Authored by Upanshu Shetty, 2nd year law student at Dr. Ram Manohar Lohiya National Law University, Lucknow. The author has secured 2nd Rank in Article Writing Competition organised by The Society For Constitutional Law Discussion
Judicial Legislation – Its Need and Legitimacy
“The legislature often fails to keep pace with the changing needs and values nor is it realistic to expect that it will have provided for all contingencies and eventualities. It is, therefore, not only necessary but obligatory on the courts to step in to fill the lacuna”
Judicial activism refers to a judicial approach where judges interpret and apply the law in a manner that goes beyond the strict text of the law or constitution, often taking into account broader societal and policy considerations. This concept becomes particularly relevant when discussing the relationship between judicial activism, lawmaking, and international conventions and treaties that India is a signatory to. Judicial Legislation, is merely law declared by the judiciary, particularly the Supreme Court. This, while having cogent reasons for itself and precedent in our jurisprudential history, calls into question the Theory of Separation of Powers. Under our Constitution, the judiciary is responsible for interpreting the law, implementing, adjudicating and settling disputes in accordance with the constitution, but lawmaking is still the legislature’s prerogative. But even so, this action cannot be called unconstitutional as there is immense precedent for the same along with the Constitution of India making limited provisions for it, although not expressly.
It can be seen that judge-made law, indeed has constitutional backing in Article 13 Of the Constitution of India, wherein the power of legislating includes the words “other competent authority”. Considering the wide powers of the Judiciary in Articles 32 and 226 and Articles 141 and 142, it becomes quite clear that there is a clear intention for the judiciary to be involved in the process of legislation and when deemed necessary, even make the appropriate laws. This interpretation has been pronounced by many courts in many judgements. For Example, in the prominent case of D. Velusamy v. D. Patchiammal, the Supreme Court held that Judges can fill in the gaps in statutory law.
But only certain kinds of laws, more usual than not leading to upholding of fundamental rights are being seen to be constructed by the courts. Judges continuously look for certain legal making while making equity, so as to not breach their constitutional limits. After the Maneka Gandhi Judgement, the ambit of the Court with regard to Articles 14 and 21 increased manifolds. This led to a wide array of rights and vested within the individuals that can be termed as Judge made law. These include the right to livelihood, A clean environment etc. Notable instances are when the compensatory jurisprudence for the violation of fundamental rights under the Constitution was established by the Supreme Court in the case of Rudul Sah v. State of Bihar and when the Supreme Court issued guidelines to the CBI and to the ED, inventing the procedure of “continuing mandamus” so as to facilitate expeditious investigation free from political pressure and bureaucratic support. The part IV of the Constitution is another such avenue from which the judiciary can adhere to while pronouncing new laws. Another important source of precedence for such a law is international Treaties and Conventions. This article will focus on this part and the judiciary’s powers in this regard.
History and Current Practices of Such Judicial Activism
India is a party to more than one hundred and sixty treaties and conventions dealing with various fields of law like space law and maritime law, environmental law etc. Since Article 73 of the Constitution of India puts no restriction on the powers of the executive with relation to international law, this allows the executive to enter into any type of treaty obligations. However, the executive is not allowed to directly bring international law without the participation or intervention of the legislature in many countries. Additionally, international law generally does not govern the process of incorporating international law into domestic law. There is no international enforcement authority. Even in India, it has been continuously held that no international law would be applicable if it hasn’t been expressly legislated by the Domestic Authority. Thus, if and when any such law is not enforced by the legislature, the judiciary when such a related question arises, takes it upon itself to enforce them and use them as valid Legal authority and precedence, maintaining peace and an international cognizance.
Herein Articles 51 along with Article 253 become extremely important. Article 51, that is a Directive Principle in promotes international peace and friendly relations and its clause (c) emphasizes the Pacta Sunt Servanda Principle, thus fostering the intention of inculcating international agreements into municipal law.
The Dualist Approach
In the leading case of Kesavananda Bharati v/s State of Kerala, Chief Justice Sikri opined that: “It seems to me that, in view of article 51 of the directive principles, this court must interpret language of the constitution, if not intractable, which is after all a municipal law, in the light of the United Nations Charter and the solemn declaration subscribed to by India”. But what must also be taken into account is that Article 253, in no uncertain terms gives only the parliament such authority to issue laws in conformity with international treaties and other obligations.
The Supreme Court has reflected a dualist approach of the Indian legal system. In the case of Jolly George Verghese vs Bank of Cochin (1980), Justice Krishna Iyer stated that unless the municipal law is altered to accommodate the treaty, what is binding on the court is the former and not the latter.
Further, the supreme court in the case of State of West Bengal vs Kesoram industries (2004) reemphasized that India obeys the doctrine of dualism and stated that any treaty that has been entered into by India cannot become the law of the land unless the parliament passes a law as under section 253 of the Constitution of India.
Current Trend of Judicial Interpretation, Mainly in Cases of Fundamental Rights' Enforcement
In case of Keshavanand Bharti v/s state of Kerala (1973), Honorable Chief Justice Sikri said when there is a situation where the language of the municipal law is vague or contrary then the court must take the support of the parent international authority of that particular municipal law. This is because Article 253 of our constitution gives exclusive power to our parliament to make laws for giving effect to any treaty, convention or agreement with any country or any decisions made at any international conference.
Amongst the most famous of the legislations implemented by The Judiciary by taking an International Convention that India has ratified is the case of Vishaka v. State of Rajasthan. Herein the “Convention on the Elimination of All Forms of Discrimination against Women” (Articles 11 and 24), the general recommendations of CEDAW in this context (Articles 11, 22, 23, 24) and Fourth World Conference on Women in Beijing wherein India made commitments to formulate policy in this regard were relied upon, merging them with The Courts Duty under Article 32 to provide remedy, to create the guidelines w.r.t Sexual harassment of Women in the workplace that were to be followed nationally The court also referred to the role of judiciary envisaged in the Beijing Statement of Principles of the Independence of the judiciary in the LAWASIA region to get their wide powers to maintain the effective functioning of the judiciary.
Another notable instance is when the Supreme Court in D.K. Basu v. State of W.B introduced “custody jurisprudence” in India and issued a list of 11 Guidelines to be followed by the Police proceeding an arrest. Herein reliance was placed on international conventions such as Universal Declaration of Human Rights,1984, the International Covenant on Civil and Political Rights, 1966; statutes such as the Ne w Zealand Bill of Rights Act and judgments such as Miranda v. State of Arizona. Thus, it can be observed that such international conventions are particularly enforced by the judiciary when dire matters of Fundamental rights and Human Rights come into the picture.
The applicability of this trend can also be seen in Chairman, Railway Board v. Chandrima Das where the Supreme Court emphasizing the applicability of the Universal Declaration of Human Rights and principles thereof in the domestic jurisprudence, and held that our Constitution guarantees all the basic and fundamental human rights set out in the UDHR, 1948, to its citizens and other persons. Similarly, in the case of Neelabati Behera v. State of Orissa (1993), the court relied upon Article 9(5) of the Covenant on Civil and Political Rights (1966) while granting compensation to the victim for the matter of custodial death. Even the Celebrated Puttaswamy Judgement had heavily relied upon international conventions and Laws to characterize the concept of Human Dignity.
Fundamental Rights and Directive Principles of State Policy in Accordance With International Law
The Fundamental Rights in Part III of the constitution and the Directive Principles of state policy in Part IV of the constitution can be compared with the Universal Declaration of Human Rights (UDHR) and many common points can be seen.
Also, many similarities can be found between the principles and values of the Indian constitution and international humanitarian law, for instance, Part III and Part IV of the constitution are greatly influenced by the U.N Charter and Universal Declaration of Human Rights (UDHR). Further it can be seen that the International Covenant on Civil and Political Rights (ICCPR) is reflected in Part III of the constitution whereas The United Nations Economic and Social Council (ECOSOC) is reflected in Part IV and the Preamble to the constitution, thus greatly benefiting the scope of human rights law in India.
Similarly, Article 51 A of the constitution of India gives force to Article 29(1) of the UDHR which mentions the duties of the citizens towards the state which help to build the nation and understand the importance of individual responsibility, establishing the Fundamental Duties.
Enforcing the principle of Customary International Law (CIL) and Kelsen’s Pure Theory
The Indian judiciary does not consider customary rules of international law as a part of domestic law automatically. Therefore, when there is a conflict between municipal law and customary international law, the former will prevail. The leading case is: Gramophone co. of India Ltd vs. Birendra Bahadur Pandey.
In the case of Vellore citizens welfare forum vs Union of India (1996), the Supreme Court upheld the validity of the principles of sustainable development and polluter pays principle. It stated that once these principles have been accepted as a part of customary international law, no problems shall arise in accepting them as a part of the domestic legislation unless they are not inconsistent with the existing domestic laws.
Thus, it can be deduced from the above judgments that the courts while applying the rules of international customary law have to craft them in the Indian domestic law.
This particular interpretation of the Indian Courts is against what Kelsen calls as the Pure Theory of Law, which delves into legal positivism and states that International customary law would be the groundnorm and that domestic law is subservient and thus must conform accordingly. Indian courts have downright rejected this notion and having its sovereignty kept the groundnorm as the Basic Structure of our constitution and has kept the domestic law as supreme.
Even so, the international order still forms a primitive legal order, comparable to that of pre-state communities. It is the members of the international legal order themselves, not a legislative body, which determine the norms. But, in most cases, the question whether a norm has been violated is decided by the party which charges the violation, not by a judicial organ. It is the party to the dispute determining the guilt of its adversary, not an executive organ, which applies the measure of compulsion (reprisal, war) as a consequence of the legal wrong. This highlights the absence of a central authority with the power to impose sanctions or enforce compliance in the international system. It becomes difficult to adhere to an international standard even when there is a centralized authority mainly due to the inherent imbalance in the roles played by states in the international forum. SUch instances can be clearly seen in the bias accusations and prosecutorial history of important international bodies like the ICC.
Kelsen's conception of a unitary legal system, headed by international law, has been criticized both often and sharply. Even though many would be inclined to accept a monistic legal theory, the fact cannot be overlooked that, according to Kelsen's own statement, the choice of international law as the hypothetical fundamental norm is purely arbitrary. It has been said of Kelsen's reasoning that it "seems to fly in the face of the facts of the present day."
Conclusion
Hence, even though the court has repeatedly expressed the notion of duality, it has made it a point to inculcate international covenants in Domestic law. The hindrance of Article 253 does not matter when the wide powers of 142 allow them to, not outright state the enforceability but rather bring them under the ambit of the Fundamental rights. Thus we can conclude that keeping the DPSP in mind that it was the intention of the Constitution Framers to abide by international law and thus gave the judiciary enough tools to do so, even when the other authorities expressly mentioned in Article 253 as well as 13 fail and the ‘real’ other authority rightfully steps in. The recent judgement of the supreme court in Assessing Officer v. Nestle SA, reaffirmed its position of dualism and thereby rejected the theory of functional monism and pseudo dualism, therefore keeping the international realm open to draw laws from, for the sake of making equity whilst adhering to the constitutional provisions granted to the Legislature thereby using such constructions to fill in voids or inequalities in law.