Judges are arbiters, not lawmakers

Source: Indian Express 

Relevance: Separation of power is a part of the basic structure of the constitution. It should be strictly adhered to.


The pandemic era witnessed judicial intervention in the domain of executive and legislature, thereby undermined the separation of powers. Judges must realize that they are arbiters, not lawmakers, and should not encroach on the functions of the executive and legislature.

  • In the wake of the coronavirus’s second wave hitting its peak, there have been some very interesting observations from the higher judiciary.
  • The judiciary has been encroaching on the domain of executive/legislature, thereby undermining the separation of powers.
Instances of Judicial intervention:
  • On April 24, a Division Bench of the Delhi High Court observed that it will “hang any person” who tries to obstruct oxygen supplies to hospitals in Delhi. 
  • A bench of the Madras High Court said on April 27 that the Election Commission is singularly responsible for the second wave. It should probably be tried on murder charges for its failure to ensure adherence to Covid-19 protocols.
  • On June 1, the Delhi HC directed the government to prioritize younger people over older ones when it came to administering Amphotericin-B, a drug used to treat mucormycosis. 
    • The court observed that the young are the “future of the country” and need to be saved, while the elderly have “lived their life”.
Problems associated with Judicial intervention:
  1. First, it undermines the spirit of the constitution by violating the doctrine of separation of powers.
  2. Second, it disrespects people’s sovereignty, as the legislature is elected by the people. Further, any lacunae in functioning can be duly checked by people in the next elections rather than by the unelected judiciary.
  3. Third, the intervention also disregards former judgments of the apex court.
    1. Census Commissioner & others v. R Krishnamurthi Case: The Supreme Court (SC) held that it is not within the domain of the court to legislate.
    2. The courts have the jurisdiction to declare the law as unconstitutional, but not to plunge into policy-making by adding something to policy by way of issuing a writ of mandamus.
    3. Union of India v. Indian Radiological & Imaging Association: It was held that the wisdom of the legislature in adopting the policy cannot be substituted by the court in the exercise of the power of judicial review. 
  4. Fourth, persistent intervention creates distrust between organs of government and impedes smooth governance.
    • Courts didn’t intervene in policy formulation nor took upon themselves the task of arranging oxygen, medicines, and vaccines in any other country owing to the trust of the legislative/executive organ.
Way Ahead:
  • There is a need for judges of superior courts to exercise restraint over their powers of judicial review.
  • Further, the judiciary should focus on curtailing the rising pendency of cases. This would be a more useful and purposive use of the courts’ time than to encroach into the arena of the Executive/Legislature.
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