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Mains Answer Writing

15-November-2023

1. The Indian Constitution’s concept of the separation of powers is incompatible with judicial legislation. Justify the numerous public interest petitions that have been filed in this area, pleading with executive authorities to issue guidelines.

ANSWER

  • According to Sh. K. Hanumanthiya, a member of the constituent assembly, Indian Constitution provides for a harmonious governmental structure of checks and balances. The Supreme Court in the Kesavananda Bharati case, 1973, and in the Raj Narain case, 1975 declared the Separation of powers between three branches of government as a part of the basic structure of the Constitution.

JUDICIAL LEGISLATION UNDER INDIAN CONSTITUTION

  • Various provisions of the Constitution like Article 13 read along with Articles 32 and 226, Special leave petition of Supreme Court (Art. 136), extraordinary powers granted to the Supreme Court under Art.142 implicitly grants the power to the judiciary to provide for guidelines in absence of any law in a certain field till executive or legislature takes up the issue.
  • Some of the prominent examples of judicial legislation include Vishaka guidelines, Police reforms (Prakash Singh case), the Right to privacy as a fundamental right (Puttaswamy case), the ban of firecrackers, the Judges case creating collegium system, etc.

WHY JUDICIAL LEGISLATION IS ANTITHETICAL TO THE SEPARATION OF POWERS

  1. Against the doctrine of Checks and Balances: As recognized by the supreme court in the Rai Sahib Ram Jawaya case the constitution provides for the doctrine of checks and balances and judicial legislation goes against the spirit of this doctrine.
  2. Judicial Overreach: Any guidelines which have a far-reaching implication on the lives of the citizens must be formulated either by the legislature or the executive which are directly elected by the people rather than the judiciary.
  3. Lack of Expertise: Since the judiciary has less expertise in certain matters than the executive and legislature and is not well-resourced too, the guidelines and legislations ordered by them are often crude and not implementable.

4.Unnecessary Burden: Almost 3 lakh cases are pending before the higher judiciary. The task of judicial legislation often creates a burden on the judiciary.

  1. Balance of Powers: The reluctance of the executive to implement judicial guidelines often creates deadlock situations like the police reform guidelines issued in the Prakash Singh case which disturbs the balance of powers between the three organs of the state.

NEED FOR PILS

PIL became an important tool as it improved access to justice for the citizens. Through PIL, citizens have forced the courts to issue certain guidelines to executive authorities. The filing of PIL can be justified on the following points

  1. It helps prevent executive inaction in certain cases. The filing of PIL helps the judiciary take up matters that are ignored by the executive and legislature.
  2. It democratizes access to justice for all. Any citizen/agency who is capable can file petitions on behalf of those who cannot or do not have the means to do so.
  3. The doctrine of PIL allows the courts to suo motu take cognizance of matters which allows checks and balances on the executive and legislative actions by the judiciary. For e.g., SC issued guidelines to States and Center to provide relief to migrant workers during lockdown.
  4. PIL often acts as a guiding light to the legislature and executive about the problems and issues of society. For e.g., The M.C. Mehta Case gave birth to the NGT Act, of 2010.
  5. PIL often helps in expanding the scope of fundamental rights according to the dynamics of society. This can be seen in the Maneka Gandhi Case, which expanded the definition of Article 21.

PIL allows politically and legally marginalized communities to have access to justice. However, they often create an “industry of vested interests” which hampers the functioning of the government. So, to prevent such misuse, the Supreme Court must itself follow self-restraint and prevent overreach of its powers as acknowledged by the Supreme Court in DM, Aravali Golf Course vs Chander Haas case.

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