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Don’t take over functions of other organs : PM tells judiciary

	April 09, 2007

The relations between the judiciary, the legislature and the executive came into focus at a conference of Chief Ministers and Chief Justices of High Courts in New Delhi on Sunday, April 8. Prime Minister Manmohan Singh who inaugurated the conference suggested that the judiciary should not breach the thin line dividing the functions of the judiciary and the legislature. Chief Justice of India K.G. Balakrishnan, whose speech preceded the Prime Minister’s inaugural address, asserted that the perceived tension between courts, legislature and the executive was a natural and inevitable corollary of a

healthy democracy.



Balakrishnan left no stone unturned in asserting the judiciary’s independence, particularly its power to review the actions of Parliament and legislatures.



“The application of judicial review to determine constitutionality of the legislation and to review the executive decision sometimes creates tension between the judge and the legislative and the executive branch. Such tension is natural and to some extent desirable,” Balakrishnan observed.



Noting that the judiciary’s independence was essential for the rule of law, Balakrishnan said judicial review was an “extraordinary legal invention” that seems “deceptively simple, but it is one of the most baffling of legal devices. Sometimes it is described

mistakenly as a veto power over legislation.”



He said the principles of separation of powers are kept in the forefront and the judge should make sure that each of the other branches operates within the boundaries of the law and the judicial review.



Dr. Manmohan Singh, who spoke later, cautioned the judiciary against substituting its power of mandamus with the take-over of the functions of other organs.



“The dividing line between judicial activism and judicial overreach is a thin one...A takeover of the functions of another organ may, at times, become a case of over-reach,” he said.



The Prime Minister’s remarks came in the backdrop of a plethora of laws being struck down by the apex court, the latest being the constitutional validity of Schedule Nine and the stay granted on implementing the 27 per cent quota for OBCs in elite educational institutions.



Maintaining that the judiciary’s primary obligation was to enforce the rule of law, uphold the Constitution and enforce the discharge of obligations by any authority of the state, Singh said this conferred enormous power on the judiciary. However, at the same time, Singh said that the judiciary cannot substitute its power of mandamus to take-over the

functions of another organ, meaning the legislature and the executive.



Admitting that there was a huge pendency of cases in various courts, Balakrishnan blamed lack of adequate judges and infrastructure for the problem.



Noting that there are volumes of recommendations from the Law Commission, reports

of experts committees and opinions of jurists highlighting the problem and suggesting ways and means to overcome it, he said, “The need of the hour is to act upon those suggestions swiftly and decisively.”



Besides increasing the number of judges at all levels in a phased manner, as a first step, it is absolutely imperative to fill vacancies at all levels in the shortest possible period, Balakrishnan said.



“We have to develop zero vacancy or near zero vacancy culture,” he observed.



Law Minister HR Bharadwaj said as part of the strategy to computerise the subordinate judiciary, it had been decided to provide laptops to all judicial officers with broadband connectivity to enable them to access judgements from archives and save considerable time.



The Indian judiciary, by and large, has maintained the highest standards of efficiency and

integrity, Bharadwaj said.



“However, more than once, aspersions have been cast on the integrity of certain sections of the judiciary. For gaining the confidence of the litigant public, there has to be a confident belief that judgements are rendered without any extraneous considerations,” he

said.



He suggested that an effective mechanism be created to ensure judicial accountability while at the same time maintaining the judiciary’s independence.



Karat hits out at judicial intervention



In a related development, CPI(M) general secretary Prakash Karat has taken exception to a host of court rulings including the Supreme Court’s stay on OBC quotas in higher educational institutions and court orders against party Ministers in Kerala.



Speaking in New Delhi on April 3, he said the party’s central committee has specifically demanded that there should be judicial accountability and reforms. A National Judicial Commission should be set up for appointment of judges and for looking into related issues.



Karat attacked the higher courts for intervening in favour of the private sector and employers, overturning verdicts favouring the workers and curtailing democratic rights and collective action.



His comments come against the backdrop of initiation of contempt proceedings against senior CPI(M) Minister Paloli Mohd. Kutty by the Kerala High Court for his “anti-judiciary remarks” and sentencing of another Minister A.K. Balan by a court for obstructing train services during a party agitation.



Former Chief Justice caution against judicial over-reach



Former Chief Justice of India J.S. Verma considered the face of judicial activism - has obliquely raised questions over the recent stay order of the Supreme Court on the law enabling 27 per cent quota for OBCs.



“I don’t want to comment on a matter still under consideration,” he said when asked for his reaction to the stay order. “All I can say is that judicial discipline requires consistency and there should be no scope for any departure or conflict with any settled procedures

of law.”



This echoes the criticism from some quarters in the government that a two-judge bench, staying the OBC quotas, had overturned what was the basis of a judgement by a nine-judge bench (in the Indra Sawhney case, 1992).