judiciary often perform varying roles in a democracy.
The judiciary can issue directions that carry legislative weight, particularly when filling a void in the law. This is known as "judicial legislation" or "judge-made law". It is recognised under Article 133, and the judiciary's power to review and invalidate laws is expressly provided in Article 13 of the Constitution. This power is meant to prevent the tyranny of power and ensure that laws and amendments to the Constitution comply with the Constitution.
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The role of the legislature
The Indian Constitution establishes India as a 'Sovereign Socialist Secular Democratic Republic' with a parliamentary form of government. The Constitution is the supreme legal authority and binds the legislative, executive, and judicial organs of government. It grants all citizens Fundamental Rights and empowers the independent judiciary to invalidate legislation or government actions that are unconstitutional.
The Indian Parliament is competent to make laws on matters outlined in the Union List. State Legislatures are responsible for making laws listed in the State List. Both the Union and the States can legislate on matters in the Concurrent List, but Parliament has the power to make laws on matters not included in the State or Concurrent Lists. In cases of conflict between laws, Parliamentary laws take precedence over state laws.
The Constitution contains provisions for the appointment and removal of Supreme Court Judges. A Judge of the Supreme Court must be a citizen of India and must have served as a Judge or Advocate of a High Court for a specified number of years. A Supreme Court Judge can only be removed from office by an order of the President, following an address in each House of Parliament, supported by a two-thirds majority on the grounds of misbehaviour or incapacity.
While the judiciary interprets and applies the laws made by the legislature, it can also play a role in filling gaps in the law. In certain situations, the judiciary may issue directions that carry the weight of legislation to address voids in the existing legal framework. This judicial legislation ensures that the administration of justice remains adaptable to the evolving needs of society.
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Frequently asked questions
The judiciary can make laws in India, but this is not a formal process. The Constitution of India is the supreme legal authority and it grants citizens Fundamental Rights. The Constitution empowers the independent judiciary to invalidate legislation or government actions that violate it.
The Supreme Court of India is the highest judicial body and its decisions are binding on all Courts within the territory of India. The Supreme Court can interpret existing laws and perform judicial review, which includes declaring laws made by Parliament as unconstitutional.
The judiciary can fill legislative gaps in India. Judge-made law or judicial law is recognised under Article 133. Judges can step in to fill a vacuum when existing laws are inadequate. This is also known as "judicial legislation".
