A highly contested issue is the role of a judge in the adjudication process which has been debated for many centuries now. A judge's role in the adjudication process is one of the most fundamental questions facing any democracy with rule of law.
Whether or not it is the role of the judge to simply declare law as it is or to create it? When it comes to India's constitution, do judges have the power to make laws? If yes, is it at par with the legislature's ability to enact laws?
The judiciary must act as a balancing tool between dynamic and conflicting social interests, thus law is functional in nature. Law may change, be improvised or even abolished so as to fill up the gap in the system.
TWO THEORIES ON ADJUDICATION
Some insight into two adjudication theories may be helpful in understanding the role of judges in adjudication.
The Declarative theory of adjudication says that the office of judge is to interpret and declare law, not to make it. As per this theory, judges discover laws and then they declare those laws. Edward Coke and Matthew Hale were of the opinion that judges do not make law. In common law, judicial decisions serve as guidelines and evidence for the existence of customs and are not the source of law.
According to another theory, the Creative Theory of adjudication, the judiciary actively participates in the creation of law that is consistent with legislation. Jurists like Dicey, Salmond and Gray were in favour of this theory. While interpreting a law passed by the legislature, they believe judges are instrumental in the existing body of law. The courts interpret statutes, and their interpretation determines the true meaning of the enactment more than the statute's original text does.
Dicey supported and asserted that the law of England is “Judge made law”.
From my standpoint, the creative theory of adjudication is correct. As there are certain gaps in the system for which no statute or common law existed. A judge helps in removing the lacunae and provides justice.
A LOOK AT INDIA’S LAWS
In India, a look at the Supreme Court's behaviour over the last few decades reveals that it has undergone a number of changes and favour the creative theory of adjudication. The power of judicial review enables the judiciary to play a crucial role; this is so because the bare text of the Constitution does not represent in itself the 'living law' of the country.
The articles that explicitly grants judges their judicial powers are 13, 32, 131-136, 143, 226 and 246 of the Indian Constitution.
Moreover under Article 141, the Supreme Court is also empowered to declare any law as binding precedent for all other courts in the country.(1)
Article 142 of the Indian Constitution states that in order to achieve absolute justice, the Supreme Court has the authority to issue any decision or order it deems necessary.(2)
In addition to the Supreme Court, the high courts also have the power to make laws under Article 226 of the Indian Constitution.(3)
SOME CASE LAWS WHERE JUDGES HAVE MADE LAWS
In the Vishaka v. State of Rajasthan case(4), there was no precedent law which would help the case to come to a conclusion. In this case, the evil of sexual harassment of women at workplace was in question. However, in the absence of a law enacting specific measures to protect women from sexual harassment on the job, the Supreme Court issued guidelines under the Article 141 of the Indian Constitution to be followed at all workplaces or institutions until such a law is enacted.
When it came to the adoption of Indian children by foreign adoptive parents, the Supreme Court in Laxmi Kant Pandey v. Union of India gave instructions on the procedure to be followed and the precautions that should be taken.
The idea that judges do indeed make law by giving directions where there was a pressing social demand such as the right to clean air, clean water, food and shelter, medical care. Other rights recognised included the release and rehabilitation of bonded workers as well as the provision of emergency medical treatment to those in need.
Legal aid and expedited trials for accused and convicted individuals were recognised, as were humane prison conditions and the availability of fundamental rights while in detention. Cruel and unusual punishments, as well as compensation for violations of the right to life and a fair trial, were prohibited. Aside from that, the court investigated allegations that police killed innocent people or suspected criminals in false encounters, tortured and blinded prisoners.
One of the recent cases where judiciary played a pivotal role is Navtej Singh Johar & Ors. v. Union of India(5), Secretary Ministry of Law and Justice is a landmark Supreme Court of India decision issued in 2018 that decriminalised all consensual sex among adults, including homosexual sex.
Judicial precedents important source of law in modern society is a judge who plays a crucial role in making law. The Supreme Court's decision is final, and no one can go against the court's discretion, and everyone must adhere to it.