NEW DELHI, Apr 25: The chairman of a Parliamentary Committee today raised the issue of “judicial activism”, saying the courts should not take over the power to frame laws from the government and Parliament.
“There are three parts of judicial activism. It is permissible if courts interpret a provision of law and expand it and make it more clear. The second part is that courts lay down guidelines in their judgements and such guidelines are considered as if they are act of Parliament.
“If due to any reason the government fails to make a law to cover what is in the guidelines, then the guidelines remain for years in the form of judgement. How far is this fair? It means the power of legislation has been taken over by the courts in this form,” Chairman of Standing Committee on Law, Personnel and Public Grievances Shantaram Naik told reporters here.
Naik, a Congress member from Rajya Sabha, however, admitted that the government has on occasions failed to draft laws.
“The courts can question the government but not make laws. There are cases pending in courts. The governmernt cannot take over the role of courts to dispose of cases…,” he said.
He was responding to questions on the role of judiciary based on a recommendation by the committee asking the government to “review” the present system of judges appointing judges as it was leading to large vacancies in the Supreme Court and the High Courts.
He was briefing the media on the report of the committee on demands for grants of the Law Ministry. The recommendation to review the collegium system has been made by the panel in the past too.
Naik said following the 1993 Supreme Court judgement, the collegium system was created and judges took the power from the executive to appoint judges in the apex court and the high courts.
He also said by setting up empowered committees, like the one on environment, the courts have “taken over” the departments of the Government of India.
He recalled that recently the committee had recommended to the Law Ministry to file a review petition before the Supreme Court on its judgement in Seema Vs Ashwani Kumar which directed the government that marriages of all persons who are citizens of India belonging to various religious denominations should be made compulsorily registerable in their respective states and that as and when the Centre enacts a law, the same shall be placed before the apex court for its scrutiny.
While the committee had cleared the Registration of Births and Deaths (Amendment) Bill, 2012, it had raised objection about placing the law before the apex court for its scrutiny. (PTI)
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