SC wonders if it’s treading on govt’s toes

The Supreme Court (SC) on Wednesday asked a five-judge bench to consider whether the judiciary can enact law by directive and whether it impinges on the principle of separation of powers.

Justices Markandey Katju and AK Ganguly posed the question that whether the court, even if it lacks expertise, could direct the government on issues like price rise and unemployment.

“Tomorrow, the court will abolish Parliament and say we are Parliament and start legislating,” the judges remarked while expressing concern at an earlier direction passed by a bench headed by justice Arijit Pasayat (who has since retired) to set up committees (headed by former chief election commissioner JM Lyngdoh and former CBI director RK Raghavan) on ragging and students’ union elections.

“We (courts) are taking over the functions of the legislature... Yes, there are grey areas... This is improper and dangerous for democracy,” the judges observed. “Judges must exercise restraint. Otherwise, it is bound to create big reactions.”

Solicitor-general Gopal Subramanium, who is assisting the court in the ragging and students’ union election cases, contended that the court should pass directions in the larger interest of the public.

But the judges rejected the plea and framed the issues that would be dealt by the five-judge bench. However, the directions passed so far by the justice Pasayat bench would remain valid till the decision of the five-judge bench.

What requires consideration is whether the SC’s September 22 interim order directing the implementation of the Lyngdoh Committee report was valid. Also, whether it amounted to judicial legislation, whether the judiciary can legislate and, if so, what the permissible limit should be. The bench will also consider whether the judiciary can cite social problems to pass directions.

The bench requested the chief justice of India to constitute the bench at an early date “since we come across a large number of such cases (across the country)”.