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Wednesday, Feb 27, 2008
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Call for judicial restraint in striking down economic laws

J. Venkatesan

New Delhi: The Supreme Court on Monday held that courts should show judicial restraint in striking down economic laws and greater latitude must be given to the legislature while adjudging the constitutionality of the statute.

A Bench of Justice H. K. Sema and Justice Markandey Katju said “It [court] 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 the domain of the executive or legislative field and try to enforce its own views and perceptions.”

The Bench was allowing an appeal from the Andhra Pradesh government against a judgment of the Andhra Pradesh High Court declaring unconstitutional an amendment introduced in the Indian Stamp Act relating to the deposit of stamp duty.

Writing the judgment Justice Katju said “the court must always remember that invalidating a statute is a grave step, and must therefore be taken in very rare and exceptional circumstances. While the court has power to declare a statute to be unconstitutional, it should exercise great judicial restraint in this connection.”

The Bench said “the court can declare a statute to be unconstitutional only when there can be no manner of doubt that it is flagrantly unconstitutional, and there is no way of avoiding such decision. The philosophy behind this view is that there is broad separation of powers under the Constitution and the three organs of the State — the legislature, the executive and the judiciary must respect each other and must not ordinarily encroach into each other’s domain.”

The Bench said “the judiciary must realise that the legislature is a democratically elected body which expresses the will of the people, and in a democracy this will is not be lightly frustrated or obstructed.”

Exhorting the need for striking a balance in dealing with economic legislations and civil liberties, the Bench said “while judges should practice great restraint while dealing with economic statutes, they should be activist in defending the 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.”

‘Solemn duty’

The Bench said “it is the solemn duty of the courts to uphold the civil rights and liberties of the citizens against executive or legislative invasion. The court cannot sit quiet in this situation, but must play an activist role in upholding civil liberties and fundamental rights enshrined in the Constitution.”

Referring to the instant case, the Bench said “in view of the fact that the impugned amendment is an economic measure, whose aim is to plug loopholes and secure speedy realisation of stamp duty, we are of the opinion that the said amendment cannot be said to be unconstitutional.” The Bench set aside the High Court judgment and upheld the amendment.

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