A SC bench, comprising of Justices A.K. Mathur and Markandey Katju, in a 22 page judgement has opened the Pandora’s box. It has admitted that the judiciary has erred in the past by usurping power of the executive.
In a 22 page judgement in which the SC overturned the trial court and the high court’s rulings on regularizing certain employees of a private golf club. The two judges devoted 15 pages to retaliate the judicial norms which in the main, underlines that judges as umpires are meant to uphold laws, not create them. The bench added that in order to maintain independence of judiciary, judges must exercise restraint, and honour the seperation of power among the three wings of governance, as mandated by the constitution.
“The constitution trade off for independence is that judges must restrain themselves from areas reserved for separate branches.”
The bench derived strength from the recent speeches of two former Chief Justices J.S verma and A.S. Anand. Referring to the interference of SC in the Jagdambika Pal case in UP in 1998 and Jharkhand in 2005 the bench said,
“In our opinion these were matters pertaining exclusively to the executive or legislative domain. If there is a law,judges can certainly enforce it, but judges cannot create laws and seek to enforce it.
If judges act like legislators or administrators, it follows that judges should be elected like legislators or selected and trained like administrators. This would be counter-productive. The touch stone of an independent judiciary has been its removal from the political or administrative process.
The remedy is not in the judiciary taking over the legislative or executive functions, because it will not only violate the delicate balance of power but enshrine in the constitution but also because the judiciary has neither expertise nor resources to perform this function.”
It said the popular reason – that the legislature was not doing enough – was not good enough for judicial activism. “Even assuming this to be so, the same allegation can be made against the judiciary too because there are cases pending in court for half a century as pointed out by this court.”
The SC said the judiciary which has been entrusted with great power of declaring the legislative and the executive, should exercise these power with “utmost humility and self restraint.”
On the face, it looks as a great piece of judgement from SC who openly admits its mistakes but this has left huge confusion among judges. So much so that the two-judge bench of SC, comprising of Justices S.B. Sinha and H.S. Bedi declined to hear a PIL, which they had been hearing for last four years and reffered the matter to CJI for guidance!!!
The smaller issue over here is what constitutes “Judicial Activism” and what exactly is “Judicial over reach”? who is going to determine the limit? And who is going to supervise that judicial activism does not result in judicial over reach?
The larger issue, on our hand is this being a democracy with more of mobocracy. The voting over here is still based on caste lines.So much so that the politicians openly ask for votes because they belong to certain caste which often results in election and re-election of unsuitable candidates. They even openly declare that a certain caste is their enemy. The irony of democracy is that even a fool can become a leader!!! And India has numerous examples to prove it. Caste politics means a donkey will become a leader instead of a lion simply because the donkeys outnumber the lions! The consequences will be that a law will be passed in which being carnivorous will be banned leading to the starvation of the lions and numerous carnivorous species disturbing the ecological balance.
In such a scenario, is it really wrong to have a judicial over reach? The judiciary has been entrusted with great power of declaring the legislative and the executive – very True. My question is what is the main objective of the three wings of the government? Isn’t it to build a just, strong, self-reliant, developed nation rather than the role associated with the three wings?
As one of my friend once pointed out, “we can change our path, methods and ways to reach our objective but we cannot change our objective to stay on our path.” Is judicial activism another methodology for proper governance or is it another “myopic” step that needs to be cut?
Another angle can be that, the judiciary is simply scared? The judgement says,
“If the judiciary does not exercise restraint and over streches its limits, there is bound to be a reaction from politicians and others. The politician will then step in to curtail the power or even independence of judiciary.”
Is SC scared that its activism may back fire to curtail its power which will lead to greater oppression and injustice? The SC considers itself as umpire, but sadly India is not a game of cricket! There have been several instances in which the SC has to revert its verdict because the legislature passed a law to get judgement in its favour ( for both political gains and vote bank). Is judiciary afraid that the politicians of today will not hesitate to usurp its power and its independence by changing laws with a two-third majority?
Is Judiciary afraid of the consequences or is it simply being too Noble???
Sources: Times of India dated 11/12/2007 and 12/12/2007
Ps: Your comments are appreciated and wanted.