Judicial Legislation, Its Limitations

The judgment contemplates timelines for the actions to be taken by the Governors and the President of India while acting under Articles 200 and 201 of the Constitution of India.

This has resulted in a situation where there is a cry about judicial overreach and overshadowing in the field of legislation as well. Though the Constitution of our country contemplates separation of powers, an overlapping of different powers is unavoidable. But, when the overlap turns to overreach or overshadowing, especially in the sphere of legislation, it needs to be analysed and rectified.

Judicial Pronouncements and Legislation

When judges, by judicial decisions, lay down a new principle of general application of the nature specifically reserved for the legislature, they may be said to have legislated, and not merely declared the law. The legislators legislate not in respect of any actual dispute pending before it, whereas the courts state law to find a solution to the dispute placed before them.

In India, the Supreme Court did not favour legislation through Judicial pronouncements. A classic case is that of the interpretation of Article 21 to include right to speedy trial for the accused. It was held by the court that the right to speedy trial flows from the right to life enshrined in the Constitution itself.

“No procedure which does not ensure a reasonably quick trial can be regarded asreasonable, fair or just’ and it wouldfall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonablyexpeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21”, is the law laid down by the Hon’ble Supreme Court in Hussainara Khotoon v State of Bihar [(1980) 1 SCC 81], by expanding the import of Article 21, laid through Maneka Gandhi v Union of India[(1978) 1 SCC 248].

In Abdul Rahiman Antulay & Ors. v R S Nayak & Ors. [(1992) 1 SCC 225], it was contended that the exposition of Article 21 as above mentioned would remain a mere illusion and platitude unless the Apex Court fixes a time limit beyond which the prosecution cannot be proceeded further.

The proponents of the above contention wanted the Apex court to exercise its constitutional jurisdiction and to lay down a mathematical formula fixing limitation for prosecution. But the Apex Court did not fix any such limitation.

During the following years, the directions issued by the Apex Court in Common Causes and Raj Deo Sharma [Common Cause v. Union of India(1996(4) SCC 33), Common Cause v. Union of India (1996(6) SCC 775), Raj Deo Sharma v. State of Bihar (1998(7)SCC 507) and Raj DeoSharma (II) v. State of Bihar (1999(7) SCC 604)], fixing limitations led to the constitution of a seven judges' bench to hear P Ramachandra Rao v State of Karnataka [(2002) 4 SCC 578]. The seven-judge bench did not find favour with Courts imposing limitations in the matter.

Holding that imposing such timelines and limitations amounts to judicial legislation, the court held that the directions issued by the Apex Court in Common Causes and Raj Deo Sharma are bad. Such type of legislations are not to be favoured, was the finding of the Hon’ble Supreme Court.

“Judicial law-making is incidental to the solving of legal disputes; legislative law-making is the central function of the legislator” says Salmond on Principles of Jurisprudence. Quoting the above, the Apex Court disapproved the timelines and limitations imposed in the judgments subsequent to that in A R Antulay. While doing so, the Court held that imposition of such a limitation tantamounts to impermissible legislation - an activity beyond the power which the Constitution confers on the judiciary.

The Apex Court is also of the view that the constitutional courts need not direct criminal courts to act within any time frame. It is well settled that the reasons for the delay can be different, and the courts are to consider the same and take a call. (High Court Bar Association, Allahabad v State of UP and others: (2024) 6 SCC 267)

Article 142 and Judicial Law-Making

Article 142 of the Constitution arms the Supreme Court to pass such decree or make such orders as are necessary for doing complete justice in any cause or matter pending before it. A closer look at the provision contemplates the passing of such orders in a matter or cause pending before it.

In High Court Bar Association, Allahabad v State of UP and Ors. (2024), the Supreme Court considered the questions framed were:-

(a) Whether this Court, in the exercise of its jurisdiction under Article 142 of the Constitution of India, can order automatic vacation of all interim orders of the High Courts of staying proceedings of Civil and Criminal cases on the expiry of a certain period?

(b) Whether this Court, in the exercise of its jurisdiction under Article 142 of the Constitution of India, can direct the High Courts to decide pending cases in which interim orders of stay of proceedings has been granted on a day-to-day basis and within a fixed period?

The Constitution bench finally answered both the questions in the negative and held that blanket orders cannot be issued invoking Article 142 of the Constitution.

In the light of the declaration made by the seven-judge bench in P Ramachandra Rao to effect that adding a timeline to the Criminal Procedure Code, even to protect a fundamental right through a judicial pronouncement, tantamounts to impermissible legislation, the addition of timelines in Articles 200 and 201 needs a closer analysis.

Paragraphs 22 to 27 of P Ramachandra Rao, deals with legislation through judicial pronouncements or judicial legislation. Their Lordships have come to the conclusion that the legislature has to legislate, and the courts cannot, even using all the constitutional authorities under their command, do the duties of the legislature.

The Apex Court says, “Prescribing periods of limitation at the end of which the trial court would be obliged to terminate the proceedingsand necessarily acquit or discharge the accused, and further, making such directions applicable to all the cases in thepresent and for the future amounts to legislation, which, in our opinion, cannot be done by judicial directives andwithin the arena of the judicial law-making power available to constitutional courts, howsoever liberally we mayinterpret Articles 32, 21, 141 and 142 of the Constitution. The dividing line is fine but perceptible. Courts can declare the law, they can interpret the law, they can remove obvious lacunae and fill the gaps but they cannot entrench upon in the field of legislation properly meant for the legislature.”

The Judgment in P Ramachandra Rao is also an answer to the question whether the Court can legislate, invoking Article 142 of the Constitution of India. The Apex Court, speaking through a bench of seven judges, ruled that making directions to all cases of the present and future amounts to law-making and the same cannot be done through judicial pronouncements.

Judgment in P Ramachandra Rao v State of Karnataka- It’s Relevance

P Ramachandra Rao discussed the incorporation of a timeline for criminal prosecution. The court negatived the same, as it amounts to legislation. In fact, fixing of time limits or limitation would have amounted to amending the Criminal Procedure Code.

In State of Tamil Nadu v The Governor of Tamil Nadu, the Apex Court imposed timelines for the Governors and the President of the Country to act under Articles 200 and 201. This, having a general nature and amounting to incorporating something which is not available in the Constitution, necessarily amounts to an amendment to the Constitution.

When an amendment to the Criminal Procedure Code through a judicial pronouncement is not favoured by a constitution bench of the Apex Court, the question is whether an amendment to the Constitution is possible through the directions issued by the Apex Court, rendering Article 368 otiose.

Ultimately, an answer has to come from the Supreme Court itself.