1 Dec 2009

Can Supreme Court make laws?: Matter referred to Larger Bench

Long long back, so long back that it is almost considered axiomatic, it was declared by Chief Justice Marshall of the United States Supreme Court that law is what the court/judge says the law is. The celebrated decision in Marbury v. Madison stands reminded to this fact that while the Parliament/legislature may make the laws, the ultimate say is of the judiciary as to what the law is. We had earlier covered in detail over this non-issue, being almost settled. However the quietus which the issue had attained has been shaken with the recent decision of a division bench of the Supreme Court wherein the power of the Supreme Court to frame guidelines in the absense of parliamentary law has been sent for a review. 

Even since the Supreme Court framed guidelines for the first time in the series of decisions in Lakshmikant Pandey wherein the guidelines for adopting of Indian children by foreigners were laid, the Supreme Court has consistently been framing guidelines to fill in the vogue due to the lack of Parliamentary legislation on various issues. The famous guidelines against sexual harrassment at work-places in Vishakha decision, the guidelines on arrest of accused in D.K. Basu case have all worked to the benefit of the various cross-sections of the society in as much as the executive authorities have been directed with the mandate to follow a proper procedure in terms of these guidelines (and thus the discretion and scope of abuse has been curtailed) even though Parliament left it to the sweetwill of the enforcing officers.

The present issue, however, arose in respect of the guidelines recently issued by the Supreme Court in regard to taking up of anti-ragging measures of the school and college authorities in their premises. These guidelines had been framed in view of the lack of legislation by the Parliament on this aspect and upon the expert recommendation given by two committees.  However the ease and consistency with which the guidelines have been framed is now being questioned by the Supreme Court itself. 

The referral order of Justice Markandey Katju questions of the power of the Supreme Court to frame such guidelines and notes as under;

This Court by a detailed order dated 22nd September, 2006 directed implementation of the Report of the Committee as an interim measure. By the said order, this Court directed that the recommendations of the Committee shall be followed in all colleges/universities elections hereinafter, until further orders.
I am not going into the details about various recommendations made by the Committee and we have no doubt that many of them are wholesome. Mr. Lyngdoh is a man of very high integrity and the whole nation is proud of him. I have no manner of doubt that the Committee headed by him considered the entire matter, referred to it, in great detail. However, I have grave reservations about the manner of implementation of the recommendations of the Committee by passing the order dated 22.9.2006.
The question of great constitutional importance which has arisen is "whether after getting the recommendations of some expert body by a court order, the Court itself can implement the said recommendations by passing a judicial order or whether the Court can only send it to the Legislature or its delegate to consider making a law for implementation of these recommendations". The aforesaid question, therefore, raises a great constitutional question about judicial legislation, whether it is permissible at all under our Constitution, and even if it is, what is the extent of judicial legislation? 
In my opinion, the interim order of this Court dated 22nd September, 2006, prima facie, amounts to judicial legislation and the question before us is whether this is legally permissible. I am prima facie of the opinion that it is not. As held by this Court in Divisional Manager, Aravali Golf Club & Another vs. Chander Hass & Another (2008) 1 SCC 683 (vide para 26): "....If there is a law, judges can certainly enforce it, but judges cannot create a law and seek to enforce it." There is broad separation of powers under the Constitution, and hence one organ of the State should not encroach into the domain of another organ. The judiciary should not therefore seek to perform legislative or executive functions vide Common Cause vs. Union of India (2008) 5 SCC 511.
In Ram Jawaya Kapur vs. State of Punjab AIR 1955 SC 549 (vide paragraph 12), a Constitution Bench of this Court observed: "12. ...The Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another."
The order further notes the view of the Judge that the Supreme Court was best placed by referring the matter to the legislature to frame appropriate guidelines and not take the task of framing the guidelines on itself. The order records "In my respectful opinion, once the Committee's Report was received by the Court, the Court should have thereafter, instead of passing a judicial order directing implementation of the recommendations, sent it to the appropriate Legislature or its delegate (which in this case is the University which can make delegated legislation in the form of Statutes or Ordinances). It is for the Legislature or the concerned authorities to make a law accepting the Report in toto or accepting it in part, or not accepting it at all but it is not for the Court to pass judicial orders for implementations of the recommendations by the Committee, because that would really amount to legislation by the judiciary."

The order also repels the argument of the pressing need of the situation requiring the Supreme Court to take up the matter for the reason that "Learned Solicitor General submitted that when there is a pressing social need the Court can validly pass an order such as the one passed by this Court on 22.9.2006 in the public interest. I am afraid I have some reservations about this proposition, and that for two reasons. Firstly, there are hundreds of pressing social needs e.g. the need to control price rise, abolish unemployment and poverty etc. Should the Courts start dealing with all these social problems? Secondly, once the Court starts doing legislation, as the order dated 22.9.2006 has really done, where does this end, and is this not encroaching into the domain of the legislature or executive?" The Judge further noted a host of decisions that the judges should not encroach upon the legislative function and maintain the regard for separation of powers.

A doubt was also expressed that Court the become a mini-Parliament. The order notes "It is true that this Court has often being doing legislation in various decisions but the question remains whether this was constitutionally valid. For example, in Vishaka vs. State of Rajasthan (1997) 6 SCC 241 which was a case relating to sexual harassment of women in work places, a three Judge Bench of this Court has issued various directives and as stated therein these will be treated as law under Article 141 of the Constitution until Parliament makes a law on the subject. While we fully agree that working women should be protected against sexual harassment, the constitutional question remains whether such directives by this Court are constitutionally valid? In substance the Court has said in Vishaka's case (supra) that it will become an interim Parliament and legislate on the subject until Parliament makes a law on the subject. Is this constitutionally valid? Can the Court convert itself into an interim Parliament and make law until Parliament makes a law on the subject? I have grave doubts about this, and hence this point also needs to be decided by a Constitution Bench."

In this view the matter has been referred to the Chief Justice of India with the following important questions requiring consideration of a Constitutional Bench;
1. Whether the Court by an interim order dated 22.09.2006 can validly direct implementation of the Lyngdoh Committee's Report?
2. Whether the order dated 22nd September, 2006 really amounts to judicial legislation?
3. Whether under our Constitution the judiciary can legislate, and if so, what is the permissible limits of judicial legislation. Will judicial legislation not violate the principle of separation of powers broadly envisaged by our Constitution?
4. Whether the judiciary can legislate when in its opinion there is a pressing social problem of public interest or it can only make a recommendation to the legislature or concerned authority in this connection?
5. Whether Article 19 (1)(c) and other fundamental rights are being violated when restrictions are being placed by the implementation of the Lyngdoh Committee report without authority of law?
6. What is the scope of Articles 141 and 142 of the Constitution? Do they permit the judiciary to legislate and/or perform functions of the executive wing of the State?

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