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HindustanTimes Wed,16 Apr 2014

Legislators dither, SC steps in

Satya Prakash, Hindustan Times  New Delhi, March 07, 2011
First Published: 23:37 IST(7/3/2011) | Last Updated: 23:39 IST(7/3/2011)

The SC verdict legalising passive euthanasia shows how the legislature is inadvertently abdicating its responsibility of making laws leaving it to the judiciary to respond to the exigencies of a rapidly changing Indian society.

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This is not the first time that the SC has virtually enacted a law to fill the void.  Despite years of agitations for a law on  sexual harassment of women at workplace, the legislature did not do anything. The SC had to framing mandatory guidelines in the Vishaka case for protection of women from sexual harrassment at workplace.

The court had made it clear that these guidelines would be in force until Parliament enacted a proper law. Fourteen years on, the Prohibition of Sexual Harassment of Women at Workplace Bill is yet to see the light of day.

Surrogacy is another issue that is legal by default,  as we do not have any laws on it.

Thousands of children are born every year using Assisted Reproductive Technologies and the country has emerged as the best destination for foreign couples looking for surrogate mothers, but the field remains completely unregulated.

The law commission had in 2009 recommended legalising altruistic surrogacy arrangements and prohibiting commercial ones. But the Assisted Reproductive Technologies (Regulation) Bill, 2010 (which proposes to legalise commercial surrogacy) is still hanging fire.

The issue of legalising homosexual acts between consenting adults in private is yet another example where the Delhi HC took the initiative to read down an archaic provision of law (Section 377 of IPC) to give relief to people belonging to the sexual minority community. As the SC hears appeals against the July 2009 judgment, the legislature still remains undecided.

Euthanasia too has been debated about. In 2004, the Andhra Pradesh HC rejected the mercy killing plea of 25-year-old terminally ill K Venkatesh. The legislature could have done something but it chose not to.

Under the separation of power envisaged in our Constitution, the legislature is assigned the duty of making laws. But we are witnessing a disturbing trend of the House business being boycotted at the drop of a hat.

While our lawmakers inadvertently shun their responsibility and courts are forced to step in, politicians cry foul over judicial activism. Who is at fault — the legislature or the judiciary?

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