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SC must not touch issues that require lawmakers role

 Gs Paper-2

Syllabus: Separation of powers between various organs, functioning of the executive and judiciary.

 

Context:

  • The Supreme Court judge said that the apex court cannot and must not transcend its role by deciding issues requiring the involvement of elected representatives.
  • He also said that thinking of the Supreme Court as a “one-stop solution to resolve complicated issues of policy and society” is a reflection of the waning power of discourse and consensus-building.

Article 142:

It provides discretionary power to the Supreme Court as it states that the Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.

 

Cases of Judicial Overreach:

There have been several judgments of the Supreme Court wherein it has been foraying into areas which had long been forbidden to the judiciary by reason of the doctrine of ‘separation of powers’, which is part of the basic structure of the Constitution.

Examples:

  • The ban on the sale of alcohol along national and state highways.
  • Imposition of Patriotism in National Anthem Case.
  • Ban on Firecrackers.
  • Order on sex workers

 

 
Judicial Review:

●      It is the power exerted by the courts of a country to examine the actions of the legislatures, and executive and administrative arms of government and to ensure that such actions conform to the provisions of the nation’s Constitution.

Judicial Overreach:

●      In simpler terms, it is when the judiciary starts interfering with the proper functioning of the legislative or executive organs of the government. Judicial Overreach is undesirable in a democracy as it breaches the principle of separation of powers.

 

 

 
Instances of the court straying into the legislative sphere:

●      Recently, Allahabad High Court, while allowing two criminal revisions pertaining to a dowry case, took cognisance of the misuse of Section 498A of the Indian Penal Code (IPC).

●      It proposed certain safeguards and directed the State authorities of Uttar Pradesh to take the necessary steps for their implementation in a given time period.

●      The directions include the constitution of a family welfare committee in each district under the District Legal Services Authority (DLSA), handing over the first information report to such a committee immediately after its registration, and no arrest to be made by the police during this “cooling period” of two months.

 

Other cases :

●      Vishaka vs State of Rajasthan (1997):

The Supreme Court issued directions to enforce fundamental rights in the absence of law in certain cases of sexual harassment at the workplace.

●      Social Action Forum for Manav Adhikar (supra)

1.     the Court held that a third agency (i.e., the family welfare committee) had nothing to do with the CrPC, and more so installing arrest till a report is submitted by the committee.

2.     The directions to settle a case after it is registered is not a correct expression of law, the top court held.

 

Insta Links

Basic structure doctrine: click here 

To read about the doctrine of Separation of powers: click here  

 

Practice Questions:

Q. Which of the following is/are part of basic structure doctrine?

  1. Power of HC under Article 226
  2. Federal character
  3. Parliamentary system

Select the correct answer using the codes given below:

a. 1 and 2 only

b. 2 and 3 only

c. 1 and 3 only

d. 1, 2 and 3

Ans: (d)

Source: Indian Express