Supreme Court asks judiciary not to overstep limits


New Delhi : The Supreme Court has cautioned the judiciary to refrain from encroaching upon the domains of the legislature and the executive, and said the “unconstitutional” move could lead to political leaders curtailing its powers otherwise.

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“If the judiciary does not exercise restraint and overstretches its limit, there is bound to be reaction from politicians and others. The politicians will step in to curtail its power and independence,” said a bench of Justices A.K. Mathur and Markandey Katju in a ruling delivered Friday but released Monday.

The bench made the candid observation following a Punjab and Haryana High Court ruling, which had ordered the creation of a regular job for tractor drivers in the state-run Aravali Golf Club in Faridabad.

“The courts cannot direct creation of posts. Creation and sanction of posts is a prerogative of the executive or the legislative authorities and the court cannot arrogate to itself this purely executive or legislative function,” said the bench, setting aside the high court ruling.

It added: “Before parting with this case, we would like to make some observations about the limits of the powers of the judiciary.

“We are compelled to make these observations as we are repeatedly coming across cases where judges unjustifiably try to perform the executive or legislative functions. In our opinion, this is clearly unconstitutional,” it said.

“In the name of judicial activism, judges cannot cross their limits and try to take over functions which belong to another organ of the state.

“Judges must know their limits and must not try to run the government. They must have modesty and humility and not behave like emperors,” said the bench.

“The justification often given for judicial encroachment in the domain of the executive or legislature is that the two organs are not doing their jobs properly.

“Even assuming this is so, the same allegations can then be made against the judiciary too because there are cases pending in courts for half a century,” the bench added.

Asserting that the judiciary encroaching upon the domain of the executive or the legislature is not a remedy for their non-functioning, the bench said, “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 right candidates or by other lawful methods, for example, peaceful demonstration.

“The remedy is not in the judiciary taking over the legislative or executive functions because that will violate the delicate balance of power enshrined in the constitution. Also, the judiciary has neither the expertise nor the resources to perform these functions,” the bench added.

It questioned a host of recent decisions by the Delhi High court in its single 22-page judgement.

Citing the example of the ruling on the school admission process, it said, “The Delhi High Court directed that there can be no interview of children for admissions in nursery schools, while there is no statute which prohibits such interviews.

“But the Delhi High Court, going beyond its jurisdiction, created law by its judicial order and then sought its enforcement. It’s clearly illegal,” the court said.

“Recently the courts have apparently, if not clearly, strayed into the executive domains or in matters of policy. For instance, the orders passed by the Delhi High Court in recent times dealt with subjects ranging from age and other criteria for nursery admissions, unauthorised schools, criteria for free seats in schools, supply of drinking water in schools, number of free beds in hospitals on public land, use and misuse of ambulances, the kind of air Delhiites breathe.”

“In our opinion, they were matters pertaining exclusively to the executive or legislative domains and not the judiciary,” said the bench.