India is a largest democratic country in the world guided and directed by a written constitution that was adopted in the year 1950 on January 26th. Widely accepted phenomena is that constitution is very vital and inevitable for the well being and welfare oriented state in a democratic setup. Therefore one has to concede the fact that constitution is an essential organic document that will guide the constitutional estates namely legislature, executive, judiciary and fourthly the press and each of the constitutional wings is ordained to work, execute and discharge their functions and duties within the contours set up by the fundamental rights in enshrined in Part –III of the constitution as well as other important provisions. At the same time, the State is also enjoined upon with a legal and sacrant duty to follow and implement the directive principles of the State policy.
In any Nation whether it is a democratic one or crown ruled one to a larger extent, people believe and repose more confidence and faith in the constitutional courts, for, the courts are considered as temples of justice, for, it is arduously hailed by the people that the courts are guardians and protectors of the constitution as also the rights of fundamental nature enshrined thereunder.
With reference to the Indian constitution as hailed by the constitutional maker Dr. Baba Saheb Ambedkar that article 32 is the right to constitutional remedies enshrined under Part-III of the constitution. Right to constitutional remedies is considered as heart and soul of the constitution, for, such article gives rights to the people to move supreme court directly for enforcement of their fundamental rights. Therefore article 32 is itself a fundamental right. Of course, article 32 at the same time being a fundamental right, is also accredited with the status of one of the basic features of the constitution which cannot be amended even by way of amendment in the constitution.
Scope of article 32 is not wide enough as article 226. Article 226 is enshrined in Part V, Chapter-V of the Constitution and the said article empowers the High Courts to issue certain writs and the courts are conferred with discretionary power to issue direction, order, writs of prerogative nature including writ of Habeas Corpus.
Coming to the main title of the article, we must know what is meant by judge made law and on the converse, what is meant by law and what are sources of law? Law is defined as an instrument brought into force or into being by a specified empowered authority in order to guide and direct the ways and means to govern society.
The sources of law are common law, customs ordinance order, bylaw, rule or regulation passed or made by any legislature, authority or person having power to make such a law ordinance, order byelaw, rule or regulation.
While this is the definition of law and are the sources of law, now it is essential to examine and connote the circumstances under which the judges make law. What kind of difference is perceived between the legislative law, as well as judge made law. In terms of the Indian constitutional theme and theory, the federal poly is conferred with demarcated legislative fields on which either the parliament or State legislature is to enact laws for the purpose of the governance. Therefore what emerges is governance of the society in a democratic setup or even in nations involving crown ruling, law only governs. The competent legislature whether it is Central Legislature or the State legislature within the contours of the respective fields of legislation make laws and as ordained by article 13(2), no State shall make any law denying or depriving availability or enforceability of the fundamental rights. A judge sitting on the Bench in a Constitutional Court in the process of decision making, explains and interprets the provisions of the law that comes before it in a dispute between the parties to the issue. Whatever power to legislate conferred on the legislature is not conferred on the judges. Therefore a judge of the Constitutional Court cannot enact a law but he can make or lay a law by way of explaining and interpreting the provision of law enacted by the legislature. Therefore the source for judge made law is very restricted and ostensible. A Judge made law also known as stare decisis or case law is the legal rule, ideal or standard based on the past decisions made by other judges in the earlier cases. Judge Made laws are ideally cited within the venue or district where they were made unlike the laws made by the legislature, judge made laws are not fully developed. These always being tweaked. As a result they are often easily changed. Every case used as a precedent, for, a judge made law clearly defines the facts of the dispute to have the judge reached the final decision. Like India, in the U.S. also the legal system favours a common law system, the decisions of higher courts are binding on lower courts that handle cases with similar facts and issues. Therefore the concept of judge made law works by using the past decisions of other judges in cases identical to the ones being looked into. Over the time, as the law making arm, the Government makes and amends the laws governing the land. Judges or the body of elected law makers work together to improve the laws making them permanent and generally applicable. Therefore while it is the job of the legislature to make the laws that the State how citizen should live, it remains the job of the judges to interpret them. Therefore the question is not whether or not judges are involved in the law making process but whether they are correctly interpreting the law for justice to be served. Hence when the judges are called upon to understand and interpret the law and the godly motives of the law makers for making the law, the judges if freedom to employ their discretion to make decisions not made before by other judges.
Before 1971, everyone believed that kings and queens could not be legally challenged for doing wrong because they were considered to be above the law, as a result of which people were treated badly who had nowhere to turn to justice. However, the Evans decision changed Colorado common law by outciting the free of rulers from responsibility and punishment for their wrongs and of course sometimes such development created a system of opportunity for mischief.
Occasions for judges to make laws are that judges have and use the power to create new judge made laws in the difficult cases and the fields are identified in which judges play a significant role in creating laws, namely in developing common law and in interpreting statutes. Be that as it may, the power to make laws and in such process the judges functioning from the constitutional courts must realize that they are not free to make laws entirely based on their personal views without checks. Judges in the process of interpreting the common law principles or interpreting the statute must always keep in mind that they are not supposed to cross the line of inhibition or prohibition as the law that they make are always to conform to the language employed therein in a particular provision especially relating to constitutional remedies envisaged for protection of the subjects and therefore a judge is always to see that in the process of interpretation leading to final decision that would govern the people was not be of over curiosity or over enthusiastic as the border line is always to be within the frame work of the constitutional provision. Therefore one should see that there is no violence to the language employed in a particular provision in a statute or for that matter in the constitution. The doctrine of causus omissus shall not ordinarily be taken upon themselves for the purpose of filling the blanks or reading lines in between. If any shortfalls or blanks are seen by any court or any constitutional court judge, only the guidance must be of an indicative one to the exclusive domain of legislature to take care of such and necessary exercise to fill in the blanks or the gaps. Therefore a judge in the process of interpretation cannot take upon himself the task of legislating the law which is entirely preserved to the legislature in accordance with the legislative fields as enshrined in the respective lists.
The above are the some of my views that I share in this article for the information, knowledge and note of the fraternity.
I wish the legal legend and luminary Late. Dr. N.A. Palkhivala’ birth Centenary programme being organized by AIFTP on 16-01-2021 a grand success with a largest participation, of course on virtual platform.