A recent case before the Supreme Court has once again highlighted the issue of judicial decisions potentially replacing/ amending legislation enacted by Parliament. The case importantly pertains to the judiciary’s interpretation of existing law concerning itself. The eventual outcome of the case would presumably have important implications for the way the higher judiciary interprets laws, which according to some amounts to the judiciary “legislating” rather than interpreting laws. This assertion has often been substantiated by citing cases such as Vishaka v. State of Rajasthan (1997) where the Supreme Court actually laid down the law pertaining to sexual discrimination at workplaces in the absence of a law governing the same. In numerous other cases, courts have laid down policy guidelines, or have issued administrative directions to governmental departments. In the recent case of Suraz India Trust v. Union of India, a petition has been filed asking the court to reconsider its own judgements regarding the manner of appointment and transfer of judges. It has been contended that through its judgements in 1994 and 1998 (Advocate on Record Association v. Union of India and Special Reference No. 1 of 1998) the Supreme Court has virtually amended Constitutional provisions, even though amendments to the Constitution can only be done by Parliament. This question arises since the Constitution provides for the appointment and transfer of judges by the government in consultation with the Chief Justice of India. The two Supreme Court judgements however gave the primary power of appointment and transfer of judges to the judiciary itself. Importantly, one specific question which has been raised is whether the judgements referred to above really amount to amending the relevant provisions of the Constitution. Another question raised which is relevant to this discussion is whether the interpretation by courts can actually make provisions in the Constitution redundant. In its judgement on the 4th of April, the Supreme Court referred this case to the Chief Justice of India for further directions. The outcome of this judgement could potentially require the Supreme Court to define the circumstances when it interprets law, and when it “legislates”. An indication of the Supreme Court's attitude concerning this issue may be gleaned from the recent speech of the Chief Justice of India, Justice S.H. Kapadia at the M.C. Setalvad lecture. The CJI unambiguously stated that: "...In many PILs, the courts freely decree rules of conduct for government and public authorities which are akin to legislation. Such exercises have little judicial function in them. Its justification is that the other branches of government have failed or are indifferent to the solution of the problem. In such matters, I am of the opinion that the courts should be circumspect in understanding the thin line between law and governance..."
The Piracy Bill was introduced in Lok Sabha on April 24, 2012. According to the Statement of Objects and Reasons, there has been a significant increase in attacks by pirates, particularly in the Gulf of Aden and off the coast of Somalia. This has affected security of maritime traffic and personnel plying between Asia, Europe and Africa. Moreover, enhanced naval presence in the Gulf of Aden is now causing pirates to shift operations close to India’s Exclusive Economic Zone. As a result, a number of Somali pirates are presently in the custody of Indian police authorities. However, since piracy as a crime is not included in the Indian Penal Code (IPC), this has led to problems in prosecution. The Piracy Bill intends to fill this gap and provide clarity in the law. The Bill, if passed by Parliament, would extend to the entire Exclusive Economic Zone of India (EEZ). Under international law, EEZ is a seazone over which a country has special rights for exploration and use of marine resources. It stretches outward from the coast, up to 200 nautical miles into the sea. The Bill defines 'piracy' as any illegal act of violence or detention for private ends by the crew or passengers of a private ship or aircraft on high seas or at a place outside the jurisdiction of any State. This definition is akin to the definition of piracy laid down under the 'United Nations Convention on the Law of the Sea'. The Bill seeks to punish piracy with imprisonment for life. In cases where piracy leads to death, it may be punished with death. It also provides that if arms, ammunition are recovered from the possession of the accused, or if there is evidence of threat of violence, the burden of proof for proving innocence would shift to the accused. The Bill empowers the government to set up designated courts for speedy trial of offences and authorizes the court to prosecute the accused regardless of his/ her nationality. It also provides for extradition. You can access the Bill text here.
