Can the Supreme Court ask the government to frame a law?

In a recent case, the Supreme Court directed the appropriate government to enact a law by June 2011.  The case, Gainda Ram & Ors. V. MCD and Ors.[1], concerned the legal framework for regulating hawking in Delhi.  The judgement lays out the background to this case by stating that the regulation of hawking in Delhi had been proceeding under directions issued by the Supreme Court in previous cases, and was being implemented by municipal authorities such as the New Delhi Municipal Corporation (NDMC). The NDMC and the MCD have also framed schemes to regulate hawkers as per a policy of the government framed in 2004.  However, since these schemes were not laid before Parliament, the Court held that these schemes cannot be called ‘law’ or drafted under the authority of any law.  The Court also stated that there is an urgent need to enact a legislation to regulate hawking, and the rights of street vendors. It referred to a Bill which had been framed by the government, and stated that since the government has already taken the first step in the legislative process by drafting a Bill, the legislative process should be completed.  On the basis of this, and other reasons, it directed the government to enact a law by June 2011.  This judgement raises three issues:

  1. The government is not the law making body in India.  Enacting a law is the function of Parliament and state legislatures.
  2. Even if the Court were to address the correct authority, Courts in India have no authority to direct the legislature to frame a law, let alone specify a time-period.  This may be said to violate the basic principle of “separation of powers” which states that the executive, legislature and judiciary should function independently of each other.  Under the Indian Constitution, the Supreme Court and the High Courts have the power to protect fundamental rights and to interpret law.  The Constitution does not give power to Courts to direct the framing of a law.
  3. Persons can be held in contempt of court for not following its directions.  In this case, it is not clear who would be held in contempt for not enacting a law by June 2011.  The Supreme Court can either hold the Speaker of the Parliament in contempt for not enacting a law by the specified date (it is uncertain whether the Court has this power since no such past instance has arisen). Or it can hold the concerned government official in contempt for not enacting the law within the time period specified (the government in this case, having no power to enact a law).

[1] Decided on October 8, 2010


Bhargav Joshi's picture

The direction given in Vishaka v St. of Rajasthan was given in a different factual matrix and was different in substance. There, the government had already taken up international obligations to take measures against sexual harrasment (By signing the CEDAW and having already ratified the ICCPR). Moreover, the order of the supreme court directed the goverment to make certain amendment to existent central rules rather than pass a legislation. With respect to making adequate legislation, the court merely recommended that the government 'consider adopting' legislations to combat sexual harassment in private sector work environments. Such recommendations are neither new nor rare. The difference essentially is that rule making powers are squarely within the powers of the government . Constitutionally therefore, that judgement can be argued to rest on more solid foundations. This is because the power to make the requisite amendments coupled with the relevant obligations under the applicable international treaties, made this a suitable case for the issue of a writ in the nature of mandamus against the central government. In this case however , the judiciary has taken one more step towards closing the gap between the parliament and itself. It remains to be seen whether the legislature will understand the compelling factual reasons that necessitated such a step and will, in all earnest, step up to discharge its constitutional responsibilities. Else, we would have no choice but to bear witness to such alarming changes to our system of checks and balances. The same however cannot be said of this case. First, because there
hemraj's picture

In my opinion, It can not be called as contempt of court because scheme formulation is a policy decision which is in exclusive jurisdiction of executive. However, legislature, by following conventions may enact a law to honor Supreme Court's direction.
PMB's picture

Hmmmmm.... What about Vishaka vs State of Rajasthan (1997) ? Tabling of :The Protection of Women from Sexual Harassment at Workplace Bill, 2010"; was done on 7th December 2010. Thirteen years from guidelines to bill tabling ? That too, against such deplorable crimes ! Talking for or against hawking is easy - but building a legal framework in a civil society of fine balance between hawkers' livelihood and societal standards, requires finely focussed approach. Courts do have a say, to rule on such oft-neglected matters; it actually depends on benches or more particularly the judges. Due to absence of access to justice on account of absence of statutes; which must be adhered to, since executive has a responsibility to bring up bill for enactment at legislature, within reasonable time periods to deliberate on draft, debate on feature, discuss rules and decide on the bill. There can be scores of multi-country scenarios on "separation of powers" well enumerated in a well known book that I came across ! Being bland is grand repeat of past, informed international benchmarking with advocacy is better from of parliamentary research, in case of access to justice which is not enshrined as judicial integrity standards in our land. After all, it is a endorsing case of pro status quo versus catalysing pro change mandate via research service to people's representatives ! Pl peruse : THE SEPARATION OF POWERS AND LEGISLATIVE INTERFERENCE IN JUDICIAL PROCESS This book examines the constitutional principles governing the relationship between legislatures and courts at that critical crossroads of their power where legislatures may seek to intervene in the judicial process, or to interfere with judicial functions, to secure outcomes consistent with their policy objectives or interests.
Augustine Jose's picture

Whatever be the constitutional scheme or the concept of separation of powers, the moot fact remains that in our country the higher judiciary, especially the Supreme Court of India, has proven to be the torch-bearer instrumental for enactment of several important laws beneficial to the citizens of this country. We must pose a question to ourselves as to what prompted our higher judiciary to pass such unprecedented orders and what were its impacts before passing any critical judgements on the same. I, for one, am of the strong view that so long as the Parliament has miserably failed in discharging its constitutional duties/obligations of making laws for the benefits of the citizens, there is nothing wrong on the part of the judiciary in giving such directives which are obviously for the larger public interest which is paramount in our democratic set up.

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