An Interaction of the Students of Dr. Ram Manohar Lohiya National Law University with Hon’ble Mr. Justice Markandey Katju, Hon’ble Mr. Justice P. Sathasivam and Hon’ble Dr. Justice B.S. Chauhan

Saturday, August 20, 2011 (11.15 A.M): The students of Dr. Ram Manohar Lohiya National Law University interacted with three esteemed judges of the Supreme Court on India, namely: Hon’ble Mr. Justice Markandey Katju, Hon’ble Mr. Justice P. Sathasivam and Hon’ble Dr. Justice B.S. Chauhan. The interaction centered on the topic, “The Judiciary and the Unity and Integrity of India”. The entire event was organised by the students of the University and was the first of its kind, being presided by three eminent jurists. Although the words of judges play a very important role in the life of every law student, as manifested through their judgments, which become a part of the students’ curriculum, a live interaction with such eminent personalities is a privilege few can experience. The University, in the words of the Vice Chancellor, Prof. Balraj Chauhan, truly felt “proud, honoured and privileged” to experience this golden opportunity.

Law as an instrument of social development in achieving the transition from a feudal agricultural society to a modern industrial society was underscored as the need of the hour. “Judicial Adventurism”, which prompted judges of the superior courts to deliver judgments which could seem to overstep the doctrine of “Separation of Powers”, was justified when, quoting Hon’ble Mr. Justice Markandey Katju, “a legal norm is required in the course of legal development”. He further exemplified his views, stating, “In Ireland, there was a law against the use of contraceptives. Although in the present times, countries have started to realise the right of a woman to indulge in intercourse without facing pregnancy, in those times, this right was not recognised. In a case where a lady had to use contraceptives due to a medical condition, the Court ruled in favour of the defendant, and upheld the right to privacy. Although no right to privacy existed in the Constitution, these ‘penumbra (peripheral) rights’ were created by judicial legislation, under the garb of Constitutional interpretation”. Hon’ble Mr. Justice P. Sathasivam stated in this account: “When the Government fails to enact legislation in a particular field the Court cannot turn down a litigant, especially when there is no ‘alternative remedy’.” He emphasised the role of the judiciary in filling the gaps in law, and mentioned the judgment in Vishakha v. State of Rajasthan, which still continues to be the law for sexual harassment in India, in the absence of existing legislation. Hon’ble Dr. Justice B.S. Chauhan added that the entire law on the environment was developed by the judiciary, and that the Court had to intervene as a last resort.

In answer to a question put forward to the judges, regarding the expression of the personal opinion of judges in judgments, Hon’ble Mr. Justice P. Sathasivam stated that ‘theoretically’ judges do not express their own views but maintain institutional integrity in their judgments. Hon’ble Mr. Justice Markandey Katju stressed on the fact that India is undergoing a “painful and agonising period” of industrial revolution, and is not respected in world forums like the United Nations because “77% of the people in India are poor” and “no one respects the poor”. He also referred to his judgment on honour killings in India, where he ruled on “mandatory death sentence” for offenders who “took the law in their own hands”. He accepted that it was his personal opinion, but it was justified as India could not be allowed to remain backward.

In reply to a question on the efficacy of the collegium system of election of judges to the Supreme Court, Hon’ble Mr. Justice P. Sathasivam explained that the procedure was very complex and thorough and not at all as flimsy as sometimes portrayed to the public eye. Hon’ble Dr. Justice B.S. Chauhan supported this statement, saying that “no system is perfect. It is only the people under the system that makes it so.”

According to Hon’ble Mr. Justice Markandey Katju the impeachment of judges by the Parliament is not a violation of the separation of powers between the legislature and the judiciary. “Before 1701 there was no job security for judges in England. Judges could be removed whimsically as they held office at the pleasure of the King. In fact Coke, C.J. was removed from service as he prevented the King from deciding a particular case. However, after the Act of Settlement was passed in 1701, a judge can be removed by the legislature and not the executive. A chargesheet has to be filed against the judges and they have to be provided the opportunity of hearing.”

He also stated that India is a country of mostly immigrants. “People migrate from uncomfortable to comfortable areas. The citizens of India have varied origins, but they are bound by the Constitution of India. In case the “son of the soil theory” becomes applicable, everyone will have to leave the country except the Adivasis who were the original inhabitants of the country.” The biggest attribute leading to the unity and integrity of the country is tolerance, and this has to be upheld by the judiciary.