Report No. 61
3.69. Power to formulate a wide one.-
Such an amendment will fall under Article 286(2). We may stale here1 that the power to formulate principles under Article 286(2) of the Constitution is, no doubt, a wide one; and, Parliament in exercise of this power, is not confined to merely codifying or adopting pre-existing judicial interpretation as we have already pointed out2. Operating within the limits necessarily implied by the expressions "import" and "export", Parliament can formulate principles which would codify the existing judicial interpretation, modify it, or extend it, or even adopt an entirely new approach. In other words, it is not merely the mechanical and verbal formulation of something which is already existing that is contemplated, but a certain amount of discretion is implicit, particularly because the power is a power to "formulate" principles-a creative function.
1. See also para. 3.21, supra.
2. Glanville Williams Language and Law, 61 I.R. 71, 302.
3.70. This is not to say that it is an unlimited power. Some time ago, a distinguished writer2, while discussing the subject of judicial discretion in the interpretation of statutes, stated:-
"A judge has discretion to include a flying boat within a rule as to ships or vessels. He has no discretion to include a motor-car within such a rule."
This is true of the power to formulate principles also.
The principles to be formulated will not, therefore, overstep the field of "import" or "export". But, as already stated1, within the limits indicated by import and export, there is considerable latitude, even as regards principles which may be derived from judicial decisions. The task of Parliament is creative because "cases do not unfold their principles for the asking"; and it may be necessary for Parliamentary legislation to define them from time to time, as occasion arises2. Judges, in the judicial process, can go with their logic, their analogies, their philosophies, till they reach a certain point. As Cardozo has pointed out3:-
"At first, we (judges) have no trouble with the paths, they follow the same lines. Then they begin to diverge, and we must make a choice between them."
Where Judges have made their choice, Parliament is free to affirm or reverse or modify what they have chosen. Where judges have not, as yet, made their choice, Parliament is free to make its own choice. And, where the choice made by Parliament by formulating certain principles is frustrated, Parliament can reformulate the principles.
1. Para. 3.69, supra,
2. Cf. para. 3.19, supra,
3. Cardozo Nature of the Judicial Process, pp. 19, 20, 22.