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Need to sustain balance of power

New Delhi, Sat, 15 Dec 2007 Vikash Ranjan

Need to sustain balance of power

Dec 15:  The Supreme Court Bench comprising Justice A K Mathur and Justice Markandey Katju said on Monday in one of its observation on the theme “judicial activism and overreach,” which means judges must know their limits and must not try to run the government, had brought the matter into the core of controversy.

Although the order should be welcome as it is the first of its kind when the Supreme Court has made this critical comment on itself. However it is not a ruling rather an observation and judges are not bind to follow its’ order. But this certainly shows the way to make the remark an issue of debate.

However a bench headed by Chief Justice of India K G Balakrishnan and comprising two others judges, Justice R V Raveendran and Justice J M Panchal brought an end to the confusion following the Monday order and tried to clear the air on the role of Courts by saying that the Apex Court was not binding by the order of Two-judge bench.

The whole account starts with the observation made by the two-judge bench comprising Justice Mathur and Justice Katzu while deciding a case which had challenged Punjab and Haryana High Court order directing for the creation of posts of truck driver to accommodate two gardeners employed on daily wages at a golf club run by the Haryana Tourism Corporation. The apex court bench had cast aside the order saying that it was beyond the jurisdiction of high court.

In an attempt to make their observation justifiable the bench had cited many examples when judiciary had encroached into other’s right of domain. The Jagdambika Pal’s case of 1998 involving UP legislative assembly and the Jharkhand assembly case of 2005 are the two conspicuous instances where the judiciary unnecessarily deviated from the constitutional scheme of separation of powers.

The larger bench of the Supreme Court in the Bihar Assembly dissolution case clearly asserted that judiciary can’t remain a silent spectator when the constitution is subvert in the legislatures.

The repercussion of the ‘Monday Observations’ came on Tuesday when Apex Court Justice Sinha refused to hear the public interest litigation filed by and NGO Prajwala on the rehabilitation of under trial women in prisons. Justice Sinha said that the matter comes under the jurisdiction of the Executive and the Legislature and it is not ours but theirs duty to look into the matter.

Fortunately for the Indian judiciary before the matters’ reach to the controversial climax, the Chief Justice of Apex Court put an end to all confusions by saying on Thursday that the two bench order was not binding on the apex court. The remarks came after an advocate Ravinder Bana had filed an application on be half of a Delhi based NGO in the light of Monday’s observation that whether his PIL would be entertained in the court or not.

The Chief Justice remarks should be seen as an endorsement of PILs as the bench did not shed light on “judicial overreach – the court needs to know the limits of the court’s jurisdiction” the basic point of the observations made by Justice Mathur and Katzu.

Nonetheless, the two issues “supporting to PILs” and the “judicial overreach” are not very different from each other, we should look them separately. The Public Interest Litigations have been doing constructive purpose in terms of providing justice to the petitioner from the very beginning. Sometimes petitions filed in the court are fake and frivolous but that deficiency can’t undermine the need for PILs. To overcome these shortages of PIL some guidelines should be made.

Many times it is seen that lower courts often admit and pass judgment on the dizzy complaints and PILs. For that tight leash should be kept on these courts and simultaneously some guidelines make for them for the type of PILs that they should entertain.

Chief justice of India also said on Friday that it will consider laying down some guidelines for Judiciary to entertain public interest litigations.

If the subordinate courts follow the advice of ‘selection of PILs’ the pendency of cases can be reduced considerably.

For other issue, the limit of court’s jurisdiction, there is no any provision mentioned in the constitution which could bind their ambit of right. Judiciary interferes only when executive and legislature fails to do their assigned task and where the larger public interest is threatened by the willful actions of other two pillars of democracy. When judiciary reacts over these cases, it is termed ‘overreach’ by other two pillars of democracy. So, for the effective functioning there should be maintained fine balance among the three pillars – executive, legislature and judiciary – of the government. A fine balance should be maintained between judicial restraint and social need.

Moreover Supreme Court as the highest court of justice should avoid hearing cases of petty importance. It should try to deal cases pertaining to fundamental importance that would help in saving time and in the long run reducing pendency of cases.

At last all judges must bear in mind the wise words of Earl Warren: “Where there is injustice, we should correct it, where there is poverty, we should stamp it out, where there is violence, we should punish it, where there is neglect, we should provide care.”

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