Supreme Court highlighted need for continuous Legislative Assessment

Judicial legislation is nothing but law pronounced, proclaimed and declared by the judiciary–more particularly the Supreme Court, this is also known as “judicial law” or “Judge-made law”. Even though enacting legislation is the constitutional prerogative of the legislature. There may be circumstances where the existing laws made by the legislature prove to be inadequate in the process of administration of justice. It is said that even if Parliament and State Legislatures in India make laws for 24 hours a day and 365 days a year, the quantum of law cannot be sufficient to the changing needs of the modern society1. “The legislature often fails to keep pace with the changing needs and values nor is it realistic to expect that it will have provided for all contingencies and eventualities. It is, therefore, not only necessary but obligatory on the courts to step in to fill the lacuna2.” In such situations, the directions issued by the higher judiciary, to fill the vacuum until the legislature enacts substantive law is also a constitutional prerogative to meet the ends of the justice. Hence to meet the needs of society, the Judges do make law and it is now recognised everywhere. But this shall not be vented out as activism, as Judge-made law or judicial law is also formally recognised under Article 133, where legislature or “other competent authority” is inclusive of judiciary and even considering wide power of the Court under Articles 324, 2265, 2276, 1417 and 1448 it is quite clear that the Constitution has bestowed the power on the courts to legislate wisely9. The initial years of the Supreme Court of India were the adoption of the British tradition of limited judicial review with a very cautious approach. Later on, the struggle for supremacy is very well known. In the 1960s and 1970s, the Court delivered landmark judgments which changed the course of the Indian judiciary and political scenario. In the post emergency era, Maneka Gandhi’s10[1] judgment brought human rights jurisprudence by widening the scope of various constitutional provisions. For example, Articles 1411 and 2112 has been expanded manifold by judicial creativity. Later on, public interest litigation was a stepping stone devised by the constitutional courts for ameliorating the social and economic conditions of the society resulted in the evolution of human rights, environmental, compensatory jurisprudence and more so the poverty jurisprudence[2]13. The beauty of social dynamics through Judge-made law is that it aims at evolution and not revolution and that is why it has come to be widely accepted14. “The problems before the Supreme Court require at times the economist’s understanding, the poet’s insight, the executive’s experience, the politician’s scientific understanding and a historian’s perspectives”15 to add to this sometime legislative duties are also required. In this process, it has in a way rewritten the Constitution and filled the existing laws with necessary lifeblood through its interpretation.