Can the judiciary legislate? SC divide out in the open

Rakesh Bhatnagar / DNA

New Delhi: The divide in the supreme court (SC) on whether the judiciary can legislate under articles 141 and 142 in larger public interest and to do complete justice when the executive is indifferent has come to the fore after justices Markandey Katju and AK Ganguly, who share a bench, expressed divergent views on the issue and referred the matter to the constitution bench for a final decision.

While Katju is of the opinion that the law declared by SC shall be binding on all courts in the country, Ganguly says the top court “may pass such decree or make such order as isnecessary for doing complete justice in any case pending before it”.

Such a decree or order “shall be enforceable” throughout the country in the same way as “prescribed by or under any law made by parliament” until a law is enacted by parliament, he says.

The conflicting views emerged on the issue of a bench comprising justices Arijit Pasayat
and Ganguly directing three years ago the setting up of a committee headed by former chief election commissioner JM Lyngdoh to examine the functioning of student unions and the ragging menace. The committee suggested a series of measures to curb ragging and streamline elections to student unions, which the court accepted and ordered to be implemented.

However, Pasayat retired earlier this year and Katju, who replaced him, questioned the implementation. He quoted an earlier judgment in his support that says, “….If there is a law, judges can enforce it, but judges cannot create a law and seek to enforce it”.
He also underscores the importance of the doctrine of separation of powers (SoPs), saying, “One organ of the state should not encroach into the domain of another. The judiciary should not, therefore, seek to perform legislative or executive functions.”

Dispelling Katju’s impression about the court’s power to intervene in matters of public importance and violation of fundamental eights, Ganguly stresses that the rationale of the doctrine of SoPs is “to uphold individual liberty and rule of law”.

“Vesting all powers in one authority promotes tyranny,” he says, “The principle of SoPs has to be, therefore, viewed through the prism of constitutionalism.”

The power vested in the court under articles 141, 142, 32 and 226 “has been plenary and very wide and enables the Supreme Court to declare the law which shall be binding on all courts within India and article 142 enables it to pass any order “to do complete justice”, he says.

It’s because of this power that SC could pass the landmark judgment preventing sexual harassment at workplace, the judge says.


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