Judicial Legislation and Judicial Restraint
Anurag K Agarwal

In the past decade, our courts have increasingly been enacting “judicial legislation”, taking on a task that is meant for the legislature and elected representatives. This trend reached a new high when the apex court recently “ordered” the central government to distribute foodgrains, found rotting for want of storage facilities, to the poor and hungry. The prime minister had to intervene to make it clear that the court was stepping into the domain of policymaking, an area meant for the executive.


n 4 November 2010 the central cabinet approved the introduc­ tion of the Protection of Women against Sexual Harassment at Workplace Bill, 2010 in Parliament.1 It has taken 13 years to reach this stage since the Supreme Court (SC) laid down guidelines on the sub­ ject in the famous Vishaka2 case in 1997.

of fact, it should have been the other way round. The legislature should have enacted the law and left it to be interpret­ ed and upheld by the judiciary. Ideally, laws should be made by the legislature and not the judiciary, especially in a democratic set­up. In the Bachan Singh3 case a five­judge bench of the court, headed by the then Chief Justice of India, Y V Chandrachud, held,
We must leave unto the legislature, the things that are the Legislature’s. ‘The high­ est judicial duty is to recognise the limits on judicial power and to permit the demo­ cratic processes to deal with matters falling outside of those limits.’ As Judges, we have to resist the temptation to substitute our own value choices for the will of the people. …When Judges, acting individually or col­ lectively, in their benign anxiety to do what they think is morally good for the people, take upon themselves the responsibility of setting down social norms of conduct, there is every danger, despite their effort to make a rational guess of the notions of right and wrong prevailing in the community at large and despite their intention to abide by the dictates of mere reason, that they might write their own peculiar view or personal predilection into the law, sincerely mistak­ ing ... what they perceive to be the Com­ munity ethic.

The Vishaka Case
Vishaka, a social action group, approached the SC when Bhanwari Devi, a saathin (a worker for the women’s development pro­ gramme run by the government of Rajas­ than), was raped by a group of upper caste men in her village. They were tried for the offence but were acquitted. Vishaka filed a petition in the SC and prayed the court to lay down guidelines for the protection of working women from sexual harassment at the workplace. This is a clear­cut case of law­making, which could have easily been dismissed at the outset by the SC on the ground that framing of guidelines is a task for the legis­ lature. Contrary to this, the SC entertained the petition, heard the parties including the government and laid down guidelines. It felt that as there was no legislation on this subject, the gap must be filled. More­ over, the SC felt that it was its bounden duty to frame the guidelines. Recognising this duty, the Supreme Court said,
The primary responsibility for ensuring such safety and dignity through suitable legislation, and the creation of a mecha­ nism for its enforcement is of the legislature and the executive. When, however, instances of sexual harassment resulting in violation of fundamental rights of women workers under Articles 14, 19 and 21 are brought before us for redresses under Article 32, an effective re­ dressal requires that some guidelines should be laid down for the protection of these rights to fill the legislative vacuum.

But it has been violated by the SC and high courts on more than one occasion due to law­making, policy formulation and unrealistic orders. Some examples follow.

SC on Live-in Relationships4
On 21 October 2010, the SC laid down the following conditions for women seeking maintenance in live­in relationships: (1) The couple must hold themselves out to society as being akin to spouses. (2) They must be of legal age to marry. (3) They must be otherwise qualified to enter into a legal marriage including being unmarried. They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time. The SC observed that the Indian society is changing and this change has been reflected and recognised by the Parlia­ ment by enacting the Protection of Women from Domestic Violence Act, 2005.5 It also
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Making Laws: Legislature’s Job
Anurag K Agarwal (akagarwal@iimahd.ernet. in) is with the Indian Institute of Management, Ahmedabad.

The judicial legislation in the Vishaka case is being followed by steps towards making a law on that subject. As a matter


January 1, 2011


referred to a decision given in the US in the Marvin vs Marvin6 case. In that case, film actor Lee Marvin lived with a woman named Michelle for many years without marriage. Later he deserted her and she claimed maintenance. The present case before the SC was a matrimonial case, and not a public interest litigation (pil). It is surprising therefore that the SC went a step further and laid down the guidelines, which is nothing short of judicial legislation. The proper thing in such a scenario would have been to decide the matter pertain­ ing to the parties to the dispute and not lay down the law to be followed by the entire society.

On 31 August 2010 the Times of India8 reported that the SC had directed the government counsel, saying “It was not a suggestion. It is there in our order. You tell the minister.” Earlier, on 12 August, the SC had asked the government to distribute foodgrains – rotting in government godowns or rot­ ting due to lack of storage facilities – for free to the poor and hungry. It was widely reported in the print and electronic media. According to the Hindustan Times,9 the SC said,
The foodgrains are rotting. You can look after your own people. As a part of short­ term measure, distribute it to the hungry for free.

Unrealistic Order
In July 2005, the Gujarat High Court passed an order requiring cattle to be moved off the roads within 72 hours. Any reasonable and prudent person knows that this is impossible. Legal experts have always believed that courts should refrain from issuing orders which cannot be executed. Such orders undermine the authority and dignity of courts. The then Chief Justice of India, R C Lahoti7 cautioned his brother and sister judges about judicial activism,
To preserve the sanctity and credibility of the judicial process and to overcome the criticism of judicial activism, it is necessary to practice self­restraint while innovating new tools.

Unlike the cattle removal order, on numerous occasions, the judges champi­ oning public interest have exhibited exem­ plary self­restraint and considered the ground realities. Socio­economic condi­ tions do not change overnight. Similarly, law and order cannot be improved over­ night. Sufficient time has to be provided to the agencies so that the desired improve­ ment can be attained. Whether it is the running of CNG buses in Delhi or improve­ ment of the Taj corridor, patience is the key. The law can and should be used as a potent tool to bring about positive social change. But for doing so, the requisite time and resources should be earmarked. A knee­jerk reaction is not going to work. Even after five years of that order, cattle roam freely on the roads in Gujarat – and Ahmedabad.
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Reacting to this, the Union Agriculture Minister, Sharad Pawar said that it was not possible to implement the “sugges­ tion” made by the SC. Thus, the SC made it very clear that it did not make a “sugges­ tion” to the government; it was an “order”. The SC had passed this order while hearing the PIL filed by the People’s Union for Civil Liberties (PUCL). Besides this, the court “suggested” that (i) the government should increase the quantity of food supply to the people living below poverty line (BPL), (ii) the government should open the fair price shops for all the 30 days in a month, (iii) the government should construct at least one large Food Corporation of India godown in every state and also consider the possibility of constructing a godown in every division of every state, if it was not possible to do so in every district. The SC reacted strongly to media re­ ports which quoted the agriculture minis­ ter’s statement. The SC bench comprising justices Dalveer Bhandari and Deepak Verma made it clear that it was an order and not a suggestion. The government counsel was told to communicate it to the minister, which was a bit too much for the minister and the prime minister to swallow. The judiciary was plainly usurp­ ing the powers of the executive and trying to enter into a domain which is clearly marked as policymaking. This was expected to be resisted by the executive and in a couple of days, the de facto chief executive of the country, the Prime Minister of India, Manmohan Singh, told the apex court politely but firmly in
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unambiguous terms that he had respect for the court’s sentiments but was against the idea of giving away foodgrains for free as it would kill farmers’ incentive to pro­ duce, thus creating a different set of prob­ lems. The prime minister said that the SC should not get into policy formation.10 The SC had no choice but to conciliate and surrender. Had the court decided to take the bull by the horns, it might have resulted in immense erosion of confidence and trust in the highest judicial body in the country. In the first place the SC entered into the policymaking domain which is clearly reserved for the execu­ tive. Secondly, it is a matter for several experts coming from different specialised knowledge areas to deliberate and for­ mulate a policy. It cannot be done in a jiffy by a bench of the SC. No one ques­ tions the concerns and intentions of the judges on the bench. However, judicial re­ straint has to be practised and this is pre­ cisely what the prime minister conveyed to the apex court. A couple of questions need to be an­ swered. Was it necessary for the SC to take such an adventurous and bold step and then retract submissively when the execu­ tive rubbished its stand? Is it proper for the judiciary to take a step backwards in such a meek manner? Was it a hasty deci­ sion made by the SC? Did it anticipate such a strong reaction from the executive?

Keeping Away from Policy Formulation
It is up to the courts to remain away from policy formulation by exercising self­ restraint. A fine example is the US Supreme Court decision in the DaimlerChrysler case11 in 2006. The court held that taking decisions on spending was the task of the executive and taxpayers have no standing to challenge them and the courts will do well to remain away from policymaking as it was in the

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domain of the legislature. The court cited an earlier Supreme Court decision – AsArCO12 of 1989 – to drive the point home,
…the decision of how to allocate any such savings is the very epitome of a pol­ icy judgment committed to the “broad and legitimate discretion” of lawmakers, which “the courts cannot presume either to con­ trol or to predict”. …State policymakers, no less than their federal counterparts, retain broad discretion to make “policy decisions” concerning state spending “in different ways ... depending on their perceptions of wise state fiscal policy and myriad other circumstances”.

to be persons of exceptional competence and of high moral integrity. If that perception changes (God forbid!), the constitutional system as it now operates will break down. Sixty years after Independence the people have come to trust the courts: but the peo­ ple’s trust rests in confidence – sometimes rudely shaken by gossip, rumour and a lack of transparency. In this 60th year of Inde­ pendence, then, there is much to be done by the higher judiciary to maintain its bright image.

Government of Judges
The noted lawyer Fali S Nariman13 wrote in 2007,
In this 60th year of our Independence we have reached a stage where all laws made by Parliament, all decisions by governments at the Centre and in the States, are turned over to what has been deprecatingly (but not inaccurately) described as “the Government of Judges”. Like it or not, the balance of constitutional power will remain in favour of the courts – but only so long as our judges are perceived

India can ill­afford the government of judges. Legitimacy is missing when judg­ es decide what people aspire for. It is the job of the elected representatives of the people. Agreed that the judiciary needs to step in when there are glaring gaps, but overdoing it – without circum­ spection – is not in the interest of the peo­ ple of India. Exercising judicial restraint may do a lot of good to the reputation of the judiciary.
1 “Cabinet Clears Sexual Harassment Bill”, CNN­IBN, 4 November 2010, cabinet­clears­sexual­harassment­bill/134405­3. html?from=tn, Last accessed 4 November 2010.

2 Vishaka vs State of Rajasthan, AIR 1997 SC 3011. 3 Bachan Singh vs State of Punjab, AIR 1980 SC 898 4 D Velusamy vs D Patchaiammal, 21 October 2010, Supreme Court of India. 5 Act 43 of 2005, date of enactment: 13 September 2005. 6 18 Cal 3d 660 (1976). It is popularly known as the landmark “palimony case”. The court ordered that Marvin should pay Michelle for rehabilita­ tion purposes. 7 AIR 2005, 177 at 186. 8 The Times of India, “Distribution of Foodgrains an Order, Not a Suggestion, SC Pulls Up Pawar”, 31 August 2010, http://timesofindia.indiatimes. com/india/Distribution­of­food­grains­an­ order­not­a­suggestion­SC­pulls­up­Pawar/ articleshow/6467212.cms. Last accessed 4 Nov­ ember 2010. 9 The Hindustan Times, “Implementing SC Order on Foodgrain Distribution Not Possible: Pawar”, 19 August 2010, I m p l e m e n t i n g ­ S C ­ o r d e r­ o n ­ f o o d g r a i n ­ distribution­not­possible­Pawar/Article1­588842. aspx. Last accessed 4 November 2010. 10 The Times of India, “PM Tells SC to Lay Off Policy Issues”, 7 September 2010. http://timesofindia. /india / PM­tells­SC­to ­lay­ off­policy­issues/articleshow/6509460.cms. Last accessed 4 November 2010. 11 DaimlerChrysler Corp vs Cuno, 15 May 2006, 547 US 332. 12 ASARCO Inc vs Kadish, 490 US 605 (1989). 13 Fali S Nariman, “A Question of the Right Balance”, The Hindu, 15 August 2007, http://www. h i n d u o n n e t . c o m /a f / i n d i a 6 0/s t o r i e s / 2007081550270800.htm, Last accessed 4 Nov­ ember 2010.


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