Law-making: the legislature, the executive and the judiciary

1. The legislature

The legislature is the primary law-maker. Article 245 confers power on Parliament and the State Legislatures; Article 246 and the Seventh Schedule distribute subjects. Law is made by passing a Bill through both Houses (or the single House in most States) and obtaining assent (Articles 107 to 111 for Parliament; 196 to 201 for the States). Money Bills follow a special procedure.

Legislative power is plenary within its field but limited by the Constitution: by the distribution of subjects, by Part III (Article 13(2)), and, for constitutional amendments, by the basic structure. It is also the source of Bentham's interest in this paper: a legislature that wishes to make good law must ask what will promote the greatest happiness, which is the subject of the remaining notes in this Unit.

2. The executive: delegated legislation

Modern legislation leaves detail to the executive. Rules, regulations, notifications, schemes and bye-laws made under an Act have the force of law. The reasons are well known: pressure on legislative time, technical subject matter, the need for flexibility and speed, and emergencies.

The limit is that the legislature may not abdicate its essential legislative function. It must itself lay down the policy and the standard, and may leave only the working out of details. That was settled in In re Delhi Laws Act, 1912, 1951 INSC 36, AIR 1951 SC 332, where the Court upheld power to extend laws to Part C States with modifications, but held that the power to repeal or alter essential features of the law could not be delegated. Delegated legislation is controlled by the courts (ultra vires the parent Act or the Constitution), by Parliament (laying, committees on subordinate legislation) and by procedure (publication, consultation). Section 21 of the General Clauses Act, 1897 gives the rule-maker the power to amend or rescind its own rules.

3. The executive: ordinances

The President under Article 123 and the Governor under Article 213 may promulgate ordinances when the legislature is not in session and immediate action is necessary. An ordinance has the same force as an Act but lapses six weeks after the legislature reassembles unless approved. In Krishna Kumar Singh v. State of Bihar, 2017 INSC 1, (2017) 3 SCC 1, a seven-judge Bench held that the repeated re-promulgation of ordinances without placing them before the legislature is a fraud on the Constitution, that the satisfaction behind an ordinance is open to judicial review, and that laying the ordinance before the legislature is mandatory.

4. The judiciary: does it make law?

The classical declaratory theory (Blackstone) held that judges do not make law but only discover and declare a law that already exists. The modern view, associated with Austin and later realists, accepts that judges make law, though interstitially, within the gaps the legislature leaves. In India the question has a constitutional answer: Article 141 makes the law declared by the Supreme Court binding on all courts, and Article 142 empowers it to make orders for complete justice. Judicial law-making happens in four ways.

• Precedent. A ratio decidendi binds later courts, so every decision on a new point adds to the law. Much of the law of torts in India, including constitutional tort compensation, is judge-made.
• Interpretation. Choosing between meanings, reading down, purposive construction and filling the content of open words (“reasonable”, “procedure established by law”) are creative acts. The rules of Unit III are the methods by which this is done.
• Constitutional adjudication. Judicial review strikes down laws and, in doing so, sets the limits within which the legislature must work. In Kesavananda Bharati v. State of Kerala, 1973 INSC 91, (1973) 4 SCC 225, the Court created the basic structure doctrine, a limit on amendment found nowhere in the text of Article 368. In I.C. Golak Nath v. State of Punjab, 1967 INSC 45, AIR 1967 SC 1643, it adopted prospective overruling, declaring a new rule for the future while leaving past transactions undisturbed.
• Filling legislative gaps. Where there is no law and fundamental rights are at stake, the Court has laid down binding guidelines. In Vishaka v. State of Rajasthan, 1997 INSC 604, (1997) 6 SCC 241, it framed guidelines on sexual harassment at the workplace, to operate as law under Article 141 until Parliament legislated, which it did in 2013. In M.C. Mehta v. Union of India, 1986 INSC 281, (1987) 1 SCC 395, after the oleum gas leak, it laid down the rule of absolute liability for hazardous industries, departing from Rylands v. Fletcher.

5. Limits on judicial law-making

• Separation of powers. Courts may not rewrite a statute or supply a casus omissus (Padmasundara Rao, 2002), and may not direct the legislature to enact a particular law.
• Case-bound. Judges make law only on the facts before them, without the inquiry, consultation and democratic mandate that legislation has.
• Retrospective effect. A judicial decision ordinarily operates on past facts too, which is unfair to those who relied on the earlier view; prospective overruling is the response.
• Legislative override. Except on constitutional questions, the legislature can change the law the courts have made, by amending the statute or removing the basis of a judgment.

6. The three organs compared

• Legislature — general, prospective, democratic, deliberate; the primary source.
• Executive — detailed, quick and flexible; subordinate, and valid only within the parent Act and the Constitution.
• Judiciary — incremental, tied to cases, usually retrospective; authoritative on the Constitution.

How this is examined

For the judiciary essay: the declaratory theory and its rejection, Articles 141 and 142, the four modes (precedent, interpretation, constitutional adjudication, gap-filling) with Kesavananda, Golak Nath, Vishaka and M.C. Mehta, then the limits and a balanced conclusion. A question on law-making generally adds the legislature and the executive from sections 1 to 3, with In re Delhi Laws Act and Krishna Kumar Singh.