1

PROJECT

ON

LAW MAKING BY JUDICIARY

SUBMITTED TO:

PROF. DR. SHEFALI YADAV MAAM

FACULTY OF LAW, DSMNRU

SUBMITTED BY:

ABHISHEK VERMA

FOURTH YEAR, 9th SEMESTER

[Link]. LL.B (H)

2

TABLE OF CONTENTS
___________________________________________________________________________

1. Introduction ………………………………………………………………………….03
2. the „realists‟ philosophy and judicial lawmaking…………………………………..05
3. do judges make law?.....................................................................................................07
4. adjudication‟ vis-a-vis „legislation…………………………………………………..09
5. judiciary ; A tool of law making……………………………………………………..11
6. scope for judicial lawmaking‟ under the indian constitution………………………..13
7. judicial law-making imposing restrictions on constitutional power………………….14
8. conclusion……………………………………………………………………………..18
9. bibliography……………………………………………………………………………19
3

INTRODUCTION

An active role of Indian judiciary over the functions falling constitutionally within the legislative
competence raises certain serious and prominent issues qua ‗Judicial Activism‘ in India. This
aspect of ‗Judicial Activism‘ equally holds the debatable field amongst others since the judge
made law has gained a vast recognition throughout the world. The Indian Supreme Court has
contributed to such recognition to a very large extent by giving directions to the government from
time to time seeking compliance under its contempt power and many a times by legislating exactly
in a manner akin to the legislature. Such instances of judicial intervention call for a need to closely
scrutinize the essence and the constitutional perspective of the ‗lawmaking‘ function of judges in
distinction with the constitutionally conferred legislative powers of the legislature.

The term judicial activism is very slippery and difficult to define. Various groups differ in their
conception of activism1. Webster's dictionary assigns the meaning 'being active' to the term
'activism'. In this sense every judge is, or at least should be an activist so long as one decides in
whatever way one may choose to decide. Under this definition of activism the decision of Indian
Apex Court given in the early 1950s and popularly known as Gopalan's case, holding that a right
guaranteed in a particular provision of Article appearing in Part III of the constitution cannot and
does not control, another right guaranteed in another provision appearing in the same part of the
constitution, and thus refusing procedural due process to Gopalan2 is as activist a judgment as the
one delivered by the same court in the Maneka Gandhi's passport case.63 In Maneka Gandhi's case,
the court in contrast to its earlier position, ruled that the term procedure established by law
appearing in Article 21 of the Constitutionwhich says 'no person can be deprived of his life or
personal liberty except in accordance with the procedure established by law is controlled by the
provisions of Article 14, and thus the procedure contemplated under Article 21 cannot be unfair or
arbitrary lest it should be hit by provision of Article 14, According to the dictionary meaning of
the term activism is the use of vigorous campaigning to bring about political or social change. The

1
Upendra Baxi, Courage Craft and Contention : The Indian Supreme Court in the Eighties, Bombay, M.N. Tripathi,
1985.
2
A.K. Gopalan [Link] of Madras AIR 1950 SC 27.
3
Maneka Gandhi v. Union of India AIR 1978 SC 597
4

Judges who in the Dread Scott's case 4in United States of America saw nothing wrong in approving
5
racism are as activist as a Judge who in Brown's decision ruled racial segregation in schools
unconstitutional and impermissible. Thus, seen in this sense, activism may be exercised equally
for strengthening the force of status quo as much as it can be used to bringing about 'changes'.

What is activism and what is not, depends on whether the result is to the liking or disliking of the
one who is evaluating the judicial role in that particular instance.

The term 'activist' is slippery and has been used more in an ascriptive sense and such ascription
depends largely on liking or disliking of the evaluator of a particular judicial outcome, rather than
on any theory of judicial function, and that activism can be and has been exercised by judges to
serve the force of ‗change‘ as well as preserving the status quo.

Justice Bhagwati's approach is that it addresses itself more to the question as to the result for which
judicial activism is to be exercised, than to whether judges can legitimately exercise judicial
activism in constitutional interpretation. The issue in his philosophy is not whether, but what type
of activism and what type of values would enter into constitutional interpretation. To him activism
is to be exercised for 'willed result'6. And that 'willed result' is the 'goal' of ensuring 'social justice',
to all including the poorest of the poor, and evolving an egalitarian society where there is no place
for any kind of exploitation of anyone. Judicial activism to this school of judicial philosophy means
an active use of judicial power for the realization of social justice. According to Justice Bhagwati,
the term Judicial activism is not the term of 'fashion' or‗populism‘, but a term signifying an
important source of judicial power, which judges should use for the realization of willed result.
The task of the judges takes them deeper into the future to make decisions which will affect the
future course of social and economic and sometimes even political development. Therefore, in all
humility they have to be aware of social needs and requirements and economics and political
compulsions. They will have to recognize changes taking place in a fast developing society and to
develop and adopt law to the changing needs and requirements of the people. And on each occasion
when they do so, they are expected to provide justifying reasons which must satisfy not only

4
Dred Scott v. Sandford 19 Hav 393 (1857).
5
Brown v.. Board of Education 347 U.S. 483 (1954).
6
[Link], Judicial Activism and Public Interest Litigation, 23 Columbia Journal of Transnational law 1 (1985)
p. 563.
5

themselves but also critics and jurists, nay the society itself, for what they decide.7 No other
functionary of the State is subject to such a rigorous form of accountability as a judge.

The most remarkable example of the Indian Supreme Court exercising a juristic kind of activism
with enduring influence on India's constitutionalism, and directed towards protecting citizens
against any drastic or draconian amendments which may be made by the ruling party by reason of
its brute majority in the parliament, is its Judgment in what is known as Keshavanand Bharti case
8
. In that case the court was called upon to interpret Article 368 of the Indian Constitution which
confers power on the Parliament to amend the constitution. The Supreme Court refused to accept
a narrow textual interpretation and held that the power to amend the constitution was not unlimited
power, but was restricted by the basic structure doctrine - a doctrine that was propounded by the
court for the first time in this case itself, and that Parliament was not competent to amend the
constitution so as to affect any of its basic features like Republicanism and Secularism. To this list
was added by the Supreme Court in a subsequent decision, known as the Minerva Mills Case,9the
power of judicial review. Basic structure doctrine was altogether a novel doctrine innovated by the
court for the first time as not only that there is no mention of any such doctrine in the text of the
Constitution but no such doctrine was mentioned even in the debates of the Constituent Assembly
that gave us the Constitution. It was a superb example of juristic activism on the part of the court
and the Judges.

THE „REALISTS‟ PHILOSOPHY AND JUDICIAL LAWMAKING

The lawmaking function of the judiciary can be traced as being obscurely rooted in ‗Realist
School‘ of Jurisprudence since inline with the Austinian conception of law as a command of
sovereign, realists regarded law being a command of a judge considering him supreme for the
purposes of setting laws in the legal system. 10 However, since there was no unanimity amongst
the scholars who contributed to this way of thought, ‗realism‘ was never regarded as a school of
jurisprudence as such, Llewellyn is regarded as the chief proponents of this scientific and judge

7
Justice [Link], Judicial Interpretation in Constitutional Law, 8th Commonwealth Law Conference
8
Keshavanand Bharti v. State of Kerala 1973 SCC 25.
9
Minerva Mills Ltd. v. Union of India AIR 1979 SC 1789
10
See generally, [Link] (ed.), Lloyd‘s Introduction to Jurisprudence 644 (Sweet & Maxwell London, 9
1994).
6

centred approach of law. The movement was regarded as ‗realist‘ as it studied law as a body of
rules and principles which are enforced by the courts.

‗The law (or the Constitution) is what the courts say it is‘ is the working principle of realist
[Link] develops naturally when there is a multiplicity of jurisdictions, and the
Constitution or the laws, whether enacted or Common law; leave ‗open texture‘11 to be resolved
by the courts. The constitutional system of the United States is highly dependent on judicial
interpretative process for achieving any finality or certainty in the Constitution or the laws. On
the other hand, in the United Kingdom the concept of sovereignty has led to the legal positivism
which regards the sovereign, Parliament in modern times, as the ultimate source of positivity in
law.

The Constitution of India partakes of both, the United States and British Constitutions since it
has Parliament and cabinet systems of Government from England and federalism with its
characteristic system for distribution of legislative functionsand judicial powers of review from
the United States Constitution. Since realist jurisprudence and analytical positivism draw heavily
from the respective constitutional systems of the United States Constitution. Since realist
jurisprudence and analytical positivism draw heavily from the respective constitutional systems of
the United States and the United Kingdom, it is natural that the two theories of law and
jurisprudence may make an impact on each other continuously or intermittently in the working of
the Indian Constitution.

Legal Realism emphasizes that law can be properly understood or defined in terms of judicial
process only. The law on paper and the law in action are distinct from each other. It says that after
the law has been laid down by the legislature, it is nothing but the ‗a prophesy of what the courts
will do in fact‘ and so long as the courts have not given their final pronouncement on it, the law
remains uncertain, a child‘s world. To define law on a subject, to know what ‗the law‘is in
question the lawyer, the administrator or the affected person may look into the prescribed law
(designated as ‗command‘ by the positivists) but ultimately they have to find how the courts have

11
Hart, ‗Open textures‖ refers to ideas, words or phrases left undefined in the Constitution or enactments, such
as, ‗due process of law‘, ‗liberty‘, or ‗personal liberty‘, ‗reasonable restrictions‘ or ‗matters of religion‘ in Indian
Constitution.
7

already defined it and how are they likely to define the same when the matter again goes before
them.

In modern times ‗policy decision making‘ is advocated for breaking the rigidity of the
Constitution and laws when their acquired meanings fail to achieve the socio-economic ideals of
a socialist or welfare state. In developing countries law is desired to be dynamic. It should change
with the changing needs of the society in time and space; in that way law becomes an instrument
for social engineering Indian Juristic thinking also recognizes ‗the dynamic character of law‘.

However, the realist jurisprudence has a non-doctrinaire approach or politically neutral approach
to the content of law or the Constitution. It focuses attention on the judicial process through which
Constitution and law in practice operate. The law us made by the legislature but it is enforced
through the agency of courts.

Judicial Lawmaking in ‗realist‘ sense can thus be understood as a process that aims at determining
all questions affecting interpretation, application, operation and working of the Constitution or
other statutory enactments. No contributor of realism however negated the competence of
legislature in lawmaking which suggests that law making function of judiciary is secondary in
contrast with the legislature since courts can, by way of interpretation, only supplement the true
essence and objective of the law primarily enacted by the legislature12. Since such instances are
supplement has an effect of law primarily enacted by the legislature. Since such a supplement has
an effect of law and a binding consequence, ‗lawmaking‘ in realist sense is a fact and a stark
reality.

DO JUDGES MAKE LAW?

No informed citizen who is governed under a modern Constitution disputes the notion that judges
do make law, especially the judges of constitutional courts. This is so since such courts have
meticulously come at par with the expectations of the people and the changing social
circumstances by way of their ‗interpretative skills‘. In Indian context, a glaring example of this

12
―The judges are always constrained to follow the law; for there is no law beyond the law. They cannot act as
super-legislators.‖ Ronald Dworkin, ―No Right Answer?‖ in P.M.S Hacker and [Link], Law, Morality and Society:
Essays in Honour of H.L.A Hart 84 (1977)
8

fact can best be evidenced from the complete shift accorded by the Supreme Court of India in
interpreting Art.21 of the Constitution from Gopalan 13 to Menaka14. Further, innovations in the
field of Public Interest Litigations (PIL) have also provided thrust to the undisputable notion that
judges do indeed make law through directions.

In erstwhile halcyon days, it was argued by many commentators that a judge simply declares,
discovers, and applies the existing body of legal principles by a logical and a purely mechanical
process. The law was seen by those commentators, in Oliver Wendell Homes‘ memorable phrase,
as a ‗brooding omnipresence in the sky‘. However, it is now a well settled fact that by applying
or extending established rules to novel circumstances and by altering the content of legal rules in
accordance with changed economic and social circumstances, judges do make law. The notion
thatcourts make law is now widely understood not only by lawyers but also by lay commentators
and the general community.

According to Hans Kelsen all judges, trial as well as appellate, created individual specific norms
by their decisions. Specific individual norms directed to persons do not and cannot pre-exist a
judicial decision. Such norms come into being only when a judge decides in accordance with
higher norm, which is concretized by that decision. In other words, the process of concretization
of general and abstract norms always results in creation of new law, individuated and specific
norms. In this sense, the distinction between norm creation and norm application is not an absolute
but a relative distinction.

In this context, it is appropriate to consider a basic objection to the very notion of lawmaking by
the judges on the ground that the judges in India were trained in the conservative English tradition
under which they were expected to depart as little as possible from established precedents and that
the judiciary should not be concerned with the policy underlying any legislation. It must however
be noted that it is impossible for a judge who, unlike his counterpart in England, functions under
a written Constitution not to make any law, to inquire into the policy behind the law and, indeed,
to ensure that such policy conforms to the demands of the Constitution. The principle of

13
[Link] v. State of Madras AIR 1950 SC 27.
14
Maneka Gandhi v. Union of India AIR 1978 SC 597
9

grammatical interpretation is inapplicable since it is a Constitution and not a statute, whose

interpretation is really in issue so that it can be worked.

But even in the United Kingdom (UK) the judgments of the House of Lords have shown
conclusively in the last several decades that judges often do make law and that the fiction that they
merely find it must be discarded. To talk openly of judicial lawmaking is therefore honest and
makes sense as Justice Holmes, Brandeis, Cardozo, Warren and many other judges in the United
States have shown. Only a minority of judges such as Frankfurter and jurists such as Wechsler
have believed in sticking to anarrow, grammatical or neutral view of the cold constitutional
provisions, occasionally under the umbrella of a scientific approach. Even in Australia, an eminent
judge Dixon C.J. who was noted for his strict constructions had accepted the need for a judge to
be concerned with policy questions and even with political considerations in the following words:

It is not a question whether the considerations are political, for nearly every consideration arising
from the Constitution can be so described, but whether they are compelling.

To the same tune are certain judgments of Canadian Supreme Court, especially those of Rand J15.

Having arrived at the practical answer to the dilemmatic and yet controversial question ‗Whether
Judges make law?‘ the most important analysis for the purposes of the present work is the
ascertainment that what sort of law do the judges are entitled to make? Since actual lawmaking
fall constitutionally in the domain of Legislature, who among the two organs of state enjoy primacy
in lawmaking? And what is the distinction between a judge made law (adjudication) and a law
enacted by the legislature (legislation)? These are certain issues which deserve discussion in this
context.

„ADJUDICATION‟ VIS-A-VIS „LEGISLATION‟

In order to properly appreciate the distinction between ―Adjudication‘ and ‗Legislation‘, it is

first appropriate to analyze the word ‗interpretation‘, which is central to the entire judicial process.
To Salmond, ‗interpretation and ‗construction‘ are synonymous by which he meant ―the process
by which the courts reach to ascertain the meaning of the legislature through the medium of

15
Switzman v. Elbling & Attroney General , Quebc (1957) 7 D.L.R 337.
10

authoritative forms in which it is expressed643. Justice Grey described it as ―the process by

which a judge construes from the words of a statute book the meaning of which he either believes
to be that ofthe legislature, or which he proposes to attribute to it. However, the soul of
interpretation vanishes if the very proposes to attribute to it. However, the soul of interpretation
vanishes if the very purpose of the statute is given a go-by. In the process of evolution of law
judges act as the selective agents. However, law as a bundle of rules on which justice can rest is
a mirage. It is akin to folkways and mores of a society it is an existing fact with an ever changing
trajectory.

In this context, the question then arises that whether interpretation necessarily involves legislation.
Judicial decision is however not akin to lawmaking; it is rather an alternative available whenever
the applicable precepts provide more than the choices. In justification of this, one needs to
understand the fundamental differences between ‗legislation‘ and ‗adjudication‘.

Adjudication presupposes initiation by the parties in the disputes who render reasoned advocacy
based upon which and existing law, the judicial opinion manifests itself in the form of a result
necessarily in the ‗either-or‘ form. It is therefore monocentric, that is, rooted in disputes while
legislation is polycentric, that is, when variables multiply, and the answer cannot be ‗either-or‘ to
given dispute. It thus needs legislation because resolution to such polycentric matters involves
negotiation and bargain between the conflicting social interests which is a political act.
‗Adjudication‘ can, however be better explained as ―a decision based on some principle to protect
rights (of an individual or a group) and, being based on this principle, has to be anticipatively
consistent for uniform distribution of benefit from one case to next16. The process of adjudication,
therefore, negates any ‗intuitive‘ decision since the latter cannot stand to future consistency in
enforcement of rights it is so because ‗intuition‘ is usually a product of the synthesis of the
philosophy, values, and political leanings of an individual, and hence is quite individuated in
character.

During adjudicatory process the law-making power of the judge, of late, has been acknowledged
by most of the jurists. The idea of strict adherence to procedure, called ‗formalism‘, has waned
away the ‗ends‘ of law and has gained primacy in the judicial process. It is probably because

16
Ronald Dworkin, cited in Id. at 11.
11

―there can be no wisdom in choice of a pastunless we know where it wills lead. In fact, it cannot
be denied that in the process attaining the ‗ends‘ of law, the judges do get more space for
lawmaking; however, it is a limited one. As justice Holmes Said:

I recognize without hesitation that judges must and do legislate, but they do so only
interstitially they are confined from molar to molecular motions. Therefore, the general framework
provided by the statute is to be filled in each case by means of interpretation following principles
of interpretation of the statute.

Such adjudication has often been considered by many jurists as a freedom to operate within the
gaps in the statute law. The principles developed by the judge, to be applied in a given case, have
to be within the structure of the statute, only such decisions can expect to command respect that
begets certainty and uniformity for future references. What is a judge‘s ‗limit‘ is also his ‗duty‘.
Although guided by his own experiences, the statute does circumscribe his choices. ―He may
intervene only to supplement the formal authorities, and even in that filed there are limits to his
discretion in establishing rules of law. Neither he may restrict the scope of the general principle
of our juridical organization, explicitly or implicitly sanctioned, nor may be lay down detailed
regulations governing the exercise of given rights, by introducing delays, formalities, or rules
publicity‖ . He should rather stick to objective interpretation even in the so called ‗hard cases‘
since after all, hard cases make a bad law. ―They (the judges) have the power, though not the
right, to travel beyond the walls of interstices, the bounds to judicial innovation by precedent and
customs. Nonetheless, by that abuse of power, they violate the law.

JUDICIARY: A TOOL OF LAW MAKING

Judicial law making is a stark fact of the modern age. There are various techniques adopted by the
judges in creating new rules. Precedent, construction of statutes, supplying the omission of the
legislature17 or filling the gaps by using discretion are some of the tools used by the judges for
creating law. Lord Wright hassaid that ‗judging is an act of will and that ‗notwithstanding all the
apparatus of authority, the judge has nearly always some degree of [Link] Stone attributes

17
Per Byles J. in Cooper v. Wandsworth Board of Works (1863) 14 CBNS 180.
12

the influence of a judge‘s own outlook of life, fixed by his education, training, experience and
association on the role of a judge in creating law besides the power of interpretation of the
[Link] are, yet certain constraints on the rule-creating power of the judges. Positivists from
John Austin to HLA Hart put emphasis on judicial discretion. Realists forged ahead and have
placed discretion on the highest pedestal. Holmes, has referred to it as ‗the sovereign prerogative
of choice‘.The opinion of Lord Devlin is that, judicial creativity is permissible in the common law
but not in relation to statutory legislation. His belief is that judicial activism must operate ‗within
the consensus‘,so that where there is no consensus, judges should not act creatively. Lord Scarman,
expressing a similar opinion, feels that judicial activism can play only a peripheral part in keeping
the law in touch with modern [Link] will thus be seen, that judicial legislation as a fact,
is not disputed. However, the question now revolves round the methods, motives, attitudes and
reasoning, which underlie this development. Whenever a court applies an established situation or
set of facts, new law is created. Holmes calls this process of legislation interstitial, i.e., within the
interstice of the existing fabric of the law.

Judicial creativity through the device of statutory interpretation is a fertile ground for judicial
activism. This is done under the guise of finding the intention of the legislature. Besides, modern
statutes lay down the broad general principles and leave it to the court to expound their meaning
and ambit. The major part of the constitutional law of the United States is judge-made law. Even
the elaborate and detailed constitutional provisions have not deterred the judges from judicial
activism. Post-1977 the Indian Supreme Court has accentuated this trend by judicial creativity.

This, however, does not mean that judges are free to create new rules without inherent limitations
of judicial process. The judicial process cannot make innovations of a general sweep. The judge
tries to encompass his innovation within the traditionalframework. He does not usher in a new
legal domain. In Kasturilal v. State of Uttar Pradesh.18Chief Justice Gajendragadkar found the law
relating to government liability ‗not very satisfactory‘, yet he did not make the change by judicial
construction, this shows judicial reverence to precedent. He suggested legislative intervention to
wardoff the ‗not very satisfactory position of law.

18
AIR 1965 SC 1039
13

Process of judicial law-making is restricted by its very nature and hence cannot be parallel to the
legislative process. Even within this restricted parallel arena the scope of judicial law-making is
subject to two conditions. (1) Whether the courts are endeavouring consciously to develop law
relatively freely to meet new social and economic conditions, (2) the preference of the judge to
dwell in the existing domain of precisely enunciated principles of law. This again will to a large
extent, depend upon the philosophy of the judge.

SCOPE FOR JUDICIAL LAWMAKING‟ UNDER THE INDIAN

CONSTITUTION

The scope for judicial innovation or creativity is more profound when it pertains to constitutional
interpretation being an organic law, and also the source of all future law-making. For ―a
constitution states or ought to state not rules for the passing hour, but principles for an expanding
future. In so far as it deviates from that standard, and descends into details and particulars, it loses
its flexibility and the scope of interpretation contracts, and the meaning hardens. The more detailed
a Constitution s more restricted is the scope of judicial lawmaking since the gaps get narrowed
down.

In addition to the scope for ‗Judicial Activism‘ as discussed under chapter III, Article 141 is one
such provision under the Indian Constitution which recognize ‗judicial lawmaking‘ in the sense
we have observed so far. However, considerable misunderstanding prevails over this article, as if
by it the Supreme Court is given the power to make substantive law of the land and its declarations
are binding on everybody and they must be unquestioned19. The article, however, only means
thatthe declarations of Supreme Court are binding on all the courts as a matter of judicial precedent
until they are reversed by the Supreme Court itself.

The following can be cited as certain illustrations, the interpretation of which leads to judicial
lawmaking within the scheme of Indian Constitution. The list is however not exhaustive.

19
See for example C.J Subba Rao in Golakh Nath v. State of Punjab AIR 1967 SC 1643-16669 and C.J Sabyasachi
Mukherjee in Delhi Transport Corporation v. D.T.C Mazdoor Congress AIR 1991 SC 101 at 151 and Krishna Iyer J. in
Gujarat Steel Tubes v. Its Mazdoor Sabha 1980 SC 1896 at 1923.
14

I. What classification is reasonable and legitimate within the meaning of Articles 14, 15(1) and
16(1), and what special provisions are legitimate within the meaning of Articles 15(3), (4) and
16(4).

II. What restrictions are reasonable and in the public interest within the meaning of clauses (2) to
(6) of article 19;

III. What is comprised in the right to life and right to personal liberty within the meaning of article
21, and what amounts to procedure established by law within the meaning of that article;

IV. What regulations are reasonably related to ―public order, morality and health‖ and to other
provisions of part III within the meaning of Articles 25(1) and 26(1) and what regulations are
legitimate under article 25(2) (a);

V. What regulations governing minority educational institutions are reasonably related to the need
of maintaining educational standards and do not amount to an unreasonable interference with the
right of the minorities to establish and administer the institutions of their choice;

VI Whether the principles laid down by legislation regarding compensation, within the meaning
of original article 31, was a just equivalent of the property acquired. Now, article 300 A, in the
light of the interpretation given in Maneka Gandhi to the expression ‗law‘ in article 21, brings
about the same result.

VII. What provisions of a law contemplated by article 31A are reasonably related to the purposes
mentioned in sub-clauses (a) to (e) of clause (1) of Article 31A.

VIII. What law abridging a fundamental right is, within the meaning of Article 31A genuinely
gives effect to or secures any of the directive principles mentioned in part 4.

JUDICIAL LAW-MAKING IMPOSING RESTRICTIONS ON

CONSTITUTIONAL POWER

In any written constitution, there has to be provision for its amendment to avoid the stagnation of
a Constitution. An unchangeable Constitution is incapable of fulfilling the aspirations of a
changing society. The process of constitutional amendments is essentially counter-majoritarian. It
prevents sudden and impulsive changes in a Constitution and entrenches certain provisions,
15

making them non amendable. The most controversial amendments were those by which judicial
review in relation to the right to property was restricted. The question was whether a bill of rights
that had been settled after long negotiations between various sections of society, and had been
based on a consensus reflected in the Constituent Assembly, could be altered and abrogated
through the process of Constitutional amendment.

Fundamental Rights are contained in Part III. Article 13 states the legal status of those rights. It
declares that all laws in force in the territory of India before the commencement of the Constitution
shall to the extent of their repugnancy with the fundamental rights be void from the date on which
the Constitution comes into force. Clause (2) of that article further commands that the state shall
make no law that takes away or abridges the Fundamental Rights. In Shankari Prasad v. Union of
India20 it was argued that a constitutional amendment was law‘ for the purpose of Article 13, and
therefore it had to be tested on the anvil of Article 13. If it violated any of the fundamental rights,
it should be void. Chief Justice Patanjali Shastri, speaking on behalf of a bench of five judges in a
unanimous judgement, rejected that argument outright and held that the word law‘ in that article
did not include a Constitutional amendment. The Seventeenth Amendment which brought the
Ryotwari estate within the definition of the word ‗estate‘ in Article 31 (A) became controversial
for many reasons. In Sajjan Singh v. Rajasthan, the court consisting of 5 judges was divided. Chief
Justice Gajendragadkar held on behalf of the majority of three judges, that a constitutional
amendment was not covered by the prohibition of Article 13 (2). The minority judgement of
Justices Mudolkar and Hidayatullah observed that if our fundamental rights were to be really
fundamental, they should not become ‗the plaything of a special majority‘. These two dissents
opened the door to future attempts to bring the exercise of the power of Constitutional amendment
under judicial scrutiny. Seventeen amendments had been enacted in pursuance of that decision;
any reversal of judicial view in 1965 would not only severely jeopardize India‘s land reforms and
other economic programmes, but also create problems in reverting to the pre-amendments position
in respect of property relations.

In 1967, the Supreme Court held in Golaknath v. Punjab, that an amendment passed in accordance
with the procedure laid down by article 368 was law‘ within the meaning of that word as used in
Article 13(2) of the Constitution. The Court by a majority of six to five judges held that Parliament

20
AIR 1951 SC 458
16

had no power to pass any amendment that would have the effect of abridging or taking away any
of the fundamental rights guaranteed by the Constitution. The petitioner had challenged the
validity of the first, fourth and seventeenth Amendment Acts, which had foreclosed judicial review
of the law pertaining to property. Chief Justice Subba Rao invoked the doctrine of prospective
over-ruling to save existing Constitutional amendments from infirmity while mandating
Parliament not to pass any constitutional amendment that would take away or abridge any of the
fundamental rights in future. The learned Chief Justice also promised that the court would interpret
the provisions of the Fundamental Rights liberally so as not to jeopardize the implementation of
the directive principles of state policy. Justice Hidayatullah, in a separate concurring judgement
expressed his views: ‗Since the court had acquiesced in the validity of those Amendment Acts
through its previous decisions, it was stopped from declaring them invalid‘.

Golaknath stirred a great controversy regarding the scope of judicial review. For the first time, the
judges had openly taken a political position. They did not desire that Parliament‘s power to amend
the Constitution should be unlimited and that the Fundamental Rights should be at the mercy of
the special majority of members of Parliament required for Constitutional amendment. Golaknath
rejected the view that the court merely interpreted the Constitution and that it was not concerned
with the consequences of its interpretation. Golaknath marks a watershed in the history of Supreme
Court of India‘s evolution from a positivist court to an activist Court. The Court was concerned
about what would happen if the Fundamental Rights were made entirely dependent upon the
whims of the legislative majority. The Judges did not merely interpret the Constitution as it was
but interpreted it from the vantage point of what it should be. They brought in the natural law
concept in understanding the position of Fundamental Rights in the constitution. Following the
natural law theory, these judges held that Fundamental Rights were inalienable rights of the people.
This decision had political implications because it changed the distribution of power between the
Court and the Parliament. Subsequently, the Supreme Court held invalid, the ordinance by which
fourteen banks were nationalized by the Government, and the executive order whereby the privy
purses given to the Indian Princes as consideration for the accession of their State to India were
sought to be abolished through the device of de-recognition of those princes.

In the general elections held in 1971 for the Lok Sabha, Mrs. Indira Gandhi‘s Congress won a
landslide victory by securing more than two-thirds of the seats in the Lok Sabha. The Government
17

introduced the Constitution (Twenty-Fourth Amendment) Act 1971, with the purpose to restore to
Parliament the unqualified power of Constitutional amendment. Parliament also passed the
Twenty-fifth Amendment, which further restricted the right to property and the Twenty-sixth,
which abolished all privy purses. These amendments were challenged in the Supreme Court in
Kesavanand Bharti v. Kerala.21 While arguing their cases on behalf of the State, the Attorney
General as well as the Advocates General of most of the States contended that Parliament‘s power
to amend the Constitution was unlimited. The Judges asked them to elaborate whether it could be
used for changing India from Democracy to a Dictatorship or from a Secular State to a Theocratic
State; the answer had to be in affirmative. Chief Justice Sikri summarized those arguments as
follows

21
AIR 1973 SC 1463.
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CONCLUSION

To summarize, one can say that when the judges make law it is essentially a sort of a restricted
form of legislation which cannot go beyond the limits of the statutes itself. Such lawmaking is
essentially a rule making power to be used as a judicial tool to apply and administer the statute law
to adjudicate upon disputes between the parties inter se. A judge made law in its essence is an
extension of the statue law; its flexibility is pragmatic as the judge has the comfort of dealing with
a concrete situation. However, a mere remarkable advantage to a judge does not authorize him
with respect to law-making in a generic nature. ‗Judicial Activism‘ in order to be appreciated,
demands a distinction from ‗judicial overreach‘ or ‗judicial excessivsm‘ since it requires a delicate
combination of discretion, tact, and vision. Any exercise of which transgresses the four walls of
the Constitution is counterproductive since it disturbs the delicate balance and harmony of the
respective organs of the state.
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BIBLIOGRAPHY

1. A.K. Gopalan [Link] of Madras AIR 1950 SC 27.

2. Maneka Gandhi v. Union of India AIR 1978 SC 597

3. Keshavanand Bharti v. State of Kerala 1973 SCC 25.

4. Minerva Mills Ltd. v. Union of India AIR 1979 SC 1789

5. Switzman v. Elbling & Attroney General , Quebc (1957) 7 D.L.R 337.