The Gap in the Law
Chapter Seven
Syllabus topic 1, "Nature of judicial process"
Pages 27 to 30 of 356
In one line
The whole of this subject lives in the small number of cases where the existing law does not decide the question, because that is the only place where what the judge does can be seen.
In the wording a student can write in an exam: a gap in the law exists where the authorities available to a court do not determine the case before it. That may be because no rule covers the facts, because two rules cover them and conflict, because the governing words are open-textured and their application is genuinely doubtful, or because the rule that covers the facts would produce a result the legal system itself treats as unacceptable. In such a case the judge cannot decide by applying law alone, and must exercise a choice. Cardozo described this as the point at which "the serious business of the judge begins".
The image MU quotes
Cardozo's picture is of a judge consulting the materials of his craft and finding them exhausted. "The colours do not match": the precedents resemble the case in some respects and not in others, so the analogy is imperfect. "The references in the index fail": the digest and the statute-book have nothing on the point. "There is no decisive precedent": something is close, but nothing governs.
At that moment the judge must still decide. A court cannot refuse jurisdiction on the ground that the law is unclear; the duty to decide is absolute. What he decides by is the question the rest of Module I answers.
The four kinds of gap
1. The gap of silence. No rule at all. The case of first impression. When the Supreme Court had to decide the standard of liability for a hazardous enterprise in M.C. Mehta v. Union of India, AIR 1987 SC 1086, no Indian authority governed it.
2. The gap of conflict. Two rules cover the facts and point opposite ways. Article 25 protects religious practice; Article 14 forbids arbitrary discrimination. In Indian Young Lawyers Association v. State of Kerala, decided on 28 September 2018, both applied to the exclusion of women from the Sabarimala temple.
Facts. The petitioners challenged the exclusion of women between the ages of ten and fifty from the Sabarimala temple, and rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules 1965 which permitted it, as violating Articles 14, 15, 17, 21 and 25.
Held. By four to one the exclusion was held unconstitutional. The devotees of Lord Ayyappa do not constitute a separate religious denomination, the exclusion is not an essential religious practice, and it violates the right of women to worship under Article 25(1) and their dignity under Article 21. Indu Malhotra J. dissented, holding that a court should not ordinarily interfere in matters of deep religious sentiment and that what is essential should be determined by the community itself.
The Gap in the Law
Why it matters here. It is a gap of conflict in its purest form. Both the majority and the dissent applied the Constitution honestly and reached opposite results, because nothing in the text says which of two competing provisions prevails. The choice was the judges' and could not have been anything else.
3. The gap of open texture. The rule exists and its words are clear at the core but doubtful at the edge. Whether a two year silence is "cruelty", whether a delay is "reasonable", whether a classification is "arbitrary".
4. The gap of intolerable result. The rule covers the case and produces an outcome the system cannot accept. This is the most contested kind, because acknowledging it comes close to admitting that judges may decline to apply law. Courts usually meet it by finding an ambiguity to exploit, by distinguishing, or by reading down.
Why the gap cannot be legislated away
Language is open-textured. No drafter can foresee every application of a general word. The alternative, an enumeration of particulars, fails the first case not enumerated.
Facts outrun imagination. Statutes written before the internet had to be applied to it.
Legislatures deliberately delegate. Phrases such as "reasonable restrictions", "public interest" and "just and equitable" hand the choice to the court on purpose, because the legislature cannot settle in advance what will be reasonable in circumstances it cannot foresee.
Conflict is built in. A constitution that guarantees both equality and religious freedom guarantees that they will sometimes collide, and no drafting can prevent it.
So the gap is a permanent feature of any legal system expressed in language, not a defect to be corrected by better drafting.
What the judge decides by
This is the substance of the four chapters that follow: [The Method of Philosophy: The Rule of Logic], [The Method of History], [The Method of Tradition and Custom] and [The Method of Sociology]. In outline, the judge asks what the existing rules logically entail, where the doctrine came from, what the community actually expects, and what result serves social welfare, and where these conflict Cardozo ranks the last highest.
A worked example
A hospital withdraws life support from a patient in a permanent vegetative state at the family's request. No Indian statute addresses it. The hospital is prosecuted.
Is there a gap? Yes, of the first kind and partly the fourth. Section 309 of the Indian Penal Code punished attempted suicide and section 306 punishes abetment, but neither is aimed at this. Article 21 protects life. Nothing decides.
The Gap in the Law
What the Court did. In Common Cause v. Union of India, (2018) 5 SCC 1, it filled the gap.
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.
What that shows. The gap was real, the Court could not refuse to decide, and it filled the gap with a rule of its own composition and said so. Whether that was legitimate is the argument of [The Limits of Judicial Activism and the Charge of Overreach]; that it was a gap being filled is not arguable.
The competing accounts of what happens in the gap
| Position | What the judge does in a gap | Consequence |
|---|---|---|
| Declaratory theory | there is no gap; the law is there to be found | overruling and first impression cases are inexplicable |
| Positivist, on the strong reading | the judge has a genuine discretion and legislates interstitially | judicial law-making is admitted but confined to the interstices |
| Cardozo | the judge chooses among four directive forces, social welfare ranking highest | making is admitted and disciplined by method |
| The one-right-answer view | even in hard cases there is a right answer, found by reasoning from the principles the legal system already embodies | preserves the claim that the judge is bound, at the cost of making the binding invisible |
| Realist | the decision is made on other grounds and the reasoning is supplied afterwards | the study of law becomes the study of judges |
MU does not require the student to name these schools, but a good answer knows that "the judge decides in the gap" is a claim with rivals.
What beginners get wrong
"Gaps mean the law is badly drafted." Gaps of open texture and of conflict are unavoidable in any system expressed in language, and some are deliberately created by the legislature.
"Most cases have gaps." Very few do. Cardozo insisted that the great majority of cases are settled by the existing rules. The gap is where the subject is visible, not where the work mostly happens.
"In a gap the judge is free." He must still decide within the recognised methods, justify the result in writing by reference to legal materials, and face appeal. Discretion is not licence.
The Gap in the Law
Quick revision
- A gap exists where the authorities do not determine the case: silence, conflict, open texture, or intolerable result.
- Cardozo: when the colours do not match, when the references in the index fail, when there is no decisive precedent, the serious business of the judge begins.
- The duty to decide is absolute; a court cannot refuse because the law is unclear.
- Gaps cannot be drafted away: language is open-textured, facts outrun imagination, legislatures delegate deliberately, and constitutional guarantees conflict by design.
- Sabarimala, decided 28 September 2018, is a gap of conflict: honest majority and honest dissent, opposite results.
- Common Cause, (2018) 5 SCC 1, is a gap of silence filled by judicially composed guidelines.
- Rival accounts of the gap: declaratory, positivist, Cardozo, one-right-answer, realist.
Test yourself
1. Name the four kinds of gap and give an example of each. Silence, as in the standard of liability for hazardous enterprise before M.C. Mehta; conflict, as between Articles 14 and 25 in Sabarimala; open texture, as in whether a classification is arbitrary; and intolerable result, where the applicable rule produces an outcome the system cannot accept and the court narrows or distinguishes it.
2. Why can gaps not be eliminated by better drafting? Because general words are open-textured and no enumeration of particulars survives the first unenumerated case; because facts outrun the drafter's imagination; because legislatures deliberately delegate by using terms such as reasonable and just and equitable; and because a constitution guaranteeing several values guarantees that they will sometimes conflict.
3. Why is Sabarimala a better illustration of the gap of conflict than a case decided unanimously? Because the dissent shows that the conflict was genuine. Four judges and one judge applied the same constitutional text to the same facts and reached opposite results, which demonstrates that the text did not decide and that the choice belonged to the judges.
4. Is a judge free in a gap? No. He must decide, but within recognised methods; he must justify the result in writing by reference to legal materials that others can test; he is subject to appeal and to the correction of a larger bench; and where the choice is contested it is ordinarily made by a bench rather than by one judge.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.