How passive euthanasia verdict settles debate between judiciary and legislature

When the legislature and executive do not show inclination to act on certain issues, the people have only the courts to turn to.

 |  4-minute read |   13-03-2018
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The Supreme Court has given legal sanction to passive euthanasia in a landmark verdict, permitting people the right to a "living will" on withdrawing medical support if they slip into irreversible coma.

The top court said that directions and guidelines laid down by it and its directive shall remain in force till a legislation is brought on the issue.

Three cheers to the Supreme Court for its imaginative and path-breaking verdict. While in the case of Aruna Shanbaug, a former bench exercised judicial restraint, the constitution bench deciding on the petition filed by Common Cause, ruled in favour of the people.

Even as we celebrate the verdict, we need to applaud Chief Justice Dipak Misra, who headed the five-judge bench, to free the judiciary from the pressure of the meaningless debate over whether it was for courts to frame laws or just interpret it. Yes, the Supreme Court "makes laws" and we love it for doing it. Why not?

Let's not quibble or indulge in verbal jugglery to call this judgment anything other than what it is. Judicial legislation. A legal anachronism. A naked usurpation of legislative powers.


Constitutionally, it ought to have been in the domain of the legislature to formulate a law providing for such remedies and then for executive to implement it.

When the legislature and executive do not show inclination to act on certain issues, the people have only the courts to turn to. The Supreme Court has not disappointed by deciding in favour of the people.

Just note this pregnant pause, "Our decision will hold the field as law of the land until a legislation is passed." The verdict sure assumes the role of a legislation. No less.

It can now be inferred that the judgment is nothing but judicial legislation and puts to rest the debate that it is only for Parliament to frame laws.

Forget not, that the triple talaq verdict of Shayara Bano was in the same genre. Even as the court struck down instant triple talaq as unconstitutional, it asked Parliament to come up with a legislation on the same. While

Lok Sabha has passed the bill, it is now stuck in the Rajya Sabha, thanks to the political divide.

If this is not abdication of legislative accountability, one wonders what is. How can then either the executive or the legislature cry foul over judicial overreach?

Let's get it right. This euthanasia verdict may be new and innovative. But judicial legislation is not.

In the early 17th century, Sir Francis Bacon said: "Judges ought to remember that their office is... to interpret law, and not to make law." In the 18th century this was modified in Marbury versus Madison case when the US Supreme Court, for the first time declared a law of Congress invalid.

Justice Benjamin N Cardozo took this ahead in 19th century with "He (the judge) legislates only between gaps. He fills the open spaces in the law. How far he may go without travelling beyond the walls of the interstices cannot be staked out for him on a chart."

Then Lord Reid followed it in 20th century with, "There was a time when it was thought almost indecent to suggest that judges make law - they only declare it… But we do not believe in fairy tales anymore."Closer home, there is no better to quote on the issue than former chief justice PN Bhagwati. "There is a myth strongly nurtured by the Anglo- Saxon tradition and propagated by many jurists that judges do not make law, they merely interpret the law. Law is there, existing and immanent, and judges merely find it. The law making function does not belong to them but it belongs to the legislature... It is natural for them to indulge in the fiction that they are merely carrying out the intention of the legislature or discovering the immanent something called the law," Bhagwati said.

Let the executive and legislature realise their responsibilities before they cry foul. Meanwhile, there is more is in the offing, if the two branches continue their ways and allow the space to be justly occupied by the Supreme Court.

Also read: Real reasons why Mehbooba Mufti dropped J&K finance minister Haseeb Drabu


Vijayaraghavan Narasimhan Vijayaraghavan Narasimhan @narasimhan6

Author is practising advocate in the Madras High Court.

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