‘Little bit of judicial overreach is bound to happen as judges have to interpret laws’

On the other hand, judiciary, he said, has an onerous duty to discharge when the policy decisions of the executive are challenged, keeping in view constitutional principles and separation of powers.

“Legislature, judiciary and executive have to discharge their duties in accordance with the role assigned to them. When Parliament enacts a law and the executive enforces the same, the judiciary has to play its role as the interpreter of the Constitution so that the law is in consonance with it.

“Judiciary has to strike a balance without usurping the power of Parliament and the executive,” he said.

Agreeing there is a “little bit of overreach on the part of the judiciary”, Justice Radhakrishnan said it was bound to happen since the judges have to interpret the laws keeping in view the legislative intent. “But in most of the cases, the endeavour of the court is always to uphold the fundamental rights of the citizens which includes socio-economic as well as human rights.”

The author of the historical verdict that granted a third gender status to transgenders and ordered for them benefits of reservation for upliftment, said his bench had decided to not expand the ambit of this judgment to lesbians, gays and bisexuals despite having strong views since the issues before him were regarding the rights of the transgenders along with the question of gender identity and sexual orientation.

“Validity of Section 377 in the Indian Penal Code was never an issue and hence the bench did not express any opinion on it. Further, in the Naz Foundation case, another two-judge bench had repelled the challenge to Section 377.”

“Law and morality may in such circumstances play a vital role and to a large extent may influence the decision-making process as such,” he pointed out while agreeing the morality of the judges may have had a bearing on the judgment on Section 377.

On the issue of sexual harassment complaints against sitting and retired judges of the Supreme Court, he said there was no law in place to deal with such complaints. “There is nothing wrong if a legislation is framed and it differentiates between the procedure for the sitting and retired judges. But such a system must have adequate checks so that the judges are not targeted easily and that the reputation of the institution is not adversely affected,” he said.

“A judge’s reputation is invaluable as the judge builds up his reputation and credibility over a period of time and the Supreme Court, other institutions and bodies must be very cautious and careful in handling such complaints,” he added.

On the appointment of India’s first Lokpal, which has been mired into controversies, the judge said the anti-corruption obmdusman should be a person of “impeccable integrity” so that he/she can maintain and uphold the “institutional integrity”.