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Sansad TV: Perspective- Judiciary Versus Legislature



Can the Judiciary overrule the will of the people that is represented in Parliament?. That’s the question Vice President Jagdeep Dhankhar has posed amid the ongoing row over the process of appointment of judges. In a pointed response to the Supreme Court’s 2015 verdict that struck down the National Judicial Appointments Commission Act, the Vice President said it was too serious an issue and the world does not know of any such instance when a law passed by Parliament, that reflects the will of the people, was undone by the Supreme Court. Ringing in a note of caution, the Vice President underlined that the judiciary cannot become the legislature or executive, by denying or diminishing their powers, as any incursion by one organ into the domain of the other will upset the apple cart of governance. The Vice President’s comments are a part of the larger debate over the separation of powers of each pillar of democracy – the Executive, Legislature and the Judiciary.

Supreme Court duty is not to Legislate Laws:

  • Making lawsis the function of the legislature.
  • As observed in Union of India v. Deoki Nandan Aggarwal (1991),“The power to legislate has not been conferred on the courts.”
  • In Suresh Seth v. Commissioner, Indore Municipal Corporation (2005),the court observed: “Under our Constitutional scheme, Parliament and Legislative Assemblies exercise sovereign power to enact laws.”
  • In Ram Jawaya v. The State of Punjab (1955),the court observed: “Our Constitution does not contemplate assumption, by one organ or part of the state, of functions that essentially belong to another.”
  • This implies that there should be a broad separation of powers in the Constitutionamong the three organs of the state, and that one organ should not encroach into the domain of another. If this happens, the delicate balance in the Constitution will be upset and there will be chaos.

Judicial activism needed in legislative vacuum

  • Upholds Constitutional morality: An important case which employed this concept in an innovative manner was the Naz Foundation Case which used the concept of constitutional morality to strike down Section 377 of the Indian Penal Code and decriminalize homosexuality.
    • The Delhi High Court had said that “In our scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view.”
  • Executive lacks Political gumption: Justice Chandrachud’s view in the Sabarimala judgement, he held that women should be allowed entry in the Sabarimala temple against popularly held religious beliefs.
    • Political parties and governments did not take a stand or repeal discriminatory laws in fear of losing support base of masses.
  • To protect fundamental rights: Triple Talaq in 2017 was banned as being ultra vires to fundamental rights of Muslim women. This legislation would not have been accepted if it had come from the executive or through the Parliament.
    • Right to privacy also became Fundamental right under Article 21
  • Most trusted institution: A People’s Survey of India report noted that Indians had 80% trust in the Supreme court. Though not an elected body, the apex court is significant to uphold rule of law.
    • Eg: Whistle Blowers Act against corrupt officials and politicians was given under Article 142, until Parliament made a law on the subject.

Demerits of Judicial activism

  • Unelected body: Judiciary being the unelected body, does not enjoy the “General Will” of the people. Judicial restraint is more apt for such an institution rather than dictation a legislation. Eg: Ban on liquor sale on highways led to backlash as well as spurious means to overcome the dictum
  • Lack of expertise: Judiciary lacks both time and resources to enact legislation. Sometimes practical difficulties of such enactments are not known to the courts.
    • Eg: Ban on BS-IV vehicles from April 2020 which had to be extended many times.
  • Against Constitution’s Mandate: Judicial Review is a basic structure of the Constitution; however enacting legislation is not. Courts can look into the validity of the law, but not necessarily make a law.
  • Unaccountable: Politicians remain “accountable” to the people in at least some sense, because they depend upon them in order to continue in office after five years.
    • Judges who are insulated from any external control are accountable only to themselves
  • Judicial adventurism: Subhash Kashinath Mahajan v. State of Maharashtra (2018): the court amended the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, by annulling Section 18 which said that no anticipatory bail will be granted to persons accused under the Act.
    • There was widespread protest and opposition to this from all quarters. Finally, the law brought in to undo this was also upheld in the court.


  • Each organ of our democracy must function within its own sphere and must not take over what is assigned to the others. Judicial activism must also function within the limits of the judicial process because the courts are the only forum for those wronged by administrative excesses and executive arbitrariness.
  • Hence legislation enacted by Judiciary must be in the rare cases as mentioned above