The two-judge bench of
justices A K Mathur and Markandey Katju of the Supreme Court has
rekindled an old debate on “judicial activism” or “judicial overreach.”
In what must have been music to the ears of politicians and bureaucrats
across the country, they commented from their exalted position that,
“some of the judges are behaving like emperors and intruding into the
domain of the legislature and the executive...judges must know their
limits and must not try to run the government.”
Before anyone could get into a celebratory mood, Chief Justice K G
Balakrishnan quickly intervened and stated that, “a two-judge bench
judgment is not binding on us.” He says the supreme court will now lay
down guidelines for the courts in the country for entertaining Public
Interest Litigations (PIL). The matter has been adjourned to February
23, 2008.
It may take some time for the dust to settle down, but it is important
to remember that judicial activism was the direct result of
adminstrative somnolence. In a number of cases, the courts were
“forced” to intervene because the other two wings -- legislature and
the executive -- failed to perform their duties for political or other
extraneous considerations. Everyone acknowledges that it is because of
the bold initiatives of the courts that issues like bonded labour,
child labour, the condition of inmates of various asylums and so on
were effectively addressed, and in that respect, judicial activism has
done yeoman service to society and Indian democracy in general.
But, justices Mathur and Katju were apparently concerned at criticism
that there has been a tendency among judges to cross “the Lakshman
rekha.” They observed that “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 judges must restrain and must not
encroach into the executive and legislative domains.”
The irony is that not long ago justice Katju himself was a strong
votary of judicial activism. In September 2005, as chief justice of
Delhi high court, he had taken up suo moto a PIL on removal of
unauthorised constructions in the bungalows in Delhi’s Lutyen’s zone. A
bench headed by him had asked the CPWD and municiapl authorities to
demolish the illegal structures in 231 out of 514 bungalows occupied by
the ministers, politicians, top bureaucrats within two months. “If you
are powerless, we will see to it that rules are enforced to restore the
glory of Lutyen’s Delhi,” he had said.
When the defence counsel submitted that most of the quarters were
occupied by the ministers and the government was planning to regularise
the illegal structures by enacting an amendment, justice Katju had
observed, “A minister is not above the law. The minister has to obey
the law. I am also not above law. I, being the chief justice of the
high court, cannot claim to be above law.”
Analysing the present situation, we may say that in a democracy,
moderation is the underlying principle of governance, with powers
divided between the legislature, executive and judiciary.
The dividing lines among them on the functional domain may be thin, but
it is clear-cut enough -- the legislature makes the laws, the judiciary
interprets them if they are brought before it and the executive
implements them.
Of the three wings, the constitution has given the exclusive right of
the power of ‘judicial review’ to the judiciary. The authority of
judicial review should be applied judiciously and cautiously for the
larger benefit of the people.
A fine line between public good and private benefits has to be drawn by
the courts if independence of the judiciary is to be maintained. The
poor and underprivileged sections of the society should get the
benefits of judicial activism.
Flowing from the Constitution
Article 50: Separation of judiciary from executive -- The state shall
take steps to separate the judiciary from the executive in the public
services of the state.
Article 32: Remedies for enforcement of rights conferred by this part:
1. The right to move the Supreme Court by appropriate proceedings
for the enforcement of the rights conferred by this part (Fundamental
Rights) is guaranteed.
2. The Supreme Court shall have power to issue directions or
orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by this
part.
3. Without prejudice to the powers conferred on the Supreme Court
by clauses (i) and (ii), Parliament may by law empower any other court
to exercise within the local limits of its jurisdiction all or any of
the powers exercisable by the Supreme Court under clause (2).
4. The right guaranteed by this Article shall not be suspended
except as otherwise provided for by this Constitution.
Article 226: Power of High Courts to issue certain writs - 1.
Notwithstanding anything in Article 32, every High Court shall have
power throughout the territories of India in relation to which it
exercises jurisdiction, to issue to any person or authority, including
in appropriate cases, any government, within those territories
directions, orders or writs…
http://www.deccanherald.com/Content/Dec162007/panorama2007121641455.asp
