Author Name: shinsyshahul Role of Higher judiciary under the constitution casts on it a great obligation as the sentinel to defend the values of the constitution and the rights of the Indians. Blacks law dictionary defines judicial activism as a judicial philosophy which motives judge to depart from strict adherence to precedents in favour of progressive and new policies which are not always consistent with the restraint expected by appellate judges. If we regard judical philosophy as a coin,one side of it is activism and other side is restraint.In order to respond to the hopes and aspirations of the litigants,judiciary has to exercise a jurisdiction with a courageous creativity.To have that courage, use of practical wisdom in adjudicatory process helps a lot. Judicial activism can be regarded as an unconventional role played by judiciary by delievering valuable judgements and granting reliefs to the aggrieved according to the moral and social justice where statutory law is silent or even contrary.Active interpretation of an existing provision with a view to enhance the utility of a legislation for social betterment, can be regarded as a judicial activism.
In brief, it can be also assumed that judicial activism comes in to play when there is a legislative shortsightedness or executive arbitrariness or both. In the field of human right jurisprudence,environmental aspects,anti death sentence cases judicial activism contributed a lot. Scope of Art.21 expanded due to active judicial interpretation.
In Maneka Gandhi v. Union of India;Rudal shah v.State of Bihar;Hussainara khatoon v. State of Bihar etc it can be seen. But it is also to be noted that judicial activism should not become an adventuralism. Choice between activism and restraint should be on the basis of a clear and clean policy.Judicial self restraint is a theory of judicial interpretation that encourages the judge to limit their exercise of power.And the major restraint in judicial creativity originates from the awarness of the need to maintain a balance among the three branches of government. Question of judicial activism v.judicial restraint was well discussed in the case State of U.P and anothers v.Jeet.s.bhisht.
JUDICIAL ACTIVISM AND JUDICIAL CREATIVITY OF THE SUPREME COURT IN CONSTITUTIONAL INTERPRETATION INTRODUCTION In democratic countries the judiciary is given a place of great significance. The courts perform the key role of expounding the provisions of the Constitution. The courts act as the supreme interpreter, protector and guardian of the supremacy of the Constitution.
The judiciary has to perform an important role in the interpretation and enforcement of human rights inscribed in the fundamental law of the country. Therefore, it is necessary to consider what should be the approach of the judiciary in the matter of constitutional interpretation. The judiciary has to devise a pragmatic wisdom to adopt a creative and purposive approach in the interpretation of various rights embodied in the Constitution.
The task of interpreting the constitution is a highly creative judicial function which must be in tune with the constitutional philosophy. A democratic society lives and swears by certain values such as individual liberty, human dignity, rule of law, constitutionalism etc. And it is the duty of the judiciary to so interpret the constitution and the law as to constantly inculcate these values on which democracy thrives. The predominant positivist approach of interpretation followed by the Indian Judiciary emanates from the basic traditional theory that a judge does not create law but merely declares the law. The Indian judiciary underwent a sea change in terms of discarding its traditional approach by charting out a new horizon of dynamic concept of judicial activism with many facets and dimensions which paved way for the activist liberal judicial approach to Constitutional interpretation. This paper attempts to trace out the evolution of judicial activism in India and the pro-active role played by the higher judiciary in applying judicial creativity for interpretation of the Constitution.
MEANING OF JUDICIAL ACTIVISM The term judicial activism has acquired multifarious meanings and there is no explicit statutory definition. Etymologically speaking judicial activism is the progressive judicial thinking wherein the court involves in developing a creative thought process to display the pulsating initiative of the judiciary which represents its active role in promoting justice.
The expression judicial activism has eluded a precise definition as it mean different things to different people. It might mean dynamism to the Judges, judicial creativity to some, judicial legislations to some others, while there may be some who view it as a tool for social engineering. In simple words it can be said that it is an active role on the part of the judiciary to implement the provisions contain in Part III of the Constitution. The Hon’ble Supreme Court of India in many of its landmark judgments 1 held that judicial activism is the active process of implementation of the rule of law, essential for the preservation of a functional democracy and justice to individual or group of individuals or to the society in general is ensured through the active role of judiciary.
According to Justice P.N.Bhagwati judicial activism is: “The Indian judiciary has adopted an activist goal oriented approach in the matter of interpretation of fundamental rights. The judiciary has expanded the frontiers of fundamental rights and the process rewritten some part of the Constitution through a variety of techniques of judicial activism. The Supreme Court of India has undergone a radical change in the last few years and it is now increasingly identified by the justice as well as people the last resort for the purpose bewildered.” 2 Therefore, judicial activism is nothing but the creativeness or innovations of the judiciary.
FUNCTIONAL DIMENSIONS OF JUDICIAL ACTIVISM India is described as the world’s largest democracy on account of its population. Its independent judiciary is at the heart of the structure of constitutional control which not only ensures a credible system of checks and balances in governance, but also acts as an instrument of social change and development. Since the formation of the independent Indian republic, the nation’s Supreme Court has vigorously exercised full checks on the legislative and executive branches. In numerous instances where these limbs of governance have not lived up to the expectations of the people, or have failed to safeguard constitutional guarantees, the higher judiciary has asserted its position not only as a protector of the Constitution but has also interpreted its provisions in a dynamic way to respond to the needs of the times. Judicial activism is the process of filling up the vacuum due to the inaction of any one of the organs of the government, since law does not operate in vacuum. As social norms and values change, laws too have to be reinterpreted, and recast. Law is really a dynamic instrument fashioned by society for the purposes of achieving harmonious adjustment, human relations by elimination of social tensions and conflicts.
3 Judicial activism is nothing but a way of exercising judicial power which motivates the judges to depart from normally practiced strict adherence to judicial precedents. The judiciary is one of the most important and indispensable organs of the State. It plays a pivotal role in the areas of making the welfare state act as a custodian of the Constitution and the judiciary plays a catalytic role to interpret constitutional matters by way of judicial review and judicial activism which are generally considered to be the fulcrum of the very scheme of the constitution. 4Judicial activism of the Supreme Court has paved way for new emerging jurisprudence in India which has been contributing significantly not only in interpreting the law but also making the law from time to time. The Supreme Court has emphasized that the judicial approach to the Constitution should be dynamic rather than static, pragmatic and not pedantic, elastic rather than rigid. It is to be construed not as mere law but as the machinery by which laws are to be made.5 Judicial activism has taken a paradigm shift from the traditional system to a modern new dimension of functional approach in constitutional interpretation. Judge is called upon to perform a creative function.
He has to inject flesh and blood in the dry skeleton provided by the legislature and by a process of creative interpretation, invest it with a meaning which will harmonise the law with the prevailing concepts and values and make it an effective instrument for delivering justice.6 From the above observation it may be understood that the concept of judicial review aims at interpretation of the law in the light of constitutional parameters to suit the changing social and economic scenario to accomplish the ideals enshrined in the Constitution real and meaningful. DEVELOPMENT OF JUDICIAL ACTIVISM IN INDIA The nature of judicial process in India has undergone a metamorphosis expanding the scope of judicial review legitimately through judicial legislation. Judges have been traditional law makers. The judicial activism has flourished in India and has acquired enormous legitimacy with the Indian public. According to Hon’ble Mr.Justice A.M.Ahmadi, the former Chief Justice of India, the initial years of the Supreme Court of India saw the adoption of an approach characterised by caution and circumspection. 7 The expanding role of judiciary in law making in recent times has major reasons such as growth of parliamentary system and statutory intervention in the expansion of legislation has brought about a parallel expansion of judge-made law. The scope of judicial law making in the name of judicial activism paved way towards the growth of active judicial role in declaring fundamental rights through constitutional interpretation that greatly entrenched the potential creativity of judges.
This can be better understood by analyzing certain vital factors like degree of creativity, the modes, limits and legitimacy of law making through courts. By reason of judicial activism, much good or harm could be brought about by the Judges by resorting to innovative interpretation. Since judicial interpretation always involves some degree of law making, the creative character of judicial function and the degree of creativity depends on the most activist and dynamic nature of the judge. Judicial activism in India has not been a spontaneous development.
It is the consequence of a situation which necessitated it. When the Parliament enacted laws and the laws were intended to cover new fact situations, the judges’ creativity and innovation revived in the matter of filling in the gaps.
Apart from filling in the gaps in the legislation, the judges revived their creativity in all other areas which were not covered by legislation. The activist judges to an extent laid down law to fill the vacuum created by the legislature. The judges assuming an activist role applied their creative skills by introducing very many number of principles of interpretation of Constitutional provisions, especially in respect of the provisions relating to fundamental rights.
In this context it is apt to quote Justice Oliver Wendell Holmes: “I recognize without hesitation the judges must and do legislate, but they do so only interstitially; they are confined from molar to molecular motions.” 8 It is pertinent to draw the attention to a parallel statement made by Benjamin Cardozo 9while discussing the role of activist judges in his classic text The Nature of Judicial Process. “He (the judge) legislates only between gaps. He fills the open spaces in law. How far he may go travelling beyond the walls of interstices cannot be staked out for him on a chart.” Judges do and must make law but not in the manner of legislatures. Judges have power and right to make law. There is much scope for creative judicial activism in the interpretative functions of judges, on the choices inherent in their function and in the gaps in legal rules, as has been done by superior courts in several countries for many years. The law creative function of judges will be of a much greater degree in a situation where there is a legislative vacuum.
The genesis of Judicial Activism in India started as an off-spring of judicial review from the mid seventies when the judiciary as an activator infused in to the stream of judicial system many revolutionary changes. After 1975 the judiciary has become unelected representative of the people. Some prominent Indian legal luminaries who adorned the bench of Supreme Court like Justice V.R.Krishna Iyer, Justice P.N.Bhagwati, Justice O.Chinnappa Reddy, Justice J.S.Verma, Justice Kuldip Singh, Justice A.S.Anand have sensitized the democratic principles in the country and played an important role by way of judicial activism and judicial creativity with their able umpiring and proactive judgments. Judicial activism earned a human face in India by liberalizing access to justice and under their leadership the Supreme Court gained in stature and legitimacy. It is pertinent to quote Rajeev Dhavan’s observation on Indian judiciary who states that “Owing to indigenous pressure, the court has been mechanical in its approach to the problem on which it was called upon to adjudicate. The Supreme Court rarely exhibited any activist tendency before the eighties more precisely before emergency 1975.” 10 ROLE OF ACTIVIST JUDGES IN JUDICIAL CREATIVITY The activist judges play a vital role in exhibiting their judicial creativity and they subjected the new legislation to their creative skills by introducing very many principles of interpretation.
Judicial creativity requires a great skill and high creative ability. The judges evolved a number of principles while interpreting the Constitutional provisions, especially in respect of the provisions relating to fundamental rights.
The recent trend adopted by the Supreme Court has been to interpret our fundamental rights in the light of international conventions which are yet to be enacted in to our domestic laws. In all these cases the judges of the Apex Court excelled in their creative skills.
Anyone who analyses the judicial process of the Supreme Court and High Courts would conclude that judicial process has developed some finest principles and Courts have made tremendous contribution in establishment of a rule of law society in India and enhanced the people’s quality of life. Creativity in law through judicial process is one area that is greatly benefited by the innovative and creative interpretation of the Supreme Court and High Courts.
Therefore the Creativity of the Supreme Court and High Courts shall always remain as a high benchmark of judicial creativity in India. On the contrary, it is also possible that in the process of creativity and innovation, there could sometimes be some errors, but such errors could be corrected or modified or refined either in appeal, or in a latter case, and the latter judgment would be one step more in the progress of the law. 11 While referring to innovations in our own Constitutional law we have had our great creative judges in the Supreme Court of India who evinced interest in giving a new dimension the provisions of the Constitution with a flavour of dynamic judicial activism. Cardozo while analyzing judicial process 12 concludes that there is an element of creation and discovery where the judge can play a creative role in matter of constitutional interpretations. Each case coming before the judge has its own peculiarities requiring application of fresh mind and skill. The judge has constantly to be a creative artist.
Uttarakhand Jan Morcha', AIR 1999 SUPREME COURT 2193, the Supreme Court has imposed restriction on Judicial creativity saying that, no doubt, role of the judiciary has been expanded to newer dimensions in recent past, but that is no justification for using judicial power for imposing such unbearable burden on the State which in turn would be compelled to extract money out of common man's coffers to meet such massive financial burden. Suffice it to say that the above direction issued by the High Court cannot stand judicial scrutiny and it is hereby set aside. Often a question arose for discussion that – Whether the judges are as competent as the legislators to meet out the needs, requirements and aspirations of the people? Judges have limited scope in law making. In this respect, three things need to be kept in mind. Firstly, if the judges are considered sufficiently qualified to correctly decide upon the morality of the people then there is no reason to consider them incompetent to gauge the needs of the people in law making. Secondly, how much effort do the legislators actually expend in understanding the true needs of the people and the social implications of the law.
It is not unknown that now a days bureaucrats prepares draft of the proposed legislation and without any serious discussion in the house, same are passed as usual. Thirdly, judges rarely create a law from scratch; their legislative role is largely restricted to filling up the gaps in the law. 'The Judge 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.' - Cardozo (The Nature of the Judicial Process, page 141). Further he went on to say that:- He is to draw his inspiration from settled 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 'promotional necessity of order in the social life.' According to Cardozo 'the great generalities of the Constitution'.and 'the content of which has been and continues to be supplied by courts from time to time.'
He had further opined that constitutional provisions which 'have a content and a significance that vary from age to age'. Benjamin Cardozo, opined that. In Bengal Immunity Company Limited v.
State of Bihar, (AIR 1955 SC 661), the Supreme Court has observed that it was not bound by its earlier judgments and possessed the freedom to overrule its judgments when it thought fit to do so to keep pace with the needs of changing times. The acceptance of this principle ensured the preservation and legitimation provided to the doctrine of binding precedent, and therefore, certainty and finality in the law, while permitting necessary scope for judicial creativity and adaptability of the law to the changing demands of society. There is no law on social disorder called Sexual harassment of a woman at work place. The Apex Court in Vishaka V. State of Rajsthan (AIR 1977 SC 3011), created law of the land observing that the right to be free from sexual harassment is a fundamental right under Articles 14, 15 & 21 of the Constitution. It has been 10 years since the Hon’ble Supreme Court issued Vishaka guidelines regarding sexual harassments but still a draft bill on the subject is waiting for enactment.
As per these guidelines, every organization, whether Government or Public, is to have an Internal Complaints Committee to investigate complaints regarding sexual harassment at workplace. A code of conduct is prepared for all employees and that should be incorporated in the service rules/standing instructions. Sexual harassment at work place is a criminal offence and the accused would face civil as well as criminal liabilities. Articles 141 and 142 to point out that they are couched in such wide and elastic terms as to enable the Supreme Court to formulate legal doctrines to meet the ends of justice. The only limitation therein is reason, restraint and injustice.
These Articles are designedly made comprehensive to enable the Supreme Court to declare law and to give such direction or pass such order as is necessary to do complete justice. This is a powerful instrument of justice placed in the hands of the highest judiciary of our country. Former C.J.I.
Anand observed that the Apex Court has given purposive liberal and creative interpretation of Article 21 of the Constitution by giving it more content, meaning and purpose. In expanding the ambit of right to life & personal liberty, the court has evolved tools and techniques of compensatory jurisprudence, implemented international conventions & treaties, and issued directions for environmental justice. Law must keep pace with society to retain its relevance, therefore, judicial creativity is necessary for meeting with the ends of justice.
The theory of basic structure of the Constitution is a result of the creative interpretation of the Supreme Court. Union of India', AIR 2007 SUPREME COURT 71, the Apex Court has held that this development is the emergence of the constitutional principles in their own right. It is not based on literal wordings. These principles are part of Constitutional law even if they are not expressly stated in the form of rules. An instance is the principle of reasonableness which connects Arts.
14, 19 and 21. Some of these principles may be so important and fundamental, as to qualify as 'essential features' or part of the 'basic structure' of the Constitution, that is to say, they are not open to amendment. Right to livelihood, Right to go abroad, Right to privacy, Right against solitary confinement, Right to shelter, Right to legal aid & speedy Trial, Right against Bar fetters, Right against handcuffing, Right against delayed execution, Right against custodial Violence, Right to doctor’s assistance, Right to water, Right to food, Right to clean air and healthy environment, Right to pollution free water. Right to free education up to the age of 14 years, and Right of every child to full development, Right against illegal arrest, are all indeed judicial creativity and the result of the creative interpretation. In 'State of T.N. Abu Kavur Bai', AIR 1984 SUPREME COURT 326, it was held that On a careful consideration of the legal and historical aspects of the directive principles and the fundamental rights, there appears to be complete unanimity of judicial opinion of the various decisions of the Supreme Court on the point that although the directive principles are not enforceable yet the Court should make a real attempt at harmonizing and reconciling the directive principles and the fundamental rights. Reading fundamental rights in the Directive Principles is a technique of judicial creativity.
For the first time the right to know about the candidate standing for election has been brought within the sweep of Art. 19(1)(a) by the Supreme Court through its creative interpretation. The Apex Court in 'Peoples Union for Civil Liberties (PUCL) v. Union of India', AIR 2003 SUPREME COURT 2363, has held that Voter's right to know about the antecedents of the candidate contesting for the election falls within the realm of freedom of speech and expression guaranteed by Art. 19(1)(a) and can be justified on good and substantial grounds.
In 'BALCO Employees Union (Regd.) v. Union of India', AIR 2002 SUPREME COURT 350, the Apex Court has cautioned that there are some of the dangers in public interest litigation which the Court has to be careful to avoid.
It is also necessary for the Court to bear in mind that there is a vital distinction between locus standi and justifiability and it is not every default on the part of the State or a public authority that is justiciable. The Court must take care to see that it does not overstep the limits of its judicial function and trespass into areas which are reserved to the Executive and the Legislature by the Constitution. It is a fascinating exercise for the Court to deal with public interest litigation because it is a new jurisprudence which the Court is evolving a jurisprudence which demands judicial statesmanship and high creative ability. In 'State of Bihar v. Bal Mukund Sah', AIR 2000 SUPREME COURT 1296, the Supreme Court has emphasized its creative role in achieving the goal of socio-economic justice. The judiciary has, therefore, a socio-economic destination and a creative function. It has to use the words of G.
Austin, to become an arm of the socio-economic revolution and perform an active role calculated to bring social justice within the reach of the common man. It cannot remain content to act merely as an umpire but it must be functionally involved in the goal of socio-economic justice'.
The entitlement of the accused to speedy trial has been repeatedly emphasised by the Supreme Court. Though it is not enumerated as a fundamental right in the Constitution, the Apex Court has recognized the same to be implicit in the spectrum of Article 21. In Hussainara Khatoon v. Home Secretary, State of Bihar, (AIR 1979 SC 1360), the Court while dealing with the cases of under-trials, who had suffered long incarceration held that a procedure which keeps such large number of people behind bars without trial so long cannot possibly be regarded as reasonable, just or fair so as to be in conformity with the requirement of Article 21. The Court laid stress upon the need for enactment of law to ensure reasonable, just and fair procedure which has creative connotation after Maneka Gandhi's case, (1978) 1 SCC 248 in the matter of criminal trials. In 'Municipal Corporation of Greater Bombay v.
Indian Oil Corporation Ltd. AIR1991 SUPREME COURT 686, has held that keeping in view the social, economic and political goal setting in which it is intended to operate, Judge is called upon the perform a creative function. He has to inject flesh and blood in the dry skeleton provided by the legislature and by a process of creative interpretation, invest it with a meaning which will harmonise the law with the prevailing concepts and values and make it an effective instrument for delivering justice. In 'Delhi Transport Corporation v. Mazdoor Congress', AIR 1991 S C 101, SABYASACHI MUKHARJI, former CJI, said that I am definitely of the opinion that time has come for the judicial interpretation to play far more active, creative and purposeful role in deciding what is according to law.
I believe that we must do away with 'the childish fiction' that law is not made by the judiciary. Austin in his Jurisprudence at page65, 4th Edn. Has described the Blackstone's principle of finding the law as 'the childish fiction'. Chief Justice K.
Subba Rao in L. Golak Nath v. State of Punjab (AIR 1967 SC 1643 at p.
The Tools And Techniques Of Judicial Creativity And Precedent In India
1667) has referred to these observations. The Supreme Court under Art. 141 of the Constitution is enjoined to declare law. The expression 'declared' is wider than the words 'found or made'.
To declare is to announce opinion. Indeed, the latter involves the process, while the former expresses result. Interpretation, ascertainment and evolution, are parts of the process, while that interpreted, ascertained or evolved is declared as law. The law declared by the Supreme Court is the law of the land. To deny this power to the Supreme Court on the basis of some outmoded theory that the Court only finds law but does not make it, is to make ineffective the powerful instrument of justice placed in the hands of the highest judiciary of this country.
I would, therefore, plead for a more active and creative role for the Courts in declaring what the law is. Great artistry and skill is needed to fill in the gaps because Acts of Parliament were not drafted with divine prescience and perfect clarity. It is not possible for the legislators to foresee the manifold sets of facts and controversies which may arise while giving effect to a particular provision. Indeed, the legislators do not deal with the specific controversies.
When conflicting interests arise or defect appears from the language of the statute, the Court by consideration of the legislative intent must supplement the written word with 'force and life'. See, the observation of Lord Denning in Seaford Estate Ltd. Asher, (1949) 2 KB 481 at p.
In Sher Singh v. State of Punjab (1983) 2 SCR 582 the Apex Court explained that 'The horizons of Article 21 are ever widening and the final word on its conspectus shall never have been said. So long as life lasts, so long shall it be the duty and endeavour of this Court to give to the provisions of our Constitution a meaning which will prevent human suffering and degradation.
Therefore, Article 21 is as much relevant at the stage of execution of the death sentence as it is in the interregnum between the imposition of that sentence and its execution. The essence of the matter is that all procedure no matter the stage, must be fair, just and reasonable.'
Article 21 thus received a creative connotation. The Supreme Court in Jagdambika Pratap Narain Singh v. Central Board of Direct Taxes, (AIR 1975 SC 1816), dealing with the question of limitation in granting a relief, has observed that any legal system, especially one evolving in a developing country, might permit judges to play a creative role and innovate to ensure justice without doing violence to the norms set by legislation.
The role of the Court is creative rather than passive, and it assumes a more positive attitude in determining facts and circumstances of each case. 'Justice Cardozo approvingly quoted President T. Roosevelt's stress on the social philosophy of the Judges, which shakes and shapes the course of a nation and, therefore, the choice of Judges for the higher Courts which makes and declares the law of the land, must be in tune with the social philosophy of the Constitution. Not mastery of the law alone, but social vision and creative craftsmanship are important inputs in successful justicing.' 1 As quoted in 'S.
President of India', AIR 1982 S C 149. Creativity in Maneka Gandhi's case is clearly visible when the Supreme Court has took the view that Article 21 affords protection not only against executive action but also against legislation and any law which deprives a person of his life or personal liberty would be invalid unless it prescribes a procedure for such deprivation which is reasonable, fair and just. The concept of reasonableness, it was held, runs through the entire fabric of the Constitution and it is not enough for the law merely to provide some semblance of a procedure but the procedure, for depriving a person of his life or personal liberty must be reasonable, fair and just.1 'Maneka Gandhi v. Union of India', AIR 1978 S C 597.
'legislating' exactly in the way in which a Legislature legislates and he observes by reference to a few cases that the guidelines laid down by court, at times, cross the border of judicial law making in the realist sense and trench upon legislating like a Legislature. 'Directions are either issued to fill in the gaps in the legislation or to provide for matters that have not been provided by any legislation. Statute has to be interpreted as a whole and with reference to specific context in question.
If it appears to the Court any gap in the legislation, unmerited prejudice and hardship have been caused to the to the citizens, the Court may have to depend on its own creativity so that hardship is not meted out to the people. Professor S.P. Sathe, in his work (Year 2002) 'Judicial Activism in India - Transgressing Borders and Enforcing Limits', touches the topic 'Directions: A New Form of Judicial Legislation', Evaluating legitimacy of judicial activism, the learned author has cautioned against Courts not to cross the border in the name of creativity. The Court has taken over the legislative function not in the traditional interstitial sense but in an overt manner and has justified it as being an essential component of its role as a constitutional court', (p.242). In 'Delhi Transport Corporation v.
Mazdoor Congress', AIR 1991 SUPREME COURT 101, It is true that judicial jealousy of legislature in law making has long been outdrawn, but the strict construction remains still an established rule. It is generally accepted principle that Judges in interpreting statutes, should give effect to the legislators' intent. By doing so, the Courts do recognize their subordinate position and their obligation to help the legislature to achieve its purpose. But in that effort, creativity is essential. In 'State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat', AIR 2006 SUPREME COURT 212, the Apex Court has held that post Kesavananda Bharati so far as the determination of the position of Directive Principles, vis-a-vis Fundamental Rights are concerned, it has been an era of positivism and creativity. Article 37 of the Constitution which while declaring the Directive Principles to be unenforceable by any Court, but in Kesavananda Bharati v.
State of Kerala', AIR 1973 S C 1461, Court goes on to say - 'that they are nevertheless fundamental in the governance of the country.' The end part of Article 37 - 'It shall be the duty of the State to apply these principles in making laws' is not a pariah but a constitutional mandate. Supreme Court has held that, while interpreting the interplay of rights and restrictions, Part-III (Fundamental Rights) and Part-IV (Directive Principles) have to be read together. On the basis of the above discussion, it is clear that judicial creativity is not only necessary but also inevitable. The only thing is to keep in mind that Judicial creativity is permissible only in the area left open by the legislature and where it is necessary to fill up the gap in the statute so as to achieve real intent of it. If law is available on the subject, then, judicial creativity must be restricted to 'interstitial' creation of law, otherwise it would become judicial excess in the domain of legislature. A Judge can discharge his creative role only when he has acquired sufficient knowledge, tools and techniques and interpretive skill of judicial creativity.
The traditional view of the law making process is that Parliament makes the law through acts of parliament and delegated legislation and judges merely apply it in court to the cases presented before them. The main reason for this being that Members of Parliament are democratically elected to make law. Whereas judges are appointed by the Lord Chancellor to decide cases. Although theoretically this should be true in reality judges can and do make law through the operation of the doctrine of judicial precedent and statutory interpretation. There are many areas of law which owe there existence to decisions by judges. For example in the Criminal Law the judges played a major role in developing the law on intention and the relationship of foresight of consequences to intention has also been formulated by judicial decisions in Molony, Nedrick and Woolin though in these cases there was a statutory starting point with s8 Criminal Justice Act where Parliament provided guidance.
The law of negligence in the law of tort is another area which has been developed and refines by judicial decisions. For example the development of the neighbour principle in the case Donoghue v Stevenson which is the leading case when trying to establish whether a duty of care is owed. In England and Wales the courts operate a very rigid doctrine of precedent which has the effect that every court is bound by the decisions made by courts above it in the hierarchy and in general courts are bound by their own past decisions. The doctrine of Precedent is the process whereby judges should follow previous decisions in similar cases to help maintain a degree of consistency in the way the law is applied in similar cases.
It is based on the maxim “stare decisis” which means stand by what has been decided. The Ratio Decidendi (reasons for deciding) is the binding part of a judge’s decision but how judges interpret this can vary thus changing the impact it can have on future decisions The obiter dicta (things said by the way) though not binding can still be used as persuasive precedent and so a judges influence can extend beyond that provided by the rules of precedent. Apart from the Obiter dicta there are other forms of persuasive precedent which although are not binding can still have an impact on the decisions of judges e.g. Decisions of courts lower in the hierarchy. An example of this is in RvR (marital rape) where the HoL followed a decision made by the Court of Appeal and effectively created a new crime deciding that rape could be committed in marriage. The court hierarchy plays a big part in deciding which decisions have more weight.
Though the rules of precedent are applied rigidly and don’t appear to allow scope for creativity, there are ways in which the doctrine of precedent can be avoided ‘thus allowing judges to create new law. There are four main ways in which courts can avoid precedent:. The HoL use of the practice statement The 1966 Practice Statement allows the HoL to change the law if they believe that an earlier case was wrongly decided.
They have the flexibility to refuse to follow an earlier case “when it appears right to do so”, thus extending the power of the Law Lords (at least in theory) to create law. Though it is not used often it can have a major effect throughout the legal system e.g. When Gemmel and Richards overruled Caldwell to make subjective recklessness the only acceptable recklessness in English Law. The exceptions in Young’s Case for the Court of Appeal The court of Appeal is normally bound by its own previous decisions. This rule comes from the case of Young v Bristol Aeroplane Co. But that case did allow for 3 exceptions where the Court of Appeal need not follow it’s own past decisions. Where:.
There are conflicting decisions in past Court of Appeal cases, the court can choose which one it will follow and which one it will reject. There is a decision of the HoL which effectively overrules a Court of Appeal decision; the court of appeal must follow the decision of the HoL.
The decision was made per incurium ie carelessly or by mistake because a relevant act of Parliament or other regulation has not been considered by the court The first two exceptions do not give the Court of Appeal any power to change or create law; it is only the last exception (per incuriam) that gives a very small degree of flexibility to correct errors. The extra exception for the Court of Appeal(criminal division) The criminal division as well as using the exceptions from Young’s case can also refuse to follow a past decision of its own if the law has been ‘misapplied’ or ‘misunderstood’. This exception is not often used but it does give the court of appeal the power to alter law when it is necessary. Distinguishing (which can be used by all courts) This is a method which can be used by a judge to avoid following a past decision which he would otherwise have to follow. It means that the judge finds that the material facts of the case he is deciding sufficiently different for him to draw a distinction between the present case and the previous precedent. He is then not bound by the previous case. This way of changing precedent can be used by a judge in at any level of court.
Original Precedent – in addition to the four ways mentioned above, the courts will on some occasions have to create new law when deciding a case on an area of law for which no law exists. A court may come across an original case that highlights a point of law that has not been discussed before. When an original case comes before a judged he may have to interpret the statute and create new precedent. In statutory interpretation the judge s are being asked to decide the meanings of an act of Parliament.
There are a number of conflicting views on the role of judges in this area. Some follow the Literal Rule which states the words must be given their plain, ordinary, grammatical meaning. This can mean using the literal meaning of the words even if the result is not sensible.
But the judges recognise that on some occasions other methods of interpreting the words were needed. The golden rule is a modification of the literal rule.
If the literal rule leads to an absurd result or repugnant result, or even if there is some ambiguous wording in the act. In the narrow application of the golden rule the courts may only choose between the possible meanings of a word or phrase. (R v Allen- Bigamy case).
Or in the wider application of the golden rule it is used when the words have only have one clear meaning but that would lead to an absurd result. In these cases the courts will use the rule to modify the wording of the statute (Re Sigsworth-inheriting money from the mother he killed). The mischief rule gives a judge much more discretion than the golden rule. When using this rule the judge should look to see what the law was before the act was passed in order to discover what gap or “mischief” the act was intended to cover. The court should then interpret the act so the gap is covered (Smith v Hughes prostitutes soliciting from a window) A more recent form of statutory interpretation is the purposive approach. This goes beyond the mischief approach as it is not just looking to see what the gap was in the law, the judges actually decide what they believe parliament intended by the act.
This gives the judges the most opportunity to create law and perhaps even distort what parliament intended. However when making statutes Parliament may base proposed statutes on hypothetical situations and it is not possible for parliament to predict every possible future situation that could arise. And so it may be necessary for a judge to interpret a statute so it can be applied to those unforeseen situations.
Judges do however argue that in using these methods of avoiding precedent or interpreting statutes they are not making law; they are merely developing the law which already exists. As Parliament is the elected law making body in the country it would be undemocratic to allow judges to have too great an influence in law making.
For this reason precedent is subordinate to statute law and delegated law and delegated legislation. Therefore if an act of parliament is passed that contradicts a previously decided case, then the case decision will cease to have effect.
This happened when Parliament passed the Law Reform 9year and a day rule) Act in 1996. Up until that point judicial decisions had meant that a person could only be charged with murder or manslaughter if the victim died within one year and one day of receiving the injuries. The act enacted that there was no time limit and a person could be guilty even if the victim died several years later.
So now cases after 1996 follow the act and not the old judicial decisions. Compared to parliament, judges are very limited in the amount of law which they can create. They can only create or change law when a suitable case is taken to court. Even then they can only change the law on the point of law raised by the case they are hearing. This limits their law making potential. Even when they do have an opportunity to change the law, they will never have the choice to tackle all the problems that are known to exist in the law.
This wouldn’t be a problem if parliament was more active in reforming the law, but parliament has been very reluctant to change the law even though there is great need for the law to be reformed. This is particularly true of the criminal law where a draft criminal code was proposed but parliament has never enacted it.
The Human Rights Act 1998 has some effect on both judicial precedent and statutory interpretation where human rights are an issue in the case. For precedent this is because s2 of the act requires judges at all levels of the court system to take into account judgements of the European Court of Human Rights. For statutory interpretation s3 of the act requires that legislation be interpreted so far as it is possible in a way which is compatible with the rights in The European Convention of Human Rights.
. /. / Stare decisis and techniques of legal reasoning and legal argument Copyright ©1987 Paul M. Perell Originally published in (1987) 2:2,3 Legal Research Update 11 and republished with permission. Introduction It gives away no secret to observe that lawyers have their own unique discipline and approach to the resolution of legal problems. Not surprisingly, there are laws about determining the law.
One of the most important of these laws is the law of precedent or stare decisis. That doctrine and its significance in practical terms are the subject matters of this paper.
This paper is also about how a lawyer in everyday practice answers a legal question and how that lawyer evaluates and formulates legal arguments. The paper is only to a very limited extent concerned about the practical problems of how to find or look up the law; rather, the concern is how a lawyer should deal with the authorities that he or she finds. Because different legal systems have different approaches to the proper way of deciding a legal point, the perspective will be Canadian and primarily that of Ontario. The doctrine of stare decisis What is the doctrine of precedent or of stare decisis? Professor Gall described it in the following terms: The operation of the doctrine of stare decisis is best explained by reference to the English translation of the Latin phrase.
“Stare decisis” literally translates as “to stand by decided matters”. The phrase “stare decisis” is itself an abbreviation of the Latin phrase “stare decisis et non quieta movere” which translates as “to stand by decisions and not to disturb settled matters”. Basically, under the doctrine of stare decisis, the decision of a higher court within the same provincial jurisdiction acts as binding authority on a lower court within that same jurisdiction. The decision of a court of another jurisdiction only acts as persuasive authority. The degree of persuasiveness is dependent upon various factors, including, first, the nature of the other jurisdiction. Second, the degree of persuasiveness is dependent upon the level of court which decided the precedent case in the other jurisdiction.
Other factors include the date of the precedent case, on the assumption that the more recent the case, the more reliable it will be as authority for a given proposition, although this is not necessarily so. And on some occasions, the judge’s reputation may affect the degree of persuasiveness of the authority. In Learning the Law (9th ed. 1973), Glanville Williams describes the doctrine in practical terms: What the doctrine of precedent declares is that cases must be decided the same way when their material facts are the same. Obviously it does not require that all the facts should be the same.
The Tools And Techniques Of Judicial Creativity And Precedent
We know that in the flux of life all the facts of a case will never recur, but the legally material facts may recur and it is with these that the doctrine is concerned. The ratio decidendi reason of deciding of a case can be defined as the material facts of the case plus the decision thereon. The same learned author who advanced this definition went on to suggest a helpful formula.
Suppose that in a certain case facts A, B and C exist, and suppose that the court finds that facts B and C are material and fact A immaterial, and then reaches conclusion X (e.g. Judgment for the plaintiff, or judgment for the defendant).
Then the doctrine of precedent enables us to say that in any future case in which facts B and C exist, or in which facts A and B and C exist the conclusion must be X. If in a future case A, B, C, and D exist, and the fact D is held to be material, the first case will not be a direct authority, though it may be of value as an analogy. It follows from William’s analysis that the addition of fact D to a future case means that conclusion X may or may not follow.
In other words, the presence of a new fact D may have the effect of distinguishing the future case from the precedent or conversely the precedent may be extended to apply to the future case. There is considerable literature about whether the doctrine of stare decisis is a good or bad one but, the doctrine is usually justified by arguments which focus on the desirability of stability and certainty in the law and also by notions of justice and fairness.
Benjamin Cardozo in his treatise, The Nature of the Judicial Process stated: It will not do to decide the same question one way between one set of litigants and the opposite way between another. “If a group of cases involves the same point, the parties expect the same decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case was decided against me yesterday when I was a defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my rights.” Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts. The Department of Highways, Middleton J.A. For the Ontario Court of Appeal stated: But, in my view, liberty to decide each case as you think right, without regard to principles laid down in previous similar cases, would only result in a completely uncertain law in which no citizen would know his rights or liabilities until he knew before what Judge his case would come and could guess what view that Judge would take on a consideration of the matter, without any regard to previous decisions.
That the doctrine of stare decisis is related to justice and fairness may be appreciated by considering the observation of American philosopher William K. Frankena as to what constitutes injustice: The paradigm case of injustice is that in which there are two similar individuals in similar circumstances and one of them is treated better or worse than the other. In this case, the cry of injustice rightly goes up against the responsible agent or group; and unless that agent or group can establish that there is some relevant dissimilarity after all between the individuals concerned and their circumstances, he or they will be guilty as charged. The critics of the doctrine accept it as the general rule but chafe under it when the staleness of old law leads to unfairness and injustice. For example, Lord Denning, the former Master of the Rolls has argued: If lawyers hold to their precedents too closely, forgetful of the fundamental principles of truth and justice which they should serve, they may find the whole edifice comes tumbling down about them.
Just as the scientist seeks for truth, so the lawyer should seek for justice. Just as the scientist takes his instances and from them builds up his general propositions, so the lawyer should take his precedents and from them build up his general principles. Just as the propositions of the scientist fail to be modified when shown not to fit all instances, or even discarded when shown in error, so the principles of the lawyer should be modified when found to be unsuited to the times or discarded when found to work injustice. Stare decisis and the hierarchy of the courts Keeping with the practical approach of this paper, we will now leave aside this debate and consider the practical problems of dealing with the doctrine as it exists for the practising lawyer. Let us then consider the example of a lawyer preparing legal argument for court.
The lawyer will be appearing before a particular court and the first thing that the lawyer must do is to note the rank of that court in the hierarchy of courts. This is necessary for two reasons: first, because a higher ranking court is not bound to follow the decision of a lower court and second, because some courts do not apply the rule of stare decisis with respect to their own prior decisions.
While it might be thought that it would not be difficult to decide this question of ranking, there are in fact some problems because the hierarchy and the attitude of various courts have changed from time to time. For example, for Canada, appeals to the Privy Council in criminal matters were abolished in 1933 and it was only in 1949 that all Canadian appeals to the Privy Council were abolished.
Comments are closed.
|
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |