Thread by @dikgaj

The judiciary have not been given the right to "lay down law" - because they are unelected. They do not "represent" people as they dont answer to and r not subject to removal, by people. Usurpation of legislation by unelected individuals is a dangerous step towards super fascism.

https://twitter.com/barandbench/status/1326409732467388416

Constitutional courts function as checks and balances but cannot supersede the legislature. In a people's representative system no unelected functionary can be or should be allowed to impose their personal views as "laws" as it fails the test of approval by the majority.

This has been a long tussle for unilateral power over people between the courts and legislature. Those who are fond of citing "spirit of Constituent Assembly" also must know of the testy caution with which its much quoted stalwarts viewed possibility of judicial overreach.

These kinds of comments shd be taken as dangerous testing-of-waters for more aggressive unilateral law-making by unelected non-representatives, and possibly happens because legislature neglected its task of putting in safeguards to prevent such usurpation of people's rights.

Constitution has been amended 104 times already, even to amend previous "amendments" - but every attempt to put check on powers of judiciary has been blocked by judiciary using fundamental confusion in Constitution on superiority of legislature over every other unelected bodies.

"basic structure" or other concepts have been invoked without a clear consensus documented or legislature debated/passed delineation - instead it has become seemingly a convenient label to pass off what may very well have been minority/individual view as "law".

"Constituent assembly" has been used like "Hindu texts" - in carefully selective interpretations, and not original debates which often show completely opposite sentiments/observations to what they are now used to justify.

Somehow, "original" Constitution cd be allowed to be changed 104 times, some profoundly altering the original themes and constructs - yet spirit of "Constituent assembly" wasnt broken.

The spirit of "original Constitution" only gets broken if accretion of powers and privileges of certain sections not envisaged in original document or not distinctly not intended in constituent assembly debates, which were acquired later - are sought to be reversed.

These kinds of comments should be recognized as an encroachment on people's rights and powers over lawmaking in a representative democracy-where law cannot be subverted by interpretations that go against the very context of its framing.

If legislature cannot assert its right to be the ultimate body to make& change laws, change the Constitution when it is mandated by people to do so -regardless of individual views or functionaries or bodies appointed by it- then such a democracy is no longer truly representative.

In cases that are not direct disputes on the act of a legislature, a judgment can only interpret an existing law - but not legislate. Such interpretations can be made to force future applications of that law in a certain direction which need not be what the law was intended for.

This comes out of lack of thought in making the law in such a way that a judicial process has little liberty in interpreting it freely as per their personal views. However the more serious challenge is where dispute is directly over a bill/law passed by legislature.

The serious flaw in the Constitution that allows is the lack of clarity over limitations of power of Constitutional benches. To be fair, most "constitutions" rooted in European colonial frames show the mutual jealousy and distrust of their framers towards the common citizen.

Thus the writers of constitutions typically tried to perpetuate their own perceived group in trusteeship (overlordship) over the country and one way to prevent popular change was to build in an unelected/unanswerable to people body like Constitutional courts.

This flaw is what however allows unrepresentative forms of political thought and ideology to run the state, and impose individual views on society at large that may not have any approval in that wider society. The misalignment feeds resentment into disruptive tendencies.

All it needs a careful clarification to the Constitution that amendments that follow essentially overwhelming representative majority - cannot be challenged in and by any court, including constitutional benches.

I know some will find fault with my taking the phrase "lay down law" literally: as the concerned speaker might be seen as simply talking of affirming a relevant law and ordering its implementation in a given case.

However "lay down law" is generally understood as rude/peremptory authoritarian order/pontification/directive. It carries the hint of attitude of executive authority combined with legislative claim. That arrogance is shocking and bothering.