Ph.D. Scholar at the Sunrise University, Alwar and Faculty of Law, SOEL, Tamilnadu Dr Ambedkar Law University, India.
Professor at Sunrise University, Alwar, India.
The judicial legislation is a temptation, often finds it difficult to avoid. The thin line which separates adjudication from legislation should not be crossed or erased, for the sake of that temporary temptation. The courts must avoid the danger of determining the meaning of a provision based on their preconceived notion of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. The courts are not entitled to usurp the legislative functions under the disguise of interpretation, whereas the separation of powers is sacrosanct in a modern democracy. There are various occasions, where the Public Interest Litigation domain was used to enter into the legislative domain as well. It is apart from the fact that the judicial decisions were invited to the facts where the legislative vacuum existed. Though the precedent is not the law of the land and it does not have the sanctity of statute, over the period in India, precedent became more authentic than the statute itself. Though the judicial legislation, in modern times cannot be ruled out completely, it does have its inherent limitations as well. The judicial legislation may be used as a special medicine where the disease is acute, as an emergency measure, but that shall not be the order of the day, rather the daily menu. Some of the said inherent limitations are discussed in the given article.
International Journal of Law Management and Humanities, Volume 5, Issue 3, Page 1099 - 1114DOI: https://doij.org/10.10000/IJLMH.113154
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