Gist of Editorials: The Need for Judicial Restraint | GS – II


Relevance :  GS Paper  II


Theme of the Article

Lawmaking is not the job of the judges, but of the legislature

Introduction

The Supreme Court is resorting more tojudicial activism rather than judicial restraint.

Recent Examples of Judicial Activism

  • time limits to burst firecrackers on Diwali
  • judgement on linking rivers
  • recently, a leader was asked to apologize for sharing a meme

Types of Jurisprudence

  • Positivist theory: lawmaking is not the job of the judges, but of the legislature.
  • Sociological jurisprudence: court can lay down anything as law according to its own subjective notions.

Instances of sociological jurisprudence by the Supreme Court

  • It created the collegium system which was not based on any provision in the Constitution.
  • Despite the unanimous will of Parliament in favor of the NJAC, the Supreme Court declared the NJAC Act to be unconstitutional.
  • In recent times, the Supreme Court has increasingly adopted the sociological school of jurisprudence in an aggressive manner.

Is sociological jurisprudence justified?

  • In a parliamentary democracy, the buck ultimately stops with the citizens, who are represented by Members of Parliament.
  • Sociological jurisprudence can be justified in very rare circumstances, such as striking down of Section 377 of the Indian Penal Code.

Conclusion

The Supreme Court should limit its usage of the sociological school of jurisprudence to only the most exceptional situations, and employ the positivist school as far as possible.


 

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