JUDICIAL ACTIVISM IS NOT AN UNGUIDED MISSILE

Abstract

Judges are the official body that are appointed to dispense justiceto the needy and adjudicate legal disputes with the assistance of positive laws and provide a path for ought laws, by interpreting the existing laws. Their duty is to ensure a balance between laws and society. Our constitution provides them with the power of‘Judicial Review’ which means to keep a check on existing laws and ensure that those laws do not counter the Basic Structure of the Constitution of India. But what if they step into the shoes of the legislature and enact laws with the help of their pronouncements. There are so many instances where the court has stepped in to establish the
fact that they can not only amend the laws but also make laws. Although their capacity to amend is still questionable. Moreover, can their act of enacting laws be violative of the basic structure doctrine? What about the separation of powers? The concept of separation of power is not rigid and fully applicable in India as at times all the three pillars overlap but there still exists the thin line of difference that separates the Legislature from Executive and Executive from Judiciary and Judiciary from the Legislature. Mulling over this biggest question that, “Whether the judges can legislate” and if yes, then “Should they be given the power to legislate or not”, the researchers have plumped for this topic and have tried to scrutinize the issue further. The major intent behind studying this particular affair was the increasing judicial intrusion in constituting laws. The research will help answermany unraised questions as the study will provide a two-way perspective to the chosen case. Initially, the study providesthe readers with the changing capacities of Judges and how they have broadened their area of work from administering justice to making amends in the laws and even creating new ones with the help of many cases showcasing the difference where they have made laws and where they have declared them. Next,the research provides the view of the jurists on the issue and the reasons of this passive evolution of a Judge’s powers, like a fault at the part of the legislature. Further,the researchers providean insight to what is the present condition of judicial legislation and how the legislature reacts to it. And lastly, the researchers provide an ensuing perspective to the chosen issue.