Are Judges Emperors ?
By Justice Markandey Katju
The dahi handi order of the Supreme Court is another case of judicial legislation.
http://indianexpress.com/article/india/india-news-india/dahi-handi-festival-18-minimum-age-for-govindas-human-pyramid-cant-be-more-than-20-feet-rules-sc-2980698/
If there is a law made by the legislature or its delegate, the Court can enforce it. But the judges cannot make law, and then seek to enforce it ( see the decisions I have cited in my report to the BCCI on the website bcci.tv ), as that is the function of the legislature.
Judges have to decide cases on legal principles, and not on their own fancies.
As Justice Cardozo, the celebrated judge of the U.S. Supreme Court said,
"A Judge is not a Knight Errant roaming at will in pursuit of his own ideal of beauty and goodness".
( see Cardozo's 'The Nature of the Judicial Process ' ).
The decisions of the Supreme Court in the 2nd and 3rd judges cases practically substituting Article 124(1) of the Constitution by an entirely different one, thus amending the Constitution by a judicial verdict,( though that can be done only by Parliament under Article 368 ), was so bizarre that it was called a ' sleight of hand ' by Lord Cooke. Similarly, the order prohibiting heavy diesel vehicles in Delhi ( and later substituting this order by an order imposing 1% green cess ), the BCCI order, the MCI order, jallikattu order, Disaster Mitigation Fund order, etc were all unconstitutional, being legislative in nature.
The time has come when the issue must be seriously considered in Parliament, in academic circles, in bar associations, the media, and by the public at large whether judges can do whatever they like and behave like Emperors, or are bound by the Constitution and the law.
