SC loud and clear: activism hurts us, do not over-reach

SC loud and clear: activism hurts us, do not over-reach
Tannu SharmaCaution: ‘If legislature, executive don’t work, it’s for people to correct it via vote’ NEW DELHI, DECEMBER 10: In the strongest censure of itself in recent times, the Supreme Court, admitting that judicial activism is disturbing the “delicate” balance of powers “enshrined” in the Constitution, has sent an unequivocal message to the judiciary: restrain yourselfAnd has even gone to the extent of questioning a slew of recent orders by the Delhi High Court — on several issues from demolitions to nursery admissions — calling them “illegal.”
“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,” said a bench comprising Justices A K Mathur and Markandeya Katju today.
Pointing to orders passed on subjects like identifying buildings to be demolished, legality of constructions in Delhi, nursery admissions, number of free beds in hospitals on government land and several other decisions, it held that the Courts have “apparently, if not clearly, strayed into the executive domain or in matters of policy.”
“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 a law and seek to enforce it,” the bench said.
“The judiciary should only act as alarm bell, it should ensure that executive has become alive to perform its duties,” the bench said adding that it was unwilling to accept the “justification” given for judicial encroachment — that the other two organs are not doing their jobs properly. “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,” it said.
“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 fulfil 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, but also the judiciary has neither the expertise nor the resources to perform these functions.”
These remarks came as the apex court set aside a decision of the Punjab and Haryana high court wherein it had directed creating a post of tractor-driver and then regularizing an employee, who had been working as mali (gardener) in the Aravali Golf Club. The High Court had argued that since the services of a mali were also being used as a driver, there must be a suitable post against which he could then be regularized.
“Courts cannot direct creation of posts,” the judges said. “Creation and sanction of posts is a prerogative of the executive or legislative authorities and the courts cannot arrogate to itself this purely executive or legislative function, and direct creation of posts in any organisation.”
Taking a strong view of the limits of the powers of the judiciary, the judges observed, “W are repeatedly coming across cases where judges are unjustifiably trying to perform executive or legislative functions.” Terming such orders as “unconstitutional”, the court significantly held, “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.”
In a virtual echo of former Chief Justice J S Verma’s observations on the limits of judicial power, the bench said: “They (the courts) must remember that judicial activism is not an unguided missile — failure to bear this in mind would lead to chaos...With a view to see that judicial activism does not become judicial adventurism, the courts must act with caution and proper restraint.”
To ensure that the sanctity and credibility of the judicial process were preserved, the apex court said: “Public adulation must not sway the judges and personal aggrandizement must be eschewed. “ It underlined, “With a view to see that judicial activism does not become judicial adventurism, the courts must act with caution and proper restraint.”
“The moral of this story,” the judges said, “is that if the judiciary does not exercise restraint and over-stretches its limits there is bound to be a reaction from politicians and others. The politicians will then step in and curtail the powers or even the independence of the judiciary...Therefore it should confine itself to its proper sphere, realizing that in a democracy, many matters and controversies are best resolved in non-judicial setting.”
Is the Delhi High Court listening?
The courts have “apparently, if not clearly, strayed into the executive domain or in matters of policy,” said the apex court as it cited the following orders of the Delhi High Court:
• Legality of constructions in Delhi
• Identifying buildings to be demolished
• Age and other criterion for nursery admissions
• Unauthorised schools
• Criterion for free seats in hospitals on public land
• Use and misuse of ambulances
• Requirements for establishing a world class Burns Ward in a hospital
• Air Delhiites breathe
• Begging in public
• Use of subways
• Nature of buses we board
• Size of speedbreakers on Delhi roads
• Autorickshaws overcharging
• Accidents and enhancing fines