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Thread: Judicial Activism....

  1. #1
    C J Karira
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    Judicial Activism....

    Members and Guests might be aware of the recent judgement, by a two judge bench of the Supreme Court, on this subject.

    I am reproducing below 2 articles , the first one about the MCD asking the Delhi High Court to close the case on Demolitions citing this judgement and the other, an article by Mr Rajeev Dhawan.

    MCD wants HC demolition case closed, cites `over-reach` ruling

    New Delhi, Dec 17: Citing the recent apex court`s observations on "judicial over-reach", the MCD on Monday asked the Delhi High Court to dispose off proceedings in a PIL on unauthorised constructions which saw large-scale demolitions in the capital since march last year.

    The civic agency, which was slammed by the court for corruption in its building department leading to illegal constructions, wants the court-appointed mechanism for overseeing execution of demolition orders disbanded.

    "The matters in which orders were passed pertains exclusively to executive or legislative domain, the proceedings may be disposed off. And the monitoring committee (be disbanded) and court commissioners (discharged)," the agency said, in a fresh application moved before the court today.

    The court had appointed the three-member monitoring committee and appointed court commissioners, in March 2006 to monitor demolition of unauthorised constructions after holding that that the official machinery in MCD responsible for checking illegal constructions had collapsed.

    The civic body`s latest move comes in the backdrop of the Supreme Court`s recent comments against Delhi High Court for allegedly �performing� the functions of executive domain or in the matters of policy relating to a plethora of issues.

    In the application filed through counsel Sanjeev Sen and Ajay Arora before the special bench comprising of Justice A K Sikri and Justice Rekha Sharma, presently hearing the demolition case, MCD said that as per the apex court`s recent judgment the monitoring committee and court commissioners cannot perform the functions of the executives or substitute their role.

    The MCD, in its application, asked the special bench to recall its orders appointing monitoring committee and court commissioners claiming it has complied with its directions in connection with the removal of illegal constructions.

    "The monitoring committee and the court commissioners can not perform the functions of executive. Thus this court may kindly recall the orders passed on March 23 and May 18, 2006," the agency pleaded.

    "Creation of monitoring committee under the cover of judicial order impairs the principle of separation of powers because under the law, MCD is the body statutory mandated to perform the executive functions," the MCD stated.

    This is the second application moved by the MCD questioning the powers of the monitoring committee and the court commissioners.

    Earlier, in a similar application, MCD had alleged the court commissioners and the committee members were illegally directing the MCD officials to demolition of illegal constructions which had not even been taken note of by the high court. The application is still under consideration by the court.

    Zee News - MCD wants HC demolition case closed, cites `over-reach` ruling


    It is too late in the day to put a lid on PIL

    ARE JUDGES emperors? Monarchs of all they survey? Or, are they just bureaucrats in fancy dress deciding cases with pomp and ceremony? Has the black coat lost its shine? Justice Katju's admonition to his brother judges to shed their imperial pretensions has stirred a hornet's nest. Reactions to this outburst vary. Justice Sinha's bench, in the Supreme Court, and Justice Mudgal, in the Delhi High Court, stopped hearing PILs in order to consider the implications of the judgement. Politicians are triumphant. Activists are furious. Has Justice Katju thrown the baby out with the bath water?


    Although officially the controversial order is by both Justice Katju and Justice A. K. Mathur, Justice Katju's stamp on it is unmistakable. Justice Mathur may not have been in total agreement with the entire order. What we do know is that on 11
    December 2007, Chief Justice Balakrishnan quelled dissenting voices by declaring that public interest litigation cases (PILs) will continue despite the order. High courts are in a terrible quandary because the “Katju order” is binding on them. On 14 December 2007, the Chief Justice took two important decisions: the first was to declare that a Constitution Bench would examine the scope of PIL itself; the second was to break up the Mathur-Katju bench — with Justice Katju to sit with Justice Sema. Was this punishment or strategy? We will never know.

    Justice Katju's comments arose in the Aravali Golf Club case which provided scant occasion for such dramatic remarks. Two malis(gardeners) wanted to become tractor
    drivers in the club — a job that they were doing for several years. The Supreme Court reversed the High Court order to say that jobs could not be created by judges. He should have stopped there. Then began the long excursus (to borrow Lewis Carroll's
    words) into “shoes and ships and sealing wax and cabbages and kings and why the sea is boiling hot and whether pigs have wings”. The judgement goes all over the place. There should be little difficulty in accepting Justice Katju's broad argument
    about (a) separation of powers, (b) judicial restraint, (c) recognition of the autonomy of the legislature, and (d) not usurping the executive's decision making and implemental role. If this is acceptable, then why was this shock treatment from the
    highest court necessary?

    Justice Katju is surely right when he criticises the Jharkhand cases where the Supreme Court aggressively monitored and sought reportback from the State Legislature. This was violative of separation of powers — a mistake that should never be repeated. But was it the place of the “Mathur-Katju” 2-judge bench to virtually
    overrule benches led by chief justices of India on a matter not before them? Was it right for the “Mathur-Katju” bench to directly declare the proceedings in the Delhi
    High Court nursery schools case “illegal” by a side comment? Justice Katju's broadside attack is on PIL cases of schooling, drinking water, beds in hospitals on public land, misuses of ambulances, creating a world class burns board, Delhi air pollution, begging in subways, CNG buses, legality of constructions in Delhi, size
    of speed breakers, overcharging by auto rickshaws and so on.

    He feels these trespass into executive policy making. But, if Justice Katju's admonition is correct, then all PILs of this or a similar nature must stop now, which is precisely what Justice Sinha did in the Sexworkers case — referring the case to a
    larger bench. This is the heavy effect of the “Mathur-Katju” order. High courts will draw a curtain on all PILs. Supreme Court judges will forbear hearing such cases until the smoke is cleared. Justice Katju wanted controversy and debate. His order has
    created chaos.


    What is a matter of worry is that Justice Katju has called into question the entire human rights and social justice jurisprudence evolved by the Supreme Court over the last 30 years. Brilliantly, the court expanded the meaning of equality (Article 14) and life, liberty and due process (Article 21) to cover the needs of all Indians — rich or poor. All could approach the court (locus standii principle). Orders of the court were monitored through special bodies (monitoring commission principle). In some cases (such as the Forest and Delhi Environment cases), the court went on for years to monitor implementation through courtappointed committees (continuing mandamus principle). Modestly used, these principles are good. Through an expanded interpretation of Articles 14 and 21, they have secured the rights to food, water, housing, shelter, livelihood, health, clean environment, freedom from sexual harassment, privacy, information, Adivasi and Dalit welfare, corruption- free administration and much more. Justice Katju does not examine Articles 14 and 21 but nullifies this huge jurisprudence of human rights and social justice. He has simply
    misunderstood this contribution and brushed it aside from his mind.


    The only concession that he permits is: “judicial activism is a useful adjunct…(to) be resorted only in exceptional circumstances” in the interests of the poor and weak. But, judicial activism for human rights and social justice is part of a continuing need for Indian governance and not just an incidental exceptional activity. We have struggled to bring a broad justice-based PIL into place. Justice Katju's ipse dixit (mere words) cannot wipe out 30 years of a brilliant juristic creation.

    The real problem with Justice Katju's shock treatment approach is two-fold. The first is that his remarks may have been appropriate for a speech but not for a judgement which has created chaos. The phrase “judicial terrorism” comes to mind. Second — and more important — Justice Katju fails to distinguish between “judicial activism” (which is permissible) and “judicial excessivism” (which is not). Judicial activism is inevitable. India has a forward- looking activist Constitution to impart human rights and social justice for all. Judges cannot shy away from fulfilling this dream for all people by inventing new legal techniques to ensure it. Without these techniques, the Constitution would become supine.

    No doubt there is judicial excessivism. The Jharkhand cases wrongly invaded legislative autonomy. The Forest cases cannot go on for over 10 years whereby the Supreme Court and its infamous committee have virtually become the Ministry of Forests. The Police and Sexual Harassment cases enacted law. Government by judiciary is questionable unless it is disciplined.

    I believe such a discipline exists. The Chief Justice wants to re-examine the principles of PIL. In my view, this would be a mistake. I was an amicus to the court in the Sudipta Majumdar case (1983) where ten questions were formulated to discipline PIL. Around 2000, on my advice, a Constitution bench declined to order straitjacket guidelines because it rightly accepted that guidelines were available. Judges should simply follow these existing guidelines. An assessment of PIL itself will open a Pandora's box, which is neither necessary nor desirable. Judges often make extra-judicial remarks. This one has flown over the cuckoo's nest.

    The author is an advocate in the
    Supreme Court of India

  2. #2
    C J Karira
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    Re: Judicial Activism....

    As reported by Pioneer News Service in on 11 April 2008:

    The Pioneer > Home

    CJI flays demand for judicial restraint

    The rising demand for judicial restraint, both from within and outside the judiciary, evoked strong protest from the Chief Justice of India on Wednesday, who blamed the inept functioning of executive to be a chief cause for courts turning activists.

    "What do we do when the executive fails to perform," said CJI KG Balakrishnan while dealing with a reference from a two-judge Bench who refused to hear a pending PIL after a Bench of the Supreme Court in December 2007 advocated judicial restraint pointing out several instances where the courts had strayed into the executive turf.

    Slamming the December 2007 judgment by Justice Markandey Katju, the Bench headed by the Chief Justice said, "If this sort of judgment comes from this Court, the High Courts below will not admit any PILs."

    Admitting there may be stray instances of High Courts assuming executive roles, the bench comprising of Justices RV Raveendran and MK Sarma agreed to take suggestions to consider the need of guidelines for courts to determine matters of public interest.

    The Bench requested noted jurist Fali S Nariman to assist the Court with his suggestions and even issued notice to the Supreme Court Bar Association to file its response by August next, when the matter is slated for hearing.

    The need for inviting the suggestions was emphasised by advocates Prashant Bhushan and Aparna Bhatt who were aggrieved after a Bench of the Supreme Court hearing two separate PILs on sexual workers and preferential allocations for disabled persons referred the matter to the CJI in the light of Justice Katju's December 6, 2007 judgment. Though Justice Katju never meant that PILs are not to be heard by courts, confusion had been created among High Courts who refused to hear PILs after coming to learn of this decision.

    Reading out from Justice Katju's decision, the CJI noted that on issues of controlling pollution the courts could not be said to have strayed into executive domain as they were universally recognised as matters of public importance. On Justice Katju's rebuke against High Courts meddling into executive affairs like fixing free beds in hospitals and disciplining traffic on roads, the Bench observed, "Hospitals are given large chunks of land for providing 30 per cent free beds to poor patients.

    These hospitals are today being run as five-star hotels. Nobody can afford to get treated. Hundreds of crores worth property goes for pittance. Who will protect the rights of the citizens?"

    On the issue of courts regulating unauthorised schools and universities, the Bench said, "What is to be done when large number of people are cheated. Will the State Government go to court? Where do they go when the State Government is conniving?" an anguished CJI wondered.

    Making it clear that the decision of Justice Katju should only be considered as a decision of a learned judge of Supreme Court, the Bench refused to sit in judgment over it when demanded by Aparna Bhatt to set it aside. On the question of framing an exhaustive guideline on PILs, the bench felt the guidelines were already in place. Yet it felt any new suggestions on this aspect would be welcome.
    Twitter: @cjkarira

  3. #3
    C J Karira
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    A bitter PIL

    Editorial in on 09 April 2008:
    A bitter PIL- Hindustan Times

    A bitter PIL

    The Supreme Courts decision to evaluate the achievements of public interest litigations (PILs) is bound to generate a debate on whether they have really been effective so far or not. Many feel that several PILs entertained by the judiciary have been frivolous and have done nothing beyond generating headlines. Others feel that they have served the purpose of safeguarding public interest and holding the executive and legislature accountable.

    At a time when people have little faith in other arms of governance, they have looked to the judiciary as a beacon of hope for justice delivery.

    But the downside has been that many have sought to settle either personal scores or just court cheap publicity by filing PILs. It is this that the apex court is seeking to target and, hopefully, weed out. Armed with weapons like the Right to Information Act, the public today is more aware than ever of its rights. But more often than not, people come up against a wall of bureaucracy and red tape leaving them with no recourse but to reach out to the courts. The courts can be held guilty of weighing in too much on the side of the citizen in accepting petitions that could be settled outside the purview of an overburdened judicial system. But we can only assume that the judiciary has erred on the side of caution. That this course correction has been suggested by the judiciary itself is welcome. The problem has been in the screening process with the judiciary keen not to turn away anyone with a complaint or grouse. There has been considerable pressure on the judiciary to deliver where all other systems of governance have failed.

    But it is important that PILs do not lose their effectiveness through overuse or misuse. The courts should also be mindful of where its jurisdiction ends and that of other organs of the state begin. The present review has also been prompted by the lack of progress on the judiciarys pronouncements on several issues like cleaning up the Yamuna. Now, this is clearly an example of the failure of the civic administration. There is little the court can do to force it to mend its ways except to pass strictures. Often the courts have been forced to pass judgment where civil society has failed to hold its representatives accountable. What we need is a judicious mix of citizen activism and judicial intervention. But the latter should really be a court of last resort if it is to deliver verdicts that can be implemented for the greater common good.
    Twitter: @cjkarira


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