Judicial Legislation

Khushi Lunawat

Essentially, legislation is the legislature’s constitutional prerogative. Under our Constitution, the judiciary is responsible for interpreting, implementing, adjudicating and settling disputes in accordance with the constitution.

Consequently, ex facie, “judicial legislation” is a contradiction in words. By applying the law to the facts, a judge is called upon to decide a case. It is, however, also the constitutional prerogative of the higher courts to determine if the legislation is in compliance with justice and, if not, to interpret it in accordance with justice.

In the course, a judge’s position sometimes changes from being an interpreter or a decision-maker to breathing life into the law and making the rule of law work. This is a common process known as judicial activism. It is the judicial reaction to the call for justice.

There will be countless cases where the present laws drawn up by the legislature prove to be ineffective in the course of administration of justice. It is under such cases that the courts dare to claim what the rule should be. Such a judicial reaction is not a special characteristic of an activist judge, but a solemn position or feature or duty of a judge popularly known as a court.

Therefore, the mandatory response of the institution, the court, to injustice is judicial activism.


It may be important to note that a judge takes an oath declaring that he will gladly admit to the Constitution of India as defined by law and that he will uphold the sovereignty and dignity of India and that he will perform the duties of his position without fear or favour, affection or ill will, and to the best of his capacity, knowledge and judgment, properly and faithfully.

Therefore, upholding the Constitution of India is the most important concept to be taken into account by a judge in performing his duties. To administer justice, he is called upon. The social, economic and political justice enshrined and enlisted in the Constitution is the justice the Judge administers.

In a given case, if a judge determines that the legislation passed is insufficient to serve the aims of justice, it is the court’s statutory responsibility to do justice in compliance with constitutional principles. While law is the mirror of life, the differences between the broad generalities of law and the nuanced details of life are bound to exist. To fill up these holes, a judge is called upon. It is this approach that is referred to as judicial legislation.

In Rattan Chand Hira Chand v. Askar Nawaz Jung, the court held that one judicial legislation is:

“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. When courts perform this function undoubtedly, they legislate judicially. But that is a kind of legislation which stands implicitly delegated to them to further the object of the legislation and to promote the goals of the society. Or to put it negatively, to prevent the frustration of the legislation or perversion of the goals and values of the society. So long as the courts keep themselves tethered to the ethos of the society and do not travel off its course, so long as they attempt to furnish the felt necessities of the time and do not refurbish them, their role in this respect has to be welcomed.”

As reflected in its enactments, the role of the courts is to determine and give effect to Parliament’s will. The Judges may not serve as machines in the execution of this responsibility in which the law and the rules for the construction of statutes are fed into and from which the mathematically correct response is given.

The interpretation of laws is as much a craft as a science, and as artisans, the judges choose and apply the necessary rules as the instruments of their trade. They are not lawmakers, but law finishers, refiners and polishers that come to them in a condition that needs different degrees of further processing.

In India, it is not possible to emphasize more strongly the indivisibility of the constitutional social rights of housing, education, food, health and livelihood and other socio-economic rights arising from the fundamental rights to life, freedom and religion guaranteed by the Constitution of India.

Human rights are split into two distinct sections in the Indian Constitution. The ‘Fundamental Rights’ found in Part III of the Constitution include the right to life, the right to equality, the right to freedom of speech and expression, the right to freedom of movement, the right to freedom of religion, among others, which can be defined as civil and political rights in the traditional language of human rights.

The Directive Principles of State policy, which include all social, economic and cultural rights, such as the right to livelihood, the right to health and housing, the right to the environment and others, are set out in Part IV of the Constitution.


  1. Where these judicial legislations is intended to foster and breathe new life into the mandates of the Constitution, for example, decisions of the Indian Supreme Court extending the scope of Articles 14 and 21 of the Constitution. A number of privileges have been established by the court, holding that they are part of Article 21. The risk here is that it is possible for some judges to run rampant and hold almost everything under the sun to be part of Article 21. But as India’s former Chief Justice Anand pointed out, judicial activism is not an armored vehicle and must not become an adventurism of the judiciary. Court rulings should usually have a legal basis, and policy questions are best left to the executive.
  2. When society needs a legal standard for its smooth functioning, and the legislature is reluctant or unable to establish it for some reason. This was clarified above. A clear example from India itself is the latest Supreme Court judgment reading down Section 377 of the Indian Penal Code.
  3. Judges can fill in the gap where there is a gap in the statutory law. Some decisions had previously held that it is for the legislature, not the judiciary, to fill in a c, but now the prevalent opinion is that it can be done by courts, as the Indian Supreme Court in D. Velusamy v. D. Patchiammal.


  • Arun Gopal v. Union of India (2017)

The Supreme Court set deadlines for the disruption of Diwali fireworks and barred the use of non-green fireworks, even though there are no laws to that effect.

  • M.C. Mehta v. Union of India (2018)

The court annulled the legislative provisions of Rule 115(21) of the 1989 Central Motor Vehicle Regulations, stating that no BS-4 vehicle should be sold after 30 March 2020, and that only BS-6 vehicles should be sold after that date.

  • Subhash Kashinath Mahajan v. Maharashtra State (2018)

The court amended the 1989 Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act by annulling Section 18, which specified that no anticipatory bail would be given to persons charged under the Act; by requiring a preliminary investigation; and by prohibiting arrest under the Act, except with the appropriate authority’s written permission.

  • Rajesh Sharma v. The Uttar Pradesh State (2017)

The court found that there was a misuse of Section 498A of the Indian Penal Code. Thus, by requiring complaints under that clause to be forwarded to a Family Welfare Committee appointed by the District Legal Services Authority, the Section was amended, even though there is no such requirement in Section 498A.

  • National Green Tribunal (NGT)

The Supreme Court ordered that no 15-year-old petrol-driven or 10-year-old diesel-driven vehicle should be deployed in Delhi, and the Supreme Court ordered that such vehicles be impounded, since neither the NGT nor the Supreme Court are legislative bodies.


It has sometimes been criticised that the fragile balance of separation of powers enshrined in the Constitution has been disrupted by judicial activism. Nevertheless, the adoption in India of this concept is partial and not absolute.

While the legislature and the judiciary are separate, this is because the judiciary is charged with judicial review, interpretation and execution of the laws of the legislature. It is the responsibility of the State, pursuant to Article 37 of the Constitution of India, to apply the Directive Principles referred to in Part IV of the Constitution when making laws.

In reading and executing laws, it is the duty of the Court to apply certain solemn principles. Accordingly, judicial legislation is not simply an imaginative position for an activist judge; it is the solemn obligation or role or purpose of a judge who, under the Constitution of India, has taken an oath to uphold it.

If the Judge feels that the enacted legislation is insufficient in the sincere attempt to uphold the Constitution, it is for him to infuse life into it and establish the Constitution.

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