New Delhi: Rebutting criticism that the 2G
judgement was a case of judicial overreach, Justice AK Ganguly, who was on the two-member bench of the Supreme Court that cancelled 122 licences, Monday asserted that the courts
can certainly scrutinise and strike down policy decisions
which are unconstitutional.
"Under our Constitution, judicial review is one of its
basic features, and, in exercise of such judicial review, the
Court can certainly scrutinise and even strike down policy
decisions of the executive when such decisions are
unconstitutional," he said.
Ganguly, who retired on Thursday last, was reacting to
criticism by former Lok Sabha Speaker and noted lawyer Somnath
Chatterjee that courts cannot interfere with executive
policies and decisions, even by justifying that larger public
interest is involved.
"The criticism of Mr Chatterjee that Court cannot
interfere with the executive policies and decisions even in
larger public interest and, by doing so, the Court assumes
that it is above the Constitution is really startling,"
Justice Ganguly said in an article in a Kolkata newspaper (The
Justice Ganguly said the right to criticise a judgement
is virtually part of one`s freedom of speech guaranteed under
"Justice, on principle, is also not a cloistered virtue
but the basis of criticism at times becomes very interesting.
The criticism of 2G judgements by Mr Somnath Chatterjee,
ex-Speaker, the Lok Sabha, and a leading lawyer of this
country, is equally interesting," he said.
Noting that he has the "greatest of respect" for
Chatterjee, he said he can assure the former Speaker on behalf
of the bench that the judgement was not delivered "either out
of temptation or out of any desire to appropriate executive
"The judgement was rendered in clear discharge of duty by
the Court....This is the plainest duty of the court under the
Constitution and in discharging such duties, Court does not
act above the Constitution but acts in accordance with it," he
Recalling a few decisions taken by the country`s railway
administration to dismiss a large number of employees who were
on strike in 1970s, Justice Ganguly said Chatterjee challenged
those decisions in Calcutta High Court on behalf of the
"As a junior lawyer, I along with other learned lawyers
assisted him. I am sure Mr Chatterjee remembers that the Court
interfered and many of the orders of the executive authorities
taken as a policy decision were reversed and the employees got
back their jobs," he said in the article.
Justice Ganguly also said at a reception given to him by
the Indian Bar Association in Delhi Chatterjee publicly
applauded the judicial intervention by Calcutta High Court.
"You cannot possibly adopt double standards to criticise
Court`s orders. In view of my profound respect for Mr
Chatterjee`s legal acumen, I am a little disappointed at the
logic of his criticism of 2G case," he said.