INDIA BUSINESS WORLD - DECEMBER 1^st - DECEMBER 15^th - 2007

SUPREME COURT ASKS COURTS TO RESTRAIN FROM ACTIVISM

The Supreme Court in an order has said the judiciary must refrain from encroaching on legislative and executive domains, otherwise it will boomerang in the form of political class stepping in to clip its wings.

A bench comprising Justice A K Mathur and Justice Markandey Katju said, "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 court said justification often given for judicial encroachment on the domains of the executive or legislature is that the other two organs are not doing their jobs properly.

Even assuming this is so, the same allegation can then be made against the judiciary too, because there are cases pending in courts for half a century, the bench said. If they are not discharging their assigned duties, the remedy is not judicial interference as it will violate the delicate balance of power enshrined in the Constitution, court remarked.

"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 organs of state," said the bench.

The court 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 are the two glaring examples of deviations from the clearly-provided constitutional scheme of separation of powers, the bench said.

It further said the Delhi High Court order banning interviews of children for admissions into nursery class was illegal as there is no statute or rule which prohibits such interviews.

The observations came while the bench was deciding a case which had challenged the Punjab & Haryana High Court order directing for the creation of posts of tractor drivers to accommodate two gardeners employed on daily wages at a golf club run by the Haryana Tourism Corporation. The apex court setting aside the order said it was beyond the jurisdiction of the high court.