Judiciary should not overstep its limits:SC

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New Delhi, Dec 10 (UNI) The Supreme Court today held that the judiciary should not overstep its limits and judges must not try to run the government.

Echoing the sentiments that the judiciary is overstepping its jurisdiction, a bench comprising Justices A K Mathur and Markandey Katju said, ''judges must know their limits and must not try to run the government. They must have modesty and humility and not behave like emperors'' There is a broad separation of powers under the Constitution and each organ of the state- the Legislative, Executive and Judiciary- must have respect for the other and must not encroach into each other's domain." The two-judge bench also took the judiciary to task for interfering in the matters of policy and noted, '' recently, the courts have apparently, if not clearly, strayed into the Executive domain or in matters of policy. For instance, the orders passed by the High Court of Delhi in recent times dealt with subjects ranging from age and other criteria for nursery admissions, unauthorised schools, criteria for free seats in schools, supply of drinking water in schools, number of free beds on public land, use and misuse of ambulances, requirements for establishing a world class burns ward in hospitals, the kind of air Delhiites breathe, begging in public, the use of subways, the nature of buses we board, the legality of constructions in Delhi, identifying the buildings to be demolished, the size of speed breakers on Delhi roads, auto rickshaw overcharging, growing frequency of road accidents, announcing of road fines and so on. In our opinion, these were matters pertaining exclusively to the Executive or Legislative domain.

If there is a law, judges can certainly enforce it, but judges cannot create a law and seek to enforce it. For instance, the Delhi High Court directed that there can be no interviews of children for admission to nursery schools. There is no statute or statutory rule which prohibits such interviews. Hence, the Delhi High Court has by a judicial order first created a law (which was wholly beyond its jurisdiction) and has then sought to enforce it. It is clearly illegal, for judges cannot legislate.'' The judges also took to task the apex court for the orders passed by it in the Jagadambika Pal case of 1998 involving the Uttar Pradesh Legislative Assembly and the Jharkhand Assembly case of 2005, describing them as two glaring examples of deviation from the clearly provided constitutional scheme of separation of powers.

They said the interim orders of the court in these two cases, as is widely accepted, upset the delicate constitutional balance among the Judiciary, Legislative and the Executive, and was described by Honorable Justice J S Verma, former CJI, as judicial abberations which he hoped the apex court would soon correct.

The bench also held, ''courts have to be careful to see that they do not overstep their limits because to them is assigned the sacred duty of guarding the Constitution. Policy matters, fiscal, educational, or otherwise are thus left to the judgement of the Executive. The danger of the judiciary creating a multiplicity of rights without the possibility of adequate enforcement will, in the ultimate analysis, be counter productive and undermine the credibiity of the institution.

With a view to see that 'judicial activism' does not become 'judicial adventurism', the courts must act with caution and proper restraint. They must remember that judicial activism is not an unguided missile- failure to bear this in mind would lead to chaos.

Public adulation must not sway the judges and personal aggrandizement must be eschewed. It is imperative to preserve the sanctity and credibility of judicial process.

It needs to be remembered that courts cannot run the government.

The judiciary should act only as an alarm bell. It should ensure that the Executive has become alive to perform its duties.'' The court also said, '' the justification often given for judicial encroachment into the domain of the Executive or Legislature is that the two other organs are not doing their jobs properly. Even assuming this is so, the same allegations can then be made against the judiciary too because there are cases pending in courts for half a century as pointed out by this court earlier. If the Legislative or Executive are not functioning properly, it is for the people to correct the defects by exercising their franchise properly in the next elections and voting for candidates who will fulfil their expectations or by other lawful methods that is peaceful demonstrations. The remedy is not in the judiciary taking over the Legislative or Executive functions, because that will not only violate the delicate balance of power enshrined in the Constitution, but also the judiciary has neither the expertise nor the resources to perform these functions.


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