It is axiomatic to say India is an over-legislated country. Whenever a social problem erupts, the rulers promise to pass a new law or step up the punishment. Clamour over gang rape, corruption, communal riots or misdemeanour of the media - all these are temporarily quelled by pretending to draft a law, till public memory fades halfway.
As if legislators are not good enough at overloading the legal system, courts also often create laws. The Visakha judgment delivered a ready-made legislation to check sexual harassment in the workplace, stating that it would be the law till Parliament passes a substitute. That has not been done for two decades now. Moreover, in the absence of a statute to select judges, the Supreme Court gave unto itself a set of rules that is neither found in the Constitution nor any convention.
The problem with judges making laws is that they could land themselves in forensic thickets. They seem to go largely by intuition. There is no public debate, no expert and no standing committee to assist them, or even any other paraphernalia of traditional drafting. Good intentions are not enough as the Delhi High Court recently found in the case Soaps & Toiletries Makers Association vs Ozair Husain.
A decade ago, the high court passed a set of rules to be followed by manufacturers of food products, cosmetics and drugs. Those directions were to be the law "till such time the requisite amendments are carried out" in the national laws. The concern of the court was to protect vegetarians - claimed to consist of 60 per cent of the population - from breaking their faith and eating habits. Lofty constitutional guarantees were invoked, and the fundamental right to know the ingredients of the products and the freedom to follow one's conscience and religion were cited.
The high court prescribed labels of different colours for packages containing cosmetics and drugs that have non-vegetarian origins, and those with vegetarian derivatives. Those with mixed provenance must carry a written declaration of the contents. This was meant to "enable a person to practise the beliefs and opinions which he holds in a meaningful manner". Since a large section of the people is illiterate, these symbols "will help discover the truth about the composition of the products", the high court said. Only life-saving drugs were exempted from the court's legal prescriptions.
The government and the cosmetic industries appealed to the Supreme Court against such sweeping rules. It took 10 years for the apex court to strike down the high court judgment. Three important issues were involved - the right to know, the right to choose what one wants to consume and the power of courts to legislate. On all counts, the high court was found to be wrong.
Though the right to know is a laudable principle, sometimes it is better to not know. For example, a life-saving medicine given to a vegetarian patient in contingency might contain non-vegetarian ingredients. But the doctor's first concern would be to save his/her life, and the patient, too, might not be in a position to give informed consent. In such a situation, it is unreasonable to withhold the drug. The right to know fades before the right to life.
It is also difficult to distinguish between ordinary and life-saving medicines, according to the government. The concept of a "life-saving medicine" is not recognised by modern systems of medicine. Under a given circumstance and condition of the patient, an ordinary medicine can be used as a life-saving one. Even otherwise, most medicines in the form of capsules are coated with non-vegetarian ingredients, and few can remain a perfect vegetarian these days.
Fixing symbols on cosmetics has additional problems. Their formulations are complex and the ingredients - sometimes running into a hundred - come from different sources, far away from the manufacturing centres. The Drugs and Cosmetics Act and the rules do not mandate displaying any symbol to distinguish vegetarian and non-vegetarian ingredients. The Drugs Technical Advisory Board specifically dealt with the issue of labelling medicines and rejected the idea.
Lastly, the question of legislation by judges arises. It has been a ticklish issue for centuries. Judges do make laws but only in interstices, to fill up open spaces left by draftsmen, and that too in the gravest and most impelling circumstances. The Supreme Court, in the 2007 case, Balram Bali vs Union of India, said: "It is not within the domain of the court to issue a direction for ban on slaughter of cows, buffaloes and horses since it is a matter of policy on which the government has to take the decision. Courts cannot issue any direction to Parliament or a state legislature to enact a particular kind of law." These observations are valid not only in emotive issues like cow slaughter and vegetarianism but also in commercial and public law.
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