A new judiciary PDF Print E-mail
Tuesday, 19 April 2011 00:00
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With increasing instances of the judiciary and the executive being at loggerheads, and the obiter dicta by various judges has only worsened the impression of the conflict, Chief Justice SH Kapadia’s MC Setalvad Memorial Lecture comes as a breath of fresh air. In recent months, the courts have pulled up the government for how funds for the PDS were being used, on how the government shouldn't be procuring foodgrains unless it can store them, on the progress in the 2G scam, on the appointment of the CVC, even admissions to nursery schools. Justice Kapadia has warned that “judges do not have the competence to make policy choices and run administration” and it is not their job to direct the legislature. As he put it, “We are not concerned with the wisdom, need or appropriateness of the legislation. We must refuse to sit as a super-legislature to weigh the wisdom of legislation”.

But what of the genuine PILs that the courts have entertained to ensure a reluctant government takes appropriate action? Or of the 2G scam where little progress took place till the Supreme Court intervened? Justice Kapadia gives the instance of the court’s order that forced the government to implement CNG for public transport in the capital, to make the right to education a fundamental right, to frame rules for admission into educational institutions. He said that while all the judgments were pegged on the belief they affected the life of the citizen under Article 21 of the Constitution, the courts still needed to keep in mind the question: “can judges ignore the separation of powers in the Constitution”, especially since they can’t be held responsible for their actions by the electorate. In other words, under Justice Kapadia, you could well have a new restraint among judges. None of this, however, should be interpreted to mean the judiciary will not be questioning the government’s actions. Justice Kapadia has done well to point out that the Constitution is “a living organic thing” and that the courts have to constantly interpret the meaning and intentions of the framers of the Constitution.


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