Process of judicial law making with special reference to Article 141 of Indian

Constitution:- A critical study

Submitted by:
Name: Gaurav.G.Nair
Reg No: 17040142017
Batch:2017-2022

Course Teacher/Supervisor
Prof. Avinash Bhagwan Awaghade

Alliance School
of law

Alliance University,Bangalore
8th April 2019
 S.NO TITLES
1 INTRODUCTION
2 DO JUDGES DECLARE LAWS
3 JUDICIAL PRECEDNET
4 DECLARATORY THEORY
5 CRITICISM TO DECLARATORY THEORY

6 CREATIVITY
7 INTERPRETATION
8 CONCLUSION

Abstract:
In this research paper we are going to discuss about weather the judges make laws or no and on this
there are two contrary views on this point which will be discussed and the first is that the judges
only declare existing law, and the second is that they make law.This will also be discussed with
various theories, creativity and interpretations and with the opinions of the most famous jurists and
their views on the same as this cannot be discussed with primary sources and we need the help of
secondary sources do come to a conclusion.

Research Questions:
1.What is a declaratory theory and how does it help in deciding weather judges make laws?
2.How do the judges interpret and how do they decide on laws and amend them?
3.What are judicial precedents and how they work?
Introduction:
The view that “judges don’t make law, they just apply the law to the facts,” appears simply
preposterous to one who has studied the Anglo-American common law system. Certainly judges
“make law,” chiefly judges who sit on courts of last resort.A clear line does not exist, but the main
disagreement appears to be more on the extremes, not at the blurry middle. Not, for example, when
a judge interprets the meaning of the words in a statute, attempts to determine legislative intent, or
when he applies the broad requirements of the constitution to policy questions frequently presented
to courts; but rather when judges rely on the “invisible constitution” and inherent or implied rights
to push the law where it perhaps needs to go, but hasn’t quite reached

For long it has been the received opinion that judges filled in the gaps left by rules by using their
discretion. Positivistic jurisprudence from Austin to Hart placed strong emphasis on the part
played by judges in the exercise of their discretion. "In these cases it is clear", Hart has said, "that
the rule-making authority must exercise discretion, and there is no possibility of treating the
question raised by the various cases as if there were one uniquely correct answer to be found, as
distinct from an answer which is a reasonable compromise between many conflicting interests". A
competing view was espoused by the realists who placed absolute emphasis on the discretion of
judges and relegated the "rules" to an obscure position. Earlier, little attention was paid to the
analysis of discretion. However, a determined effort has been made lately by Ronald Dworkin, who
has cast serious doubts on the orthodox opinion and has emerged as the principal opponent of
Hart. Dworkin's views have posed a sustained challenge to the positivist account and have
received critical acclaim by leading jurists of the world.

In 1345, an English lawyer argued to the court, "I think you will do as others have done in the same
case, or else we do not know what the law is." "It is the will of the Justices," said Judge Hillary.
Chief Justice Stonore broke in: "No; law is that which is right". This controversy between the two
judges is still ranging after six and a half centuries. In modern terms, the problem can be phrased
in order to know exactly what part do judges play in the development of law;

There had been a hot debate on the function of judges in the process of performing their judicial
functions. The debate bases on whether judges makes law or not. In order to understand the
debate and to able to make a critical argument in this debate, it is important to the proposing
party or opposing party of this debate to take some measures to study and to acquire full
knowledge about the doctrine of precedent as well as the doctrine of separation of power.
The doctrine precedent provides that the decision of the superior court will bind upon the
subordinate court. The rule (ratio decidedi) established by the court in its decision of the earlier
case becomes an authority to the lower court when deciding subsequent cases which material fact
are the same1. Tenderden CJ, emphasised that the decision of predecessors ought to be followed
unless is erroneous2. In Dodhia v. National Gridley Bank3 the court held that subordinate courts
are bound by the decisions of the superior courts. Therefore under the doctrine of precedent the
principle that the judge of the superior court introduce becomes a binding principle to lower
courts, and judges and magistrates of all lower courts of the same judicial hierarchy must apply
the principle unless there are crucial circumstance that may entitle them to repudiate from the
previous decision.
Under the doctrine of separation of power, government powers are divided into different three
organs of the state that are executive, judiciary and legislature (parliament). Each organ has its
jurisdiction and different functions from other organs. No organ should interfere with functions of
another organ. The judiciary is vested with power of interpreting laws and administering justice.
The power to make laws is vested under the parliament.4 Therefore it is against the doctrine of
separation of power for judicial officers to make laws.

Whether judges make laws

The question as to whether judges make laws under the doctrine of precedent or not has raised
two distinct point of views in legal jurisprudence especially in common law jurisdiction. Many 2
jurists and judges themselves do not agree in the same sense. Some of them argue that judges do
not make laws but they declare it (declaratory theory) while other group argues that they (Judges)
make law.5 In this paper we shall critically discuss both two views as follows.

Do Judges Make or Declare Law

Argument to this paper concentrates on the belief that in "hard cases" judges can and do create new
law. In the paper, it seems that there are clear indications that judges do indeed create new law
where, for example, existing laws have become outdated or inappropriate. This thesis essentially
stems from the views of the famous common law theorist, Hart, a legal positivist who sees the
fusion of primary and secondary rules as being the determinant of what later becomes known as a
legal system. But another thinker, Dworkin, is vehemently against the law making power of the
judges. For him, there is no law beyond The La”. The law is a seamless web in which there will
always be a right answer. This paper will analyse the philosophical Hart-Dworkin debate on
adjudication taking Raz also with them and then apply it to the practical life in the Indian context to
conclude that judges make law out of what they discover in the legal field. “Although judges have
traditionally seen themselves as declaring or finding rather than creating law, and frequently state
that making law is the prerogative of Parliament, there are several areas in which they clearly do
make law.”

This essay seeks to establish several areas in which judges do make law. Presently a judge’s role is
not to make law but to uphold the laws which are made by the parliament. Each law which is made
by the parliament must be clearly defined and applied by the judges in accordance with the cases.
While making decisions about a case a judge must follow the precedent set by higher courts with
respect to the situation and conditions applicable, as this also helps the one involved in the case as
they know they will be treated alike and not randomly. There are various laws which are judge
made like the contract ad tort law and many other important developments like the development of
negligence as a tort. Though later statues were passed on these subjects too and parliament
attempted to include the common law in statutory law but still the original principles created by
judges are followed.

Airedale NHS Trust v Bland (1993), here the House of Lords have to consider the fate of Tony
Bland a football supporter left in a coma after the Hillsborough stadium disaster. The court had to
decide whether it was lawful to stop supplying the drugs and artificial feeding which kept Mr Bland
alive, even though it was known that stopping medicine would lead to his death. The courts had
only option to make a decision one way or the other, and they decided that the action of stopping
the medicine and artificial feed was lawful in patient’s best interest as per circumstances.

Judicial Precedents:

Judicial Precedent: The application of precedent by judges, whether they are developing the
common law (for e.g. in areas such as negligence or murder), or interpreting statutes is the main
mechanism whereby judges make law. Occasionally, judges are called upon to give a ruling or
make a decision when faced with a situation for which there seems to be no precedent or any
guiding rule. In these circumstances, judges can be said to be formulating original precedent. Thus,
it is the judge’s role to use his own discretion regarding when he thinks rules need to be applied,
changed, improved, or abolished. For this reason, although Hart sees the function of law as being
one of a system of rules, he maintains a firm belief that where there are gaps in the system judges
should use their own discretion when applying the law. Hart believes that because statutes and
common law rules are often too vague and unclear it is often inevitable in "hard cases" for a judge
to create new law. He talks about the open texture of law means that are, indeed, areas of conduct
where courts or officials striking a balance, in the light of circumstances, between competing
interests, which vary in weight from case to case, must leave much to be developed.

But according to Dworkin, principles are essential elements in deciding these types of hard cases.
He seeks to argue that in all cases a structure of legal principles stands behind and informs the
applicable rules. Principles control the interpretation of rules. Rules derive their meaning from
principles. Judges, through the rules of precedent, merely discover and declare the existing law and
never make ‘new’ law. A judge makes a decision, ‘not according to his own private judgment, but
according to the known laws and customs of the land; not delegated to pronounce a new law, but to
maintain and expound the old one’. He is against the judge made law mainly because of two
objections. The first argues that elected representatives who are responsible to the people should
govern a community and when judges make law it will be an encroachment on legislative power.
The second argues that if a judge makes new law and applies it retroactively in the case before him,
then the losing party will be punished, not because he violated some duty he had, but rather a new
duty created after the event. Countering Dworkin’s first argument, Hart says that judge’s power is
subject to many constraints narrowing his choice and judge’s power are exercised only to dispose of
particular instant cases; he cannot use these to introduce large-scale reforms or new codes. Even
though if they make new law, it is in accordance with principles or underpinning, reasons
recognized as already have a footing in the existing law. This indeed is the very nucleus of the
"constructive interpretation" which is so prominent feature of Dworkin’s theory of adjudication.

Dworkin also talks about the discretion but for him judge’s choices are within the constraints of
judgment, which he called as weak discretion. Dworkin does not deny the need for weak discretion
but he denies the existence of strong judicial discretion. Judges do not make law because the
existing law provides all the resources for their decisions. A judge does not decide a case in a legal
vacuum but on the basis of existing rules, which express, and, at the same time, are informed by,
underlying legal principles. The task of the judge faced with a hard case is, therefore, to understand
what decision is required by the whole doctrinal structure of existing law.

Regarding Dworkin’s second criticism, Hart says that this objection seems quite irrelevant in hard
cases since these are cases, which the law has left incompletely regulated, and where there is no
known state of clear established law to justify expectations.

It’s true that in every legal system, a large and important field is left open for the exercise of
discretion by courts in rendering initially vague standards determinate, in resolving the uncertainties
of statutes, or in developing and qualifying rules only broadly communicated by authoritative
precedents. Nonetheless, these activities, important and insufficiently studied though they are, must
not disguise the fact that both the framework within which they take place and their chief end
product is one of general rules. These are rules the application of which individuals can see for
themselves in case after case, without further recourse to official direction or discretion.

According to Hart, law in the area of open texture is a guarded prediction of what the courts will do.
Even if the rules are clear to all, the statement of it may often be made in the form of a prediction of
the court’s decision. But the important thing to be noted here is that the basis for such prediction is
the knowledge that the courts regard legal rules not as predictions, but as standards to be followed
in decision, determinate enough, in spite of their open texture, to limit, though not to exclude, their
discretion.

Judges do not generally, when legal rules fail to determine a unique result, intrude their personal
preferences or blindly choose among alternatives; and when words like choice and discretion, or
phrases such as creative activity and interstitial legislation are used to describe decisions, these do
not mean that courts do decide arbitrarily without elaborating reasons for their decisions. And in
case if there is any arbitrariness then legislature is always there to negate it down.

According to Raz, also, courts do develop the law; they do not as political agents but by working
out the implications of internal legal considerations. Courts in developing the law do not give
expression to their personal views, nor do they reflect external social or political forces. Rather,
they unravel the spirit of the law, unfold its hidden force and reveal its meaning. He says that judges
can make the law even when precedent binds them by distinguishing it with the previous decision
but this is very restricted form of law making subjected to two crucial conditions. Firstly, the
modified rule must be the rule laid down in the precedent restricted by the addition of a further
condition for its application and secondly, the modified rule must be such as to justify the order
made in the precedent. The judge’s obligation is to adopt only that modification which will best
improve the rule. In the exercise of their law-making power the courts should- within the legally
imposed restrictions act by adopting the best rules they can find. They may make a new rule in a
decision, which he thinks is a purely law-applying decision.
Thus on the basis of the above debate, discussion can be boiled down to the point that judges
declare the law and the question of their making law can be defended by saying that their invention
is merely discovery of law within the existing precedents and principles. Limited choice cannot be
termed as absolute power; it is just a weak discretion, as Dworkin will say it, constrained with
certain limitations. Hart’s open texture of law is also not enjoying the freedom from legal
constraints; they have to also take guidance from the legal rules considering them their standard.

Same with Raz too.But is it always possible to declare law, taking into consideration about our
practical life situation. This leads us to our second question.

Declaratory theory:
Supporters of this theory argue that judges do not make laws; they only discover the law and
declare it and not more than that. They only declare what had been the law and they do not
introduce new laws. This view has been supported by various jurists.
In supporting this view sir Mathew Hale wrote ‘the decision of courts of justice do not make law
properly so called, for that only king and parliament can do.
Blackstone pointed out that; ‘they (judges) are depositories of the law…A judge is sworn to
determine, not to accord to his private judgment but according to the known laws and custom of
the land; not delegated to pronounce a new law but to maintain and explain the old one.
Edward coke had a view that; the judicial decisions do not constitute a source of law but rather a
proof what the law is some judges also do not agree that they make laws. For example in Reshwar
Prasad V. State of West Bengal the supreme court of India stated, “no doubt the decision by the
Supreme Court binds all subordinate courts it should always be remembered that it (the Supreme
Court) do not enact”.

Criticism on declaratory theory

Some writers criticises this view, Bentham criticised a declaratory theory as a wilful falsehood
having intention of stealing legislative power of the parliament by and for hands which could not
or durst not, openly claim it, John Austin, Munroe smith and Salmond observed a theory as only a
fiction that must not been taken seriously because the truth is that judges make laws. It seems
judges do not agree that they make law in order to avoid contradiction with the parliament and to
show that they are not against the doctrine of separation of power.
Proposing side (judges makes law)
In other hand some legal writers and judges agrees that judges make law. They term it as judge-
made laws. They argue that in deciding various cases judges introduces different new principles
that are binding to the subordinate courts and actually those principles are laws.
Dicey wrote: ‘As all lawyers are aware, a large part and as many would add, the best part of the
law of England is judge-made law.’ He means that many rules established by the judgments of the
court have been recorded and it is a part of the law in England. Also sir Pollock supported the view
by stating that: no intelligent lawyer would in this day pretend that the decisions of the courts do
not add to alter the law.Bentham Jeremy in supporting this position says: the judge makes laws
the same way for you and me.Even some judges in their function of deciding cases has tried to
make clear that they make laws, they has been providing various phrases that supports the view
that judges make laws. A good example is Justice Holmes who says: ‘‘I recognize and without
hesitation that judges do and must legislate, but they can do so interstitially; they are confined to
molar, to molecular’’. Same applies in African courts of common law jurisdictions, for example in
Nigeria the court pointed out that: we know that judges do more than just apply law as it is. They
sometimes extend it and other times create new laws that remain binding on all until reversed or
overruled by courts competent to do so.

Circumstances for judges to make law

Where there is a gap in the statute: the legislative law making is inadequate as it cannot foresee all
kind of situation that may occur in human life, as a result the law that is enacted by the parliament
cannot cover all cases in the society. A judge may make law where there is no statute or statutory
provision on the issue before him because no judge can refuse to give a decision in case only
because there is no law in hand. Therefore because judges have nothing to interpret they have to
establish a principle which should bind all subordinate courts in deciding cases with same facts. In
Ellerman lines ltd v. Read Scrutton J said if there is no authority for this it is time we made one.
Where there is contradiction or ambiguous of the law. Sometimes the law may not be clear to
address the issue in hand, under this circumstance in the course of deciding a case before him a
judge may introduce a principle or rule to clarify the law and this principle binds the subordinate
court. For example in Tanzania there was a contradiction on whether domestic services of a wife
amount to contribution of acquisition of matrimonial assets. The law of marriage Act does not
address the position of the law in on that issue. In Bi Hawa Mohamed v. Ally Sefu the court of
appeal of Tanzania introduced the rule that domestic services of a wife shall be construed as effort
in acquiring matrimonial assets. And this rule is binding upon all courts in Tanzania as the position
of the law although it is a judge-made law.

The views regarding the function of judges contain only a partial truth. Judges play both functions
of making and declaring the law. However the creative role of judges does not mean that judges
made the law in the same sense in which legislature make it. Judge’s function is very limited as to
interpret the law and doing so may play creative function that does not entitle him with a
mandate to abrogate the statute.

What opportunities do judges have to be creative?

In 1345, an English lawyer argued to the court, “I think you will do as others have done in the same
case, or else we do not know what the law is.” “It is the will of the Justices,” said Judge Hillary.
Chief Justice Stonore broke in: “No; law is that which is right”. The controversy is still ranging
amongst judges. Presently the problem arises on the part as to how exactly do judges play role in
law making, “Do Judges Make or Declare Law”.

This is believed that in “hard cases” judges can and do create new law. While talking about the
judge’s role, during creation of law which takes place especially in two fields:

1. In the development of the Common Law

2. In the interpretation of Statutes

Their freedom is restricted by the rules of precedent and the supremacy of Parliament & by the rules
of precedent and the rules of statutory interpretation.the courts cannot move out of there shoe of
legislature and make decisions or create laws but they have to be confined to their territories and the
guidelines given by them is to be followed until the legislature steps in to make law. They're has to
be some means under which the law is created like high and low parameters. ‘Judicial activism’
should not become ‘judicial adventurism’ and lead a judge going in pursuit of his own notions of
justice, ignoring the limits of the law.The courts must be confident in giving the effect to
constitutional policy like equality, socio- economic justice, liberal interpretation and recognition of
rights of the individuals giving effect to a more meaningful life etc.

Donogue V stephenson is the best example of case ( Judges do make law). It is known as Case Law
or Judge Made Law. To eradicate the inequality and unfair decisions, The Court of Appeal set law
every day, their decisions become law which creates flexibility and a progressive judicial system.
The statute cannot be altered as it is literally written. The law on suicide and murder cannot be dealt
by the judges
(Terminally ill people are aided to die) because of the statute law and this can only be changed by
the government who itself is the creator of law and is hence the most powerful law maker.

Interpretation:
Parliament cannot define each and every possibility or define and explain every term in statute, so
there arises a need for the judge to interpret the statute such that it can be applied to the case before
courts. Example: Bennion criticises is DPP v Jones (1999), which concerned a demonstration on the
road near Stonehenge. In this case the Lords looked at the rule, that the public have full right to use
the highway for purpose like walking, passing and re-passing and else uses related to it but not
demonstrating and picketing. In Jones, the House of Lords stated that the rule levied unrealistic and
unwarranted restrictions on everyday activities, and that the highway is for public, and public has
full right to use the highway for reasonable purposes.

Filling in the Gaps:

The situation may arise in which there is no express law. Example, the Factor tame cases, there was
no law as to UK statutes were to be dealt with when they conflicted with EU law. As a result of
decisions in EU courts, the House of Lords developed a new doctrine to allow the statute to answer
the question without completely abandoning the principle of parliamentary supremacy. The
development of new doctrine which lead to political instability leading to fundamental changes like
break up of UK constitution with European Court of Justice.

Example: This case represents that the judges must be careful while changing the decisions or
making any law. However the judges sometimes fail to do so . we hence have an important criminal
case of R v Dica (2004) the Court of Appeal overruled an earlier case of R v Clarence (1888) and
held that criminal liability could be imposed on a defendant for infecting another person with HIV.
This change in the law was made irrespective of the fact that the Home Office had earlier decided
that such a legislation should not be introduced which would impose liability in this situation. The
Home Office observed that this was a case of social and public health policy .

Common Law
There are various areas in which there is no statute law. In such a condition the judgements built by
judges on existing cases are influenced by previous cases in a way that could be called law making.
For example the rule in Rylands v Fletcher and its amalgamation into nuisance in the Transco case.
Since 1966 it has been possible for the House of Lords to reverse its own previous legal decision –
the obvious case is R v R (not A v A) concerning rape within marriage. Secondly, In R v Ahluwalia
the wife in this case suffered from continuous threats like physical and mental from her husband
and was brutally beaten up. One evening after being molested again she couldn’t fall asleep
thinking about her husband’s behaviour so she went downstairs and poured petrol into a bucket and
set fire to her husband’s bedroom. He died from his injuries , though her intentions were not to kill
but only to inflict pain. Provocation was pleaded as a second line of defence based on her ill
treatment throughout the marriage, but she was convicted of murder. It was followed by an appeal.

Lord Denning ‘The Reform of Equity’ “The judges do every day make law, though it is almost
heresy to say so” A famous quote by Lord Denning mentioning about the making of the law by
judges but it is usually not mentioned every time that the law has been created , changed or
reformed. Normally in very hard cases the judges mention that the law has been created or changed,
but the law cannot be reformulated according to the wish of the court. The law is to be defined and
reformed under certain necessary norms as per the steps of legislation. Above we have many cases
in which the gaps were to be filled; the interpretations were to be made like the case of DPP v
JONES. So the judges do make laws but almost heresy to say so. Hence, judges have been
upholding, declaring and making law. Therefore “Although judges have traditionally seen
themselves as declaring or finding rather than creating law, and frequently state that making law is
the prerogative of Parliament, there are several areas in which they clearly do make law” the
statement holds true in almost every sense ; that judges declare law and create laws also

Conclusion:

Judges can make laws depending on the situations and on the basis on judicial precedents or
previous judgments made by other bench judges as they are always for the betterment of the people
and for the societal benefits and this should not be antisocial or laws which are against the
principles of our state or our country these are discussed in a lot of cases and have made a landmark
impression in our society.

Methodology:

We cannot depend on primary sources as it depends on jurist and we need to do it with the help of
secondary sources.

Books such as:

V.D Mahajan

HLA Hart the concept of law

Suri Ratna Pala

Websites such as:

Scc online

Indian canon