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India: Supreme Court Orders Court Review of Whether It Can Make Laws

(Nov. 23, 2009) On November 12, 2009, a two-judge bench of the Supreme Court of India referred the question of separation of powers between legislative and judicial organs of the state to a constitutional bench of five judges. In referring the issue to a constitutional bench, the Court cited a 2006 decision of Justice Arijit Pasad, which had directed the implementation of the J. M. Lyndoh Committee report on streamlining student union elections in colleges and universities and of a subsequent order to control the menace of ragging (hazing). At that time, the bench felt that the proper course should have been to send the recommendations to the Parliament to make a law or to the universities concerned, so that they could make a decision on implementation of the Committee report.

In its recent decision, the Court said that the five-member constitutional bench should address the following issues:

1. whether the Supreme Court order of September 22, 2006, in directing the mode of implementation of the report, amounted to judicial legislation; and

2. if so, whether the Court could pass an order about a pressing social problem on the grounds that the legislature had not enacted a law.

(J. Venkatesan, Constitution Bench to Decide on Judicial Legislation, The Hindu, Nov. 12, 2009, available at http://www.hindu.com/2009/11/12/stories/2009111254611000.htm.)