FB   
 
Powered bysps
        Society for Policy Studies
 
 

 
Legislating from the bench?
Posted:Aug 14, 2017
 
Print
Share
  
increase Font size decrease Font size
 
In addressing a lacuna in the laws, the Supreme Court’s judgment on the Spasmo Proxyvon Plus (SP+) case may have distressed laws that it is expected to expound.
 
The judgement liberated those caught with one of the most abused drugs in the country, the SP+ from detention but not conviction.  But in allowing them to pay for their prison terms, the Supreme Court may have breached provisions of the Penal Code, which states that the court may order to pay fine in lieu of imprisonment if the offence is not a felony.
 
But those involved in the SP+ case were charged for a felony, just as most cases that involve controlled substances. The Supreme Court’s act of exonerating them by payment of fines may earn some extra revenue and set a precedent. The change this ruling has intended may be in public interest. The court may be supporting both the defendant and the prosecutor because both may be right. But in doing so, it has also violated the Penal Code.
 
Unless ruling a change means violating laws, the Supreme Court has legislated. By empowering the Bhutan Narcotics Control Authority to update the list of banned substances, it has usurped the law making power of the Parliament. Where the Court could have exercised some judicial restraint and be the creative force of law, the Court is telling the Parliament what it must do, not simply what it cannot do.
 
As an institution that has no power of the purse or the sword, the Court must rely on the legislative and executive branches of the government to enforce its directives. As the guardian of the Constitution and the final authority on its interpretation, the Supreme Court legislating laws is injudicious for it violates the principle of separation of powers that is enshrined in the Constitution.
 
While the national interest is the unifying constitutional element and common good, the guiding principle, encroachment between the branches of the government is usurpation of power. Article 1, Section 13 states: “There shall be separation of the Executive, the Legislature and the Judiciary and no encroachment of each other’s powers is permissible except to the extent provided for by this Constitution.”
 
The Court may not be institutionally competent to legislate because the law making process in a democracy concerns policy making on a majority basis by the representatives of the people.  The Court could have advised the legislature to amend laws that are ambiguous and respected the wisdom of the Parliament in not giving one agency the power to update the banned list of drugs.
 
However, if the Court is struggling alone with a social issue and the legislature remains oblivious of it, the Court must assume the legislature’s responsibility. But in doing so, it must be aware that it would have debilitating effects on other branches of the government.
 
When the Court steps in to correct legislative defects, we could risk the people losing faith in the Parliament. The creditability and legitimacy of the Parliament is questioned if the laws they enact today have to be amended tomorrow. When the Court legislates, questions arise on the Court’s legitimacy as a policy maker in a democratic society.
 
But even if the changes are desirable, the Court is not the right institution to initiate them. If it does so, our legislature must learn that they need to do more than be distressed.
 
Kuensel Online, August 14, 2017
 
 
 
 
Print
Share
  
increase Font size decrease Font size
 

Disclaimer: South Asia Monitor does not accept responsibility for the views or ideology expressed in any article, signed or unsigned, which appears on its site. What it does accept is responsibility for giving it a chance to appear and enter the public discourse.
Comments (Total Comments 0) Post Comments Post Comment
Review
 
 
 
 
spotlight image Since Prime Minister Sheikh Hasina assumed office again in Bangladesh in 2009, bilateral relations between New Delhi and Dhaka have been on a steady upward trajectory.
 
read-more
A top Chinese Army official on Sunday said negotiations with the Indian Army paved the way for the resolution of the Doklam stand-off on the India-China border.
 
read-more
A unique and passionate gathering of acrophiles, or mountain lovers, took place in neat and picturesque Aizawl, the capital of Mizoram state in north-eastern India in September.
 
read-more
India’s foreign policy under Prime Minister Narendra Modi has attained a level of maturity which allows it to assert itself in an effective manner. This is aimed at protecting the country’s national interests in a sustained way.
 
read-more
As about-turns in the three-year-old BJP government go, this must be among the shortest and most important tweets issued by any BJP leader. And although Prime Minister Modi spent Diwali with soldiers in Gurez less than a week ago, it was left to Home minister Rajnath Singh to announce a major policy shift on Jammu & Kashmir at 4 pm
 
read-more
  In his report at the opening of the 19th National Congress of the Communist Party of China, Xi Jinping redefined the principal contradiction facing Chinese society in the new era, namely between unbalanced, inadequate development and the people's ever-growing needs for a better life. Providing this better life has become
 
read-more
As political roller coasters go, there is none as steep and unpredictable as the one shared by the United States and Iran.
 
read-more
In snap polls in Japan, Prime Minister Shinzo Abe’s Liberal Democratic Party-led coalition has secured a two-thirds majority in the lower house of parliament.
 
read-more
On “Defining Our Relationship with India for the Next Century”
 
read-more
Column-image

Title: The People Next Door -The Curious History of India-Pakistan Relations; Author: T.C.A. Raghavan; Publisher: HarperCollins ; Pages: 361; Price: Rs 699

 
Column-image

Could the North Korean nuclear issue which is giving the world an anxious time due to presence of hotheads on each side, the invasion of Iraq and its toxic fallout, and above all, the arms race in the teeming but impoverished South Asian subcon...

 
Column-image

Title: A Bonsai Tree; Author: Narendra Luther; Publisher: Niyogi Books; Pages: 227 Many books have been written on India's partition but here is a firsthand account of the horror by a migrant from what is now Pakistan, who ...

 
Column-image

As talk of war and violence -- all that Mahatma Gandhi stood against -- gains prominence across the world, a Gandhian scholar has urged that the teachings of the apostle of non-violence be taken to the classroom.

 
Column-image

Interview with Hudson Institute’s Aparna Pande, whose book From Chanakya to Modi: Evolution of India’s Foreign Policy, was released on June 17.

 
Subscribe to our newsletter
Archive