Powers of Courts to Legislate
Parveen Kr. Aggarwal
(Querist) 19 December 2009
This query is : Resolved
Which provision of law confers jurisdiction on courts in India to Legislate?
N RAMESH.
(Expert) 19 December 2009
Courts (including Supreme court and High Court) have no power to legislate law.
They simply interpret law.
The interpretation of existing law by the supreme court has been given such effect under Article 141 of Constitution of India.
Raj Kumar Makkad
(Expert) 19 December 2009
Your quarry is wrong as no legislation is made by Courts.
S.KARUNAMOORTHY
(Expert) 19 December 2009
our courts are not just like house of lords... i agree with raj kumar
Parveen Kr. Aggarwal
(Querist) 20 December 2009
But virtually certain judgments of High Courts and Supreme Court of India are legislative in nature and are mandates (modifying statutory provisions instead of/besides declaring any statute law as ultra vires)and which can only be termed as legislation.
N.K.Assumi
(Expert) 20 December 2009
yes, there are so called judge made laws, as for example when there is a vacum in laws, judges do step in to fill the vacum in laws awaiting the positive Legislation.Secondly there are some interpretation amounting to legislaion but those are simply to remove the ambiguity and difficulties in the Laws.As for example resorting the fiction in the interpretation of laws.
N.K.Assumi
(Expert) 20 December 2009
But one thing is clear: Judges however great they are they are like the two lions in Solomon's throne and not Solomon.
Parveen Kr. Aggarwal
(Querist) 20 December 2009
Yes Mr. Assumi, you are right that generally such Judgments either fill in the vacuum or remove ambiguity but in some of the case despite existence of statutory provision the Judgment is read as legal provision. For example, the definition of "Industry" is taken as laid down in AIR 1978 SC 548 (Bangalore Water Supply & Sewerage Board Vs. A. Rajappa)despite the definition of industry on statute book before and after the Amendment Act of 1982.
Parveen Kr. Aggarwal
(Querist) 05 January 2010
The Supreme Court has introduced a ground of divorce if the marriage has broken down irretrievably which does not exist in section 13 of the Hindu Marriage Act.
Parveen Kr. Aggarwal
(Querist) 02 February 2010
The amendment to the Orders of the Code of Civil Procedure, 1908 are also made by the High Courts.
