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Can The Supreme Court Write The Constitution?

The Supreme Court judgement in the Gujarat Lokayukta case has agitated my mind with a question if the S.C. can write the constitution of India. Whatever little I had studied about the constitutional law of India, suggests that the court can only interpret the provisions of the constitution, but can not write it. Under the constitution of India, the Governors in the states are not envisaged as another and separate rung of the Executive. Governors are not empowered to take executive decisions independent of the council of ministers. Same is true about the President of India to a large extent, but there are some basic differences in the positions of the two constitutional offices. The appointments of imbecile, dementiated, crooked and even outright immoral persons to the august offices of governors are theoretically possible. The conduct of several governors has been the subject of agitated debates on their roles in the past. A few governors have been seen by me to carry their own recording devices in public functions to disprove political mischief of misreporting their views or opinions. Others have simply pooh-poohed any constitutional nicities, decorum or decency while conducting their affairs in public. Allowing the governors to over-rule the council of ministers is fraught with grave constitutional consequences and sometimes even calamities. At best the court could rule desired amendment to the law, but can’t lay down the law for the government or the legislature.

The legal debate on the subject would be worth watching.

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