Delivering the valedictory address at
the sesquicentenary (150th year) celebration at the Madras High
Court on September 8, President Pranab Mukherjee noted with concern:
“The separation of powers, long
established as one of the basic features of our Constitution, ensures that each
organ of government operates within its own sphere and none takes over
functions assigned to the other. It is
the Constitution that is supreme. The laws are enacted by the legislature, the
executive does the implementation, and the judiciary is the final interpreter
of these laws. The delicate balance of
power enshrined in the Constitution should be maintained at all times.
However, a note of caution needs to be
sounded. Judicial activism should not
lead to the Constitutional principles of separation of power getting eroded.
Judicial pronouncements must respect the boundaries that separate the
Legislature, Executive and Judiciary.
The principle of separation of powers
is equally a principle of restraint.
While the exercise of powers of the legislature and executive are
subject to judicial review, the only check on the judiciary’s exercise of
powers is the self-imposed discipline and self-restraint.”
Chief Justice of India S.H. Kapadia on
August 25 said judges should not govern the country or evolve policies, and
they should apply the enforceability test on some verdicts like making sleep a
fundamental right.
Doing some frank introspection on the
judiciary’s functioning, he wondered what would happen if the executive refused
to comply with its directives that might not be enforceable.
“Right to life, we have said, includes
environmental protection, right to live with dignity. Now we have included
right to sleep, where are we going? It is not a criticism. Is it capable of
being enforced? When you expand the right, the judge must explore
enforceability.
“Questions which judges must ask are if
it is capable of being enforced. Judges must apply enforceability test. Today
if a judge proposes a policy matter, the government says we are not going to
follow. Are you going by way of contempt or [to] implement it?” the CJI asked.
Delivering a lecture on “Jurisprudence
of Constitutional Structure,” he was making an apparent reference to the recent
Supreme Court judgment on police action against Baba Ramdev’s supporters on the
Ramlila Maidan, in which “Right to Sleep” was declared a fundamental right.
“Judges should not govern this country.
We need to go by strict principle. Whenever you lay down a law, it should not
interfere with governance. We are not accountable to people. Objectivity and
certainty enshrined in the basic principles of the Constitution have to be
given weightage.”
Justice Kapadia said judges should go
strictly by the constitutional principles which had clearly demarcated powers
among the judiciary, the legislature and the executive.
These statements from the Head of the
State, the President of India and the Chief Justice of India have at a time
when they were intended not to join any public discourse at the national level,
but borne out of serious concern over the increasing trend of the judiciary
authoritatively infringing upon the domains of the executives, leading to
cascading impacts on industry, economy and foreign relations of the nation and
the very democratic fabric of the country.
Meanwhile, the Supreme Court on Sep.17
refused to entertain a government's plea not to hear a PIL on alleged
irregularities in the allocation of coal blocks and sought an explanation whether
guidelines were flouted in allotments.
The apex court, which turned down the
Centre's contention that the petition based on the CAG report which is under
the scrutiny of Parliament's PAC cannot be considered, said "the
petitioner has sought to point out illegality and there is nothing wrong in
it."
A bench comprising justices R M Lodha
and A R Dave said the prayer seeking a direction for alleged
"unconstitutional" and "arbitrary" allocation of coal
blocks "requires explanation from you (centre) because it is not the
distribution of state's property in small scale but it talks about tons of
largesse."
The bench rejected Solicitor General
Rohinton Nariman's contention that the petition based on the CAG report was
"premature" as the Public Accounts Committee (PAC) headed by senior
BJP leader Murli Manohar Joshi was slated to examine it from September 20 about
the correctness of allocation.
"Nevertheless, keeping in view the
CAG is a constitutional functionary and whether its report is final or not, it
has a value. And here the petitioner has sought to bring point to show
illegality and there is nothing wrong.
"Least are we concerned with the
correctness of report which will be examined by the PAC or Parliament. But we
can rely on it (CAG report)," the bench said adding that "these are
different exercises (before the court and PAC)."
"There is a difference in the
exercise done by the Public Accounts Committee (PAC). Parliament and PAC can
proceed with the issue on the basis of the CAG report. We don't want to
encroach upon their exercise but the petition raises different things
altogether. There are sufficient averments which require explanation from
you," the court said.
Issuing the notice to the Government,
the bench also made it clear that it is confining itself only to the aspect of
guidelines formulated by the Centre for allocation of coal blocks and directed
the Secretary, Ministry of Coal, file a detailed affidavit within eight weeks
on the guidelines and policies followed on the subject of allocation of coal
blocks.
The court passed the order while
hearing a PIL filed by advocate M L Sharma on the alleged coal blocks scam
which has purportedly caused a huge loss to public exchequer.
The bench also sought to know whether
the guidelines for allocation of coal blocks were strictly followed and whether
by their allocation, the objectives of policies were realised.
The bench wanted to know what were the
hindrances for not following the policy of "competitive bidding"
adopted by it in 2004 for allocation of the coal blocks.
Lastly, the court sought to know what
steps were proposed to be taken against the allottees who have not adhered to
the terms of allocation or have breached the agreement.
During the hearing, the Solicitor
General informed the bench that the criminality aspect of the alleged
irregularities in the coal block allocation was already being looked into by
the CBI.
"We are at present touching the
allocation part and no other thing," the bench said. "Our focus is on
the issue of guidelines followed in the allocation of coal blocks," it
added.
In spite of the Solicitor General
pleading that the CAG report on coal allocation submitted to the Parliament is
to be taken up for examination by the Public Accounts Committee from Sep.20
about the correctness of the allocation, and hence the petition based on the
CAG report was ‘presumptive’, the court was impatient and had refused to
entertain the plea the court had said ‘the CAG is a constitutional functionary’
‘Least are we concerned with the correctness of the report’ . “But we can rely
on it”, which is patently contradictory. Once again they have asked why the
policy of ‘competitive bidding’ was not followed. It is here the points raised
by Union Minister Kapil Sibal, also a Senior Counsel of the Supreme Court’ are
relevant (See page No.9 of this issue)
If the institution of the CAG is a
‘constitutional functionary’ what are the Executive and Parliament? If the CAG
report is ipso facto sacrosanct, why should its correctness or otherwise be
examined by the PAC and Parliament?
The observations of the Supreme Court
raises more such questions than it clarifies!
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