Legal Development in Nepal

Judiciary should know its limits

Posted in Blogging News, Court, From ekantipur.com, Judges, Judicial Activism, Justices, Law of Courts by nepaleselaw on February 8, 2008

I found this article written by Dr Trilochan Upreti in Kantipur. I do not know who the learned author is  but he has to say something about “judicial activism” v, “judicial restraint”. It is always interesting to talk about this topic. In India, it has always taken the centerstage and there are umpteen number of instances where our learned brothers at bar and bench express their opinions on either way. No one knows the limit of judicial activism as it is not that easy to fathom it. I have my few points to make on this topic and in this weekend, I will be commenting on this article. For that You need to keep on visiting my page. And the report goes here:

 

 

India’s judiciary has been known as an active and popular institution in protecting people’s rights, for which it has interpreted the constitution, law and jurisprudence in favor of the people. By the name of Public Interests Litigations (PILs), it has issued a range of orders/verdicts against the corporate house, government and other entities. The issues of judicial activism emerged and have largely been practiced by India’s Supreme Court since the time of PN Bhagawati as Chief Justice of India. But, since then, it has remained a moot issue in political and executive circles.Recently, a two-judge bench comprising justices AK Mathur and Markandeya Katju criticizing judicial activism, disapproved the tendency of courts to rule on issues like nursery admissions and auto-rickshaw drivers flecking commuters. The judges should know their limits and not try to run the government.

Further, the judges have been criticized for repeatedly coming across cases where they are unjustifiably trying to perform executive or legislative functions, which in their view, is clearly unconstitutional, and judges should not cross their limits and try to take over functions which belong to other organs of the state. They listed a number of local issues in which courts were involved like unauthorized schools, criteria for free seats in private schools, the size of speed breakers on Delhi roads and penalty, which, they said, were “matters pertaining to exclusively to the executive or legislative domain”.

For instance, the ruling calling for a trust vote on CCTV in Jharkhand state assembly or trial of strength between Jadambika Pal and Kalyan Singh to resolve the chief ministership issues in UP, the bench said that it was a case of constitutional breach, violating the separation of powers as mandated in the Constitution.

According to their interpretation, if there is a law, a judge can enforce it. But judges cannot create a law and seek to enforce it. “They (judges) must remember that judicial activism is not an unguided missile. Failure to bear this in mind would lead to chaos. Likewise, courts cannot create rights where none exist, nor can they go on making orders which are incapable of enforcement or violative of other laws of settled legal principle.”

This judgment has drawn public attention especially in political, legal, societal and judicial circles. The Times of India has written an editorial supporting the notion of the judgment. While leaders of popular national political parties have widely supported the verdict insisting on the grounds that the executive and legislature must be allowed to function freely and a minority felt that intervention of the courts was unavoidable as long as governance remained weak and was subject to political pressure. The confessional comments of the Supreme Court were music to the ears of the political brass.

PN Bhagawati, who had hard-pedaled the judicial innovation of PILs, who holds the view that PILs revolutionized the concept of justice, allowing any public spirited person to knock on the apex court’s doors, said that a fine line between the public good and private benefit had to be drawn by the court if independence of the judiciary was to be maintained. He further asserted that the poor and underprivileged sections of society are the ones who must benefit from judicial activism. For example, providing health care and medical assistance, cleaning of the Yamuna River, reducing pollution via CNG operating transport system in Delhi are clearly public welfare measures which became possible due to judicial intervention.

That is not the end of the story of the judgment, however. A similar case was referred to when the case of a larger bench by a two-judge bench considering the essence of the above judgment and a three-judge bench headed by the present chief justice took a stern stand on the observation on “judicial activism and overreach”, saying that “we are not bound by the two-judge bench order”. The intellectuality and level of knowledge of judges in Indian high courts and the Supreme Court is considered to be of world class with higher dignity and reputation.

The trust of the people is undisputed and huge in comparison to such name and fame in our own context. The judgments rendered in PILs have immensely benefited the larger population of India. For example, removing hundreds of polluting industries from New Delhi and Agra to save the world monuments like Taj Mahal were not possible through executive or legislative actions. At the same time, these judgments were fully complied with by the other two organs of the state.

One can consider the problem relating to polluting of the venerated Bagmati River and pollution level in the Kathmandu valley and wish that our Supreme Court could have done something about it.

Likewise, stakeholders of Nepal Telecom have been keeping trust on the Supreme Court on matters of safeguarding their interests in getting a fair and equitable share. Considering the failed effort of the recent past in respect of the political change after the April uprising, had the judiciary acted in favor of reinstatement of the House of Representatives, many people’s lives could have been prevented from loss and the nation wealth would have been protected from destruction.

People, who blame our judiciary unfairly forgetting the positive verdicts, are consistently blaming the judges for their inconsistent stand on freedom of the judiciary over the matter of accepting to take an oath before the public hearing system within the parliament. No single justice has shown his guts by challenging this unfair system by resigning, even though quite a few of them were reported in the press as having said that that they would rather quit than go to the parliament for oath.

Justices in the Supreme Court don’t even bother to resign or take leave a month before retirement, which is the standard practice prevailing in other countries. They would rather prefer to hear and decide the cases in a dubious manner even before retirement. All in all, there is also an allegation that even the sitting Chief Justice prefers to sit with the retiring justice in hearing complicated, mooted and infamous cases.

The state has provided enough economic benefits for ensuring their independence.

However, in return for their performance, the reputation and trust among the people at large has further eroded. Even the lawyers’ umbrella organization formally boycotted the bench across the country in protest against the judiciary’s involvement in corruption. The media has been consistently reporting the wrong-doings in the courts; civil society, parliamentarians and noted lawyers are blaming the eroding efficiency clouded with corrupt practices and unfair delivery of overall justice. If fifty percent of the allegations are true, it is a shame on our judiciary. People expect from the justices an example of cleanliness, efficient, studious and ethical behavior, which has not been seen in the country. Therefore, we need independent, capable, clean and efficient justices and judiciary, for which overhauling of the entire judiciary and addressing of the causes of the present day problems need to be researched and rectified as quickly as possible.

3 Responses

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  1. kulachandra sharma said, on February 8, 2008 at 5:32 pm

    rajib sir,
    tapaika gyan bardak lekh haru dherai ramra chhan….future ma paniu yesta kuraharu tapibata padhna paoone apekshya rakhdachhu…..
    dhanywad!

  2. nepaleselaw said, on February 14, 2008 at 10:32 am

    Kulachandra Sharma Ji, Thank You very much for your comment sir.
    But, this article is not written by me. I have copied this Article from Kantipur and presented before you. I really appreciate if you read the article and comment on its merit rather than commenting just for the sake of it.

    Anyway, Thank You very much for visiting my page and I hope to see your continued loyalty.

    Rajib Dahal

  3. pramila said, on November 17, 2011 at 9:36 am

    thanku dai
    i know lots of materials about PIL.


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