Judicial function is both creation and application of law-Justice Mathew

Kesavananda Bharati Sripadgalvaru and others Versus State of Kerala and another 24/04/1973

Justice Mathew

We may also quote Justice Mathew, in Keshavananda Bharati, where he reiterated that judicial function is both creation and application of law. The principle of Indra Sawhney is both creation application of law.  Justice Mathew says: –

The judicial function is, like legislation, both creation and application of law. The judicial function is ordinarily determined by the general norms both as to procedure and as to the contents of the norm to he created, whereas legislation is usually determined by the Constitution only in the former respect. But that is a difference in degree only. From a dynamic point of view, the individual norm created by the judicial derision is a stage in a process beginning with the establishment of the first Constitution, continued by legislation and customs, and leading to the judicial decisions. The Court not merely formulates already existing law although it is generally asserted to be so. It does not only ‘seek’ end ‘find’ the law existing previous to its decision, it does not merely pronounce the law which exists ready and finished prior to its pronouncement. Both in establishing the presence of the conditions and in stipulating the sanction, the judicial decision has a constitutive character. The law-creating function of the courts is especially manifest when the judicial decision has the character of a precedent, and that means when the judicial decision creates a general norm. Where the courts are entitled not only to apply preexisting substantive law in their decisions, but also to create new law for concrete cases there is a comprehensible inclination to give these judicial decisions the character of precedents. Within such a legal system, courts are legislative organs in exactly the same sense as the organ which is called the legislator in the narrower and ordinary sense of the term. Courts are creators of general legal norms. Lord Reid said:.

“There was a time when it was thought almost indecent to suggest that judges make law- they only declare it. Those with a taste for fairytales seem to have thought that in some Aladdin’s Cave there is hidden the Common Law in all its splendour and that on a judge’s appointment there descends on him knowledge of the magic words Open Sesame…….But we do not believe in fairy tales any more.” I do not think any person with a sense of realism believes today as Black stone did that the law declared by the courts has a platonic or ideal existence before it is expounded by judges. John Chipman Gray said that in the last analysis the courts also make our statute law and quoted the passage from the famous sermon of Bishop Hoadly that whoever has absolute power to interpret the law, it is he who is the law-giver, not the one who originally wrote it.

It is somewhat strange that judicial process which involves law-making should be called ‘finding the law’ “Some simple-hearted people believe that the names we give to things do not matter But though the rose by any other name might smell as sweet the history of civilization bears ample testimony to the momentous influence of names. At any rate, whether the process of judicial legislation should be called finding or making the law is undoubtedly of great practical moment”[106]. Nobody doubts today that within the confines of vast spaces. a judge moves with freedom which stamps his action as creative. “The law which is the resulting product is not found, but made. The process, being legislative, demands the legislator’s wisdom”.

It is relevant in this context to remember that in building up a just social order it is sometimes imperative that the Fundamental Rights should be subordinated to Directive Principles. The makers of the Constitution had the vision of a future where liberty, equality and justice would be meaningful ideals for every citizen. There is a certain air of unreality when you assume that Fundamental Rights have any meaningful existence for the starving millions. What boots it to them to be told that they are the proud possessors of the Fundamental Rights including the right to acquire, hold and dispose of property if the society offers them no chance or opportunity to come by these rights? Or, what boots it to the beggar in the street to be told that the Constitution in its majestic equality, holds its scales even and forbids by law both his tribe and the rich to beg in the street, to steal bread or sleep under the bridge? This is not to say that the struggle for a just economic order should be allowed to take priority over the struggle for the mere intangible hopes of man’s personal self fulfilment. But in particular contexts, fundamental freedoms and rights must yield to material and practical needs Economic goals have an un-contestable claim for priority over ideological ones on the ground that excellence comes only after existence[108]. It is only if men exist that there can be fundamental rights. “Tell an un-provisioned man lost in the desert float he is free to eat, drink, bathe, read……………No one is hindering him.” For the attainment of most of these ends he might better be in prison. Unrestraint without equipment is not liberty for any end which demands equipment …………………..Unemployment is a literal unrestraint, a marked freedom from the coercions of daily toil but as destructive of means it is the opposite of freedom for…….To contemporary consciousness it has become an axiom that there can be no freedom without provision”.

The twentieth century juristic thinking has formulated two jural postulates. They are (l) Every one is entitled to assume that the burdens incidental to life in society will be borne by society (2) Every one is entitled to assume that at least a standard of human life will be assured to him not merely equal oppotunities of providing or attaining it but immediate material satisfaction.

 The concept of liberty or equality can have meaning only when men are alive today and hone to be alive tomorrow. “One hates to think how few Indians, for example have any idea that their Constiitution provides basic rights, let alone what those rights are or how they could be defended when violated by Government.” So the main task of freedom in India for the large part of the people is at the economic level.

Roscoe Pound who expounded his theory of interest as a criterion of justice insists without qualification that the “interest” or “claims” or “demands” with which he is concerned are de facto psychological phenomena which pre-exist and are not merely the creation of the legal order.

Pound’s proposals seem in the last analysis, to be an attempt to implement the familiar thought that there should be a correspondence between the demands made by men in a given society at a given time and its law at that time.

The scheme of interests should include, all the de facto claims actually made. This, of course, is not to say that every de facto claim or interest which finds a place in the scheme of interests will be given effect in all circumstances. Claims within a legal order which are not necessarily mutually incompatible may nevertheless come into conflict in particular situations. Indeed most of the problems in which the judgment of justice is called for arise from a conflict of two or more of such de facts claims none of which can be given effect to completely without prejudice to the others. The scheme of interests, like the jural postulates, is a device for presenting to the mind of the legislator a rough picture of the actual claims made by men in a given society at a given time to which justice requires them to give effect so far as possible[113].And what are the de facto claims crying aloud for recognition as interests for the millions of people of this country? That can probably admit of only one answer by, those who have eyes to see and ears to hear. By and large, the rough picture of the actual claims made by the millions of people in this country and which demand recognition as interests protected by law is sketched in Part IV of the Constitution. A judgment of justice is called for winen these claims which call for recognition in law as interest conflict with other rights and interests. That judgment has to be made by the dominant opinion in the community. For a Judge to serve as a communal mentor, as Learned Hand said, appears to be very dubious addition to his duties an one apt to interfere with their prosper discharge. The Court is not the organ intended or expected to light the way to a saner world for in a democracy. That choice is the province of the political branch i e. of the represent fives of the people, striving however blindly or inarticulately, towards the own conception of the Good Life.

It is inevitable that there should be much gnashing of teeth when a society opts for change and breaks with its older laissez faire tradition, which held before the eyes of both the rich and the poor a golden prize for which each may strive though all cannot attain it and which in particular provided the rich with an enchanting vision of infinite expansion, and switches on to a new social order where claims of individual self assertion and expansion are subordinated to the common good.

To sum up this part of the discussion, I think there are rights which inhere in human beings because they are human beings-whether you call them natural rights or by some other appellation is immaterial. As the preamble indicates, it was to secure the basic human rights like liberty and equality that the people gave unto themselves the Constitution and these basic rights are an essential feature of the Constitution; the Constitution was also enacted by the people to secure justice, political, social and economic. Therefore, the moral rights embodied in Part IV of the Constitution are equally an essential feature of it, the only difference being that the moral rights embodied in Part IV are not specifically enforceable as against the State by a citizen in a Court of law in case the State fails to implement its duty but nevertheless, they are fundamental in the governance of the country and all the organs of the State, including the judiciary, are bound to enforce those directives. The Fundamental Rights themselves have no fixed content; most of them are mere empty vessels into which each generation must pour its content in the light of its experience. Restrictions, abridgment, curtailment, and even abrogation of these rights in circumstances not visualized by the Constitution-makers might become necessary:their claim to supremacy or priority is liable to be overborne at particular stages in the history of the nation by the moral claims embodied it Part IV. Whether at a particular motment in the history of the nation, particular Fundamental Right should have priority over the moral claim embodied in Part IV or must yield to them is a matter which must be left to be decided by each generation in the light of its experience and its values. And, if Parliament in its capacity as the Amending Body, decides to amend the Constitution in such a way as to take away or abridge a Fundamental Right to give priority value to the moral claims embodied in Part IV of the Constitution, the Court cannot adjudge the constitutional amendment as bad for the reason that what was intended to be subsidiary by the Constitution-makers has been made dominant. Judicial review of a constitutional amendment for the reason that it gives priority value to the moral claims embodied in Part IV over the Fundamental Rights embodied in Part III is impermissible. Taking for granted that by and large that Fundamental rights are the extensions, permutations and combinations of natural rights in. the sense explained in this judgment, it does not follow that there is any inherent limitation by virtue of their origin or character in their being taken away or abridged for the common good. The source from which these rights derive their moral sanction and transcendental character, namely, the natural law, itself recognizes that natural rights are only prima facie rights liable to be taken away or limited in special circumstances for securing higher values in a society or for its common good. But the responsibility of the Parliament in taking away or abridging a Fundamental Right is an awesome one and whenever a question of constitutional amendment which will have the above effect comes up for consideration, Parliament must be aware that they are the guardians of the rights and liberties of the people in a greater degree than the Courts as the Courts cannot go into the validity of the amendment on any substantive ground.


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