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Legitimacy of Judicial intervention in law framing

Shivam Pathak

Legitimacy of Judicial intervention in law framing has again come under watch as the Supreme Court orders to stay the implementation of Farm Laws, 2020. The doctrine of separation of powers implies that each pillar of democracy – the executive, legislature and the judiciary – perform separate functions and act as separate entities.  The executive is vested with the power to make policy decisions and implement laws.  The legislature is empowered to issue enactments.  The judiciary is responsible for adjudicating disputes.  The doctrine is a part of the basic structure of the Indian Constitution, even though it is not specifically mentioned in its text.  Thus, no law may be passed and no amendment may be made to the Constitution deviating from the doctrine.  Different agencies impose checks and balances upon each other but may not transgress upon each other’s functions.  Thus, the judiciary exercises judicial review over executive and legislative action, and the legislature reviews the functioning of the executive.

Previous instances:

Taking examples from the past, there have been a number of cases where the courts have issued laws and policy related orders through their Judgement. These include the Vishakha case where guidelines on sexual harassment were issued by the Supreme Court, the order of the Court directing the Centre to distribute food grains (2010) and the appointment of the Special Investigation Team to replace the High Level Committee established by the Centre for investigating black money deposits in Swiss Banks.

In 1983, when Justice Bhagwati introduced public interest litigation in India, this matter got considerably highlighted as Justice Pathak in the same judgment warned against the “temptation of crossing into territory which properly pertains to the Legislature or to the Executive Government”. Also, there are instances when judicial officers have acknowledged their increased interventions. For example, in 2007, Justice Katju noted that, “Courts cannot create rights where none exist nor can they go on making orders which are incapable of enforcement or violative of other laws or settled legal principles”.

Why in recent talks?

Recently, this debate got escalated after a stay was put on the new Farm Laws by Supreme Court of India. This argument gets validated as the stay was implemented without even a single hearing on merits and demerits of the case. And the court's decision on whether to upheld or stay the law should have based on the evidence of hearings. It is true that, under constitution, the courts have the power to protect fundamental rights and interpret the law in order to keep a constant check on the democratic rights of the elected government. But cases like these, when the laws have been formed only after getting a certain majority in the parliament, it is the duty of court to state the petitioners about the validity of law, as argued by K.K. Venugopal, the Attorney General of India. He questioned the judges’ intervention on three grounds by stating that a law can be struck down only when it violates either of the three . One is that it has been passed without legislative competence, two that it is violative of fundamental rights, and third that it is violative of other provisions of the Constitution. Since no such hearing has taken place and no finding has been made, how can the court intervene and stop it, as it has done already.

It is also argued that court takes differing positions on varied matters as done by it in Citizenship Amendment Act. Despite the fact that CAA received a much greater and widespread protest as compared to the recent one, still court did not find it necessary to intervene or stay its operation. The cases have been pending for over a year without a conclusion in sight.


With a view to see that judicial activism does not become judicial adventurism the courts must act with caution and proper restraint. It needs to be remembered that courts cannot run the government.  Enacting a law is the function of Parliament and state legislatures. The Constitution does not give power to Courts to direct the framing of a law. The judiciary should act only as an alarm bell; it should ensure that the executive has become alive to perform its duties. Certainly, it is difficult to draw a strict line demarcating the separation. Thus, it becomes necessary for each pillar of the State to evolve a healthy convention that respects the domain of the others.


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