Two SC Judges express opposite opinions on Judicial legislation

Two judges of the Supreme Court have expressed opposite opinions on the issue of Judicial Legislation.

Justice Markandey Katju in an order has ruled that Courts can only recommend to the Legislature or the Executive to make laws on social problems which require urgent solution and the judges cannot make law on their own.


Another judge on the bench Justice A K Ganguly in a separate order has, however, opined that as per Article 141 and 142 of the Constitution of India, Supreme Court can make law to fill up the vacuum in a given situation, when laws are found to be inadequate for the purposes of grant of relief, the court can exercise its jurisdiction under Article 142 of the Constitution until the Legislature enacts substantive laws.

Justice Katju is of the view that the doctrine of Separation of Power must be strictly adhered to and Judiciary should not encroach upon the domain of the Legislature and the Executive, while Justice Ganguly holds the view that complete separation of power is neither possible nor workable as the framers of the Constitution never wanted to introduce the doctrine of separation of power rigidly to the extent of dividing the three organs into water tight compartment.


Justice Ganguly, however, concurred with Justice Katju on the issue of question of referring of the validity of judicial legislation to the five-judge Constitution bench.


The controversy started when Justice Katju questioned the validity of the earlier judgement of the Supreme Court dated September 22, 2006 passed by a bench headed by Justice Arijit Pasayat (since retired) directing the Centre, all states and Union Territories to implement the recommendations of J M Lyngdoh Committee for electoral reform in University and Colleges student union elections aimed at minimising the influence of money and muscle power on University campuses in the country.