The role of a judge is one that is paramount. They are instruments par excellence in handling and deciding cases with the guidance of the existing legal order. They have the task of fixing the existence, validity and meaning of legal norms. The realists put-forth an argument that there could be many reasons why the judge reached his decision and legal logic was necessarily not an important one. Thus, the interpretation of legislation becomes a judges’ paradise. When a decision is pronounced by a judge it is not only because of the law but also on the intention of the judge over what the intention of the legislature would have been. The judge interprets the statue with an intention of what he perceives to be the intention of the legislature. The question thus posed is whether this role of a judge should be viewed as a power tool to keep a check on the executive and legislature or abuse of position?
In 17th century French Enlightenment political philosopher Baron de Montesquieu, described division of power between the legislature, executive and judiciary. According to such doctrine, the legislature made laws. The executive administered them. The judiciary applied them to disputes that were brought before them. The common law tradition conceives of courtroom litigation as an adversarial process where the onus is on the pleaders to shape the overall course of the proceedings through their submissions. In this conception, the role of the judge is cast in a passive mold and the objective is to dispassionately evaluate the arguments made by both the sides. However the actual experience of the courtroom clearly bears witness to the tendency on part of some judges to pose incisive questions before the practitioners. This may have the consequence of proceedings being judicially directed to a certain degree. From many stand points adjudication and courts seem obviously central institutions of legal systems. It is in Anglo- American legal thought that the centrality of the judge in legal system is perhaps strongly emphasized. At the turn of the first half of the 12th century an American Supreme court judge defined law, Polemically, as the prophesies of what the court decides.Roger Cottrell feels the worship of judicial oracles i.e the judges, was taken to its ultimate when it was expressed by the American legal scholar John Chipman Gray that even statutes enacted by the legislatures are not law but only a source of law since their meaning and legal effect are determined only when they have been considered in cases before the courts. Judicial decisions constitute the law itself. The role of a judge thus demands allegiance towards interpretation of the statute and delivering decisions. However there springs one basic and fundamental question that confronts every democracy, run by a rule of law, which is, what is the role or function of a judge. Is it the function of a judge merely to declare law as it exists-or to interpret law and uphold the intention of the legislation and the constitution? i.e. whether they have to interpret law” ita scriptum est” (it is so written) where they seek to ascertain the purport of the law (sentential legis) through the sole medium of the words used (litera legis) or through the intention of the legislation by giving effect to the ultimate goal of the constitution. The Anglo-Saxon tradition persists in the assertion that a judge does not make law; he merely interprets it. Law is existing and eminent; the judge merely finds it. He merely reflects what the legislature has said. This is the photographic theory of the judicial function. In a speech made by Lord Chancellor Jowett at the Australian Law Convention, he said, “The function of a judge is merely to find the law as it is. The law making function does not belong to him, it belongs to the legislature.” This thinking however, hides one phase of the judicial process where a judge is given the duty to uphold the Rule of Law and ultimately the constitution. Thus it can be said it is for the judge, to give meaning to what the legislature has said and it is this process of interpretation which constitutes the most creative and thrilling function of a judge. This essay shall deal with the role of judges as an interpreter of statues and the case therein in India. There are three vital organs to this function of a judge. They are statutory interpretation, intention of the legislation and the concept of judicial review.
As said by Roscoe Pound, three steps are involved in the adjudication of disputes by the court. They are:
- Finding the exact rule among the body of rules in the legal system that is applicable to the dispute.
- Interpreting the rule so chosen, to find the meaning of the rule with respect to the facts of the dispute in hand.
- Applying the rule so found and interpreted to the dispute.
Primitive statues were sententious and contained detailed uncertainty; hence the first step of the early judge was to ascertain the legal meaning of the rule. This, coupled with the role of equity resulted in the over personalization of justice in the earlier times and in order to curb the wider discretion enjoyed by the judge, a concept came into picture visualizing, that the judicial application of law is only a mechanical process of fitting the case with the straight rule or remedy. In the 17th century this concept was given a conceptual form in the theory of separation of powers. It was admitted in the Anglo-Saxon legal thinking that the courts must interpret in order to apply, but the interpretation was confined to find the meaning as given by the makers of legislation and the judges had no creative part in finding their meaning. In this mechanical process the judge has no role to play except to declare the law that is applicable to dispute in hand. Blackstone called it as “declaratory theory”. Others called it as “slot machine theory” where, in the one end the facts of the disputes are fed and the judge as to operator of the machine proceed the decision and hence he is just an impersonal operator. Under the influence of this concept, all rules of interpretation were devised by the court with the chief aim of finding the intention of the law makers that lie behind the particular rule. Maxwell said that the object of all interpretation is to find the intention of parliament from the language used in the statute and not from the beliefs and assumptions of those who framed the act.
Intention of the legislation and the Judge.
It is well believed that every legislation created, has a soul and meaning to it and it is for this essence of the legislation that every institution turns to. This is the justification given by the judiciary to interpret laws keeping in mind the roots by which the statue grew.
In an effort to find the intention of the legislation the legal fraternity always turns to the preamble of the statue or the speeches given by the members of the legislature to derive the purpose of the act. However it is now also accepted that it is a fallacy to seek the written word or meaning or the intention of the author of the statute. The effort of finding the intention to know the meaning of the word used in the act ignores the fact that the written word once created acquires a meaning that is independent of the creators’ motives. Modern Jurists point out that the courts must try to ascertain the current meaning of the words that are found in the statue than to chase the intention of the legislature.
Justice Holmes once wrote, “only a day or two ago, when counsel talked of intention of the legislature, I was discreet enough to say , I do not care what their intention was. I only know what the words mean”.The stand of Holmes challenges the basic concept from which rules of interpretation, sprung. If skepticism on the rules of interpretation, based on the effort of the courts in finding the intention of the legislature was raised, the same is affirmed by the Indian legislature. Justice V.R Krishna Iyer in one of his judgment quotes C.P Curtis “…..The legislature which passed the statute has adjourned and its members gone home to their constituents or to a long rest from all law-making. So why bother about what they intended or what they would have done? Better the prophetic than archaeological, better deal with the future than with the past, better pay a decent respect for a future legislature than stand in awe of one that has folded up its papers and joined friends at the country clubs or in the cemetery.”
The effort to find the intention of the legislature implies psychological overtones. If a friend writes a letter to another friend, in spite of the fact that both are known to each other, very often the receiver of the letter finds it very difficult to understand the intention of his friend who wrote the letter. Though the receiver of the letter knew about the attitude of his friend that does not help to understand why he wrote that particular word. When that is the case of the individual, how is it possible for the courts to find the intention of the legislature, necessarily a collective body?
The courts assume, when they follow the intention based rules of interpretation that the legislature ought to have had an intention on every problem that arises out of the implementation of the statue. But it is not humanly possible for any human forum to anticipate every problem that may arise in future and to have intention on the hypothetical problem. It is on this aspect Gray noted, “the fact is that the difficulties of the so-called interpretation arises when the legislature had no meaning at all; when the question which is raised on the statue never occurred on it; then what the judges do is not to determine what the legislature did mean on a point which was present to its mind, but to guess what it would have intended on a point not present to its mind, and the point being present”. From these premises, Jurists point out that what finally comes out of the courtroom process is not the intention of the legislature; but its own intention. This area forms the fertile field for a judicial legislation which is termed by Gohen as “legiputation”.The above point put forth by gray was canvased on the form of new method of interpretation by Richard Posner, under the title of ‘imaginative reconstruction’.
The courts when they interpret the technical words, technical meaning must be given and the phrases and sentences are to be constructed according to the rules of grammar. If there is nothing to modify, alter or qualify the language which the statue contains. It must be constructed to convey the meaning of words and sentences in ordinary and natural way. The safer and correct course of literal interpretation is to ascertain the meaning of the words without reference to the case in hand.
Thus the decisions delivered in the name of finding the intention of the legislation is finally a judge’s paradise and it is in the hands of the judiciary to assume as to what the legislation would have thought and thus give explanations to the statutes.
Judicial review, The Indian Constitution and the Judiciary.
In the Indian context, there has been a raging debate on the proper scope and limits of the judicial role. The terms of that debate have been broadly framed with respect to the considerations of ensuring an effective ‘separation of powers’ between the executive, legislature and the judiciary as well as concerns about the efficacy and legitimacy of judicial interventions in the long-run.
The judicial power under our Constitution is vested in the Supreme Court and the High Courts which are empowered to exercise the power of judicial review both in regard to legislative and executive actions. Judges cannot shirk their responsibilities as adjudicators of legal and constitutional matters. How onerous the exercise of judicial power was, was very aptly stated by Chief Justice Marshall: “The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other is treason to the Constitution.”
The constitution thus gives such bounden duty and capacitive powers which makes judiciary’s role very critical and significant especially in India. The scenario today clearly shows us that every arrangement or a system of rules is dishonored. With such a predicament why does the judiciary not intervene when the constitution itself has given it powers to do so? The Constitution has trusted the judiciary to safeguard itself. With such lofty duty and commitment, the judiciary has to play every role to make sure it upholds what it was made for. Thus when judges make law through judicial decisions it should be viewed as yet another battle for the constitution and not as against it.
Articles 13, 32, 226, 141, 142 are of considerable importance when it comes to role of judges and the judiciary.
ü Article 32 and 226 makes the Supreme Court as the protector and guarantor of the fundamental rights through writs.
ü Article 13 confers wide power of judicial review to the courts. In the exercise of the judicial review it can examine the constitutionality of an executive or legislative act.
ü Article 141 indicates that the power of the Supreme Court is to declare the law and not enact it, but in the course of its function to interpret the law, it alters the law.
ü Article 142 enables the Supreme Court in exercise of its jurisdiction to pass such order or make such order as is necessary for doing complete justice in any cause or matter pending before it.
Through these Articles the courts have played a significant role in redressal of several social and constitutional issues.
In KesavanandaBharati casethe Supreme Court had given a quietus to the controversy as to the immutability of any of the provisions of the Constitution. By a majority of seven against six, the Court held that under Article 368 of the Constitution, Parliament has undoubted power to amend any provision in the Constitution but the amendatory power does not extend to alter the basic structure or framework of the Constitution. Illustratively, it was pointed out by the Supreme Court that the following, among others, are the basic features: (i) Supremacy of the Constitution; (ii) Republican and Democratic form of Government; (iii) Secularism; (iv) Separation of powers between the legislature, the executive and the judiciary; and (v) Federal character of the Constitution. Supremacy and permanency of the Constitution have thus been ensured by this pronouncement and thus making the basic features of the Constitution beyond the reach of Parliament which has helped in the protection of the people’s rights. The Supreme Court in Golaknath’s case laid down the judicial principle of Prospective Overruling by giving wider beneficial interpretation of Article 13 of the constitution.
The strict rule of locus standi was given a final rest in Judge’s transfer case . In this case Justice Bhagwati observed “where a legal wrong or legal injury is caused or threatened to a person or determinate class of persons and as such person or determinate class of person is by reason of poverty ,helplessness or disability of socially or economically disadvantaged position ,unable to approach the court of relief, any member of public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in Supreme Court under Article 32,seeking judicial redress for the legal wrong or injury caused to such person.” This judgment changed the entire scenario with which the judiciary was approached. It helped even the common man to approach for his remedy or any infringement of his right.
In 2G Spectrum and commonwealth scam cases are glaring current examples to show that how Public interest litigation approached under Article 32 or 226 can be used to check the menace of corruption in Indian Administration. In both these cases matter was initiated at the instance of public spirited person by way of Public interest litigations. On 2nd February 2012 the Supreme Court court has taken an unprecedented step and cancelled 122 2G licenses distributed by government in 2008 to different telecom companies. Though this cancellation was criticized for alleged judicial overreach, the Supreme Court justified its order cancelling 122 licenses for 2G-spectrum, saying it was duty-bound to strike down policies that violate constitutional principles or were contrary to public interest. An apex court bench said this was needed to “ensure that the institutional integrity is not compromised by those in whom the people have reposed trust and who have taken oath to discharge duties in accordance with the Constitution and the law without fear or favor, affection or ill will and who, as any other citizen, enjoy fundamental rights but is bound to perform duties”. It said, “There cannot be any quarrel with the proposition that the court cannot substitute its opinion for the one formed by the experts in the particular field and due respect should be given to the wisdom of those who are entrusted with the task of framing the policies. However, when it is clearly demonstrated before the court that the policy framed by the State or its agency/instrumentality and/or its implementation is contrary to public interest or is violative of the constitutional principles, it is the duty of the court to exercise its jurisdiction in larger public interest and reject the stock plea of the State that the scope of judicial review should not be exceeded beyond the recognized parameters”. The Apex court added, “When matters like these are brought before the judicial constituent of the State by public spirited citizens, it becomes the duty of the Court to exercise its power in larger public interest…”
In Noida land acquisition case the Supreme Court cancelled the acquisition of land by U.P government as it was acquired for industrial purpose but it was given to builders for making apartments. The court ordered that land should be reverted back to farmers from whom land was acquired. Often Supreme Court and different High Courts pass orders for CBI investigation in several cases. Under the law these powers lie with the governments. This is again an example of judicial activism. However it should be viewed as a protection to the human and constitutional rights of the citizens. The Supreme Court has also played a significant role in case relating 2002 Gujarat riot, where the court went to extent of changing the jurisdiction of the High court for trial and calling for a complete re-trial.
A five-member Bench of the Andhra Pradesh High Court in D. Satyanarayana v. N.T. Rama Rao has gone to the extent of laying down the proposition that the executive is accountable to the public through the instrumentality of the judiciary. Consistency in adhering to earlier views despite the amendment of the law is an aspect of judicial legislations. Illustrative of this in the Indian context is the decision of the Supreme Court in Bela Banerjee case in which even after the Constitution (Fourth Amendment) Act, 1955 specifically injuncting that no law concerning acquisition of property for a public purpose shall be called in question on the ground that the compensation provided by that law is not adequate, the Supreme Court reiterated its earlier view expressed in Subodh Gopal case to the effect that compensation is a justiciable issue and that what is provided by way of compensation must be “a just equivalent of what the owner has been deprived of”.
The role of the Judge in interpreting law has been graphically described thus: “Judges must be sometimes cautious and sometimes bold. Judges must respect both the traditions of the past and the convenience of the present. Judges must reconcile liberty and authority; the whole and its parts.” No legislature can with reasonable certainty foresee the future contingencies and necessarily every enacted law, on a closer scrutiny, will reveal several gaps which the judiciary is expected to fill. Justice Oliver Wendell Holmes, while admitting this self-evident truth observed: “… I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions.”
Subjectivity must be eschewed in the judicial process. But this is easier said than done. Often times, private notions of judges take the shape of legal principles. However there is a radical difference between the traditional litigation which was essentially bipolar in which two parties are locked up in a confrontation of a controversy and the role of the judge was only perceived to be passive. The modern litigation involves judiciary in an active manner. The party who approaches the court not only asserts his right but also expects the court to lay down the norms for future guidance. The manner in which the prescriptive role is played by the court assumes great relevance. There is no justification on the part of anyone to assert that in the guise of judicial review and Art 142, the constitutional courts in the country are undermining the theory of separation of powers by encroaching upon the fields reserved for the legislature and the executive. In the wake of this criticism, one must notice the observations made by the Supreme Court in Asif Hameed v.State of J&K: “Although the doctrine of separation of powers has not been recognized under the Constitution in its absolute rigidity but the Constitution-makers have meticulously defined the functions of various organs of the State. Legislature, Executive and Judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. … Judiciary has no power over sword or the purse nonetheless it has power to ensure that the aforesaid two main organs of the State function within the constitutional limits. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social economic justice.”
The line of demarcation between the three organs of the State as laid down in the aforesaid ruling of the Apex Court finds clearer expression in its subsequent rulings in Supreme Court Employees’ Welfare Assn. v. Union of India and Mallikarjuna Rao v. State of A.P. It is true that in adjudicating public law matters, the court takes into account the social and economic realities while considering the width and amplitude of the constitutional rights. Touching upon this aspect, the Supreme Court in a decision in C. Ravichandran Iyer v. Justice A.M. Bhattacharjee made very pertinent observations: “In this ongoing complex of adjudicatory process, the role of the Judge is not merely to interpret the law but also to lay new norms of law and to mold the law to suit the changing social and economic scenario to make the ideals enshrined in the Constitution meaningful and reality. Therefore, the judge is required to take judicial notice of the social and economic ramification, consistent with the theory of law.”
The permanent values embodied in the Constitution need interpretation in the context of the changing social and economic conditions which are transitory in nature. The constitutional court undertakes the delicate task of reconciling the permanent with the transitory. It is the duty of the executive to implement faithfully the laws made by the legislature. When the executive fails to discharge its obligations, it becomes the primordial duty of the judiciary to compel the executive to perform its lawful functions. In the recent times, much of the criticism aired against the judiciary concerns this area. When crimes are committed by men in power and attempts are made to conceal them by rendering the official machinery ineffective, recourse to judiciary becomes inevitable. It becomes the duty of the judiciary to take cognizance of the executive’s lapses and issue appropriate directions as to the method and manner in which the executive should act as ordained by the Constitution and the laws. If the judiciary fails to respond, it would be guilty of violating the Constitution, treason indeed.
Judicial activism characterized by moderation and self-restraint is bound to restore the faith of the people in the efficacy of the democratic institutions which alone, in turn, will activate the executive and the legislature to function effectively under the vigilant eye of the judiciary as ordained by the Constitution.
A common criticism we hear about judicial legislations is that in the name of interpreting the provisions of the Constitution and legislative enactments, the judiciary often rewrites them without explicitly stating so and in this process some of the personal opinions of the judges metamorphose into legal principles and constitutional values. One other criticism is that the theory of separation of powers is overthrown and the judiciary is undermining the authority of the legislature and the executive by encroaching upon the spheres reserved for them. However we should note that the Constitution provides for checks and balances in order to pre-empt concentration of power by any branch not confided in it by the Constitution. Every Judge must play an active role in the discharge of his duties as “adjudicator of disputes”. His role as an interpreter of law and dispenser of justice according to law should not be allowed to be diminished either because of the perceived notions of the other two wings of the State – the legislature and the executive or any section of the public. But this cannot be termed as Judge’s paradise in interpreting legislations. Laws enacted by the legislature must be implemented by the executive and their interpretation is within the province of the judiciary. That is the reason why judiciary has always been treated as the least dangerous branch and sometimes it is also described as the weakest of the three branches with no control either on the purse or on the sword. Decisions rendered by courts generally receive public acceptance in every democracy adhering to the concept of rule of law. We should understand that it is the judge that infuses life and blood into the dry skeleton provided by the legislature and creates a living organism appropriate and adequate to meet the needs of the society.The judges have taken their pro status quo approach and taken upon themselves the duty to enforce the basic rights of the poor and vulnerable sections of the society, by progressive interpretation and positive action. The concept of interpretation of legislation being a judge’s paradise is a good thing when it is used to enforce the rights of the disadvantaged. But it should not be used to interfere with the powers of the other organs of the government to take decisions on a range of matters.
 Jurisprudence By P.Rajaram , Ashwin Publications , 1997 Edition
 Holmes 1897
 Gray 1921 : 125
 Roscoe Pound, Introduction to the philosophy of law, Indian Reprint, 1995, p.48.
 Julius Stone, The Legal System and the lawyers reasoning , p.32 , 1964
 Quoted by Justice Frankfut in “Some reflection on reading statues” 1947(47) Columbia Law review 527-556
 Union of India v. Sankal Chand, AIR 1977 SC 2374
 A better theory of legal interpretation (37) Vanderbelt L.R 407,415 of 1950
Nature and source of law, 1907, p 53.
Juducial Legisputation , 1961 , 36 Indiana Law journal 414-23
 Interpretation of statues, Maxwell , 12thEdn , P 28
Kesavananda Bharathi v. Union of India, (1973) 4 SCC 225
 IC GolakNath v. State of Punjab & Anrs ,AIR 1967 SC 1643
S.P Gupta v. Union of India, 1981 Supp SCC 87
 AIR 1988 AP 62
The State Of West Bengal v. Mrs. Bela Banerjee And Others, 1954 AIR 170, 1954 SCR 558
The State Of West Bengal v. SubodhGopal Bose, AIR 1954 SC 92
 1989 AIR 1899
JT 1993 (2) SC 271, (1993) ILLJ 1094 SC, 1993 (2) SCALE 12
 1990 AIR 1251, 1990 SCR (2) 418
1995 SCC (5) 457, JT 1995 (6) 339
A speech on judicial activism in India, By Justice P.N Bagawathi.