Editorial

Act On This Landmark Judgement

In what must be considered as a landmark judgement, the Supreme Court has called upon the judiciary  to exercise judicial restraint and not takeover the functions of the legislature or the executive.  This, in a way, resoundingly vindicates  the position that we have articulated through these columns (People’s Democracy, September 30, 2007).

A two-member bench consisting of Justices A K Mathur and Markandey Katju even criticised the Supreme Court itself  on its earlier judgements  in the Jagadambika Pal case  of 1998 and Jharkhand assembly case of 2005  as, “two glaring examples of deviation from the clearly provided constitutional scheme  of separation of powers”.

Warning that judicial activism must not become judicial adventurism, 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.  …Judges must know their limits and must not try to run the government.  They must have modesty and humility, and not behave like emperors”.

In this context, it must be noted that while specifying separation of powers between the legislature, executive and the judiciary and working out the mechanics to work in harmony where the three wings play a joint and participatory role, the Constitution defines the centrality of the will of the people. The preamble defines this most eloquently by stating, “We, the people of India” and “do hereby Adopt, Enact and Give to ourselves this Constitution”. The eternal message is the sovereignty of the people and its primacy in our constitutional system.

The Lok Sabha speaker himself an eminent jurist, once noted: “the framers of our Constitution took infinite care to provide for an independent and impartial judiciary as the interpreter of the Constitution and as the custodian of the rights of the citizens through the process of judicial review, which gives the mandate to the judiciary to interpret the laws but, if I may humbly submit, not to make them, nor to lay down general norms of behaviour for the government or to decide upon public policy. The concept is 'judicial review' and not judicial activism.”

Soon after independence, in the Constituent Assembly, Jawaharlal Nehru stated “No Supreme Court and no judiciary can stand in judgement over the sovereign will of parliament representing the will of the entire community. If we go wrong here and there, it can point it out, but in the ultimate analysis, where the future of the community is concerned, no judiciary can come in the way ….ultimately the fact remains that the legislature must be supreme and must not be interfered with by the court of law in measures of social reform.”

The transgressing of the defined space by any of the organs is bound to create not merely friction but gross misgovernance. The inadequacies of the executive compounded by frequent disruptions of the legislature negating the latter’s vigilance over the former has often laid the basis for the judiciary to intervene. As Justice Verma noted, on an earlier occasion, “The deliberate misuse of the judicial process by some vested interests to settle political scores, or to shift the responsibility to the judiciary for deciding some delicate political issue found inconvenient by the political executive for decision, has left the judiciary pronouncing on matters which need to be dealt with exclusively by the executive.”

The Supreme Court, in its current judgement, debunks such judicial encroachment by saying, “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 Delhites 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”.

“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”. 

Clearly, this judgement is saying that rather than pronouncing orders on such matters, the judiciary should, instead, return these to the domain of the executive.  As Justice Anand noted earlier, “it needs to be remembered that courts cannot run the government …..the judiciary should act only as an alarm clock but not as a time keeper. After ringing the bell it should ensure that the executive has become alive to perform its duties”.

There is yet another very serious issue involved here which also needs to be resolved. The executive and the legislature, given their responsibility under the Constitution to manage public affairs, are in the final analysis accountable to the people. Accountability, in fact differentiates democracy from other systems of governance. The discharge of executive responsibilities by any other organ, say the judiciary however highly placed it may be, is essentially non-accountable. This is anathema in a democracy. Further, once the judiciary gets involved with an issue, which falls within the executive domain it precludes the possibility of the legislature exercising its assigned role of ensuring executive accountability through  effective legislative scrutiny.

Following this judgement, it is only hoped that the judiciary will fine-tune the constitutional delineation between the three organs and ensure that healthy harmony shall prevail.  Maybe, a full constitutional bench  of the Supreme Court could be asked to undertake this task.  This bench  will also need to seriously consider the present efficacy of our justice delivery system. The large number of pending cases, the consequent agony and injustice heaped on people and the interminable delays in punishing the guilty and delivering justice to victims  of communal riots and other  such attacks does not auger well for our country or its parliamentary democracy. 

We repeat, further emboldened by this recent judgement, that the time has come for the country to seriously consider the constitution of a National Judicial Commission comprising of representatives from the judiciary, from the executive, from the legislature and from the Bar, to deal with the entire range of issues from the appointment and transfer of judges to ensuring judicial accountability.