In many of its recent judgements, the Supreme Court has become 'hyper-activist', and in particular has been making laws. So, now, the time has come to ask whether judges can legislate?



In fact, this question has been answered repeatedly in the past by the Supreme Court itself.

In the Constitution Bench (consisting of five judges) judgement of the Supreme Court in Ram Jawaya vs State of Punjab, the apex court observed, "Our Constitution does not contemplate assumption by one organ or part of the state of functions that essentially belong to another. In other words, there is broad separation of powers in the Constitution between the three organs of the state, and one organ should not encroach onto the domain of another; otherwise, the delicate balance in the Constitution will be upset, and there will be chaos.”

In Asif Hameed vs State of Jammu and Kashmir, a three-judge bench of the Supreme Court said, "The legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another."

Making laws is essentially the function of the legislature, and hence judges have no right to legislate. As observed in the three-judge bench decision of the Supreme Court in Union of India vs Deokinandan Agarwal, "The power to legislate has not been conferred on the courts.” In the three-judge bench judgement of the Supreme Court in Suresh Seth vs Commissioner, Indore Municipal Corporation, it was observed, "Under our Constitutional scheme, Parliament and Legislative Assemblies exercise sovereign power to enact laws."

In Divisional Manager, Aravali Golf Course, vs Chander Hass, the Supreme Court observed, "If there is a law, judges can certainly enforce it, but judges cannot create a law and seek to enforce it.” Many more such decisions can be cited.

These decisions holding that judges cannot legislate were binding on benches of smaller strength, and even benches of the same strength as held in Sant Lal Gupta vs Modern Cooperative Group Housing Society, but is judicial discipline being observed? Let us examine some recent decisions of the Supreme Court:

1) In Arun Gopal vs Union of India, a two-judge bench of the Supreme Court laid down timings for bursting crackers on Diwali and prohibited use of non-green crackers, although there are no laws to that effect. One can understand the concern of the Supreme Court in view of the air pollution in Delhi, but did that entitle the two-judge bench to itself make laws, ignoring binding precedents? The Court can certainly act as an alarm bell and warn the executive or legislature of what it regards as a coming calamity, but can it take over the functions of the latter? 2) In M.C. Mehta vs Union of India, the Supreme Court practically annulled a statutory rule, viz Rule 115(21) of the Motor Vehicle Rules, which permits motor vehicles of BS-4 manufactured by 31.3.2020 to be registered by 30.6.2020, and in case of vehicles of models M and N sold as chassis to be registered by 30.9.2020. The Court directed that no vehicle of BS-4 shall be sold after 30.3.2020 and only BS-6 vehicles can be sold after that date. 3) In Subhash Kashinath Mahajan vs State of Maharashtra, the Supreme Court amended the SC/ST Act by (1) practically annulling Section 18 of the legislation, which said that no anticipatory bail will be granted to persons accused under the Act, (2) requiring a preliminary enquiry and (3) prohibiting arrest under the Act except with permission in writing by the appointing authority in case of a public servant, or the senior superintendent of police in case of others. One can understand the Supreme Court's feeling that the SC/ST Act was being misused, but then it could only have recommended to Parliament to amend the law, and not amended it itself. 4) In Rajesh Sharma vs State of Uttar Pradesh, a two-judge bench of the Supreme Court felt that Section 498A of the IPC was being misused, and so it practically amended the section by requiring complaints under that provision be sent by the police or magistrate to a family welfare committee constituted by the district legal service authority, although there is no such requirement in Section 498A, and also gave some other directives. This requirement to set up family welfare committees was later set aside by a three-judge bench decision in Nyayadhar vs Union of India, but the other legislative directives given by the two-judge bench decision were confirmed. 5) The National Green Tribunal ordered that no 15-year-old petrol-driven or 10-year-old diesel-driven vehicle will ply in Delhi, and the Supreme Court had directed the impounding of such vehicles, though neither the Tribunal nor the Supreme Court are legislative bodies.

I submit that a bench of at least 7 judges of the Supreme Court should be set up soon by the chief justice of India to decide this issue: If judges are free to make laws of their choices, not only would that go against the principle of separation of powers, it could also lead to total uncertainty in the law and chaos, as every judge would make his own laws according to his fancies.

As Justice Hugo Black of the US Supreme Court warned in Griswold vs Connecticut, "Unbounded judicial creativity would convert this court into a day-to-day constitutional convention" and as the celebrated Justice Cardozo wrote in The Nature of the Judicial Process, "The Judge is not a Knight errant roaming at will in search of his own ideal of beauty and goodness."

Justice Markandey Katju retired from the Supreme Court in 2011

The opinions expressed in this article are those of the author's and do not purport to reflect the opinions or views of THE WEEK