Editorial Sad but true we need Courts to legislate

Arvind Radhakrishnan’s column titled “Is the judiciary ruling India?” in DNA suggests that there is over reach on the part of the Judiciary and it is encroaching on the Executives domain often. Associate Editor, Raghul Sudheesh, writes a reply to this column and argues that the Judiciary is only a gap filler at times; when the executive and legislature fails..By Raghul Sudheesh.Arvind Radhakrishnan’s column titled “Is the judiciary ruling India?” in DNA (March 5, 2011) suggests that there is over reach on the part of the Judiciary and it is encroaching on the Executive’s domain often. Arvind criticises the courts for violating the principle of “Separation of Powers”..Arvind urges that, “Judges ought to follow this process of interpretation and should not ‘legislate’ from the bench. In case the text of the Constitution falls short of rendering justice or is inadequate, then it is for the legislature to rectify it. The judiciary should safeguard the Constitution; it should not write it.” The column further advocates the theory of “Originalism” whereby we ought to seek out the ‘original intent’ of our framers to understand what the text of the Constitution means..Arvind’s article points out to three main issues specifically; Judicial Legislation, Separation of Powers and Original Intent Theory..Arvind’s concerns seem to have risen because of the cancellation of 122 licenses by the Supreme Court in the 2G scam case. Arvind raises a question, is the judiciary interfering with the executive powers in the name of wider interest. He seems to be concerned with the “activist judiciary”..Rajeev Dhawan who wrote about the 2G judgment in Mail Today, said, “Great controversies rarely find strong resolution in court decisions. Courts can be past masters at evading crisis. Justice G. S. Singhvi’s judgment on the 2G scam is an exception.” He describes Justice Singhvi’s judgment as “informative, exploratory and decisive”..Arvind’s apprehensions seems to be un-called for various reasons. An elaborate analysis of the various Apex Court decisions would negate his claims..In Vishaka v. State of Rajasthan (1997), sexual harassment at work place was the main issue before the Apex Court. There was no law existing then in that area. The Court took clue from International Conventions and drafted guidelines for dealing with sexual harassment at work place which was to be in place until a legislation is enacted for this purpose. Till date, a bill with regard to the same has not passed by the parliament. A delay of almost 12 years!.In Supreme Court Advocates-on-Record Associations v. Union of India (Second Judges Case in 1993), a 9-Judge Bench laid down guidelines and prescribed procedural norms in regard to the appointment of Supreme Court judges, Chief Justices and judges of the High Court and transfer of judges from one High Court to another..In Vineeth Narain v. Union of India, the Apex Court gave exhaustive directions to enhance the efficiency of the Central Bureau of Investigation (CBI) and even directed that the Central Vigilance Commission shall be given statutory status..In Vineeth Narain’s case the Court also observed, “Where there is inaction even by the executive, for whatever reason, the judiciary must step in, in exercise of its constitutional obligations under the aforesaid provisions to provide a solution till such time as the legislature acts to perform its role by enacting proper legislation to cover the field.”.The Courts often step in when there is vacuum in a particular field and fills the space temporarily. Once the Parliament enacts laws, those will prevail over the guidelines issued. Courts itself make it very clear that the guidelines will only be a gap filler till legislation is brought into effect..Further in 2009 a two-judge Bench of the Supreme Court have referred to a five judge Constitution Bench, important questions of law on whether the judiciary by its orders could legislate to fill the vacuum in the laws in a particular field. The matter is still pending before a constitution bench of the Supreme Court; Arvind has totally missed out this important fact..Justice A. K. Ganguly in this judgment points out, “In our Constitution there is no such defined and express incorporation of the doctrine of Separation of Power”. Justice Ganguly mentions that though under Article 50 (one of the directive principles of State policy), State is to take steps to separate the judiciary from the executive in the public services of the State; it has nothing to do with the vesting of power..He goes on to say, “Under our Constitution the executive is endowed with certain legislative powers, for instance the Ordinance making powers under Article 123 and Article 213. It also has certain judicial powers under Article 103 and Article 192. The legislature is also empowered to exercise certain judicial powers under Article 105 and Article 195. The judiciary also exercises certain legislative and executive powers under Articles 145, 146, 227 and 229”..Justice H. K. Sema in Common Cause v. Union of India (2008) observed once thus, “I am also of the view that if there is a buffer zone unoccupied by the legislature or executive which is detrimental to the public interest, judiciary must occupy the field to sub-serve public interest.”.Hence the argument that Judicial Legislations are not proper and in violation of principles of ‘separation of powers’ is a trivial argument fuelled by lack of comprehensive research..Moving to Arvind’s conclusion that the Judges should not legislate from the Bench and should see the original intent would be a ludicrous argument. Constitution is a living document and constitutional dynamism demands the document to stay in tune with the developments of science, technology and the ages. Had judges interpreted the Constitution in a static way, right to education would not have become a reality; so is the case with right to privacy and many other rights..To quote the words of Justice K. K. Mathew in Keshavananda Bharati’s case, “Fundamental Rights themselves have no fixed content; most of them are empty vessels into which each generation must pour its content in the light of its experience.”.Raghul Sudheesh is Associate Editor at Bar & Bench. You can follow him on Twitter.