INDIA BUSINESS WORLD - JANUARY 1^st - JANUARY 15^th - 2008

SUPREME COURT DISMISSES PETITION CHALLENGING INCLUSION OF BROADCASTING & CABLE SERVICES IN TELECOM SERVICES

A two-judge bench of the Supreme Court, frowning upon judicial activism, said the judiciary should maintain restraint for the proper functioning of the state. A bench comprising Justice H K Sema and Justice Markandey Katju said, "We have to respect Parliament. The judiciary should desist from interfering in parliamentary decisions."

Justice Katju, speaking on behalf of the bench, said, "We have delivered a judgement on judicial restraint. Again we are reiterating it. It is absolutely necessary for the proper functioning of the state."

The bench refused to interfere in the parliamentary decision which had brought broadcasting and cable services within the definition of telecommunication services. It dismissed a petition which had challenged it.

"If Parliament had decided to bring it (broadcasting and cable services) within the definition of telecom services, how can we interfere in it?" said Justice Katju.

Senior counsel Fali Nariman appearing for petitioner Star India said originally broadcasting services were not included in the definition of telecom services. But through a proviso which was inserted by an amendment to the Trai Act, it was done so which was illegal, submitted Mr. Nariman.

At this the bench said, "Parliament can do it. We cannot do it. Proviso has different connotation. If the decision was taken by Parliament, we can not interfere in it."

The ministry of communications and information technology on January 9, 2004, had issued a notification by which broadcasting and cable services were brought within the ambit of telecommunication services pursuant to section 2 (1)(k) of the Trai Act.

Earlier in a controversial judicial restrain order passed on December 6, a two-judge bench comprising Justice A K Mathur and Justice Markandey Katju had said the judiciary must refrain from encroaching on legislative and executive domain, otherwise it will boomerang in the form of political class stepping in to clip their wings.

"If the judiciary does not exercise restraint and over-stretches its limit, there is bound to be reaction from politicians and others. The politicians will then step in and curtail the powers or even independence of the judiciary. The judiciary should, therefore, confine itself to its proper sphere, realising that in a democracy many matters and controversies are best resolved in a non-judicial settings," the bench had said.

The court had said justification often given for judicial encroachment into the domain of the executive or legislature was that the other two organs were not doing their jobs properly. Even assuming this was so, the same allegation could then be made against the judiciary too, because there were cases pending in courts for half a century, it had said.

If they were not discharging their assigned duties, the remedy was not judicial interference as it would violate the delicate balance of power enshrined in the Constitution, court had observed.

"We are compelled to make these observations because we are repeatedly coming across (instances) where judges are unjustifiably trying to perform executive or legislative functions. In our opinion, this is clearly unconstitutional. In the name of judicial activism judges cannot cross their limits and try to take over functions which belong to another organ of state," the bench had said in its December 6 order.

The court had cited many examples where judiciary had encroached upon the turf which was unwarranted. The Jagdambika Pal's case of 1998 involving UP legislative assembly and the Jharkhand assembly case of 2005 were the two glaring examples of deviations from the clearly provided constitutional scheme of separation of powers, the bench had said.

It further said the Delhi High Court order banning interviews of children for admissions into nursery class was illegal as there was no statute or rule which prohibited such interviews. Following it, a co-ordinate bench of the apex court had refused to hear a PIL relating to rehabilitation of the sex workers and referred it to the larger bench.

A three-judge bench headed by Chief Justice K G Balakrishnan while hearing the petition had said it would lay down the guidelines on the PILs.