The chief justice of India, S H Kapadia, has again tried to place the role of judiciary in the right perspective by reminding his brother judges of the limits of their powers and responsibilities and the need for a sense of realism to attend to their orders and pronouncements.
A few days ago he had subtly told the government and Parliament, in the context of the judicial standards and accountability bill, that there should not be any infringement of the independence of the judiciary by any legislative measure. This time he has turned the lense of scrutiny to the judiciary itself, which has sometimes been seen overreaching its powers, and cautioned it against the temptation to act as government, and importantly, to refrain from passing impractical orders. He has also given an example, to make his case clear.
The CJI made a special mention of the judgment of a Supreme Court bench on the recent police action against Baba Ramdev’s supporters in Delhi, which made the right to sleep a fundamental right under Article 21. Though the Supreme Court has done much to expand the scope of basic rights and to protect human rights, would it be rational and practical to make the right to sleep so basic, especially in the context in which the issue came up before the court? The test of enforceability is important in judicial orders.
Should a government be proceeded against for contempt for failing to enforce an impossible and impractical order? Judicial orders would lose their seriousness and importance in such situations.
Some time ago a Supreme Court bench wanted the mounting piles of food grains in godowns to be distributed free to people, without looking at the problems and consequences of implementing the order. The Karnataka high court has threatened dismissal from service of the BBMP staff who fail to take steps to clear Bangalore of garbage. There is a question of judicial powers and the enforceability of orders here also, though there is no disputing the need to keep the city clean.
When the impulse for judicial activism is growing stronger, the CJI’s counsel to judiciary to leave policy-making to government and legislation to Parliament and thus uphold the constitutional separation of powers between the three organs of the state is timely. Losing sight of this principle and making unrealistic demands on the system would only create conflict and lower the standing and efficacy of all institutions.