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SC cautions courts against ‘overactivism’
S.S. Negi
Legal Correspondent

New Delhi, December 10
Judiciary has been under attack from the executive and the legislature for “encroaching” upon their sphere and Parliament in the just concluded session debated the issue in detail, the Supreme Court in a path-breaking introspective verdict today disapproved of over activism by the apex court itself and high courts, saying they “cannot arrogate” to themselves the functions of the other two organs of the government.

Disapproving 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, a Bench of Justices A.K. Mathur and Markandey Katju said the two cases were the “glaring examples” of the Supreme Court’s “deviation” from the clearly provided constitutional scheme of separation of powers.

“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,” the Bench in a hard-hitting judgement said, citing at least 15 cases of the Delhi High Court, in which, it had encroached upon such spheres that were purely executive jobs in recent times.

After the Jharkhand order, Lok Sabha Speaker Somnath Chatterjee had virtually opened a front against the judiciary and the Supreme Court in particular and even called a conference of the speakers of the state assemblies to debate on the encroachment of legislature’s powers by courts.

The 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.

“The court cannot direct the creation of posts. The creation and sanction of posts is a prerogative of the executive or the legislative authorities and the court cannot arrogate to itself this purely executive or legislative function,” the apex court said, setting aside the high court ruling.

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 said, drawing the force for their unprecedented order from at least nine apex court cases on the division of powers between the three wings and three famous US court verdicts on constitutional balance among the executive, the legislature and the judiciary.

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. “…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.

Therefore, the judiciary should confine itself to its proper sphere as defined under the Constitution and various statutes, realising that in a democracy many matters and controversies “are best resolved in non-judicial setting,” the Bench concluded. It said the judiciary as the protector of the Constitution of course “has the power to intervene but in exceptional circumstances when situation forcefully demands it in the interest of the nation.”

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