INDIA BUSINESS WORLD - FEBRAURY 16^th - FEBRAURY 291^th - 2008

JUDGES NOT TO INTERFERE WITH ECONOMIC AND OTHER REGULATORY LEGISLATION UNLESS FUNDAMENTAL RIGHTS ARE VIOLATED, SAYS TWO-JUDGE BENCH OF APEX COURT

In a judgement reiterating judicial restraint, the Supreme Court has said that the legislature must be given freedom to experiment on exercising of its power.

Attaching a rider that such exercise should be within its constitutional limits, the apex court said that judges should keep their hands off especially with the economic and other regulatory legislation.

However in exceptional cases of defending the civil liberties and Fundamental Rights of citizens, judges should play the role of an activist, it said.

A bench comprising Justice H K Sema and Justice Markandey Katju said, “In our opinion the legislature must be given freedom to do experimentation in exercising its powers, provided of course it does not clearly and flagrantly violate its constitutional limits.”

In our opinion, the court should, therefore, ordinarily defer to the wisdom of the legislature unless it enacts a law about which there can be no manner of doubt about its unconstitutionality,” the apex court said, setting aside an order of Andhra Pradesh high court.

The high court had declared a law related to the stamp duty passed by the state legislature as unconstitutional. AP Act 8 of 1998 had inserted Section 47A into the Indian Stamp Act to deal with cases, where parties clandestinely undervalued the property to evade payment of more stamp duty.

Justice Katju writing the verdict on behalf of the bench said, the court must make every effort to uphold the constitutional validity of a statute, even if that requires giving the statutory provision a strained meaning, or narrower or wider meaning, than what appears on the face of it. It is only when all efforts to do so fail should the court declare a statute to be unconstitutional.

Before declaring the statute to be unconstitutional, the court must be absolutely sure that there can be no manner of doubt that it violates a provision of the Constitution. If two views are possible, one making the statute constitutional and the other making it unconstitutional, the former view must always be preferred, the bench said.

It said, the court must make every effort to uphold the constitutional validity of a statute, even if that requires giving a strained construction or narrowing down its scope. “Also, it is none of the concern of the court whether the legislation in its opinion is wise or unwise.

While the court has power to declare a statute to be unconstitutional, it should exercise great judicial restraint in this connection,” the bench said.

As regards economic and other regulatory legislation, judicial restraint must be observed by the court and greater latitude must be given to the legislature while adjudging the constitutionality of the statute because the court does not consist of economic or administrative experts. It has no expertise in these matters, and in this age of specialisation when policies have to be laid down with great care after consulting the specialists in the field, it will be wholly unwise for the court to encroach into domain of the executive or legislative and try to enforce its own views and perceptions.

However, the apex court said that the leeway to judicial interference lies in protecting civil liberties and Fundamental Rights guaranteed under the Constitution.

In our opinion, while judges should practice great restraint while dealing with economic statutes, they should be activist in defending civil liberties and Fundamental Rights of the citizens. This is necessary because though ordinarily the legislature represents the will of the people and works for their welfare, there can be exceptional situations where the legislature, though elected by the people may violate the civil liberties and rights of the people,” the court said.

On December 6, 2007, a bench of Justice A K Mathur and Justice Markandey Katju had said that the judiciary must refrain from encroaching on legislative and executive domain otherwise it will boomerang in the form of political class stepping to clip the judiciary’s wings.