Markandey
Course Correction needed by the Indian Judiciary By Justice Markandey Katju
Markandey Katju 16 Nov 2022
India has a new Chief Justice of India, Justice Chandrachud, and he will have to deal with several issues, as there is a perception that the Indian judiciary needs a course correction. One of them will be to address the question of the proper role of the judiciary under our Constitution.
Many years ago when I was a Judge in the Indian Supreme Court, I asked Justice Beverley McLachlin, the then Chief Justice of the Canadian Supreme Court, who was on a visit to India with some of her colleagues, what she thought of judicial legislation. She replied “ Judicial legislation is an oxymoron “.

In other words, she was against it, since according to the doctrine of separation of powers in the Constitution, the three organs of the state, the legislature, the executive, and the judiciary, each have their separate domains, and it is improper for one organ to encroach into the domain of another. I agree with this. Legislation is the job of the legislature, so the judiciary cannot legitimately make laws. Nor could the judges excercise executive functions. 

Thus, in Ram Jawaya vs. State of Punjab AIR 1955 SC 549 (vide paragraph 12), a Constitution Bench of the Supreme Court observed:
“ The Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity, but the functions of the different parts or branches of the Government have been sufficiently differentiated, and consequently it can very well be said that our Constitution does not contemplate assumption by one organ or part of the State, of functions that essentially belong to another “.
Similarly, in Asif Hameed vs. State of Jammu and Kashmir, AIR 1989 SC 1899 a three Judge bench of the Court observed (vide paragraphs 17 to 19) : 
“ Before adverting to the controversy directly involved in these appeals we may have a fresh look on the inter se functioning of the three organs of democracy under our Constitution. Although the doctrine of separation of powers has not been recognized under the Constitution in its absolute rigidity but the constitution makers have meticulously defined the functions of various organs of the State. Legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another “.

Thus, it was authoritatively laid down in these decisions that the judiciary must excercise restraint, and not try to take over functions belonging to another organ of the state.

However, as pointed out by US President James Madison “ All power is of an encroaching nature “, and as observed by the celebrated Justice Frankfurter of the US Supreme Court inTrop v. Dulles (1958) 356 US 86 

“ Judicial powers is not immune against this human weakness. It must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self restraint. It is not easy to stand aloof and allow want of wisdom to prevail to disregard one s own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Court s giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the Executive Branch do “.

There is a tendency among some Indian judges to overstep the limits of their domain, and cross over into the domain of another organ of the state, and this has been regularly happening in India. 

To illustrate, we may consider the expanding interpretations given by our Supreme Court to Article 21 of the Constitution.

When our Constitution was being framed, the Constitutional adviser to the Constituent Assembly, B.N.Rau, went to America and met Justice Frankfurter, the celebrated judge of the US Supreme Court, who advised that the Indian Constitution should not have a ‘due process’ clause ( as exists in the 5th and 14th Amendments to the US Constitution ), since it had created a lot of problems in America as it was vague, and had at one time been held by the US Supreme Court to include what became known as ‘substantive due process’.

The 14th Amendment to the US Constitution says “— nor shall any state deprive any person of life, liberty, or property, without due process of law “.

Interpreting this, the US Supreme Court at one time held that to deprive a person of his life, liberty or property, not only can this only be done in accordance with a law made by the legislature, but also such a law should be fair, just and reasonable.

Now the words ‘fair, just and reasonable’ are vague, and susceptible to innumerable interpretations, and it was courts which would decide what was fair, just and reasonable. Each judge could give his own interpretation, according to his own whim and fancy, and thereby strike down a law made by the legislature. In fact the US Supreme Court was striking down the New Deal legislation initiated by President Franklin Roosevelt on this basis, which prompted him to attempt to pack the Court. 

Hence on Justice Frankfurter’s advice Article 21 of the Indian Constitution was thus framed “ No person shall be deprived of his life or personal liberty except according to procedure established by law “.
It is clear that under our Constitution, to deprive a person of his life or personal liberty, all that was required was that this should be in accordance with the procedure prescribed in a law made by the competent legislature. In other words, to deprive a person of his life there had to be a trial in which the accused was given an opportunity to defend himself in accordance with the criminal procedure code, and he could not just be caught and bumped off, as in fake encounters. Similarly, a person could be kept in confinement only in accordance with the law made by the legislature.

There was no further requirement that this law should be fair, just and reasonable. Indeed in AK Gopalan vs State of Madras, 1950 the Supreme Court noticed that the due process clause had been deliberately omitted in the Constitution, and therefore there was no scope for judges to import it in the garb of interpretation.

But this was precisely what was done subsequently in Maneka Gandhi vs Union of India, 1978 and other verdicts, which practically imported the due process clause into Article 21. Was this a legitimate excercise of judicial functions ? In fact these verdicts practically amended Article 21 by adding the words “ which must be fair, just and reasonable “ after the word ‘law’ in Article 21. But amendment of the Constitution can only be done by Parliament in accordance with Article 368. How can judges amend it ?

Because of this interpretation, now it is for judges to decide what is ‘fair, just and reasonable ‘, and different judges may have their own notions. Where then will there be certainty in the law ? Will there not be chaos and anarchy in the law ?
Apart from that, the Supreme Court while interpreting the word ‘life’ in Article 21 has held that it means a life of dignity. But that is again amending Article 21, because in the garb of interpretation the word ‘dignified’ has been added before the word ‘life’.
Moreover, what is the meaning of a ‘life of dignity’ ? The expression is vague, and each judge can interpret it in accordance with his subjective notions. Indeed, a host of rights have been created by the courts, holding them to be part of a life of dignity, and this expansion is going on endlessly.

Thus, in Chameli Singh vs State of UP, 1995, the Supreme Court held “ Right to live guaranteed in any civilised society implies the right to food, water, decent environment, education, medical care and shelter “.
In Olga Tellis vs Bombay Municipal Corporation, 1985 the Supreme Court held that the right to life includes the right to livelihood.

In Unnikrishnan vs State of Andhra Pradesh, the right to education was included in Article 21

In KS Puttaswamy vs Union of India, 2017 the Supreme Court held that there is a right to privacy.The list of new rights created not by the legislature ( which is the proper organ for creating rights ) but by Courts goes on and on.

But these rights are not mentioned in Part 3 of the Constitution. An amendment to Part 3 creating such rights can only be done by Parliament in accordance with Article 368. How could the Court do it ? If the Court starts creating rights, where does this end ? And is this not violation of the principle of separation of powers ? Is this not encroachment by the judiciary into the domain of the legislature ? And where are the financial resources for implementing the right to livelihood, medical care, etc

It is not that I am against the right to employment, medical care, proper education, privacy, etc. But these rights have to be created by the legislature not the judiciary.

In Divisional Manager, Aravali Golf Course vs Chander Haas, 2008, a division bench of the Supreme Court held :
“ Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like Emperors. There is broad separation of powers under the Constitution and each organ of the State the legislature, the executive and the judiciary must have respect for the others and must not encroach into each others domains “.

It is time that a course correction is now done by the Indian judiciary


By Justice Markandey Katju, former Judge, Indian Supreme Court

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