Do Judges Make Laws

The view that "judges don't make law, they just apply the law to the facts," appears simply preposterous to one who has studied the Anglo-American common law system. Certainly judges "make law," chiefly judges who sit on courts of last resort.

A clear line does not exist, but the main disagreement appears to be more on the extremes, not at the blurry middle. Not, for example, when a judge interprets the meaning of the words in a statute, attempts to determine legislative intent, or when he applies the broad requirements of the constitution to policy questions frequently presented to courts; but rather when judges rely on the "invisible constitution" and inherent or implied rights to push the law where it perhaps needs to go, but hasn't quite reached.

Realist approach

The realist movement in united states represents the latest branch of sociological jurisprudence which concentrates on decisions of law courts .the realist contented that law has emanated from judges ,therefore law is what courts do or not what they say ,For them judges are the law makers . However, realist school differs from sociological school as unlike the letter, they are not much concerned about the ends of law but their main attention is on a scientific observation of law and its actual functioning. It is for this reason that some authorities have called realist school as the “left wing of the functional school". The contention of realist is that judicial decisions are not based on abstract formal law but the human aspect of the judge and the lawyer also has an impact on court’s decisions. Some quarters feel that realist movement in United States should not be treated as new independent school of jurisprudence but only a new methodology to be adopted by sociological school.

According to Friedmann , Oliver Windell Holmes, gray , Cardozo and the Jerome frank were the mental founders [1] of the realist movement in united states who emphasised on functional and realistic study of law not as contained in the statute or enactment but as interpreted and laid down by the courts in their judicial pronouncement


It was around 1930’s that some American jurist notably Holmes, Cardozo and Gray raised their voice against legal conceptualism and stressed on the study of law as it actually operates and functions. They were called realist and their legal approach has been as realist school of jurisprudence. roscoe pound defined realism as ," fidelity to nature , accurate recording of things as their they are ,as contrasted with things as they are imagined to be , or wished to be or as one feels they ought to be" . In other words realism is anti thesis of idealism .some jurist refuse to accept realism as a separate school of jurisprudence and hold that at the best it may be called a branch of sociological jurisprudence [2] . It may be preferably being termed as a method of scientific approach to law. Realist upholds only judge made law as genuine law and they do not give any importance to Laws enacted by legislatures. Realists believe that “certainty of law is a myth “. Elaborating the point further, Jerome Frank has further stated “law is what the court has decided in respect of any particular sets of facts, prior to such decisions. The opinion of lawyer is only a guess as to what the court will decide and this cannot be treated as law unless the court so decides by it judicial pronouncements" [3] 


Realism denounces traditional legal rules and concepts and concentrates more on what the courts actually do in reaching the final decisions in the case before them. In strict sense of them, realist define law as generalised predictions of the the courts will do. The main characteristic features of realist jurisprudence as stated by Goodhart are as stated:-

Realists believe that there can be no certainty about law as its predictability depends upon the sets of facts which are before the court for decision.

They do not support formal, logical and conceptual approach to law because the court while deciding a case reaches its decisions on “emotive" rather than logical grounds.

They lay grater stress on psychological approach to the proper understanding of law as it is concerned with human behaviour and convictions of the lawyers and the judges

Realist are opposed to the value of legal terminology , for they consider it as tacit method of suppressing the uncertainty of law

Realist school prefers to evaluate any part of law in terms of its effect. [4] 

KARL LIEWELLYN (1893-1962)

Karl LIewellyn confessed that there is nothing like realist school, instead it a particular approach of a group of thinkers belonging to sociological jurisprudence. He considered law as means to a social ends and suggested evaluation of law in terms of its actual effects without giving much importance to formal conceptual rules. According to him, the traditional outlook that become the rules decide cases and, therefore, they should be looked into the law books has become outdated and now the local point of attention should be the behaviour and thinking of the deciding judges or the court. Hence, there is need to shift the emphasis from precedent to the study of case law.

Llewellyn acknowledged the fact that there is large measure of predictability in case law attributable to the general “craft" of decisions making. He placed reliance on insight and wisdom of judiciary which enables judges to achieve objective criteria so as to arrive at the appropriate legal solutions. This brings about consistency in the treatment of cases and thereby promotes the cause of justice.


Frank explained his views about realist approach of jurisprudence in his classic work entitled, Law and the Modern Mind. He exploded the myth that law is continuous, uniform, certain and invariable and asserted that judges do not make law but instead, they discover it. According to him, the individual decision of the judge is law par excellent.

Frank emphasised that law is not merely a collection of abstracts rules and that legal uncertainty is inherent in it. Therefore, more technical legal analysis is not enough for understanding as to how law works. For example facts in a legal case have to be established by witnesses who may or may not be telling the truth and it is for the judge to discover and ascertain what the actual are in the before him.


Arnold treated politics, economics, law and other disciplines relating to social science as indispensable social institution based on common values such as habits, attitudes, traditions, creed, etc. He stated that the rule of law is best preserved by coordinating ideologies.


The legal philosophy of realist school has not been accepted in the sub continent for the obvious reason that the texture of Indian social life is different from that of the American life lifestyle. The recent trends in the public interest litigation which Professor Upendra Baxi prefers to call as “social action litigation" has, however widened the scope of judicial activism to a great extend but the judges have to formulate their decisions within the limits of constitutional frame of the law by using their interpretative skill. This, in other words, means that the judges in India cannot ignore the existing legislative statutes and enactments. They are however, free to overrule the previous decisions on the ground of inconsistency, incompatibility, vagueness, change of conditions etc. assigning reasons for their deviation from the earlier ruling. Thus the Indian legal system though endows the judges with extensively judicial discretion, does not make them omnipotent in matter of formulation of law. The legislative statues and enactments, precedents and the rules of equity, justice and good conscience are indispensable part of judicial system in India. The constitution of India itself provide ample scope for the judges to take into consideration the hard realities of socio economic and cultural life of the Indian people while dispensing social and economic justice to them.

In conclusion, it may be reiterated that though Indian jurisprudence does not formally subscribe to the realist’s legal philosophy, it does not lay great stress on the functional aspects of law and relates law to the realist law to realities of social life. Again, it refuses to accept the realist’s view that judge made law is only “real" law and other laws are worthless, but at the same time it does not completely ignore the role of judges and the lawyers in shaping the law. Thus it would be correct to say that the Indian legal system has developed on the pattern of sociological .The power to review and doctrine of overruling its earlier decisions has enabled the supreme court to effectuate the socio economic contents of constitutional mandate [5] though the process of judicial interpretation and use of its inherent powers. Thus the apex court in Bengal community case overruled its earlier decision in Dwarkadas v. Sholapur spinning & weaving co. [6] and observed that “the court is bound to obey the constitution rather than any decision of the court, if the decision is shown to have been mistaken". Justifying its stand , the court further remarked where a constitutional decision affects the lives and property of public and where the court finds that its earlier decision is manifestly wrong and injurious to public interest, it should not hesitate to overrule the same.

According the same line of approach , justice B.B. Gyanendragadar, in keshav mills v. Income tax commissioner [7] observed that supreme court has inherent jurisdiction to reconsider and revise its earlier decision if it does not serve the interest the public good

In the case of Golak Nath v. State of Punjab [8] the supreme court speaking through Subba Rao CJ,(as then he was) inter- alia ,observed:-

“While ordinarily the supreme court will be reluctant to revise its previous decision , it is its duty on the constitutional field to correct itself as early as possible, for otherwise the further progress of the country and happiness of the people will be at a stake..."

The observation made by Justice K. Ramaswamay deserves a special mention in context of realism in interpretation of the constitution and the law of the land. To quote his words, he remarked as follows :-

“The Judge is the living oracle working in dry light of realism pouring life force into dry bones of law to articulate the felt necessities of the time ..." [9] 

The former chief justice of India shri S.P. Bharucha has expressed concern about fate of Indian judiciary “If a sizable number of corrupt judges occupying seats in higher courts are allowed to enjoy immunity as a part of British legacy and expose themselves by resorting to such nefarious steps. “he pointed out that people are regularly becoming victims of our unaccountable judiciary, therefore it is high time when the Hon’ble members of higher judiciary should serious think over the issue. [10] 

It may further be stated that more recently , in an unprecedented incident in the history of Indian judiciary , 25 out of 28 judges of the high court of Punjab and Haryana went on mass leave on 19th April ,2004 reportedly after a stand off with chief justice B.K. Roy of that court. They had sent leave applications ranging from one to five days without ascribing any reasons. However these judges later sent application stating that they were resumed work due to “changed circumstances". The change allegedly came after the intervention of chief justice of India and one of the senior judges of supreme court. The differences between C.J. Roy and the judges arose because two of their colleagues had accepted honorary membership of a club named ‘Forest Hill country club and resort’ against which a case was already pending before the same high court. On a PIL filed by two advocates, the supreme court issued notices to the registrar of the Punjab & Haryana High courts to furnish details of the entire episode.

It is submitted that this incident sufficiently indicates as to how unaccountable the Hon’ble members of higher judiciary are. Before resorting to such a drastic step they should have atleast though about the fate of number of cases which are posted for hearing on that day i.e..19th April 2004 and the plight of helpless litigants. [11] 

In the ultimate analysis, suffice it to say that in the emerging jurisprudence of twenty first century, greater stress should be on accountability of the judiciary to the people of India rather than making it supreme in the process of formulation of law. This realist and moderate approach avoiding extremes, is perhaps most suited to the present day Indian conditions.

Cases where judges made the law

Vishaka and others v. State of Rajasthan and others [12] 


The litigation resulted from a vicious gang rape of a publicly employed social worker in a village in Rajasthan during the course of her employment. The petitioners bringing the action were various social activists and non-governmental organisations. The principal basis of bringing such an action to the Supreme Court in India was to find appropriate methods for the recognition of the true concept of “gender equality" in the workplace for women. In turn, the prevention of sexual harassment of women would be addressed by applying the judicial procedure.

Under Article 32 of the Indian Constitution, a suit was filed in order to institute the enforcement of the fundamental rights relating to the women in the workplace. In meticulous it sought to establish the enforcement of Articles 14, 15, & 19(1) (g) and 21 of the Constitution of India and Articles 11 and 24 of the Convention on the Elimination of All Forms of Discrimination against Women (CEADW).

Laws which were under scrutiny

Constitution of India

• Article 14 (the right to equality)

• Article 15 (the right to non discrimination)

• Article 19(1)(g) (the right to practise one’s profession)

• Article 21 (the right to life)

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

• Article 11 ([State] takes all appropriate measures to eliminate discrimination

Against women in the field of employment)

• Article 24 ([State shall] undertake to adopt all necessary measures at the

National level aimed at achieving the full realization)


In disposing of the writ petition with directions, it was held that:

“The fundamental right to carry on any occupation, trade or profession depends on the availability of a ‘safe’ working environment. The right to life means life with dignity. The primary responsibility for ensuring such safety and dignity through suitable legislation, and the creation of a mechanism for its enforcement, belongs to the legislature and the executive. When, however, instances of sexual harassment resulting in violations of Arts 14, 19 and 21 are brought under Art 32, effective redress requires that some guidelines for the protection of these rights should be laid down to fill the legislative vacuum."

In light of these deliberations, the Court outlined guidelines which were to be observed in order to enforce the rights of gender equality and to prevent discrimination for women in the workplace.

These guidelines included the responsibility upon the employer to prevent or deter the commission of acts of sexual harassment and to apply the appropriate settlement and resolutions and a definition of sexual harassment which includes unwelcome sexually determined behaviour (whether directly or by implication) such as:

• Physical contact and advances;

• a demand or request for sexual favours;

• Sexually-coloured remarks;

• showing pornography;

• Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature. Furthermore the guidelines set out that persons in charge of a workplace in the public or private sector would be responsible for taking the appropriate steps to prevent sexual harassment by taking the appropriate steps, including:

• The prohibition of sexual harassment should be published in the appropriate ways and providing the appropriate penalties against the offender;

• For private employees, the guidelines should be included in the relevant

Employment guidelines;

• Appropriate working conditions in order to provide environments for women that are not hostile in order to establish reasonable grounds for discrimination;

• The employer should ensure the protection of potential petitioners against victimisation or discrimination during potential proceedings;

• An appropriate complaints mechanism should be established in the workplace with the appropriate redress mechanism;

• Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person-in-charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.

Finally, the court stated that the guidelines are to be treated as a declaration of law in accordance with Article 141 of the Constitution until the enactment of appropriate legislation and that the guidelines do not prejudice any rights available under the Protection of Human Rights Act 1993.

Judicial Activism and Public Interest Litigation

The internal emergency that was in force between 1975 and 1977 and its aftermath contrib­uted drastically to the change in the judiciary’s acuity of its role in the operation of the Constitution.  The epoch of the emergency witnessed large-scale infringement of basic rights of life and liberty.  There were also barefaced violations of the right to freedom of speech and expression. The end of the emergency saw the emergence of a realignment of political powers.  However, the prevalently elected government was scrawny and in trying to place its feet, it did not last very long.  It was already in snag by 1978/1979, which was when the judiciary initiated the public-interest litigation (PIL) Era in Indian judicial system.  The expansion of the jurisprudence of ESC rights is also inextricably linked to this noteworthy development.

The bootlegging of the emergency and the realignment of political forces had not produced in any thespian alter in the social inequities or executive immoderation that had by then become rife.  The post emergency era then endowed with the right milieu for the judiciary to redeem itself as a shield and enforcer of the rule of law.  Judges woke up to this necessitate and PIL was the tool the judiciary fashioned to accomplish this end.  PIL was exclusively a judge-led and judge-dominated movement.12

What made PIL inimitable was that it acknowledged that mainstream of the population, on account of their social, economic and other disabilities, was unable to utilize the justice sys­tem.  The intractable walls of procedure were dismantled and abruptly the doors of the Supreme Court were open to people and matters that had never get to be there before.  By soothing the rules of standing and procedure to the pedestal where even a postcard could be treated as a writ petition, the judiciary ushered in a new phase of activism where litigants were freed from the stranglehold of formal law and litigation

The Maneka Gandhi Case and Thereafter

Maneka Gandhi v. Union of India [13] , and Due Process of Law

THE IMPORTATION of the "due process clause," deliberately obliterated at the time of framing the Constitution, has led to a decisive pre-eminence of the judiciary over all other twigs of Government. The Supreme Court verdict in the Maneka Gandhi Case, while interpreting equality before law (Article 14), said that all Articles on Fundamental Rights contain a affiliation with one another and any law depriving a person of any of the liberties or freedoms must not only gratify the requirements of Article 21 (procedure established by law) and Article 19 (equality before the law). Reading the principle of "reasonableness" or non-arbitrariness as an essential characteristic of equality impacting on the freedoms under Article 21, is indeed a clever way of introducing the "due process clause" in place of the "procedure established by law" provision in that Article.

Justice Krishna Iyer in his separate but concurring judgment declared that "law is reasonable law, not any enacted piece."

He further said in the Sunil Batra Case [14] that though the Constitution had no "due process" provision, yet after the Maneka Gandhi Case judgment the consequence was the same.

Undefined doctrine

By a stroke of the pen, the Supreme Court changed the course of constitutional law since then. The all-pervasive "brooding omnipresence of reasonableness" the court discovered in the equality guarantee (Article 14) led to the undefined and indefinable "reasonableness" doctrine, the Brahmastra, so to say, in the hands of Supreme Court judges.

One can argue that if Article 14 were to be read like that, what was the necessity of stipulating reasonable restrictions in considerable details in Article 19(2) to (6). Perhaps in the light of the new interpretation, all rights and freedoms and their scope can be articulated from Article 14 only, making the rest of Part III almost redundant.

"Due process" today has such meaning and scope as judges from time to time might give to it. By re-interpreting Articles 14, 19 and 21 and by refusing to take note of the rejection of the "due process clause" in the Constituent Assembly, the judges have given to themselves the unchallengeable authority to strike down any legislation or other state action solely on the ground that it does not appear to them to be "reasonable, just and fair."

Inherent danger

Some see in this act a "naked usurpation of the legislative function under the thin guise of interpretation." Judicial law-making increasingly has become the order of the day and is welcomed by a large body of people who seem to have become disenchanted with the uncertainties of the electoral and parliamentary processes. But the danger inherent in such a position is there for every thinking person knowledgeable about history to see.

Today it may appear to be a better choice; but what is at stake is the very foundation of democracy and democratic form of Government. That is why the Supreme Court itself on several occasions has reminded us that absolute power is anathema to our constitutional order.

Criticising the role of the American Supreme Court's continuing revision of the Constitution using the Fourteenth Amendment and under the guise of interpretation, many scholars and even judges of that country have warned of the dangers involved in such an extraordinary role, "that of the nation's paramount policy-maker, a super legislature." The Court was not empowered to rewrite the Constitution; it was specifically barred from policy-making, no matter how humane or justifiable its purpose, wrote a reputed jurist [15] 


However, when we have move to the real life situation in terms of case law we found that it is not always possible to declare law. Therefore, there is a need for a midway to define the judge’s role. In the end it would be right by saying that judges used to declare law by making it while discovering it within the domain of legal world.

A view in the same regard was expressed by J. Khanna as a descending opinion in a case [16] 


"As observed by Chief Justice Huges, Judges are not there simply to decide cases, but to decide them as they think they should be decided, and while it may be regrettable that they cannot always agree, it is better that their independence should be maintained and recognized than that unanimity should be secured through its sacrifice. A dissent in a Court of last resort, to use his words, is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possible correct the error into which the dissenting Judge believes the court to have been betrayed."