Vol 2/ Issue 2/ Dec 2016 [ISSN 2394-9295]

Divya Ann Samuel


8th Semester

Amity Law School, Noida (U.P)

Email Id:


The definition of the term „law‟ has been left to the jurists for over centuries. Each jurist has tried to interpret the term „law‟ in the best possible manner to some extent representing the cultural view of their times. The Hindu jurisprudence and the Islamic jurisprudence has also defined law in different terms calling it

„Dharma‟ and „Hukum‟, respectively.

If the term „law‟ has to be discussed, Austin has to be discussed at length. Austin has contributed a lot to the field of jurisprudence. The reason why jurisprudence is important here is because jurisprudence is

„knowledge of law‟. It is through this knowledge can it be found if law is the voice of judges. To establish the same, Austin‟s imperative theory of law has been discussed in this paper. The criticism of Austin‟s theory has also been addressed. Having discussed Austin‟s theory, the paper discusses the nature, purpose and function of law.

The paper then discusses law as a means to bring about social change and the role of judges in doing so. Legal fictions and legal presumptions are also discussed in light of powers vested on judges. The paper shall also discuss some Indian case laws. The aim of the paper is to ascertain if „law is the voice of judges‟.

Key Words: Law, Jurisprudence, Social Change, Judges


There has been a lot of debate as to what law is, so much so that there were different schools of jurisprudence that argued different origins of law. This has led to many different definitions of law.

Often, many question as to whether judges‘ make law. To rephrase it, whether law is the voice of judges? The purpose of this paper is to analyse and answer this question. For the same, the author has tried to discuss most acceptable definition of Austin. The definition is critically analysed and then the author moves to discuss the nature and function of law for getting the knowledge of essence of law.

Dealing with the contemporary aspect, towards the end, law is analysed as an instrument of social change and lastly, the author tries to answer the question of whether law is the voice of judges‘.


Austin has defined law as ―a rule laid for the guidance of intelligent beings by an intelligent being having power over them .[1] Thus, he lays emphasis on four essentials: command, sanction, duty and sovereignty. He divides law as one created by God and the other created by man for man. He has also recognised other forms of law which cannot be said to be command ‘of the sovereign, but can come under the purview of law:

  1. Declaratory or Explanatory laws: No new law is declared but the explanation to the existing law exists. This is where the role of interpretation of a statutory provision comes into play. Passing of a declaratory statute becomes desirable when certain expressions in common law or statutes are being misunderstood.[2]
  2. Laws of repeal: The laws that are repealed by new laws hold no value as the old command is repealed with the new one.
  3. Laws of imperfect obligation: Such laws do not create or fix sanction and so cannot be termed as pure type of law, according to Austin.

The ideology which resounds in the Austinian definition is that of his army background which involved lot of discipline and following the command of the superior.

According to Sir John Austin, sovereignty lies with the political superior of the country or a State. Law‘ has to be followed by all and so it has to be backed by sanction. According to him, no one can be forced to follow the law without the fear of sanction.

Austin‘s theory of analytical positivism has been criticised on following grounds:

  1. Customs overlooked
  2. Permissive Character of law overlooked
  3. No place for Judge -made law
  4. Austin‘s theory treats International law as a mere morality
  5. Command over-emphasised
  6. Inter -relationship between law and morality completely overlooked
  7. Sanction alone is not the means to induce obedience
  8. Indivisibility of sovereignty criticised

Having discussed Austin‘s theory the next phase is to discuss the nature, function and purpose of law.


Nature of law

Law may be described as a normative science, that is, a science which lays down norms and standards for human behaviour in a specified situation or situation enforceable through the sanction of the state.[3] By Austin‘s definition of law it is quite clear that law can be created only by the Political superior and no person should be above him because then he loses the power to command. The question of who makes the law is quite uncertain. Theoretically, Judges do not make law, they only interpret or declare it, but the truth is that even during the period when analytical positivism held its sway, the common law judges through their judicial minds developed the common law to suit the needs of the social change.[4]

Since legislature enacts law on diverse subject for achieving the ends of social justice, complexity of laws may lead to ambiguity, therefore, legislature itself gives discretion to ambiguity, therefore, legislature itself gives discretion to the courts to give meaning to the law and develop it by evolving new doctrines, principles, standards and norms.[5] It is pertinent to mention here that certain terms such as public order‘, reasonable

restriction‘, etc. are used by the Courts to interpret in a manner so as to remove any sort of vagueness and subsequently add meaning to law.

Function and purpose

The main purpose of law is to ensure justice to the aggrieve party. It is a channel through which a satisfying judgement is delivered to the party which suffered loss, or by arbitrating conflicting claims, or ensure social security at times. From this purpose it can be drawn that the function of law shall be to regulate the society.

The justice that has to be ensured is of two types: distributive and corrective. Roscoe Pound attributed four major functions to law, namely:

  1. Maintenance of law and order in a society
  2. Maintain status quo in the society
  3. To ensure maximum possible freedom to people
  4. To satisfy the needs of people, wherever possible and required.

This discussion portrays a clear picture of the object of law. The question now arises as to who must ensure that this object should be achieved. The answer is that all three organs, viz. executive, judiciary and the legislature, must together endeavour to reach this object. The legislature enacts the law and judiciary aims to secure justice. Law must, also, cater to the needs of the changing society. In the recent past, the judiciary has played an active role in bringing this change.


The law should serve the social purpose of regulating relations among men and for that it is imperative that the Judges administering law must be endowed with legislator‘s wisdom, historian‘s insight for searching truth, prophet‘s vision and capacity to respond to needs of the time. In other words, Judiciary being the guardian of the fundamental rights and also the giver of justice, should be bestowed with the insight to deliver the best suited judgements. Law ensures people justice by ―expanding their rights and freedoms and dismantling of the inequitable social order .[6]

The needs of the people change with time and so, the law too must ―march in tune with the changing norms of the society.[7] Law cannot standstill. It must change with the changing social concepts and values. It the bar that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bark and grow a living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress, or if the society is vigorous enough, it will cast away the law, which stands in its growth. The law must, therefore, constantly be on the move adopting itself, to the fast changing society and not lagging behind.‘[8]

Following the above argument it can be concluded that the object of law is to ensure security in society, stamping out criminal proclivity and regulating relations. An egalitarian social order would be the utopian situation law seeks to create in light of the political and social rights enshrined under the Constitution.

To meet the changes of time, law has to be dynamic and not complacent. In order to ensure the same (i.e. to articulate the felt necessities of time), Courts have come up with various rules of interpretation of law. Some of the rules of interpretation that has come forth are:

  1. Literal Rule of Interpretation (Strict Rule or Grammatical Rule): This rule of interpretation is used to take the most popular or natural meaning of the terms to be interpreted. This rule is based on the legal maxim verbs legis non est recelendum (i.e. from the words of law, there should be no departure). It is interesting to note that any other rule of interpretation shall be resorted to only when by this rule either justice is not served or there is no intelligible result or ambiguous situations are created. By this rule, however, the judiciary has restricted their power by relying completely on legislature‘s intent.

In the case where the interpretation of whether beetle leaves come under the term vegetable‘ was to be done, it was held that beetle leaves would not come under the ambit of vegetables, owing to the popular meaning of the term vegetable.[9]

In another case where it was found that a shopkeeper was selling obscene books, despite government‘s ban, and he claimed to have not known about the ban, it was held that mens rea was immaterial to be held liable under section 292 of the Indian Penal Code, 1860.[10] Taxing and penal statutes need to follow literal rule of interpretation.

  1. Mischief Rule (Heydon‘s Rule): It looks for the gap in the law that had existed prior to the act of the legislature, i.e. the mischief. Mischief is the evil that had existed. There are four considerations which the Court has to take into consideration before coming to conclusion for mischief rule:

What was the law before making of the Act

What was the mischief and the defect for which the common law did not provide relief What is the remedy that exists presently

What was the reason behind the present remedy

The two short comings of this rule is that the judiciary takes over the power to make law and supersedes the legislature‘s power to do so. The socio­economic legislative enactments, however, in the post independence era, made Chandrachud, J. comment that the constitutional precedents cannot be used as weapons of defeating the hopes and aspirations of the citizens. The aspirations representing the will of the people can only become articulate through the voice of their elected representatives. If these representatives fail to perform their duty, the nation shall face death and destruction.[11]

In the case of Bengal Immunity Company vs. State of Bihar,[12] it was held that to cure the mischief of multiple taxation and to preserve the free flow of inter state trade and commerce in the Union of India, which was regarded as one economic unit, without any provincial barrier, the Constitution makers had enacted Article 286.

  1. Golden Rule: The Court must, ordinarily, find out the intention of the legislature of the legislature from the words used in statute from giving them their natural meaning, but if it leads to absurdity, injustice or hardship, the Court must modify the meaning to such an extent and not further as would prevent such a

consequence. In the case where there existed a right to appeal within six months, a question arose as to six months from the date of knowledge or six months from the date of order. It was held that it shall be from the date of knowledge.[13] In another case, where the interpretation of the term stop‘ was to be done so as to mean momentary or for longer duration at the time of accident, it was held that it means a reasonable period stoppage.[14]

  1. Harmonious Construction: When two or more provisions of the same statute or legislation are conflicting then the interpretation would be such that the two provisions are not repugnant to each other. Venkatarama Ayyar, J. said that in case of conflicting provisions, maximum efforts must be taken to give effect to both the provisions.[15]

These rules of interpretation make it evident that the judiciary has played a pivotal role in ensuring that the needs of the changing trends of society are met.


Having discussed the Austinian definition of law, the nature and purpose of law and law as an instrument of social change, it can be concluded that judiciary has played vital role in interpreting law. In India, judiciary is deemed to be the guardian of the Constitution. Any law that is unconstitutional, can be struck down by the judiciary.

The approach of judiciary cannot be said to be that of judicial overreach as the Courts do not out rightly strike down the law passed by the legislature. This is evident from various rules of interpretation which have come into play over years. These interpretation rules cannot be said to have given power to the Courts to make new laws but rather the interpretation is given by the Courts to suit the needs of the public.

The law is laid down by the legislature and the judiciary gives the meaning to the provisions and infuse life in law. The interpretation largely affects the way people conceive law in their minds. Judiciary acts as the face between the law laid down by the legislature and the common man seeking justice. It can be concluded in this light that law is the voice of judges, though they do not make law.


  1. Studies in Jurisprudence and Legal Theory, Dr. N.V. Paranjape, pg.22 (Central Law Agency, 6th edition)
  2. The Interpretation of Statute, Prof. T. Bhattacharya, pg 6 (Central Law Agency, 9th edition)
  3. Studies in Jurisprudence and Legal Theory, Dr. N.V. Paranjape, pg.143 (Central Law Agency, 6th edition)
  4. Ibid, pg. 144
  5. See: Vishakha vs. State of Rajasthan, AIR 1997 SC.
  6. State of Karnataka vs. Appa Balu, 1995 Supp. (4) SCC 469
  7. Central Inland Water Transport Corporation Ltd. Vs. Brojo Nath Ganguly, AIR 1986 SC 1571
  8. National Textiles Workers‘ Union vs. P. Ramakrishnan, 1983 (1) SCC 228
  9. Ramavatar Budhiaprasad Vs. Asstt. Sales Tax Officer, AIR 1961 SC 1325
  10. Ranjit Udeshi vs. State of Maharashtra, AIR 1965 SC 881
  11. Keshvananda Bharti vs. State of Kerala and Others, AIR 1973 SC 1461
  12. Bengal Immunity Company vs. State of Bihar, AIR 1955 SC 661
  13. State of Punjab vs. Qaiser Jehan Begum, AIR 1963 SC 1604
  14. Lee vs. Knapp, (1967) 2 QB 442
  15. Bengal Immunity Company vs. State of Bihar, AIR 1955 SC 661

Comments are closed.