Mathew J. in Keshavananda Bharti v. State of Kerala quoted Lord Reid to say,
“.. there was a time when it was almost indecent to suggest that judges make law- they only declare it. But we do not believe in fairly tales anymore and the function of this Court is not only to declare but also to make law that is binding on all the Courts of this Country”
¬The following are to be addressed in the proposition;
1) In an era of judicial lawmaking, should the judiciary still/still not be a State under Article 12 of the Constitution ?
2) Does the Constitution empower the judiciary with the power of law-making?
3)Whether the function of the Supreme Court under Article 141 is Constitutive or Declaratory in nature ?
4) Judicial activism v. judicial restraint.
“To treat constitutional law same as the Constitution would then mean to submit to government by judiciary which is surely not intended in any democratic nation. Such would be utterly inconsistent with the very idea of rule of law.”
The above is Abhraham Lincoln’s criticism of the US Supreme Court decision of Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1856). Chandrachud J. in In re Special Court’s Bill termed this decision as the ‘great usurpation of power’ and cautioned the Court.
The following issues are to be addressed in this propostion;
1) What role does the Basic Structure doctrine have in defining the contours of judicial supremacy in India?
2) The legitimacy of the Court as a undemocratic/unelected body making the law.
3) The legitimacy of judicial decisions when the Court introduces/ ‘reads in’ a concept not existent in the Constitution, i.e. ‘due process of law’ in Article 21 despite the framers specifically rejecting this concept.
3) Ancillary issues such as the power of contempt, the Court appointing its own judges, interfering with the working of the parliament/ assemblies etc…