Issue 53 Vol III, December 15, 2007

L A W  &  J U S T I C E

New legal parameters
Joginder Singh Toor

ON December 10, the Indian Supreme Court did some introspection to clear a bit of fog to bring a balance of power among the three wings; the legislature, the judiciary and the executive as enshrined in the constitution. It found its own activism was hurting that delicate balance. It cautioned the judges, ‘If legislature, executive don’t work, it’s for people to correct it via vote’. Message was loud and clear. But this time the Supreme Court was addressing the judiciary and not the usual executive.

The unequivocal message to the judiciary was: restrain yourself. But it sent confusing signals across the courts. Next day some judges at the Supreme Court and at the Delhi High Court refused hearing public interest litigation. There was an all important case regarding human trafficking and child prostitution. It has reversed the judgments and put breaks on the judicial activism of the past 30 years.

Four later days, a Supreme Court Bench, headed by Chief Justice K.G. BalKrishnan, rejected this idea of judiciary’s “overreach” in the public interest litigation cases.  “We are not bound by the two-judge Bench (order),” the CJI sitting in a three-judge bench refused to look at the judgement of Justices A.K. Mahtur and Markendey Katju when it was sought to be placed on record by a counsel arguing a PIL on the plight of widows in Brindaban. This petition was, however, admitted. The issue as expected is intensely being debated not only among the judges, lawyers and politicians but also among the public. A day later, the chief justice promised to set norms and rules for PIL. Clearly new parameters are being drawn and the issues still looked hazy.

Of later the judiciary has been under attack from the executive and the legislature for “encroaching” upon their sphere. In fact, the Parliament in the last session debated the issue in detail and expressed its concern.  The Lok Sabha Speaker, Mr Somnath Chatterjee, an eminent lawyer himself was so upset that he called a conference of the speakers of the state assemblies to debate on the encroachment of legislature’s powers by the courts.

A Bench of Justices A.K. Mathur and Markandey Katju has disapproved the Supreme Court’s 1998 intervention in the Uttar Pradesh Assembly trust vote by ordering a composite floor test between BJP leader Kalyan Singh and Congress-backed Jagdambika Pal and the 2005 order for an identical floor test in Jharkhand between UPA leader Shibu Soren of the JMM and BJP’s Arjun Munda. The court now sys that  the two cases were the “glaring examples” of the Supreme Court’s “deviation” from the clearly provided constitutional scheme of separation of powers. Interestingly from legal angle, a larger bench had passed these judgments.

The Supreme Court now finds, “The interim order of this court (in the two cases), as is widely accepted, upsets the delicate constitutional balance among the judiciary, legislature and the executive.”  At least 15 other such examples of judicial encroachments cited by the Bench were mainly from the Delhi High Court, which included the recent order on the Delhi government’s education policy relating to “pre-nursery” admissions for tiny tots, reservation of 25 per cent free seats in private schools for poor students and poor patients in private hospitals set up on public land, demolition of unauthorised constructions, growing accidents and the regulation of city buses, use of ambulances, speed-breakers, overcharging by auto-rickshaws, pollution and begging.

“In our opinion these were matters pertaining exclusively to the executive or the legislature. If there is a law, judges can certainly enforce it, but they cannot create a law and seek to enforce it,” the Bench noted.

It said the courts could not justify orders on such “encroachment” of the domain of the other two wings merely on the ground that they were not doing their jobs properly. It said, “…The same allegation can then be made against the judiciary too because there are cases pending in courts for half-a-century.”

Pointing out that the issue of “inactive” executive and legislature should only be left to the people to decide when they elect a government in a democracy, the Bench said if the judiciary did not exercise restraint and over-stretched its limits there was bound to be a reaction from the political class, and it would pose a threat to judiciary’s own independence as they might step in to curtail its powers.

This all important judgement on the separation of powers between the three organs of the government, as laid in the Constitution, came against a verdict of the Punjab and Haryana High Court, which was also lambasted for overstepping its jurisdiction in ordering the Haryana Tourism Corporation to create the posts of tractor drivers, which did not exist, to accommodate some daily wage gardeners, who were asked to do tractor drivers’ job after they were regularised.

It was wise of the judges to observe; “Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like Emperors. There is broad separation of powers under the Constitution and each organ of the State — the legislature, the executive and the judiciary — must have respect for the others and not encroach into each other’s domain”.

It is clear that the judiciary should only act as alarm bell and ensure that executive becomes alive to perform its duties.  The bench was unwilling to accept the “justification” given for judicial encroachment — that the other two organs are not doing their jobs properly.  The court said, “Even assuming if this is so, the same allegation can be made against the judiciary too because there are cases pending in courts for half a century.”

“The remedy is not in the judiciary taking over the legislative or executive functions, because that will only violate the delicate balance of power enshrined in the Constitution but also the judiciary has neither the expertise nor the resources to perform these function,” it said. “If the legislature or the executive are not functioning properly, it is for the people to correct the defects by exercising their franchise properly in the next elections and voting for candidates who will fulfill their expectations...The remedy is not the judiciary taking over the legislative or executive functions, because that will not only violate the delicate balance of power enshrined in the Constitution.”

Public opinion is obviously divided. The interventions by the courts in clearing encroachments, pollution and traffic hazards were welcomed. Clearly the executive and the legislative wings were messing up. Likewise in case of Punjab the courts have repeatedly interfered to get justice in fake encounters, disappearances and environment cleaning. While courts should not remain silent, they ought not to create new laws and start implementing these. Common people despite many hurdles like the cost of litigation and labour involved in it still feel that courts can get them justice. This last resort should not be denied to them.

Former supreme court justice V.R. Krishna Iyer  summed up aptly , “after 60 years of Independence, the Indian justice system still remains ‘untouchable’ and ‘non-approachable’ to the vast have-not humanity of the country. This is true at the level of the trial court, the appellate court, and the superior tribunals with binding finality and constitutional supremacy. The performance of this great constitutional instrumentality is in need of a transformation.”

[The author is a senior lawyer based at Chandigarh, jogindersingh_toor@yahoo.com]

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