Markandey
Can Judges create law ?
Markandey Katju 30 Oct 2022

Ever since the US Supreme Court in Dobbs vs Jackson Womens Health Organisation reversed its 1973 verdict in Roe vs Wade regarding womens right to abortion, a fierce controversy is raging in USA, which is likely to have a bearing on the mid term polls for the US Congress to be held on November 8. 
Justice Kagan of the US Supreme Court has made statements critical of the decision of her own Court ( obviously the Dobbs decision, though she did not expressly name it ), and has alleged that the decision was political, and was harming the Court



At the heart of the controversy is the question whether judges can make law. In Roe vs Wade ( which legalised the right to abortion ), Obergefell vs Hodges (.which directed all states in USA to legalise gay marriages ), etc.the US Supreme Court made law. Was that legitimate excercise of its powers ?
Now in this connection there are two theories in jurisprudence. The positivist school of jurisprudence states that law making is the task of the legislature, and therefore judges cannot make law. They can only interpret and enforce it, and can give their decisions only on the basis of the law made by the legislature, not made by themselves.

On the other hand, the sociological school of jurisprudence states that judges can play an activist role, and can legitimately make law.
I submit that the correct view is that of the positivist school, and that is because there is separation of powers between the three organs of the state, the legislature, the executive, and the judiciary. Each of these organs has its own domain, and if one organ encroaches onto the domain of another there will be chaos.

Making law is in the domain of the legislature. If it is said that judges too can make law, then it follows that every judge can make law according to his whim and fancy, and the law will keep changing case by case. Where then will there be certainty and stability in the law ? Judges must therefore excercise restraint, and not legislate.

As observed by the Indian Supreme Court in Divisional Manager, Aravali Golf Club vs Chander Hass, 2007 
" Judges must know their limits and not try to run the Government. They must have modesty and humility, and not behave like Emperors. There is broad separation of powers under the Constitution and each organ of the State,   the legislature, the executive and the judiciary,   must have respect for the others and must not encroach into each others domains ".

Similarly, in Asif Hameed vs State of J&K, 1989, the Supreme Court observed :
" The legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another ".

In Lochner vs. New York 198 US 45(1905) Mr. Justice Holmes of the U.S. Supreme Court in his dissenting judgment criticized the majority of the Court for becoming a super legislature by inventing a `liberty of contract theory, thereby enforcing its particular laissez faire economic philosophy. Similarly, in his dissenting judgment in Griswold vs.Connecticut 381 U.S. 479, Mr. Justice Hugo Black warned that unbounded judicial creativity would make this Court a day-to-day Constitutional Convention . In `The Nature of the Judicial Process Justice Cardozo remarked : The Judge is not a Knight errant, roaming at will in pursuit of his own ideal of beauty and goodness . Justice Frankfurter has pointed out that great judges have constantly admonished their brethren of the need for discipline in observing their limitations (see Frankfurter s `Some Reflections on the Reading of Statutes ).

In view of all this, I submit that the US Supreme Court correctly decided Dobbs vs Jackson, and rightly reversed Roe vs Wade. I have given my view in this connection in some detail in this article :

The Indian Supreme Court, too, has been making laws e.g. by interpreting Article 21 to the Constitution by inserting substantive due process in it. 
Article 21 states : No person shall be deprived of his life or personal liberty except according to procedure established by law
The Court has held that the word 'life' in Article 21 means a life of dignity. But that is amending the Constitution, something which can only be validly done by Parliament vide Article 356. Moreover, what is a life of dignity ? Every judge can hold something to be part of a life of dignity, according to his own notions. Will that not lead to uncertainty in the law ?

Also, the court has held that the words ' procedure established by law ' in Article 21 means a procedure which is fair, just and reasonable, vide Maneka Gandhi vs Union of India. Here again the Supreme Court has amended Article 21, by adding words to it. Where are the words 'fair, just and reasonable' mentioned in Article 21 ? Moreover, what is just, fair and reasonable ? Different judges can have different interpretations about it. Will that not lead to chaos in the law ?

The Supreme Court has created rights, e.g. the right to privacy, vide Justice Puttaswamy vs Union of India. But creating rights is surely the job of Parliament, not the Court. 

I respectfully submit that all these decisions have to be revisited, including the decisions in Maneka Gandhi vs Union of India, Puttaswamy vs Union of India, etc and the proper role of the judiciary has to be reconsidered.

By Justice Markandey Katju, former Judge, Indian Supreme Court
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