While I have been of the view that Judges should not ordinarily create law, as that is the function of the legislature, there have to be some exceptions to this rule. And one interesting and important exception is the law relating to the sale and use of contraceptives.
In Griswold vs. Connecticut (1965) 381 U.S.479, the U.S. Supreme Court, by a 7-2 majority struck down a law in the state of Connecticut prohibiting the sale and use of contraceptives, on the ground that such a law violated the right to privacy in the U.S. Constitution.
Now surprisingly there is no express mention of any right to privacy in the Bill of Rights in the U.S. Constitution ( nor in the Fundamental Rights of the Indian Constitution ).The right to privacy has thus been created by Judges in the garb of interpretation. Is this a legitimate excercize of judicial powers ?
Justice William Douglas, who gave the leading judgment of the majority in Griswold's case, held that apart from the rights specifically mentioned in the Bill of Rights in the U.S. Constitution, there are are certain ' penumbra ' rights, which though not expressly mentioned, flow out of the rights expressly mentioned, and the right to privacy was one of such penumbra rights. He further added that the right to use contraceptives was part of the right to privacy.
A similar case was decided by the Irish Supreme Court, Mary McGee vs. Attorney General and Revenue Commissioners,1974 I R 284 (298) decided in December 1973..
The Irish Republic is predominantly a Catholic country, and the Roman Catholic church, being conservative, is ordinarily against use of contraceptives. There was a law in Ireland prohibiting the sale or import of contraceptives. Most people realized that this law was outdated and archaic,but no Irish politician had the courage to bring a bill to abolish this law, out of fear that if he did so, the Roman Catholic Church would use its enormous influence to destroy the political career of that politician. So the law was repealed by the Judges in Mary McGee's case.
Mrs. Mary McGee was a lady in Ireland having 4 children, and her doctor told her that if she had another pregnancy her life would be in danger. So she imported contraceptive jelly from England, which was seized by the Irish customs authorities.( as its import was illegal ). Mrs. McGee filed a case against the customs authorities, which was decided in her favour by a 4-1 majority by the Irish Supreme Court on the ground that the law against import and sale of contraceptives violated the right to privacy in the Irish Constitution.
Now again, there is no express mention of any right to privacy in the Irish Constitution, and so the Judges really created a right in the garb of interpretation.
After this judgment many politicians confidentially telephoned the Judges and said to them " My Lords, thank you very much for getting us off the hook ".
Once again, was this a legitimate excercize of judicial power ?
My answer is yes, though my reasoning would have been somewhat different from that given by the U.S. or Irish Judges.
I agree with Justice Douglas of the U.S. Supreme Court that there are certain penumbra rights, but I would have elaborated on this. And I would certainly not have placed reliance on Christianity or Aristotle, as Justice Walsh of the Irish Supreme Court did in his elaborate judgment.
So let me give my own reasoning as to why I agree with the conclusion ( though not the reasoning ) of the U.S. and Irish Supreme Courts.
A norm may be required by a society for its smooth functioning at a certain stage of its historical development, and without that norm the society may not be able to function, or function smoothly at all..
In modern society the right of a woman to have sex without having pregnancy is an essential right, and without this right modern society cannot function.
Now ordinarily legal norms are created by the legislative process, but there may be situations, as happened in Catholic Ireland, that the legislative process was in effect blocked. How is then the norm, which is essential for the smooth functioning of the society, to emerge ? In this situation it will emerge by the judicial process or some other process, but emerge it will, because society may not be able to function smoothly without it. So in this situation Judges can create a law.
It may be mentioned that in feudal societies there were no contraceptives. Women were usually married at a very young age, and almost every woman had 10-15 children, most of whom, however, died because medical science was not then advanced. Mumtaz Mahal, wife of Emperor Shah Jahan, died giving birth to her 14th child.
In modern times, however, most couples cannot afford to have more than 2 children, because it requires a lot of time and money bringing up a child well. So contraceptives are absolutely essential in modern society..