JOIN USThe decision by a two-judge bench of the supreme court to refer to a Constitution bench some questions about the judiciary’s power to in effect lay down legislation to deal with social issues that are raised before it shows that a recent judicial trend which has received much public attention has now engaged the attention of the court itself. The matter arose when the court was examining a verdict given by another bench in 2006 which had directed the implementation of the J M Lyngdoh committee’s recommendations on college and university union elections. The bench has felt that the earlier bench should have referred the report to parliament for necessary legislation or to the universities for necessary action. In many other cases also the courts have created laws and invited favourable or adverse comments depending on the popular appeal of the views expressed by them.
But encroachments by the courts into the domain of the legislature are a violation of the constitutional scheme of parliamentary democracy. A clear separation of powers between the judiciary, the legislature and the executive is vital for the health of the system. If the legislature fails in its ordained function of creating laws that is no reason for the judiciary to step into the vacuum. The failure of the legislature has to be addressed and remedied by the people who elect it. The judiciary can only interpret the laws created by the legislature and punish those who violate it. The problem is that sometimes interpretation creates a new law. Even where interpretation is not involved, as in the case of the report cited by the bench, courts take it upon themselves the responsibility to reform society. This is clearly beyond the brief of the judiciary.
Therefore what goes by the name of judicial activism does call for a hard look. Courts will have to be responsive to society, and the judiciary and its perspectives have to evolve with the times. But the judiciary should only function within the broad parameters of the Constitution. It is not when the organs of the state blur into one another but when they are distinctive, mutually supporting and complementary that they produce a system of checks and balances. Therefore the supreme court has done well to turn the searchlight on itself and explore the limits of its powers.