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A welcome realisation

The forthright observations of the Supreme Court bench comprising Justice A.K. Mathur and Justice Markandey Katju on the theme that “judges must know their limits and must not try to run the government” reflect a welcome realisation of the dangers of runaway judicial activism. This particular case related to a court order on the creation of a post of a tractor driver for a golf course, but there have been instances of even more obvious intrusion into the domain of the executive and the legislature. Judicial outrage over the mosquito menace, stray dogs, allotment of houses to judges, a lack of drinking water in schools, over-charging autorickshaws, begging on the streets, interviews for nursery school students, and so on has led to orders that have little basis in law as it stands. The Supreme Court itself has not been immune to this tendency, and its detailed orders on the manner of conducting the floor tests in the Uttar Pradesh and the Jharkhand legislatures reflect a blatant disregard of the constitutional bar on courts interfering in the internal working of the legislatures.

Because judicial overreach is usually in support of worthy causes and goes to make up for the failure of the executive, it has received some applause. However, in the process, it has damaged the other institutions of democracy, the executive and the legislatures. Not just Speaker of the Lok Sabha Somnath Chatterjee, the former Chief Justice of India, J.S. Verma, also has expressed concern over the tendency of courts to stray outside their proper constitutional domain. Invariably the judges find some legal basis for their orders through an expansive reading of some right, usually the right to life (Article 21) and the right to equality (Article 14), or through detailed orders on the presumed duty of the executive. There are, however, limits to such expansion, and in the United States too, the dangers of “unbounded judicial creativity” are well recognised. Aside from the separation of powers argument, there are compelling reasons to show restraint. The judiciary is not a representative body in touch with the people, and particularly after the higher judiciary assumed the task of appointing judges, it has become a self-perpetuating institution. Besides, judges hardly have any expertise in areas such as health, town planning, and education where policy making is best left to the executive and the legislature. Of course the courts have to be vigilant when the rights of citizens are clearly involved or in cases of executive malfeasance or abuse of power or default. Indeed in these areas of protecting the rights and guarding against abuse of power, the judiciary’s performance has been such as to increase the confidence and trust of the people. That is all the more reason why it needs to show restraint, refrain from trivialising its agenda, and stick to its constitutional domain.

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