THE  MODERN  RATIONALIST

The Chief Justice of India, Hon’ble Justice S.H.Kapadia aptly observed that the judges, in the guise of judicial activism, should not ignore the separation of powers as enshrined in the Constitution and become administrators to make policy choices and run the administration.

The CJI further said that the judges of the Supreme Court should read the original constitutional proposition that the courts do not substitute their social and economic beliefs for the judgement of legislative bodies, which are elected to enact laws. “We are not concerned with the wisdom, need or appropriateness of the legislation. We must refuse to sit as a super-legislature to weigh the wisdom of legislation” he emphatically reiterated. Therefore the court should not engage itself in analysing the necessity, reasonableness, wisdom or appropriateness of the legislation.

Two clear cases of such overreach by the Supreme Court can be cited as concrete examples.

The Supreme Court stayed the further execution of the trenching works in the Sethusamudram Canal Project on a petition filed by Hindu religious people stating that the project will destroy the Ramar Bridge said to have been built by Lord Rama some 17 lakhs of years before. When more then 80% of the work has been completed and more than 2000 crores of rupees spent, this stay was granted. The petitioners cannot show any evidence for the existence of the Ramar Bridge, which is nothing but some sand dunes in between Rameswaram and Sri Lanka. The Court felt that the development work intended for the economic development and welfare of the State can be stalled by the sentiments and blind beliefs of devotees. Here, what the CJI said that the validity of the decisions of the judges cannot rest on the popularity and the strength of the judiciary lies in resisting the pressure to please the majority, applies in this case perfectly. At leaset now the Supreme Court should come forward to vacate the stay granted in this case.

The procedure for the appointment of judges to the higher judiciary is clearly envisaged in our Constitution. As per the Constitution, in consultation with the Chief Justice of the High Courts or the Supreme Court as the case may be, the selection will be made by the Executive i.e. Committee of Ministers and the final orders will be issued by the President of India. But the Supreme Court of India usurped these powers of the Executive, authorising themselves to form a collegium of judges for selection of candidates for appointment of Judges of Higher Judiciary. This was done without any amendment to the Constitution. The Executive, the Government of India, seems to have willingly surrendered its rights to the collegium without raising any serious objections or initiating any action to assert its authority. Therefore creation of a National Judicial Service Commission is the only way to come out of this mess.

“The court, acting on public interest litigation, passed several orders and the jurisdiction peg on which it was done was that such matters affected the ‘life’ of the citizen under Article 21. Its justification is that the other branches of government have failed or are indifferent to the solution of the problems. In such matters, the court is acting in advance of the political branches of the government. However we do not have the competence to make policy choices and run the administration” the CJI observed.

The judiciary is thus competent to review whether the law enacted by the State is in contravention with the provisions of the Constitution of India or infringes in any manner the fundamental rights of any citizen. Above that, the judiciary can not take any policy decisions or give directions in administration and execution of the law so enacted.

“Judicial activism which is not grounded in any textual commitment to the Constitution, unlike activism in cases of human rights and life and personal liberty, raises questions of accountability of the judiciary” said the CJI and raised the question, “while the legislature and the executive are accountable to the electorate, is there any reason why the judiciary should not be made accountable to the community for its due performance of the functions vested in it?” But, what type of mechanism could be created to monitor the accountability of the judiciary, is a controvertial point .

The cabinet policy decisions should not be subjected to judicial scrutiny. Otherwise the very principle of separation of powers would become meaningless.
Anyhow, by expressing his views frankly, Justice S.H. Kapadia has rendered a great service to the nation. His views should not be considered as a criticism or affront on the judiciary. As rightly pointed out by him, the judiciary also must come forward to subject themselves to a fair criticism just like other public institutions.