Legislature Must Wake Up To Reality
‘Separation of powers’ principle should be adhered to by all, more so, by the Courts. The power to repeal any law lies mainly with the legislature. But of late, a perception is getting stronger that the judiciary has been usurping the powers of other organs. So much so, the Supreme Court has been taking a proactive measures to amend or make changes in unconstitutional and unethical laws in the country. For example; in ‘Mithu vs State’, Supreme Court decided to repeal Section – 303 of IPC because it thought that it is against the Constitution and violative of Article 14 and 21 of the Constitution. The power to change or award any sentence by the Court of by any Government should be followed by due process of law and in ‘Mithu vs State’, the question raised before the Supreme Court was that if a life convict murders or attempts to murder any person than whether the sentence of Section – 302 imposed on him is right of wrong?
The Supreme Court took the view after considering the previous reports and instances that the sentence of murder imposed on the convict is unconstitutional. The main idea for enacting the Section – 303 was also discussed in this judgment and it was stated that the Section- 303 was enacted by Britishers to protect their Jail Superintendents and other authorities, earlier because of freedom struggle the prisoners in the heat of a movement used to harm the Jail Superintendents and other authorities. So protection was provided by the Britishers to its jailors and jail staffs by adding section 303 in the IPC — that if a person commits any harm than they will have a ground to impose a sentence of murder.
Another reason which was stated in this case for omitting this section was that ‘no defence was provided to the accused because it would be his or her second conviction and the rules were clear that sentence of death will surely be provided to him/her. The accused may be treated wrongly by the Jailor or even if he is on parole and if something provocative happens then in that case no defence was there with him/her. Therefore, the Supreme Court took the view to repeal this section, which in a way is right and justified decision.
The main power, however, to enact or repeal any law lies with the Legislature. The Supreme Court in certain special cases or instances only take a measure to repeal or amend the law. It is good that the Legislature has woken upto reality and now it is thinking of changing/repealing certain outdated laws.
There is a news that Parliament will pass two Bills to repeal 1053 redundant laws. There is extreme pressure on India’s judiciary because of the floods of cases, which are instituted day by day, in the courts across the country. So instead of putting all the burden on the Supreme Court; the people should also ask their Members of Parliament and the Legislative Assemblies to make changes in the law or if necessary repeal them.
In a recent case, the Supreme Court took the measure and established a third gender in our country. The judgment was first of its kind. This measure could have been taken by the Legislature and that would have been much better because it would restore faith of people in the Legislature. As per the rules of the interpretation judges can’t be like Legislatures because that would destroy the basic principles of ‘rule of law’ and ‘separation of power’ but nowadays it seems that the judges have become the new Legislatures, which should not be the case. Therefore, the Government should care more and more on the people and their opinions rather than leaving the citizens to depend on the judiciary for each and every right.
Utkarsh Pandey
Advocate