Justice Markandey Katju is a former Judge, Supreme Court of India, and former Chairman, Press Council of India. The views expressed are his own.
Similarly, in Asif Hameed vs State of J&K, 1989, the Supreme Court observed:
“The legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another “.
In Lochner vs. New York 198 US 45(1905) Mr. Justice Holmes of the U.S. Supreme Court in his dissenting judgment criticized the majority of the Court for becoming a super legislature by inventing a `liberty of contract theory, thereby enforcing its particular laissez-faire economic philosophy. Similarly, in his dissenting judgment in Griswold vs.Connecticut 381 U.S. 479, Mr. Justice Hugo Black warned that unbounded judicial creativity would make this Court a day-to-day Constitutional Convention. In `The Nature of the Judicial Process Justice Cardozo remarked : The Judge is not a Knight errant, roaming at will in pursuit of his own ideal of beauty and goodness . Justice Frankfurter has pointed out that great judges have constantly admonished their brethren of the need for discipline in observing their limitations (see Frankfurter s `Some Reflections on the Reading of Statutes).
In view of all this, I submit that the US Supreme Court correctly decided Dobbs vs Jackson, and rightly reversed Roe vs Wade. I have given my view in this connection in some detail in this article :
The Indian Supreme Court, too, has been making laws e.g. by interpreting Article 21 to the Constitution by inserting substantive due process in it.
Article 21 states: No person shall be deprived of his life or personal liberty except according to procedure established by law
The Court has held that the word ‘life’ in Article 21 means a life of dignity. But that is amending the Constitution, something which can only be validly done by Parliament vide Article 356. Moreover, what is a life of dignity? Every judge can hold something to be part of a life of dignity, according to his own notions. Will that not lead to uncertainty in the law?
Also, the court has held that the words ‘ procedure established by law ‘ in Article 21 means a procedure that is fair, just, and reasonable, vide Maneka Gandhi vs Union of India. Here again, the Supreme Court has amended Article 21, by adding words to it. Where are the words ‘fair, just and reasonable’ mentioned in Article 21 ? Moreover, what is just, fair, and reasonable? Different judges can have different interpretations of it. Will that not lead to chaos in the law?
The Supreme Court has created rights, e.g. the right to privacy, vide Justice Puttaswamy vs Union of India. But creating rights is surely the job of Parliament, not the Court.
I respectfully submit that all these decisions have to be revisited, including the decisions in Maneka Gandhi vs Union of India, Puttaswamy vs Union of India, etc and the proper role of the judiciary has to be reconsidered.