THE NEW INDIAN EXPRESS ePAPER
|Caution against encroaching on legislature or executive|
Stick to constitutional scheme of separation of powers
Judges must not behave like emperors
New Delhi: Calling for judicial restraint, the Supreme Court has asked courts not to take over the functions of the legislature or the executive, saying there is a broad separation of powers under the Constitution and each organ of the state must have respect for others and should not encroach on their domain.
Blaming the Supreme Court itself for passing certain orders that resulted in upsetting the balance, a Bench consisting of Justices A.K. Mathur and Markandey Katju said in a judgment: “Jagadambika Pal’s case of 1998, involving the U.P. Legislative Assembly, and the Jharkhand Assembly case of 2005 are two glaring examples of deviation from the clearly provided constitutional scheme of separation of powers.”
The Bench said: “The interim orders of this court [on the conduct of floor test and motion of confidence], as is widely accepted, upset the delicate constitutional balance among the judiciary, the legislature and the executive, and were described by J.S. Verma, former Chief Justice of India, as judicial aberrations which he hoped the Supreme Court will soon correct.”
The Bench said: “We are compelled to make these observations because we are repeatedly coming across cases where judges are unjustifiably trying to perform executive or legislative functions. This is clearly unconstitutional. In the name of judicial activism, judges cannot cross their limits and try to take over functions which belong to another organ of the state.”
The Bench said: “Judges must know their limits and must not try to run the government. They must have modesty and humility, and not behave like emperors.”
Quoting from the book ‘The Spirit of Laws’ by Montesquieu on the consequences of not maintaining separation of powers among the three organs, the Bench said the French political philosopher’s “warning is particularly apt and timely for the Indian judiciary today, since very often it is rightly criticised for ‘overreach’ and encroachment on the domain of the other two organs.”
Unfortunately, “some courts are still violating the high constitutional principle of separation of powers laid down by Montesquieu.”
Judicial activism must not become judicial adventurism, the Bench warned the courts. Adjudication must be done within the system of historically validated restraints and conscious minimisation of judges’ preferences.
“The courts must not embarrass administrative authorities and must realise that administrative authorities have expertise in the field of administration while the court does not.”
The Bench said: “The justification often given for judicial encroachment on the domain of the executive or the legislature is that the other two organs are not doing their jobs properly. Even assuming this is so, the same allegations can be made against the judiciary too because there are cases pending in courts for half-a-century.”
The Bench said: “For instance, the orders passed by the Delhi High Court in recent times dealt with subjects ranging from age and other criteria for nursery admissions, unauthorised schools, criteria for free seats in schools, supply of drinking water in schools, number of free beds in hospitals, the kind of air Delhiites breathe, begging in public, use of subways, etc.”
These matters pertained “exclusively to the executive or legislative domain. If there is a law, judges can certainly enforce it, but judges cannot create a law and seek to enforce it. For instance, the Delhi High Court directed that there can be no interview of children for admissions to nursery schools. There is no statute or statutory rule which prohibits such interviews. Hence the High court has by a judicial order first created a law [which is wholly beyond its jurisdiction] and then sought to enforce it. This is clearly illegal for, judges cannot legislate.”
If the legislature or the executive was not functioning properly, it was for the people to correct the defects by exercising their franchise properly in the next elections and voting for candidates who would fulfil their expectations or by other lawful methods, e.g peaceful demonstrations.
“The remedy is not in the judiciary taking over the legislative or executive functions, because that will not only violate the delicate balance of power enshrined in the Constitution but also [because] the judiciary has neither the expertise nor the resources to perform these functions.”
The Bench said: “Judicial restraint is consistent with and complementary to the balance of power among the three independent branches of the state. It accomplishes this in two ways. First, judicial restraint not only recognises the equality of the other two branches with the judiciary, it also fosters that equality by minimising inter-branch interference by the judiciary.
“Second, judicial restraint tends to protect the independence of the judiciary. When courts encroach on the legislative or administrative fields almost inevitably voters, legislators, and other elected officials will conclude that the activities of judges should be closely monitored. If judges act like legislators or administrators, it follows that judges should be elected like legislators or selected and trained like administrators.”
By way of caution, the Bench said: “This would be counterproductive. The touchstone of an independent judiciary has been its removal from the political or administrative process. Even if this removal has sometimes been less than complete, it is an ideal worthy of support and one that has had valuable effects. The constitutional trade-off for independence is that judges must restrain themselves from the areas reserved to the other separate branches.”
The Bench was allowing an appeal against a Punjab and Haryana High Court order, which directed creation of new posts in a Haryana golf club.
In passing the orders the courts below exceeded their jurisdiction, the Bench said.
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Legal expert divided on SC order criticising its larger bench
Press Trust of India
A rare outburst by a smaller bench of the Supreme Court on Monday against the orders of its larger benches for overstepping its jurisdiction in cases relating to Jharkhand and Uttar Pradesh assembly matters has drawn mixed reactions from the legal fraternity.
Some legal experts have hailed the order saying that the Supreme Court is right in "admonishing" itself while a few senior lawyers viewed it as reflection of "divided judiciary", which is not healthy for the institution.
A Bench of Justice AK Mathur and Justice Markandey Katju in today's order observed that the interim orders of larger Benches of the Supreme Court relating to assembly proceedings in Uttar Pradesh and Jharkhand, are "two glaring examples of deviation from the clearly provided Constitutional scheme of separation of powers".
Former Chief Justice of India AS Anand, commenting on the observations of the court, said judicial discipline warrants that the orders of the bench of "higher strength" are binding on smaller benches.
"Judicial discipline requires to be followed by all," he noted.
But, former Law Minister Shanti Bhushan said the function of judiciary is to enforce rule of law and it can neither create law, nor can create power.
"The High Courts and Supreme Court, in many cases, have not understood the limitation of their power," he said, adding, "it is good that some Judges realised the limitation of judicary".
Also read the related stories in THE HINDU
‘Court not bound by Bench observations’
New Delhi: The Supreme Court on Thursday clarified that the observations made by a two-judge Bench in a recent judgment on the scope of public interest litigation (PIL) were not binding on it.
A three-judge Bench, headed by Chief Justice K.G. Balakrishnan, was dispelling an apprehension on the powers of the court in entertaining PIL petitions. It included Justices R.V. Raveendran and J.M. Panchal.
(On Monday, the two-judge Bench comprising Justices A.K. Mathur and Markandey Katju, calling for judicial restraint, asked courts not to take over the powers of the legislature or the executive.)
Earlier, counsel for the Environmental and Consumer Protection Foundation, which is seeking a direction for rehabilitation of about 20,000 widows staying in Vrindavan city in Uttar Pradesh, said Monday’s judgment created confusion over whether courts could take up PIL petitions or not.
The Chief Justice responded saying, “We are not bound by the two-judge Bench order.”
He told counsel: “What we are saying is don’t file petitions based on newspaper reports. Personally verify the facts and if you are satisfied, then file the petition.”
The petitioner said that in Vrindavan it was a hand-to-mouth existence for the widows, most of them abandoned by their families. For singing bhajans in a temple, they were paid Rs. 18 a day, and often they were seen begging.
To a question from the Chief Justice whether he had verified the facts, counsel said the petitioner wrote to district authorities and it was informed that there were only 3,000 widows and all facilities were being provided for their stay. A monthly pension of Rs. 150 was also given but there was no mention of any rehabilitation measure.
When counsel said it was the responsibility of the Centre and the State to take steps for the rehabilitation of the widows and to impart vocational training to them, the Bench said it would examine the matter. It issued notice seeking the response of the Centre and the State Government in four weeks.
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