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http://blog.taragana.com/law/2009/11/11/apex-court-seeks-to-ascertain-its-legislative-and-executive-powers-16547/

Apex court seeks to ascertain its legislative and executive powers
By IANSNovember 11th, 2009

NEW DELHI - The Supreme Court Wednesday decided to examine and
ascertain the scope, ambit and extent of its legislative and executive
powers through a five-judge constitutional bench.

A two-judge bench of Justice Markandey Katju and Justice Asok Kumar
Ganguly sought to know from a constitution bench if courts can enact
laws and implement them as well - the functions which are in exclusive
domains of the legislature and the executive.

The bench referred the crucial issue for examination by a constitution
bench, expressing reservations over an earlier apex court order that
framed guidelines for the conduct of students union elections in
colleges and universities across the country.

The bench ordered that the apex court's legislative and executive
powers be ascertained and rejected Solicitor General Gopal
Subramanium's argument that courts are empowered to issue such
directions to meet pressing social needs.

"Today there are high prices and large-scale unemployment. These are
pressing social needs. But can we pass orders on these to the
government? - because we do not have the expertise though we are also
affected by the price rise," the bench remarked.

An apex court bench Sep 22, 2006, on the basis of recommendations of a
committee headed by former chief election commissioner J.M. Lyngdoh,
issued a series of guidelines for the conduct of students union
elections in colleges and universities.

The guidelines envisaged curbing the role of money and muscle power in
students union elections, besides fixing other criteria like age bar
etc. to ensure clean politics on campuses.

Maintaining that these issue involved "questions of grave
constitutional importance", Justice Katju's bench Wednesday referred
the matter to a constitution bench to be constituted later by Chief
Justice K.G. Balakrishnan.

The questions that the bench framed for examination by the
constitution bench included: "whether the interim order of the apex
court on Sep 22, 2006, directing implementation of the Lyngdoh
Committee report was valid, whether it amounted to judicial
legislation."

The bench also wanted to know "if judiciary can legislate and, if so,
what is the permissible limit for judicial legislation, and if
judiciary can cite pressing social problems to pass such judicial
directions."

The judges on the bench took exception to an earlier apex court order
framing guidelines for the conduct of students union elections in
colleges and universities across the country.

"We (courts) are taking over the functions of the legislature…yes,
there are grey areas…we are of the view that this is improper and
dangerous for democracy," the bench said.

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