Relevance : GS Paper II
Theme of the Article
Lawmaking is not the job of the judges, but of the legislature
Introduction
The Supreme Court is resorting more to judicial activism rather than judicial restraint, which is problematic.
Recent examples of judicial Activism
Judicial activism can be seen in:
- its recent judgment on ordering time limits to burst firecrackers on Diwali, which is a function of the legislature;
- its judgment on linking rivers, for which there is no parliamentary legislation; and
- in its unpredictable decisions in cases relating to freedom of speech and expression, such as the recent one in which a leader was asked in the bail order to apologise for sharing a meme, despite the guarantee in Article 19(1)(a) of the Constitution.
Types of Jurisprudence
- According to the positivist theory laid down by jurists such as Jeremy Bentham and John Austin in the 18th and 19th centuries, law is to be distinguished from morality and religion.
- In positivist jurisprudence, the centre of gravity of the legal system is statutory law, i.e., law made by the legislature. It holds that lawmaking is not the job of the judges, but of the legislature. Hence, judges should be restrained and not activist in their approach.
- In view of the well-established principle of separation of powers of the three organs of the state, judges should not perform legislative or executive functions, and each organ of the state should remain within its own domain, in order to avoid chaos.
- On the other hand, sociological jurisprudence, as developed in Europe and the U.S. by jurists such as Rudolph Ritter and François Geny, shifts the centre of gravity of the legal system from statute to laws made by judges. It gives wide discretionary powers to judges to make laws.
- Sociological jurisprudence can be criticized in that the court can lay down anything as law according to its own subjective notions.
- Positivist jurisprudence places heavy reliance on the literal rule of construction, because departing from it would give a free handle to each judge to declare the law according to his own notions, and this would result in legal anarchy. For example,
- Article 124, which prescribes how Supreme Court judges are to be appointed, does not talk of any collegium system. Yet, it is the collegium which decides the appointment of judges, despite the founding fathers of the Constitution not envisaging the same anywhere.
Instances of sociological jurisprudence by the Supreme Court
- The Second Judges Case (1993) and Third Judges Case (1998), which created the collegium system of appointment of judges, were not based on any provision in the Constitution.
- Despite the unanimous will of Parliament in favour of the National Judicial Appointments Commission (NJAC), the Supreme Court declared the NJAC Act to be unconstitutional on the grounds that it would affect the judiciary’s independence.
- In recent times, the Supreme Court has increasingly adopted the sociological school of jurisprudence in an aggressive manner.
Is sociological jurisprudence justified?
- In a parliamentary democracy, the buck ultimately stops with the citizens, who are represented by Members of Parliament.
- The Supreme Court was never envisaged to perform the role of an unelected, third legislative chamber. Yet it is performing this role not in exceptional circumstances, but in its everyday functioning.
- Of all the three organs of the state, it is only the judiciary that can define the limits of all the three organs. This great power must therefore be exercised with humility and self-restraint.
- The usage of sociological jurisprudence can be justified in very rare circumstances, such as in the Supreme Court’s decision to strike down Section 377 of the Indian Penal Code.
Conclusion
The Supreme Court should limit its usage of the sociological school of jurisprudence to only the most exceptional situations, and employ the positivist school as far as possible.
