Judicial overreach--Judiciary cannot fail us | Nilotpal Basu

Published on 21-12-2007 In National

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Judicial overreach--Judiciary cannot fail us

The constitutional debate, which was brewing for some time, has now, at last, reached the exalted portals of the highest judiciary itself. A landmark judgment by Justices A. K. Mathur and Markandeya Katju observed: "We are compelled to make these observations because we are repeatedly coming across cases where judges are unjustifiably trying to perform executive or legislative functions. This is clearly unconstitutional. In the name of judicial activism, judges cannot cross their limits and try to takeover functions which belong to another organ of the state. …Judges must know their limits and must not try to run the government. They must have modesty and humility, and not behave like emperors".

The honourable judges did not stop at that. They even took on earlier orders of the Supreme Court in the Jagadambika Pal case of 1998 and Jharkhand assembly case of 2005 as, "two glaring examples of deviation from the clearly provided constitutional scheme of separation of powers". In the 22-page judgement, they cited a number of judicial decisions, which were not in consonance with the constitutional scheme and clearly examples of `judicial overreach'.

But hardly before the ink had dried on the order passed by Justices Mathur and Katju, the very next day, a three-member judge headed by the Chief Justice K G. Balakrishnan observed that, "We are not bound by the two-judge bench order".

The debate is, therefore, on. And right among the gentlemen presiding over the apex court. This was bound to happen. The clearly defined powers of the three organs of the state – the executive, the legislature and the judiciary – and their separation is the heart of our republic's constitutional edifice. Muted but important voices were being heard on the `overreach' by the judiciary on executive and legislative functions.

The issue had come into sharp focus when, following the Supreme Court order in the Jharkhand case in 2005, there was a strong response from the Speaker of the Lok Sabha – Somnath Chatterjee – a lawyer and constitutional expert of eminence in himself. He had convened a conference of the presiding officers of the state legislatures and had called for referring this perceived transgression of judiciary into what was clearly a legislatures' domain. The effort proved to be unsuccessful in immediately getting the issue referred to the president. But it had played a significant role in drawing the attention of constitutional entities to this growing problem.

The debate had gathered further momentum with a distinguished former Chief Justice of India – Justice J. S. Verma – coming out in the open with observations he made at a meeting in Jabalpur in March this year. He had pointed out, "It must be admitted that the line between appropriate judicial intervention and judicial overreach is often tricky". He had further commented, "Inappropriate judicial intervention in judicial adventurism and judicial tyranny ….It is time the Supreme Court frames rules to ensure a common approach of the court in all PILs".

The debate was taken further when in a conference of Chief Justices and Chief Ministers on April 8 th, the Prime Minister pointed out, "I do sincerely believe that the judiciary, executive and the legislature have an obligation both to our Constitution and people to work in harmony….Each organ must respect the rules and functions of the other….Courts had played a salutary and corrective role in innumerable instances.

They are highly respected by our people for that. At the same time, the dividing line between judicial activism and judicial overreach is a thin one. We need standards and benchmarks for screening PILs, so that only genuine and justiceable cause of action based on judicially manageable standards are set-up…..The Supreme Court should take the lead in framing rules in this regard."

One is struck by the similarity of the language and tenor of Justice Verma and the Prime Minister's views. This stands in somewhat of a contrast to the position taken by Chief Justice K. G. Balakrishnan. In the very same conference, the Chief Justice asserted that the power of judicial review is essential for democracy and the perceived rift among the three wings was a `sine qua non' for a healthy democracy. He stated, "The application to judicial review to determine constitutionality of the legislation and to review the executive decision sometimes creates tension between the judge and the legislative and executive branch. Such tension is natural and to some extent desirable". The Chief Justice's position clearly reiterates judicial intervention and overlooks the instances of `overreach'.

We have a problem here. There is no two opinion on the paramount need for judicial review and to ensure accountability of the executive and the legislature from the point of view of constitutionality and legality of the exercise of their powers. But what is causing friction is not a difference on the perceptions of judicial orders on issues over which the judiciary has a constitutionally defined say. But, issues, which have to be decided by the other two branches of the state, are also becoming vulnerable to judicial orders.

This is particularly delicate. Because, unlike the executive, the judiciary is not accountable to any other organ of the state. It is only answerable to its own wisdom in interpreting the Constitution.

Of late, there has been a discernable tendency on the part of the judiciary to take upon itself the responsibility of correcting all that what is `rotten in the state of Denmark' to lend from Shakespeare. Unfortunately, that is not the role assigned for the judiciary in the Constitution. No doubt, there is frustration among the people on executive and legislative incompetence, if not outright misdemeanour. And the cry for justice from the people is quite natural. But mistakes by other organs of the state cannot be rectified by the judiciary by taking upon itself executive or legislative powers. The role of the judiciary will have to be like what a distinguished judge described as a `morning alarm'.

This is becoming more complicated because, divided as the Indian society is, along economic and social stratas, more often than not, what is perceived and articulated as a cry of justice is what is reflected in the media. And, in these days of globalisation, the media account of peoples' call for justice is one which aims at delegitimising politics and all that which has to do with politics – the executive and the legislature included. The fact that Constitution has not been explicit on what happens if the three organs do not agree with the manner in which their powers and their separation have been defined – could eventually lead to our democracy being derailed if the judiciary itself which is empowered to interpret this fail us. The billion plus people and the robust democracy that we have built, in spite of all its weaknesses, deserve this from our wise men and women who preside our courts.

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