SC questions 'judicial legislation, activism'

Matter referred to Constitution bench

The two-member bench of Justices Markandey Katju and Asok Kumar Ganguly raised a basic Constitutional issue of the judiciary’s competence to make executive orders or frame laws while hearing a petition of some Jawaharlal Nehru University students.
The petitioners questioned a September 2006 apex court order for implementation of the  J M Lyngdoh Committee recommendations on reforming students’ union polls in colleges and universities.

But the bench’s reference to the Constitution bench has the potential to go far beyond the issue in question, as in the last few years the apex court had delivered several popular judgments that were executive and legislative in nature, be it the enforcement of CNG autos, taxis and buses in the national capital, moving out industrial units from residential areas of the national capital or ordering the demolition of illegal commercial buildings across the city.

The bench said the Constitution bench should consider whether the judiciary can frame and implement laws which were under the exclusive domain of the legislature and the executive. It noted that the courts lacked the expertise to pass orders of executive and legislative nature.

“Today there are high prices and large-scale unemployment. These are pressing social needs. But can we pass orders on these to the government because we do not have the expertise though we are also affected by the price rise,” the bench observed. “Tomorrow, we can’t abolish Parliament and say we are Parliament and start legislating,” the bench remarked. There cannot be “judicial legislation”, it further said, observing also that it was “improper” and “dangerous” for the judiciary to take over the functions of the legislature and the executive.

All three organs of the government have their respective roles, therefore, “judges must exercise restraint. Otherwise, it is bound to create big reactions,” the bench cautioned.

In the case in question, the bench was recording its disagreement with the September 22, 2006, order of a two-member bench of Justices Arijit Pasayat and Lokeshwar Singh Panta which ordered the government to implement the Lyngdoh panel recommendation on reforming the students’ union elections in toto. The Lyngdoh panel itself was set up by the Human Resource Development Ministry under an earlier apex court order.

The JNU students, in their petition, had questioned the Lyngdoh panel’s age restriction for students seeking to contest union elections.

“We (courts) are taking over the functions of the legislature...yes, there are grey areas...we are of the view that this improper and dangerous for democracy,” the bench observed while referring the issue to the Constitution bench.

The Constitution bench is required to consider if the September 22, 2006, order of the court was valid, whether that judgment amounted to judicial legislation, if judiciary can legislate and, if so, what is the permissible limit and whether judiciary can cite pressing social problems to pass such judicial directions.