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The Supreme Court has debunked the "myth" that courts cannot make laws


According to the Supreme Court, the idea that courts cannot or do not establish laws was debunked a long time ago. The Chief Election Commissioner and other ECs will be appointed by the President based on a committee's recommendation that includes the Prime Minister, the Leader of the Opposition in the Lok Sabha, and the CJI to maintain the "purity of election" according to a five-judge constitution bench led by Justice KM Joseph.


When writing the decision, Justice Joseph provided examples of instances where the Supreme Court had turned to issue directives that had the appearance of legislation in cases where there was a legal void or no legislation.


The separation of powers and judicial review principles as components of the Constitution's fundamental framework was extensively discussed in the judgment.


It was emphasized that a court could not be accused of violating the separation of powers principle or failing to adhere to the Constitution's restrictions when it rules that legislation or amendment is unconstitutional.


This Court and the High Court enact Rules using the authority granted to them. They will undoubtedly function in the capacity of legislative delegates, but in these circumstances, the power being exercised would be legislative.


When the President of the Union of India issues an ordinance by Article 123, the Executive exercises its legislative power. When Parliament finds a defendant guilty of contempt of Parliament and punishes him, the court's attribute of judicial power guides the processes it reads.


The concept that courts cannot or do not establish laws is a myth that has long been disproven, according to the opinion. The roles of the legislative and judicial branches differ in democratic functions. Therefore, there isn't a tight distinction or separation of powers in India, according to the statement.

Citing examples, the judgment stated that when Parliament summons someone and punishes them for violating its privilege, it acts in a judicial capacity.


It's possible that turning to the courts won't always be able to address social ills. We also understand that judges cannot try to run the government or act as monarchs.


That was written. It was mentioned that the division of powers is part of the Indian Constitution's core structure. Also accepted as a part of the fundamental framework is judicial review. A court cannot be accused of violating the separation of powers when it declares a law passed by the legislature unconstitutional if it is within its legal authority, it was added. 


Article 13 of the Constitution provides for judicial review of legislation." Regarding the court's judicial review authority, it was said that one of its powers included declaring even a statute passed by Parliament unconstitutional.


"Even a constitutional modification might be ruled illegal by an Indian court since, unlike most other countries, the idea of basic structure has been expressed. The court cannot be accused of violating the Constitution's restrictions due to such an effort, "It was written.


In the end, the principle of the separation of powers is intended to prevent tyranny of power from the presumption of excessive force in a single source, it stated. It said, "Judicial activism must have a solid legal foundation and cannot become a purely subjectivist exercise.

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