Noida: Against the backdrop of Allahabad High Court order asking UP government officials and politicians to send their kids to government schools, retired Supreme Court Judge Markandey Katju said courts should not encroach into the domain of legislature.
Justice Katju was delivering a lecture on 'Judicial Activism and Judicial Restraint' at Amity Law School, Noida, University Campus here on Thursday.
"Courts are there to enforce the laws and there are no laws existing in this particular case to be enforced. There is a clear demarcation of powers laid down in the Constitution of India and judiciary, barring a few urgent cases, should not encroach into the domain of legislature, following certain legal principles. Judiciary can make laws where legislature fails. There have been numerous cases around the world when judges have made laws," he said.
"Judges have the power to expand the law and play the activist's role but there should be a clear distinction between judicial outreach and judicial activism, keeping in view the betterment of society," he added.
Referring to the growing culture of same sex marriages in the country, Katju stressed that although they have become a "fashion" and people have the right to live their lives the way they want to, but he himself considers same sex marriages "unnatural".
Sharing his views on the hanging of Yakub Memon, justice (retd) Katju said that the evidences based on which he was hanged were very weak.
"His case was decided on the basis of retracted confession of the co-accused, his own confession and alleged recoveries," he said.
Katju blamed a section of the judiciary which he alleged became "populist and wanted to send a strong message of non-tolerance of terrorism that led to the travesty of justice in Yakub Memon's case."
There are 32 million pending cases with judiciary and if there are no new cases filed then also it would take 360 years to clear the present backlog," the former Supreme Court judge said.
He expressed hope that the present generation of lawyers would take the reigns and work actively towards the betterment of judiciary as well as society.