When we hear the word Judicial Lawmaking, the first thing that comes to our minds is law made by the judges. Judicial law-making often refers to the role played by judges in actively resolving disputes through shaping policies, controls on state power and interpreting the Constitution. Judicial lawmaking is when the judges go a step beyond just interpreting laws, but decide on issues that the other two organs- the Legislature and Executive- do not address. This varies across various subject matters, starting with topics such as privacy and elections to environmental protection and gender justice.
In every democracy and in accordance with the spirit of separation of powers, the judiciary is often tasked with the responsibility of interpreting and upholding the present laws. It is not responsible for making new interpretations, policies and rules. However, with time in today’s era, the role of the judiciary is not limited only to this. The primary responsibility of the judiciary is to safeguard the rights of the people and uphold the constitution of a country. With modern times, courts have observed that upholding the rights of people and ensuring justice cannot be done by only interpreting the statutory provisions. Hence, it went a step above and passed rules and policies on various subject matters, leading to the concept of Judicial Lawmaking.
I am sure, as a reader, you must wonder why this concept is of relevance and importance today. Well, with the current increase in modernisation, there also comes an increase in various subject matters and topic areas that do not have any precedents of statutes formed yet. Hence, this is where the role of the judiciary plays a pertinent role in passing judgements and exercising the function of law-making. Over the years, the function of judicial lawmaking is only set to increase in this growing world. Thus, it becomes pertinent to discuss this topic, as with any other concept, the concept of judicial lawmaking is also two-fold. On one hand, the concept of judicial lawmaking is highly appreciated as courts often step in to ensure political institutions do not fail and ensure no arbitrariness is practised. On the other hand, with the power of passing interpretations, policies and rules, there is also a contradiction with the separation of powers. Many are of the belief that judicial lawmaking intervenes with the law-making capacity of the legislature and executive. Hence, this article is going to dive into the intricacies of judicial lawmaking and its current relevance.
Before we proceed to the debate regarding judicial lawmaking, it is important to understand what led to the increase of this concept. Since Independence, India has followed the model of separation of powers, where every organ is given different responsibilities. Owing to the same, in the initial years of the 1950s and 1960s, the Supreme Court relied mainly on textual interpretation. There was no room for any interpretation outside of the statute or for making any rules or policies. This was meant to adhere to the concept of separation of powers. Reality, however, is far messier. The judiciary soon realised that the law cannot cover every eventuality. Social change often outruns parliamentary debate. Citizens turn to courts when the legislature is silent, and courts respond by filling gaps. Thus came the landmark judgement of Kesavananda Bharati v. Union of India, 1973, where the Hon’ble Court introduced the basic structure doctrine, indicating that the Parliament cannot amend the basic structure of the Constitution. This was the first exercise of judicial lawmaking, as this doctrine was never written in text, but has been used as a precedent in countless cases since. During this decade, there was also a rise in Public Interest Litigations in courts, which also created room for Judicial creativity. Courts framed guidelines on bonded labour, prison reforms, environmental protections, and gender equality. A common example is the case of Vishaka v. State of Rajasthan, which stated guidelines for sexual harassment in the workplace that later became a law in 2013 with the Sexual Harassment Act. Currently, with the increase in AI and technology, there has been a dynamic increase in the nature of cases and problems, in turn increasing judicial lawmaking. Similarly, judicial lawmaking is followed in other countries as well. For instance, in the United States, the Supreme Court’s decision in Brown v. Board of Education, 1954, effectively restructured American society by striking down racial segregation. Similarly, in South Africa, the Constitutional Court in Minister of Health v. Treatment Action Campaign, 2002, directed the government to expand access to anti-retroviral drugs, a direct intervention in public health policy. However, what makes India unique from the rest of the world is the fact that judicial lawmaking is not an exception in India today but rather a norm.
Hence, given the importance of judicial lawmaking in India, there also comes the acceptance of accountability of the judiciary. Judicial accountability has become a pertinent concept over the years. It can be understood with the help of two dimensions:
Institutional accountability, which talks about the accountability of the judiciary as a whole. It includes transparency in appointments and transfers, consistency in judgments, efficiency in case management, and fidelity to constitutional limits. For example, the opacity of the collegium system has been one of the sharpest criticisms of Indian judicial governance.
Individual accountability, on the other hand, is concerned with individual Judges and their accountability. This concerns the conduct of individual judges. Allegations of corruption, bias, or ethical misconduct highlight the need for systems to address wrongdoing without undermining independence.
The problem arises as the judiciary has never been subjected to accountability due to the independent nature of the organ. Judicial independence is strongly protected, and the accountability mechanisms remain weak. Judicial accountability does not refer to questioning and interfering in the decision-making process. Judges are free to rule as they feel like. However, when their decisions effectively create laws binding on all citizens, some form of oversight—whether through reasoning, transparency, or post-judgment debate—is essential. The constitution of India has in place tools to ensure accountability; however, in practice, these tools often fail.
One primary challenge that today’s judiciary faces is the provision of impeachment. The constitution allows impeachment of judges in the High Court and the Supreme Court on the grounds of misbehaviour and incapacity. This seems very straightforward in writing, but when implemented in reality, it can be very cumbersome, serving as one of the primary reasons behind no successful attempts at impeachment. Another hurdle that we face is the appointment of judges. The appointments of judges are made by a collegium of senior judges. However, history shows a lack of transparency, democratic legitimacy and accountability. Take the Supreme Court Advocates-on-Record Association v. Union of India, the second judges’ case, 1993, for instance- it set the pace by transferring the power of appointing judges from the executive to the judiciary to enhance accountability, which still hasn’t been achieved. Another issue with judicial accountability is the lack of mechanisms to analyse judgements. There are very few mechanisms to criticise and scrutinise a judgment. While necessary to protect dignity, the contempt law has often been used to shield judges from legitimate critique. This restricts meaningful public debate on the judiciary’s role in lawmaking. Lastly, the media pressure, along with the volume of cases, also poses a hurdle to judicial accountability. High-profile cases with media traction tend to influence judges when deciding a case. Similarly, the high number of cases before the court today makes it harder for the judges to deliver judgments in a proper and effective manner.
With the increasing role of the judiciary in lawmaking, the lack of judicial accountability serves as a threat to the very structure of democracy. All it takes is a wrong judgment to cause injustice and hamper the democratic nature of the country. Hence, judicial accountability in today’s society has become a widely spoken topic. I believe that to foster a judicial environment with justice being served, accountability is pertinent. However, whilst ensuring accountability, it is also important to ensure the independence of the judiciary is intact. It is this independence of the judiciary that allows the judiciary to make laws and policies, which in today’s changing world is pertinent to foster justice. If the independence of the judiciary is compromised, that will impact the entire justice system of the country and the concept of balance of power between all three organs. Balancing independence with accountability is the core dilemma of any judicial system. Judges must be free from political pressure so they can uphold the Constitution and protect rights, but at the same time, absolute insulation risks creating an institution that is powerful yet unanswerable. Judicial independence ensures that courts can strike down arbitrary state action without fear, while accountability makes sure that this power is exercised with integrity, transparency, and fairness. The challenge remains in how we balance both these integral concepts to build a strong justice system, fostering democracy and upholding the Constitution of India.
In the end, judicial lawmaking is no longer an exception—it is part of how modern courts function. The real question is whether this expanded role can coexist with a culture of accountability. The future of constitutional democracy lies in finding that balance, where judges can protect rights and uphold justice while remaining answerable to the principles of democracy itself. The real test for us, then, is not whether judges will continue to shape the law—they already do—but whether we as a society are willing to demand the right balance between freedom and responsibility in the judicial sphere. And perhaps the deeper question we must all ask is this: if judges are the new lawmakers in practice, who should watch the judges?