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28 April, 2007

An Edit from EPW

The following editorial from the Economic and Political Weekly is reproduced here as it is relevant to the issue of judicial overreach, discussed in my earlier post (below).

Constitutional Separation Strained

When a monitoring committee appointed by the Supreme Court is invested with the power to decide which shops to seal and when, there is reason to doubt if the system of separation of powers factored into the Constitution is still in place. The Constitution enjoins upon the authorities to act in aid of the court, but bureaucrats and their political masters are known to have been lax in this respect at times. This circumstance may justify the creation of a monitoring mechanism but is that sufficient ground for taking away the bureaucrats’ authority and vesting it elsewhere?
Even as the Supreme Court’s monitors were exercising their new-found authority in Delhi, in distant Chennai the high court, treating the report of the local judicial academy director as a public interest petition, was directing the Tamil Nadu government to prepare a perspective policy note with regard to immoral trafficking. It specified whom all the government should consult and what its approach should be. When the document is ready, the government will presumably be required to place it before the judges who had ordered its preparation. If it does not accord fully with their thinking, they may want suitable changes made in it. While this process goes on, what happens to the legislature, to which the government is supposedly accountable on policy matters?
Recently a Supreme Court bench, going beyond the prayers made in the petition before it, ordered the government to set up a committee to look into the question of ragging in colleges. The matter before it related to the death of a professor in Ujjain during violence touched off by university union elections. As a first step, the court set up a committee to study the issue of university union elections, and on the basis of its recommendations formulated a scheme for conduct of elections. What led the learned judges from elections to ragging is not clear. Apparently something they heard or read had convinced them that they had to do their bit to put an end to ragging. If they had resorted to the standard practice of issuing notices and hearing the parties concerned, they would have found that several state governments have been seized of the problem and some have even taken legislative measures to tackle it. The judges did not stop with the directive to appoint a committee. They also decided who should head the committee. Their choice of a former director of the Central Bureau of Investigation to head the probe suggests that they see ragging in colleges as a police problem rather than an educational problem. If two judges had been similarly exercised 50 years ago they would probably have gone no farther than voice their anguish over ragging and express the hope that the authorities would take such administrative or legislative measures as may be necessary to check the menace.
Such judicial restraint is now a thing of the past. Judges are no longer content with striking down an improper order and asking the authority concerned to decide the matter afresh in a proper manner. They proceed to decide the matter themselves, in effect substituting their judgment for that of the officer who issued the impugned order. Sometimes it looks as though the judges are actuated by the thought that anything the executive can do the judiciary can do better.
Some issues that are now at various stages of adjudication have raised fears of a major confrontation between the judiciary on the one hand and executive and the legislature on the other. Such fears have arisen in the past, too, but all limbs of the state were able to summon sufficient wisdom to resolve the conflicts without injury to any of the parties. However, there are limits to which reliance can be placed on good sense, especially in the context of the feeling that the system of separation of powers is in jeopardy. It needs to be acknowledged that it was gross executive improprieties that paved the way for the judiciary to make inroads into its realm. What began as legitimate exercise of judicial review of administrative decisions has willy-nilly led to a situation in which the courts have even entered the area of policy-making. There is no denying the fact that such judicial explorations have met with a wide measure of acceptance, especially in middle class minds. This, however, does not make them either justifiable or desirable. The time has come to ensure that the constitutional system of separation of powers is fully respected.
---Economic and Political Weekly, Mumbai, November 11, 2006

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