Legislature, Judiciary, and Executive, the creators of the Constitution, are the three major organs of the state. Powers among them are isolated. The decision taken by them and the laws made by them can’t be usurped by anyone.
Unlike England, India has a written Constitution. But still, in the UK, the legislature, the executive or the judiciary would never trespass. On the one hand, in India, the judiciary very often breaches this fundamental line. The Supreme Court transgresses into the Parliament’s turf and usurps power of the legislative to enact laws.
This encroachment by the judicial legislation is in sharp contrast to any democratic form of Government where ‘Separation of Powers’ reigns supreme.
This judicial overreach also runs contrary to the basic structure doctrine of the Indian Constitution. For, the founding Fathers of the Nation had earmarked in the Constitution that the legislature, executive and the judiciary would operate and be the masters in their own spheres.
Judiciary was meant to interpret laws made by the Parliament. It could declare a law — made by the legislature or even an Amendment to the Constitution — a nullity or perfectly valid.
But with the advent of Public Interest Litigation, the beliefs of the Founding Fathers of the Constitution became a mirage. Earlier, the judiciary was adjudicating on the English model, as enunciated in our Constitution where laws were only interpreted by the courts.
However, of late, the Supreme Court has been taking suo moto notice of issues where it feels laws in that particular field have not been made by the Parliament; and that its judgement would be the law. This per se is judicial overreach and such judicial activism shakes the very foundation of the doctrine of ‘Separation of Powers’ upon which the Constitution’s edifice stands.
In Aruna Shanbaug’s case (2011 SCC 354), former Supreme Court judge Markandey Katju’s opinion to the Bench, which is the law of the land on euthanasia, is a striking example of judicial activism.
Even in the UK and France, Bills on euthanasia could not be passed as there was stiff opposition. In Holland and Belgium, Parliaments have enacted laws but India is not ready as the then Attorney General informed the Bench.
Nonetheless, the Supreme Court, speaking through Justice Katju, took over the legislative function of the Parliament and the judge-made law on legalised killing came into effect.
Such a judgement overreaches into the legislative domain and ex facie has to be deprecated for entering into Parliament’s arena. Such judicial legislation is dehors of our Constitution.
The case mentioned above also shows that the apex court’s anxiousness to venture into taboo areas where it should rightly have shown judicial restraint. However, there have been several cases where this lakshman rekha has been breached, yet, the Supreme Court has reiterated explicitly many a time that it should not cross over.
The larger issue is: Why should the Supreme Court legislate or issue such legislative-like and unheard of directions that Parliament is directed to enact a particular law?
By doing so, it shocks democratic countries overseas who too are governed by the rule of law as usurpation is unheard of where the rule of law thrives. Democracy survives only when all the three organs remain in their lanes and do not swim across.
Very often, as English judgements say, emotional facts make bad law. Adjudication by courts must be strictly in accordance with the law and not in derogation of the established principles of the law.
The proposition of the Doctrine of Seperation of Powers was expounded by the same judge.
In Hiramony’s case (2008 SCC 630), Justice Katju had opined that the Supreme Court should not encroach on the legislative field. Further, the top Court again, speaking though Justice Katju, held in Shraddhanand case (2007 SCC 288) that it had no power to amend the Constitution by a judicial verdict and that it could not arrogate to itself the power of the Parliament under the Constitution and must maintain self-restraint.
Again, Justice Katju, speaking for the Supreme Court in the Aravali Golf Club case (2008SCC 683), held that in several cases which have come up in the Supreme Court, the Bench has observed that the judges of High Courts were unjustifiably trying to perform executive/legislative functions. This was clearly unconstitutional. In the name of judicial activism, judges cannot cross their limits and try to take on the functions that belong to another organ of the state.
He reiterated that the three organs of the state should not impinge on one another, as otherwise the delicate balance of the Constitution would be upset. Judges must know their limits and not behave like emperors.
Interestingly, Justice Katju said in a judgement that judges could not create law and then enforce it. Judges cannot direct the legislature to make a particular law. All the above judgements too were delivered by Justice Katju but when the euthanasia case came before his Lordships four years later, he chose to gloss over it and the maxim of judicial restraint was ignored.
Such aberrations in our judiciary must not shake up the basic Doctrine of Separation of Powers in India. An effective vigil is a must to ensure that such personal thoughts do not become the law of the land.
(The writer is a practising Supreme Court lawyer)
Writer: DN Goburdhun