JUDICIAL POWER – NO TINKERING PLEASE 199 Asian Centre for Human Rights (ACHR) Weekly Review 1 (2007)

Self inflicted wounds are the worst and take the longest to heal –and some never heal – that may be said appropriately of the two judge Judgment of Supreme Court speaking through Katju J. delivered recently, setting aside the High Court Judgment which had directed the state to regularize the plaintiff gardner as a truck driver to which post be had been working for 10 years.

But then the Court went on to pronounce on the supposed limitations of PIL, a question not arising in the case, an exercise frowned upon by Supreme Court almost 40 years back thus; “Obiter observations and discussion of problems not directly involved in any proceeding should be avoided by courts in dealing with all matters brought before them, but this requirement becomes almost compulsive when the Court is dealing with constitutional matters”. (though I may agree with some observations regarding High Court matters)

But it is embarrassing when it says about 3 judge Bench judgments in “Jagadambika Pal’s case of 1998, and the Jharkhand Assembly case of 2005”, that they are two glaring examples of deviations from the clearly provided constitutional scheme of separation of powers.

Bench observation that Constitutional trade off for independence is that judges must show judicial restraint, is hurtful if it suggests that judges must look over their shoulders lest the executive feels annoyed at their decisions. Independence of judiciary and Judicial Review is the mandate and very life blood of the Constitution – it is not dependant on the creature of the Constitution like the Legislature or the Executive. Judiciary has always followed the hallowed maxim ‘ Let Heavens fall – but justice must be done.’ Judiciary is not weak, nor the people at large so spineless that the arrogant empty threats of temporarily elected Executive and Legislature can deflect the Judiciary from its path of Constitutional rectitude and duty.

Chief Justice Earl Warren of United States Supreme Court quoted the observations of Daniel Webster wherein he said, ‘the maintenance of the Judicial power is essential and indispensable to the very being of this Government. The Constitution without it would be no Constitution, the Government no Government.’

Let us recollect the wise words of Alexander Hamilton, one of the framers of the American Constitution who stated, “that the courts were designed to be an intermediate body between the people and the Legislature in order among other things to keep the latter within the limits assigned to their authority. Judges, though they may not be omniscient or for that matter philosopher – kings, are better   equipped  for   the  task   so  long  as they  are aware of their limitations.”

The criticism of judicial activism as  such is untenable.  Courts have since long been judicially active in giving relief in social action litigation to labour, to victims of custodial violence, to the excesses committed by the Executive.  But as previously, judicial targets were comparatively junior  officials and certainly never involving politicians, issue of judicial activism was not raised by the executive.  This charge of alleged interference by the Courts has only now been put in issue because the fire of judicial activism is coming nearer home to the high officials and politicians who had falsely hypnotized themselves into believing that they were above the law, even though as far back as over 300 years, Chief Justice Coke of England had said “Be you ever so high, the law is above you.”

It will thus be amply clear that the Judiciary, (barring some rare escapades) like its mentioned in two Judge Judgment is aware of its precise role in the Constitutional set up. So when seemingly interested people, mostly politicians accuse it of overstepping its Constitutional limits, the anger is borne more out of frustration at their partisan actions being challenged before the Judiciary, rather than the usurpation of power and jurisdiction by the courts.

The U.S. Supreme Court struck down several legislations made by U.S. Presidents and Senate. There were severe uproars, but the orders of the Court were enforced. This was illustrated in the case of Brown v. Board of Education which attracted the ire of the white majority and even federal troops were called to enforce Court decision – incidentally Bench has praised for Brown decision.

The bald assumption that judges are not aware of their limitations has been succinctly answered by the wise observations by Patanjali Shastri C.J. in the 1953 Judgment thus, “If  then, the Courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in crusader’s spirit, but in discharge of a duty plainly laid upon them by the Constitution  –  and that while the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statue”.

Frankly, I do not think a reference to a larger bench would in any way help. Public interest litigation is not a civil or criminal jurisdiction, PIL is an innovating mechanism evolved by judiciary, sanctified as it is by the very compulsions and jurisprudence of written constitution.

 There is no gainsaying that ; “Judges’ decisions are influenced by what writers like Pound and Frankfurter called ‘sociological jurisprudence’ and the Justice Holmes called the “major inarticulate premise”. Therefore reference to a larger bench would only get an answer that it will depend on the  facts of each case.

I remember that in 1983, a two Judge Bench referred to the Constitutional Bench various questions, arising out of Public Interest Litigation, so as to give proper guidelines. In 1995-96 when this matter came up before the Constitutional Bench, it was disposed of with the remarks that much case law has already laid down various guidelines and it was not necessary to have a regular hearing. I feel the same history will be repeated, if a matter is referred to a larger Bench now. So it will be an exercise in  futility.

But I do believe that there is an easier and responsive alternative. I would therefore hope that the Bench now having been made aware of misapprehensions of troubling undoubted friends of judiciary, though at the same time appreciating also the genuine concern of the Bench about the Judiciary not over reaching its jurisdiction would, in order to give quietus to this controversy themselves recall their observations, though on merits retaining the decision. This would show their appreciation of sentiments expressed by members of the public, and  legal fraternity. Once it is done, judiciary would be freed from the flurry of market place gossiping and an easy target of ridicule by the Executive and Legislature. Let no one talk disparagingly of the Judiciary.                                                                           

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