Supreme Court : Third Chamber of Parliament ?

 

I read the Times of India piece on whether the Supreme Court risks becoming a third chamber of Parliament, and I felt compelled to respond. This is not the first time I've grappled with this question. In fact, I've been writing about it for over a decade — and I believe the framing of the problem is fundamentally backwards.

The Real Question Isn't What the Court Can Do — It's What Parliament Won't Do

Courts don't wake up one morning and decide to legislate for sport. They intervene because legislatures have abdicated.

I wrote about this explicitly back in May 2016 in my blog **"When Lawmakers Abdicate." Our Constitution is clear: only the Legislative wing has the power to enact or repeal laws. The Judiciary can only interpret. This arrangement worked fine fifty years ago when economics and politics were fairly insulated from the rest of the world.

But what happens when legislatures simply refuse to legislate?

I'll give you concrete examples:

• The Women's Representation Bill was held hostage by minority parties in the Lok Sabha for 37 years. Did the Supreme Court create that gridlock? No. Did it step in eventually? Yes — because Parliament wouldn't.
• Congress blocked the GST Constitutional Amendment for 2 years. While they debated, economic growth suffered. Parliament failed; courts had to manage the fallout.
• Pollution affects Delhi, Mumbai, Kolkata, Chennai, and Bangalore equally. Yet the Supreme Court passed pollution directives only for Delhi. I asked at the time: Why aren't the State Legislatures of Maharashtra, Tamil Nadu, Karnataka enacting their own pollution laws? Why are they content to pass the buck to the Supreme Court?

That is what I call "abdication of responsibility."

"Not That We Love the Lok Sabha Less — But That We Love Indians More"

In May 2016, I published **"Not that I love Caesar less!" — a direct response to then-Finance Minister Arun Jaitley's speech in Parliament, where he said the Supreme Court was "demolishing the sovereign power of Parliament, inch by inch, brick by brick."

He was not entirely wrong. But he missed the context entirely.

Yes, the Supreme Court has been intervening more. But what was it intervening in?

When the Supreme Court directs the government to set up investigative teams for black money, corruption, scams, disportionate assets, I say: accept these directives with humility. When it orders investigations into farmer suicides — 17,000 a year over loans of a few thousand rupees — when it demands enforcement of the Food Security Act while 3,700+ children die of starvation every single day, when it acts on the Rs 13 lakh crore NPA crisis driven by willful bank defaulters — these aren't acts of a power-hungry court.

These are acts of a court that has finally decided: "We will not sit idle while the legislators you voted for have failed you for 68 years."

To Shri Jaitley, I said then: "Please, do not punish the voters by ignoring these directives. They have learned their lessons and given you the mandate. If anything, through pro-active measures, help the Supreme Court get back to happily doing what it does best — interpreting the laws."

The ball is in Parliament's court. Always has been.

The Lodha Committee Debate: When "Unlawful" Might Be "Right"

In August 2016, ex-Supreme Court Judge Markandey Katju launched a sharp critique of the Court's Lodha Committee judgment on BCCI governance. I addressed this in "Unlawful? Maybe!"

Katju said the Court had "over-reached itself and indulged in judicial legislation." He was technically correct. The order was arguably legislative in nature — something the Court had no constitutional power to pass.

But here's what I asked Katju in return: Where was your voice during your tenure as a Supreme Court judge when:

• Minority parties held the Women's Representation Bill hostage for 37 years?
• Congress blocked the GST Amendment for 2 years?
• Congress governments aided and abetted a parallel economy of black money for 50 years?
• 1.2 million children under five died each year due to starvation while millions of tons of grain rotted in the open?
• 17,000 farmers committed suicide annually because they couldn't repay loans of a few thousand rupees?
• Hundreds of scams siphoned off lakhs of crores from government contracts and licenses?
• Thousands of tanneries turned the Ganga and Yamuna into gutters for 40 years?

My response to Katju was blunt: "What the Supreme Court did in BCCI and similar situations may not be 'correct' in the eyes of the law. But it is the 'right thing to do' in the eyes of the poor people of India."

For the poor, the starving, the oppressed — the Supreme Court is the court of last resort. It has come to their rescue when the Legislative Wings have miserably failed and corruption has corroded the Executive Wing.

Would I prefer the Court had asked Parliament to legislate on BCCI governance instead of imposing the Lodha Committee recommendations directly? Yes. That would have been more constitutionally proper. But Parliament's silence was deafening — so the Court acted.

The Uncomfortable Truth About "Separation of Powers"

Here's what the Times of India article — and critics like Katju — don't fully grapple with:

Separation of powers only works when all three branches are functioning.

When the Legislature abdicates for decades, when the Executive is riddled with corruption, the Judiciary cannot simply fold its hands and say, "Well, technically, this isn't my job." That's not separation of powers. That's abandonment of a nation's most vulnerable.

The real question the article should ask is not: "Can the Supreme Court become a third chamber?"

It should ask: "How many years should we wait for Parliament to do its job before we accept that the Supreme Court must fill the void?"

Because make no mistake: when legislatures won't legislate on pollution, on food security, on farmer suicides, on bank defaults, on child labor — courts will. And frankly, they should.

The remedy is not for courts to retreat. The remedy is for legislatures to advance — to reclaim their constitutional role by actually legislating on the critical issues that affect India's poorest citizens.

Until then, my answer to the Times of India is this:

The Supreme Court isn't trying to become a third chamber of Parliament. Parliament is abdicating its first chamber responsibilities. The Court is simply stepping into the void — not by choice, but by necessity.

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Sources

#	Title	Date	About
1	Not that I love Caesar less!	2016-05-17	Supreme Court prioritizes citizen welfare over legislative sovereignty when Parliament abdicates responsibility.
2	Unlawful? Maybe!	2016-08-09	Defends Supreme Court overreach in BCCI case as 'court of last resort' for suffering citizens vs. Judge Katju's critique.
3	When Lawmakers Abdicate	2016-05-11	Questions why state legislatures refuse to enact laws on pollution and other issues, forcing Supreme Court intervention.