Constitution Bench to decide on judicial legislation


NEW DELHI: A two-judge Bench of the Supreme Court on Wednesday referred to a fivejudge Constitution Bench, important questions of law on whether the judiciary by its orders could legislate to fill the vacuum in the laws in a particular field.

A Bench of Justice Markandey Katju and Justice A.K. Ganguly made this reference differing with the order passed in 2006 by a two-judge Bench headed by Justice Arijit Pasayat (since retired) to streamline student union elections in colleges and universities and a subsequent order to control the ragging menace.

The Bench said the initial order directing the implementation of the report of the J.M. Lyngdoh Committee was wholesome and the court also directed the manner of implementation. The Bench felt that the proper course should have been to send the recommendations to the Parliament to make a law or to the Universities concerned so that they could take a decision on implementation.

Giving a direction for implementation of the recommendations, prima facie amounted to judicial legislation, the Bench said and pointed out that it came across a large number of similar cases from across the country.

Hence it said the matter required to be examined by a Constitution Bench. The Bench broadly framed issues, viz whether the September 22, 2006 order directing implementation of the Lyngdoh Committee report amounted to judicial legislation and if so whether the judiciary could legislate; whether the court could pass an order for the pressing social problem on the ground that the Legislature was not enacting a law.

The Bench also said that questions relating to the doctrine of separation of powers between the Executive, the Legislature and the Judiciary were involved for interpretation in this case and hence the matter should be decided upon by a five-judge Constitution Bench.

Earlier, Solicitor-General Gopal Subramanian submitted that after the implementation of the two reports, student union elections had been streamlined and the ragging menace had come down. He wanted the earlier orders to continue till the Constitution Bench rendered its decision. The Bench agreed and said the earlier order would continue.

When Mr. Subramanian said that a social problem like ragging had to be tackled firmly and the court order had its effect across the country, Justice Katju orally observed “there are several pressing social problems like price rise, unemployment etc. Can the judiciary solve these problems? Do we have the expertise? Tomorrow, we can’t abolish Parliament and say we are Parliament and start legislating. These are exclusive domains of the legislature and the executive. It was improper and dangerous for the judiciary to take over the functions of the legislature and the executive. All the three organs have their own respective roles to play. Judges must exercise restraint. Otherwise, it is bound to create big reactions.”

The Bench while referring the matter to the CJI for posting it before a five-Judge Bench, requested that the matter be heard by the Constitution Bench expeditiously since important questions of law were involved for interpretation.


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