Lordship says Courts should not legislate but my Lordship you legislated from the Bench!

Recently the Press Council of India Chairman and former Apex Court Judge, Justice Markandey Katju remarked that, “Shouldn't there be a restraint amongst judges? The Supreme Court has been playing a legislative role which is totally unwarranted. The Supreme Court should show restraint, many times the Supreme Court has taken over Parliament, Legislature and I gave a judgment that judges are not emperors that they can do whatever they like”. 

I fully agree with Justice Katju on these issues and also regarding the appointment of judges through Collegium system and I myself have been verycritical about this in the past.

In Aruna Shanbaug’s case, on May 7, 2011, Justice Katju delivered a landmark judgment legalizing passive euthanasia in India. Justice Katju in that case remarked, “We are laying down the law in this connection which will continue to be the law until Parliament makes a law on the subject”. In this case the Apex Court gave very detailed directions regarding the proceedings for removal of life supporting system. This is nothing but judicial legislation.

On October 21, 2010, in D. Velusamy vs D. Patchaiammal where Justice Katju laid down the legal framework for recognizing a woman's rights in a live-in relationship, he mentioned, “In our opinion not all live in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005. To get such benefit the conditions mentioned by us above must be satisfied, and this has to be proved by evidence.” This is also another instance of judicial legislation done by Justice Katju. This case was also famous for another reason, as Justice Katju used Wikipedia (which can be edited by anyone and anytime) to discuss the meaning of the term “Common Law Marriage”.

In anothercase, Justice Katju directed the trial/High Courts to award the death sentence to the convicts in "honour killings" cases, treating them in the ‘rarest of rarest’ category. Further in a case regarding fake encounters, Justice Katju remarked, “Cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare cases". The Criminal Procedure Code mandates that a judgment shall state ''the reasons for the sentence awarded and, in the case of sentence of death, the special reasons for such sentence''. Interpreting the scope of the term “special reasons” in the Bachan Singh case, the Court mandated that death sentence shall be awarded only in the ‘rarest of rare cases’. This is a judicial amendment of the Code and Justice Katju has been only adding to this by classify cases in the ‘rarest of rare’ category.

In 2009, a two judge Bench comprising Justice Katju and Justice A.K. Ganguly made a reference to a five judge Bench  differing with the order passed in 2006 by a two-judge Bench headed by Justice Arijit Pasayat regarding guidelines on student union elections in colleges and universities and a subsequent order to control the ragging menace. The Bench said, “the initial order directing the implementation of the report of the J.M. Lyngdoh Committee was wholesome and the court also directed the manner of implementation. The Bench felt that the proper course should have been to send the recommendations to the Parliament to make a law or to the Universities concerned so that they could take a decision on implementation.” It was this sane Judge who later created exhaustive guidelines legalizing passive euthanasia.

All these show the inconsistency of Justice Katju as a Judge and as a person. Now that he has retired from the Apex Court, he can criticize the Court for judicial legislation and say that 90% of Indians are fools! I am reminded of Francis Bacon’s words, “much-talking Judge is like an ill-tuned cymbal”.