Judiciary for better functioning of executive: SC

New Delhi, Apr 9 (UNI) The Centre and the Supreme Court today once again had a confrontation on the issue of judicial activism in the form of entertaining PILs.

Additional Solicitor General(ASG) Vikas Singh told the three-judge Bench headed by Chief Justice K G Balakrishnan that courts should not entertain PILs on executive order. He further added that High Courts were going beyond their constitutional mandate by encroaching into the domain of the executive and courts should not entertain any petition against the policy matters.

To which, Chief Justice responded angrily, '' If (the) executive is not functioning who will protect the right of the common man.

Will he go to the chief minister?'' The Chief Justice cited the example of many unrecognised educational institutions functioning in the state with the active connivance of the state governments.

''Free beds are not provided for the poor patients inspite of the fact that the land is allotted to the private hospital at throwaway prices on the condition that they will provide free medical care to the people belonging to the weaker sections of the society. Private unaided schools are supposed to admit 25 per cent students belonging to poor families for getting the land allotted almost free of cost ( at the rate of Rs 2 to 3 per square meter when its market value is in the range of Rs 5000 to 10000 per square meter).'' The Chief Justice made it clear without mincing words, '' If (the) executive does not function and does not fulfil its obligation towards the citizens, duty is cast on the courts to protect the rights of the citizens.'' Other judges on the Bench were Justice R V Raveendran and M K Sharma.

The apex court, however, turned down the contention of Prashant Bhushan, counsel for the petitioner, that the issue of framing guidelines for entertaining the PILs should be referred to the five-judge Constitution Bench.

The apex court told Mr Bhushan, '' We can not issue exhaustive guidelines and there are already enough guidelines on the issue.'' The court issued notice to Supreme Court Bar Association and appointed senior counsel F S Nariman as amicus curiae.

Today's observation came during the hearing of two PILs, one seeking rehabilitation of sex workers and their children and second seeking allotment of houses to the disabled.

The court, however, told the ASG Vikas Singh that it was well aware that sometimes High Courts went beyond their constitutional mandate in entertaining PILs.

The issue of judicial activism came up for discussion when Mr Bhushan told the Bench that after the judgement of Markandey Katju against judicial activism, most of the High Courts had stopped entertaining PILs and were dismissing them.

Mr Bhushan also contended that policy matters if inspired by malafide or arbitrariness or discriminatory, could be judicially examined by this court.

The two PILs one by Prajwla and other by Salil Choudhury had been referred to the three-judge Bench by a two-judge Bench headed by Justice S B Sinha in view of the judgement of Justice Markandey Katju.

UNI SC RC AS1729