M J Antony: Benevolent interventions

Judges have often stepped in to fill a legislative vacuum and such forays have benefited society

Jurists never tire of an old chicken-or-egg wrangle: Whether judges should merely declare law or make law. The question has become momentous in this country as lawmakers are found more in the well of Parliament shouting at each other than debating Bills to catch up with the times. This definitely leaves large gaps between the ageing laws and the new problems faced by society, which has to run fast, like Alice in Wonderland, to remain where it is.

One bench of the Supreme Court, in December last year, asked the chief justice to set up a Constitution bench to sort out the riddle of separation of powers, in the University of Kerala vs Council of Principals case. The bench was of the opinion that judges could neither make law nor take over executive functions, nor act as an “interim Parliament”.

 

While the question still awaits a definitive answer, a bench headed by the ex-chief justice last week did make law in the field of cheque-bouncing. Though the sun is setting on the age of cheques, complaints of cheques being issued without sufficient fund in the account are mounting. More and more special courts are being set up in cities to tackle cases under Section 138 of the Negotiable Instruments Act.

In the Damodar Prabhu vs Sayed Babalal case, the Supreme Court pointed out that “at present a disproportionately large number of cases involving dishonour of cheques is choking our criminal justice system, especially at the level of magistrates’ courts. As per the 213th report of the Law Commission, more than 38 lakh cheque -bouncing cases were pending as of October 2008. This is putting an unprecedented strain on our judicial system”.

The relevant provisions of the Act have been amended several times in recent years, but the ingenuity of the drawers of cheques, aided by their lawyers, has always outstepped the law’s reach. Therefore, the Supreme Court itself passed certain “guidelines”, which will have the force of law.

Since one of its own benches has questioned such exercise in judicial activism, the judgment was almost apologetic while laying down the rules. It explained: “We are conscious of the view that the judicial endorsement of the guidelines could be seen as an act of judicial law making and, therefore, an intrusion into the legislative domain. It must be kept in mind that the Act does not carry any guidance on how to proceed with the compounding of offences under the Act.”

It was to fill the crevices in the law that the court laid down the new rules. The judgment said: “Even in the past, this court has used its power to frame guidelines where there was a legislative vacuum.”

The court has used the power under Article 142 of the Constitution which grants it the discretion to pass any order to do “complete justice”. This power is unique to the Indian Constitution, and is one reason why the Supreme Court is called one of the most powerful courts in any democratic country. The power is rarely used, but in extreme cases that called for urgent and equitable solution of knotty issues, the court has not stood idle bowing to the doctrine of “separation of powers” of the judiciary, executive and legislature.

In fact, the Constitution does not follow the doctrine strictly and there is a lot of overlapping between the roles of the three arms of the state. Therefore, the court has a duty to do “complete justice” in certain circumstances, and it has declared that it will do so.

As early as in 1980, in the First Judges Case (S P Gupta vs President of India), a Constitution bench asserted its power thus: “Law does not operate in a vacuum. It is, therefore, intended to serve a social purpose and it cannot be interpreted without taking into account the social, economic and political setting in which it is intended to operate. It is here that the judge is called upon to perform a creative function. He has to inject flesh and blood in the dry skeleton provided by the legislature and by a process of dynamic interpretation, invest it with a meaning which will harmonise the law with the prevailing concepts and values and make it an effective instrument for delivery of justice.”

The courts have followed this policy since then. Where the lawmakers feared to tread, the courts have dared to set the rules. They have laid down rules for the protection of women at the workplace in the Sakshi judgment; framed regulations for adoption of children in the L K Pandey cases; and “intruded” into the executive and legislative powers in environment matters. Society is better on account of these judicial sorties.