Indian Polity

KEY POINTS

Judges can legislate in these situations:

·        Where such judicial legislation is for furthering the mandates of the constitution and breathing fresh life into them, e.g. decisions of the Indian Supreme Court expanding the scope of Articles 14 and 21 of the Constitution.

·        Where there is a gap in the statutory law, judges can fill in the gap.

·        Where a legal norm is required by society for its smooth running, and for some reason the legislature is unwilling or unable to create it

Judiciary has involved in judicial activism in following instances

Judiciary in legislative domain

·        Arun Gopal vs Union of India (2017) the Supreme Court fixed timings for bursting Diwali fireworks and prohibited the use of non-green fireworks, although there are no laws to that effect.

·        Subhash Kashinath Mahajan vs State of Maharashtra (2018), the court amended the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, by annulling Section 18 which said that no anticipatory bail will be granted to persons accused under the Act

·        Joginder Kumar vs the State of UP, the Supreme Court directed that arrests should not be done in every case disclosing a cognizable offence.

But the judiciary has to step in the legislative domain in some instances to uphold the system of checks and balances

Illustrations

·        Vishaka and others vs the State of Rajasthan provided Vishaka Guidelines and acted as the basis for The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

·        Prakash Singh vs Union of India provided directives by Supreme Court on Police reforms.

·        Pavement dwellers case, where the right to livelihood became a part of fundamental rights.

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