Problems with Judicial Legislation

It is often criticised that the Indian Supreme Court and High Courts have not been observing the judicial restraint and is encroaching on to the domain of the other two organs of the state, the legislature and the executive.

Instances of Encroachment

• In the case of State of Tamilnadu v K. Balu, the Supreme Court banned liquor shops within 500 m of highways. This was a legislative order.
• In the case of Puttaswamy v. Union of India, the Supreme Court created a right to privacy, which is nowhere mentioned in the fundamental rights laid down in the Constitution.
• In the case of Subhash Kashinath Mahajan, the Supreme Court issued orders which were virtually the amendments to Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989.

There are another n number of such instances like Sabarimala and LGBT cases where the Supreme Court laid down the ‘constitutional morality’ test. Other court rulings like fixing timings for bursting crackers on Deepavali, directing interlinking rivers and laying down regulations for the Board of Control for Cricket in India were clear instances of encroachment of the domain of the legislature and the executive.

Why the restraint is necessary?

Judicial activism requires reconsideration because

• It entails unpredictability in the law apart from violating the principle of separation of powers.
• It entitles each judge to lay down the law according to his own subjective notions.

Hence the courts should be restrained and follow positivist jurisprudence, which advocates judicial restraint, wherein the centre of gravity of the legal system is statutory law, rather than sociological jurisprudence, which advocates judicial activism and shifts the centre of gravity in the legal system to judge-made law.