There has been an opinion for a long that judges use their discretion to fill the gaps left by rules. Austin to Hart emphasized the part played by the judges in their power of discretionary use under positivistic jurisprudence. Hart said, “That the authority should practice inclination that makes law, and there is zero chance of examining the inquiry raised by a few cases as though there was an unmistakably right answer, different from the appropriate response which is a sensible compromise between conflicting interests.” The pragmatists presented an adversary perspective who set full accentuation on the tact of the judges and left the "rules" in a state of ambiguity. However, Ronald Dworkin made a distinct attempt, and has arisen as Hart’s primary rival by stating a genuine questions about the explanatory viewpoint. Dworkin's perspectives have reliably challenged the positivist account and have been critized by the world's leading jurists.
An argument was raised in the court by an English attorney, "I figure you would do likewise as others for this situation, else we don't have the vaguest idea what the law is." It was said by Judge Hillary that it's the will of the justices. Chief Justice Stonore intervened that the law is what is correct. Following six and half centuries later this disagreement is still oscillating between the two judges. In modern terms, the problem can be clarified by knowing exactly what role judges have in the development of law. This paper focuses around the conviction that Judges can make another law. It appears in the paper that there are obvious signs that the Judges can actually make another law, for instance, the current laws have gotten old or improper. Hart who is the famous common law theorist inevitably originates this notion. Yet another thinker Dworkin thinks there is no law beyond The Law and is strongly against the notion of Judges having the ability to make laws. This paper will also analyse the argument between Hart and Dworkin about the judgment involving Raz as well and will also talk about how it can be applied it to the Indian setting as what judges find in the legal field to make law and interpret it.
DO JUDGES MAKE LAW OR LAW IS WHAT JUDGES SAY?
The major issue that the philosophers have while discussing about the role of the Judges throughout the trial is that How Judges make laws? And what imaginative possibilities do judges need? It is believed that judges are ingenious or make new laws particularly in two areas:
In the advancement of custom-based law
In the interpretation of the law
However, their liberty is constrained by precedent rules and the supremacy of Parliament & precedent rules and rules of statutory interpretation.
The fundamental strategy by which judges create law is precedent submission by judges regardless of whether they are creating customary law or interpretation of a statute. Intermittently, judges are approached to settle on a judgment or choice when confronted with a circumstance for which there is no point of reference or some other managing rule. In such conditions, the judges are supposed to make unique precedent.
Accordingly, it is the role of the judges to exercise decisions in considering the need to apply, change, amend or repeal the rules. Hence, even though Hart sees the operation of the law as a scheme of rules, he maintains a firm belief that judges should exercise their own discretion when there are gaps in the system during law enforcement. Hart accepts that while resolutions and the standards of custom-based law are regularly obscure and questionable, it is consistently inevitable for a judge to make another law "in difficult cases." What he is talking about is the open formulation of the law which implies that, certainly, there are areas of conduct where courts or bureaucrats feel an equilibrium, in the light of situations, amid contending benefits, which vary from one case to another, need remain to be established.
In determining rigorous cases principles are fundamental components as indicated by DWORKIN. He attempts to contend that in all cases the formulation of lawful conventions lags behind and illuminates the pertinent rules. Interpretation of rules are governed by the principles. Judges, via precedent, simply find the current law and pronounce it and by no means make another law. The adjudicators decide, 'not as per his own personal judgment, yet as indicated by the known laws and customs; not assigned to articulate the current law, however, to preserve and extend the ancient one. There were two complaints due to which he was mainly in contradiction of the law prepared by the judges. The first protest was that designated delegates who are accountable to individuals ought to administer a local area and that it would be an encroachment of the legal power when the judges make laws. Another protest was that if an adjudicator makes new law and administers it in the case before him, at that point the losing party will be penalized, not on the grounds that he desecrated certain obligations he had, yet rather another obligation generated later the incident.
Contradicting Dworkin's principal altercation, the argument raised by the HART was that the judge's supremacy is dependent upon many limitations that narrow his decision and that the judge's authority is used distinctly for the immediate disposal of the particular cases; It cannot be used to present extensive changes. However, on the off chance that they make another law, whether it is as per convention or foundation, the aims are as of now a step into a recognized law. This is certainly a core of "productive interpretation" which is a vital component of Dworkin's judgment.
RAZ also believed that the courts foster the law by working out the repercussions of inside legitimate issues and not as political specialists. While developing the law, the courts don't express their own perspectives nor do they follow outside social or political powers. He expresses that judges can legislate even when they are tied by the past decisions and judgements, yet this is an extremely restrictive type of law that is dependent upon two basic conditions.
First, the amended regulation should be a pre-given rule limited by the aggregation of a precondition to its submission and second, the amended principle should resemble justifying a request made in the preceding. During the utilization of their law-constructing power, the court ought to be inside the legitimately forced Prohibition Act by receiving the best rules they can discover. They can settle on another rule in the judgment, which they believe applies to the whole law.
Thus based on the above argument and by stating that the Judges revelation is just the disclosure of law inside the prevailing precedents and conventions it can be said that judges pronounce the law and can make it. Even Hart's open formulation of the law is not taking pleasure in being free from legal impediments; they also have to be guided by legal rules keeping in mind their standards. Same with Raz.
Cases where judges made the law
C. Ravichandran Iyer v. Justice A.M. Bhattacharjee
It is stated by the court that the act of the judge isn't just to decipher the law yet additionally to formulate new standards of law and to shape the law in line with the altering communal and monetary situation to make the beliefs protected in the constitution significant and reasonable. Society requests dynamic legal roles that were previously thought to be uncommon however presently are a routine.
S. P. Gupta v. President of India
It was observed by the court that the interpretation of each legal arrangement should stay up with altering concepts and ethics and to the extent, it should and does not allow or restrict its language, subject to adjustments by judicial interpretation, regardless of requirements of a rapidly altering culture that is going through fast communal and commercial change.
The court additionally said that,
"... The law doesn't run in a vacuum. So its point is to fill in as a social resolution and it can't be deciphered without the social, financial, and political setting wherein it is to be run. It is here that the judge is approached to accomplish some inventive work.
It is obvious from the above explanations that the constitutional interpretation, as well as the law, must be deciphered with the changing times and that is when the constructive part of the judges happens, in this manner the judges make a clear contribution to the legal advancement process.
The courts consistently need to work within the restrictions of the Constitution and they can't surpass the constraints of the Constitution. At the point when new social conditions and credible circumstances claim judges to express, they must speak, without confiding in the practice of the ancient legal system.
M.C. Mehta v. Union of India (Shriram - Oleum Gas)
The court said that the law needs to foster its own new conventions and it cannot remain stable with development and a rapidly changing society. Same as the above decision the courts make the law and they make new principles; Interpret laws and constitution with evolving times.
Maneka Gandhi v. Union of India
Due Process of Law
The “due process,” order, which was intentionally nullified at the hour of drafting the constitution, has prompted a conclusive advancement of the legal executive over any remaining parts of government.
The Supreme Court judgment in the Maneka Gandhi case, while describing equality before the law under Article 14 expresses that all articles on fundamental rights are interconnected and that any law denying an individual of freedom or opportunity should not be just satisfactory of Article 21 i.e. procedure established by law and Article 19 i.e. Equality before law prerequisites. Perusing the standard of "reasonableness" or non-discretion as a fundamental attribute of uniformity influencing freedom under Article 21 is a method of presenting a “proper procedure” rather than a "procedure established by law" provision.
Judge Krishna Iyer in his different yet viable judgment pronounced that "law is a rational law, not any passed decree."
In the case of Sunil Batra, he further said that there was no "proper procedure" provision in the Constitution, though the outcome was the same after the verdict in the Maneka Gandhi case.
Courts should not avoid fulfilling their constitutional duty to ensure and implement the common liberties of residents and should stand up on this event as protectors of the Constitution notwithstanding the disapproval of legal activism while working inside the limits of the law.
At the point when a law is made, regardless of the best efforts and limits of the legislature, it can't envision every potential circumstance for which that law applies in the future. New circumstances develop and the interpretation of the law must be accomplished to apply to them. It is a field of legal imagination to fill the blanks between the current law and the law that should be. In carrying out constitutional duties, Judges must develop legislation along those lines.
The question has been raised with respect to whether a word or an articulation should have a similar significance paying little mind to time or situation. The Court saw that the interpretation of the Constitution would not be appropriate solely on the basis of the intentions of the original framers, as there could be many situations that could not have been predicted at the time and issues that got disputable. It has additionally been contended that such an understanding and restricting a person to that interpretation is equivalent to murdering the Constitution and is connected to the status quo.
ORDERS BY THE COURT:
The limitations on these orders that the courts have said are that these don't add up to the council, and the rules given by it extend till the legislation takes steps to make laws. However, this doesn't imply that the courts can do anything they desire. Too much activism may prompt disturbance of the authenticity of the judiciary and too little activism may prompt the dismissal or execution of the established commitment to accomplish and secure the rights of residents, guarantee great administration and accomplish constitutional objectives.
A significant point that ought to be stressed is that the judiciary is practicing an incredible role so it ought to be more open to analysis and the power of contempt ought to be rarely utilized. Else, it will influence the judiciary like a despot.
When we see the genuine circumstance as far as case laws are concerned it is discovered that it isn't generally conceivable to declare the law. In this manner, a middle ground is expected to decide the role of the judge.
However, as we advance toward genuine circumstances as far as the case law is concerned, we feel that announcing the law isn't generally conceivable. Consequently, a middle ground is necessary to determine the role of the judge. Eventually, it is reasonable to say that judges used to proclaim law by making it while deciding it inside the field of law.
J. Khanna expressed a view in this equivalent context;
ADM JABALPUR V. SHIVKANT SHUKLA
As indicated by a perception made by Chief Justice Hughes, judges are not to resolve a case, but to resolve them as they might suspect they ought to be resolved, and keeping in mind that it could be somewhat disappointing that they can't generally agree but there independence should be maintained. And consensus rather than belief must be protected by its penance. Contra