Legal Development through Codification

2. Democratic legitimacy. A code is made by an elected legislature after debate. This is the answer to the objection in [The Limits of Judicial Creativity] that judicial law-making is undemocratic.

3. Comprehensive and prospective. A legislature can survey a whole field, consult, cost the alternatives and legislate for the future. A court sees the fragment the litigation presents and decides retrospectively.

4. It can do what courts cannot. Create institutions, impose taxes, allocate budgets, fix numerical limits, and set commencement dates.

5. Uniformity. A code applies at once throughout the territory, whereas a judicial rule spreads case by case.

The demerits

1. Rigidity. A code freezes the law at the moment of enactment and can only be changed by the legislature, which may not return to the subject for decades.

2. Incompleteness. No code anticipates every case, so the courts must fill the gaps, which reintroduces judicial development inside the code.

3. Loss of flexibility and of accumulated detail. Judge-made rules carry the qualifications that real disputes revealed; a code states them in the abstract.

4. It requires interpretation, which returns power to the courts. A code does not apply itself. The Indian Penal Code has been in force since 1860 and its meaning is found in the decided cases.

The relationship, which is what MU is really asking

Codification and judicial development are not rivals but a cycle.

Stage one: the courts develop a rule. Absolute liability was created in M.C. Mehta v. Union of India, AIR 1987 SC 1086.

Stage two: the legislature codifies it, or declines to. The Public Liability Insurance Act 1991 and the National Green Tribunal Act 2010 took up parts of the ground.

Stage three: the code is interpreted, and development resumes.

The clearest complete cycle in Indian law is sexual harassment. The courts filled a legislative vacuum in Vishaka v. State of Rajasthan, AIR 1997 SC 3011.

Facts. A class action was brought under Article 32 by social activists and non-governmental organisations for the enforcement of the fundamental rights of working women, the immediate cause being the alleged gang rape of a social worker in a village in Rajasthan. There was no Indian legislation on sexual harassment at the workplace.

Held. Sexual harassment at the workplace violates Articles 14, 15, 21 and 19(1)(g), since the right to carry on an occupation depends on a safe working environment. In the absence of legislation the Court laid down binding guidelines defining sexual harassment and prescribing preventive steps, complaints machinery and employer duties, drawing on the Convention on the Elimination of All Forms of Discrimination against Women, and directed that they be treated as law declared under Article 141 until legislation was enacted.

Why it matters here. The Court said in terms that its rules were provisional and would yield to legislation. Parliament legislated in 2013. That is the cycle completed, and it is the best answer to the charge that judicial law-making usurps the legislature: it occupied a vacuum and vacated it.

The same pattern is visible in Common Cause v. Union of India, (2018) 5 SCC 1.

Facts. A registered society sought a declaration that the right to die with dignity is a fundamental right within Article 21, and directions permitting a competent adult to execute an advance medical directive refusing life-sustaining treatment.

Held. The right to live with dignity includes dignity in the process of dying, passive euthanasia is permissible in law, and an advance medical directive is legally valid. Because Parliament had not legislated, the Court laid down detailed guidelines on who may execute a directive, how it is to be recorded and witnessed, and the medical board procedure for giving effect to it, to hold the field until legislation is made.

Why it matters here. It is Vishaka's method applied twenty one years later, with the same express provisionality, and the legislature has not yet completed the cycle.

Where codification wins outright

Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, marks the boundary.

Facts. Two workmen employed as tractor drivers claimed regularisation against the post of tractor driver, a post which did not exist in the sanctioned strength, and the courts below directed their regularisation, in effect creating a post.

Held. The directions were set aside. Creating a post is an executive or legislative function and directing it is unconstitutional. In the name of judicial activism judges cannot cross their limits and take over functions belonging to another organ of the State; they must exercise judicial restraint, must not encroach into the executive or legislative domain, must not try to run the government, and must have modesty and humility.

Why it matters here. Creating posts, levying taxes, fixing budgets and establishing institutions are things only legislation can do. Where the required development is of that kind, codification is not merely better than judicial development; it is the only lawful route.

A worked example

Artificial intelligence systems cause harm and no Indian statute allocates liability.

By judicial development. A court reasons from M.C. Mehta that a person deploying an inherently dangerous system owes an absolute duty, and awards compensation. The rule is available at once, is confined to the facts of the case, and applies retrospectively to the defendant.

By codification. Parliament enacts a statute defining the systems covered, allocating liability between developer, deployer and user, requiring insurance, creating a regulator and fixing a commencement date.

What only codification can do. Create the regulator, require insurance, and fix the date. A court can do none of these.

What only judicial development can do. Provide a remedy to the person injured this year, before any statute exists.

The honest conclusion. Each does what the other cannot, and MU's question is best answered by saying so rather than by preferring one.

Quick revision

1. Codification: reduction of the whole law on a subject into a systematic authoritative enactment superseding earlier sources. Distinguish consolidation, ordinary legislation and statutory restatement.
2. Indian record: the nineteenth century codes; the Hindu Code enactments of 1955 and 1956; the three criminal codes of 2023; the Law Commission as standing machinery.
3. Merits: certainty and accessibility, democratic legitimacy, comprehensive and prospective operation, power to create institutions and allocate money, uniformity.
4. Demerits: rigidity, incompleteness, loss of accumulated detail, and the return of power to courts through interpretation.
5. The cycle: courts develop, legislature codifies, courts interpret. Vishaka to the 2013 Act is the complete Indian instance.
6. Common Cause, (2018) 5 SCC 1, is the same method with the cycle not yet completed.
7. Aravali Golf Club marks what only legislation can do: create posts and institutions, tax, and allocate budgets.

Test yourself

1. Distinguish codification from consolidation and from ordinary legislation. Codification covers the whole of a subject and supersedes the previous sources on it, as the Indian Penal Code 1860 did for criminal law. Consolidation gathers existing statutes into one Act without changing the law. Ordinary legislation deals with a particular matter without attempting to occupy the field.

2. Give the merits of codification that answer the objections to judicial law-making. It is made by an elected legislature after debate, which answers the democratic objection; it is prospective, which answers the retrospectivity objection; it can survey a whole field with evidence and consultation, which answers the institutional competence objection; and it is accessible in one place, which answers the objection that judge-made law is knowable only through an unmanageable body of decisions.

3. Describe the Indian cycle of development using one worked example. Sexual harassment. There was no legislation, so in Vishaka, AIR 1997 SC 3011, the Court laid down guidelines drawing on CEDAW and directed that they be treated as law declared under Article 141 until Parliament legislated. Parliament legislated in 2013. Judicial development occupied a vacuum and vacated it on legislation, which is the cycle complete.

4. Name three things that can be achieved only by codification and not by judicial development, with authority. Creating a post or an institution, levying a tax, and allocating a budget. Aravali Golf Club, (2008) 1 SCC 683, holds that creating a post is an executive or legislative function and that a court directing it acts unconstitutionally, adding that judges must not try to run the government.