Government on collision course with apex court on judicial activism

April 9th, 2008 - 10:31 pm ICT by admin  

New Delhi, April 9 (IANS) The government Wednesday endorsed Supreme Court judge Markandey Katju’s views calling for restraint in judicial activism, bringing it into conflict with another bench headed by Chief Justice K.G. Balakrishnan. The stark difference of opinion between the government and the judiciary as well as within the judiciary on judicial activism surfaced at Balakrishnan’s bench during the scrutiny of a controversial judgement on the issue by Justice Katju.

The Dec 6, 2007 verdict by Justice Katju had cautioned the judiciary against judicial activism and encroaching upon the domains of the executive and the legislature, apprehending that if it does not do so, politicians will curtail its power and independence.

As the matter came up before the bench of the chief justice, Additional Solicitor General Vikas Singh, said that in case of violation of the constitutional rights of the citizens, the court must intervene to protect the same.

However, endorsing Justice Katju’s ruling, the law officer added that the courts must desist from encroaching upon the domains of the legislature or the judiciary.

He added that pursuing a particular policy is in exclusive domain of the executive and the courts must not interfere with the government’s policy to ensure the right balance of power among the three organs of the state.

Citing an example on ills of interference by one organ of the state into domains of others, Singh said: “Imagine what will happen if parliament begins adjudicating cases saying the courts are not working properly and have piled up a huge backlog of cases”.

This assertion did not go down well with the chief justice, who reacted strongly to the law officer’s statement.

Citing several examples of inaction and complacency on the part of the executive, the chief justice said: “If the executive does not function, where will the common man go? Will he go to the chief minister?”

“If the executive does not function, the duty is cast upon courts to mitigate their grievances,” he snapped.

Examples of inaction and complacency on the part of the government that the chief justice cited ranged from the government’s failure to ensure free treatment to the poor in private hospitals built on land provided by the government for a song to its failure in ensuring free education to the poor in private schools - again built on highly subsidised government land.

Counsel Prashant Bhushan, too, countered the additional solicitor general’s stand saying that if the executive pursues a wrong policy to provide benefit to some vested interests, the court was very much empowered to strike down the policy.

Earlier, opening the arguments in the issue, Bhushan said that after Justice Katju delivered his judgement espousing restraint by the judiciary in interfering with the subject matter related to the legislature or the executive, high courts have become wary of entertaining pubic interest lawsuits (PILs).

He demanded that the matter be referred to a larger constitutional bench to fix guidelines for the judiciary to entertain PILs.

But the bench, which also included Justices R.V. Raveendran and M.K. Sharma, observed that there was no dearth of rulings by the apex court that fixes various guidelines for the courts to entertain PILs.

A day after Justice Katju’s ruling was released, the apex court found itself doubting its own power to entertain PILs, which invariably requires judiciary to jolt the legislature and the executive out of their complacency and remind them of their dos and don’ts.

Gripped by self-doubt, the following day an apex court bench of Justices S.B. Sinha and H.S. Bedi had refused to further adjudicate a PIL filed by a non-governmental organisation Prajwala, seeking rehabilitation of sex workers and curb on trafficking of women and children.

The bench referred the PIL to the chief justice saying: “In view of yesterday’s judgement (by Justice Katzu), this matter be referred to a larger three-judge bench.” And that was how Justice Katju’s judgement itself stood referred to the bench.

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