Supreme Court’s Order Is Unconstitutional

Markandey Katju

Markandey Katju

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Courts cannot solve all problems in the country.

I was 20 years a lawyer and 20 years a Judge (in 3 High Courts and in the Supreme Court) but never in my legal career did I come across an interim order of a Court staying operation of a law made by Parliament.

With due respect to the Supreme Court I submit that its order today staying operation of the three laws made by Parliament is unconstitutional and against all canons of jurisprudence.

I had already expressed briefly my view in my article ‘Can Supreme Court stay implementation of a law‘. I would like to elaborate.

supreme court
Supreme Court

As held by the Supreme Court in Divisional Manager Aravali Golf Course vs Chander Haas, there is broad separation of powers among the three organs of the state, the legislature, the executive, and the judiciary, and it is not proper for one organ to encroach into the domain of another.

Each of these three organs is Supreme within the constitutional limits. When Parliament makes a law, it becomes operative immediately on receiving the assent of the President of India. The Court can, no doubt, declare a law made by Parliament unconstitutional, but it cannot stay its operation without even finding it unconstitutional.

Only Parliament can stay it by making another law, or the Government can do it by an Ordinance ( which too will later require Parliamentary approval ).

If the Court claims it can stay operation of a law made by Parliament, then Parliament too can claim it can stay Court orders. Would that be constitutional ?

It would result in breakdown of the Constitutional machinery. I respectfully submit that the Supreme Court should have only considered and decided the constitutional validity of the three laws, and not ventured into the exercise of resolving the deadlock between the farmers and the government, as it has done, as that is not its job, nor does it have the expertise for this.

As observed by Chief Justice Neely of the West Virginia Supreme Court :

“I have very few illusions about my own limitations as a judge. I am not an accountant, electrical engineer, financier, banker, stockbroker or system management analyst. It is the height of folly to expect Judges intelligently to review a 5000 page record addressing the intricacies of a public utility operation. It is not the function of a Judge to act as a super board, or with the zeal of a pedantic school master substituting its judgment for that of the administrator “.

Justice Frankfurter of the US Supreme Court in Trop vs Dulles said :

“All power is, in Madison s phrase, of an encroaching nature . Judicial powers is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self restraint .

Rigorous observance of the difference between limits of power and wise exercise of power between questions of authority and questions of prudence requires the most alert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce. No less does it require a disciplined will to adhere to the difference.

It is not easy to stand aloof and allow want of wisdom to prevail to disregard one’s own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Court giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the Executive Branch do.

When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the constitution and if not, the court may strike down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the constitution lies within the sphere of the legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers.”

Hon ble Justice A.S. Anand, former Chief Justice of India observed:

“Courts have to function within the established parameters and constitutional bounds. Decisions should have a jurisprudential base with clearly discernible principles. Courts have to be careful to see that they do not overstep their limits because to them is assigned the sacred duty of guarding the Constitution. Policy matters, fiscal, educational or otherwise, are thus best left to the judgment of the executive.

With a view to see that judicial activism does not become judicial adventurism , the courts must act with caution and proper restraint. They must remember that judicial activism is not an unguided missile and failure to bear this in mind would lead to chaos. Public adulation must not sway the judges and must be eschewed. That is imperative to preserve the sanctity and credibility of the judicial process. It needs to be remembered that courts cannot run the government.”

justiceThe justification often given for judicial encroachment into the domain of the executive or legislature is that the other two organs are not doing their jobs properly. Even assuming this is so, the same allegation can then be made against the judiciary too because there are cases pending in Courts for half-a-century as pointed out by the Supreme Court in Rajindera Singh vs. Prem Mai & others (Civil Appeal No. 1307/2001) decided on 23 August, 2007.

If the legislature or the executive are not functioning properly it is for the people to correct the defects by exercising their franchise properly in the next elections and voting for candidates who will fulfill their expectations, or by other lawful methods e.g. peaceful demonstrations.

The remedy is not in the judiciary taking over the legislative or executive functions, because that will not only violate the delicate balance of power enshrined in the Constitution, but also the judiciary has neither the expertise nor the resources to perform these functions.

judgesIt is submitted that adjudication must be done within the system of historically validated restraints and conscious minimization of the judges personal preferences. Judges must maintain judicial self-restraint while exercising the power of judicial review of legislation.

In view of the complexities of modern society“, wrote Justice Frankfurter, while Professor of Law at Harvard University, “and the restricted scope of any man’s experience, tolerance and humility on the part of Courts in passing judgment on the worth of the acts of the other organs of the state become crucial faculties in the disposition of cases. The successful exercise of such judicial power calls for rare intellectual disinterestedness and penetration, lest limitation in personal experience and imagination operate as limitations of the Constitution”.

In his book ‘The Nature of the Judicial Process‘ Justice Cardozo of the US Supreme Court observed “The judge is not a knight errant roaming at will in pursuit of his own ideal of beauty and goodness “.

Justice Frankfurter of the US Supreme Court constantly admonished his brethren of the need for discipline in observing their limitations while exercising their functions (See Frankfurter’s ‘Some Reflections on the Reading of Statutes‘).

One can understand the Supreme Court’s anxiety in ending the current deadlock. But at the same time one wishes that the Court had paid heed to the above mentioned wise counsel of such eminent jurists before passing its order. After all, Courts cannot solve all problems in the country.

Also Read: Matter of Justice: “Cooling off period” before retired judges could be appointed to any position


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Markandey Katju

Markandey Katju

Justice Markandey Katju is former Judge, Supreme Court of India and former Chairman, Press Council of India.

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