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13 December, 2007

The Supreme Court sets the stage for roll-back

I wish to congratulate Justices A. K. Mathur and Markandey Katju of the Supreme Court who have called for judicial restraint and cautioned against the Judiciary encroaching upon the realms of the Executive and the Legislature.

In a judgment, delivered on December 10, they said, “Jagadambika Pal’s case of 1998, involving the U.P. Legislative Assembly, and the Jharkhand Assembly case of 2005 are two glaring examples of deviation from the clearly provided constitutional scheme of separation of powers.”

They added, “The interim orders of this court [on the conduct of floor test and motion of confidence], as is widely accepted, upset the delicate constitutional balance among the judiciary, the legislature and the executive, and were described by J.S. Verma, former Chief Justice of India, as judicial aberrations which he hoped the Supreme Court will soon correct.” ( The Hindu, December 10, 2007)

Judicial excess was the topic of the first piece that appeared in this blog: Judiciary: Time to Roll Back (April 24, 2007). Two days later I reproduced here an editorial on the subject, which had appeared in the Economic and Political Weekly: “Constitutional separation strained” (EPW, November 26, 2006).

With the Mathur-Katju judgment, I believe the roll-back process has begun. On December 12, another bench, comprising Justices S. B. Sinha and H.S. Bedi, taking note of that judgment, decided not to proceed with the hearing of a public interest litigation which had been before it since 2004. It requested the Chief Justice of India, Mr. K. G. Balakrishnan, to post the matter before a larger bench. (The Hindu, December 12, 2007)

On December 13, the issue was raised before a three-judge bench, headed by Justice Balakrishnan himself. This bench decided to proceed with the matter before it, holding that the Mathur-Katju judgment does not apply. (Zee News, December 13, 2007)

Former Chief Justice P. N. Bhagvati, in whose time public interest litigation grew in size and scope, immediately hailed Justice Balakrishnan’s decision.

Naturally the different positions taken by the three benches have given rise to confusion all around. Many are wondering whose will be the last word. It may take quite some time to resolve the confusion.

It is not anybody’s case that public interest litigation must be jettisoned. It has served as a corrective mechanism and must stay as a necessary instrument to further the cause of justice -- social, political and economic. What needs to be curbed is not the citizen’s right to seek redress through public interest litigation but the judge’s tendency to exercise powers that do not belong to him.

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