Judicial law making
judicial law making is prohibited under constitution(s), but taking the que that there is total legislative vacuum, therefore doing complete justice Indian Supreme has framed guidelines in several occasions.
In Damodar S. Prabhu v. Sayed Babalal [AIR 2010 SC 1907],the court framed the following guidelines relating to compounding of Sec. 138 Negotiable Instruments Act 1881 proceedings:
“(a) That directions can be given that the writ of summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused.
(b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the court deems fit.
(c) Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs.
(d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount.”
Vineet Narain ,Vishkha and Amarnath Shrine case the supreme court entered intothe arena of Judicial legislation.
Judicial law making should not be mixed with the Common law [Laws that develop through case decisions by judges and not enacted by legislative bodies]
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