New Delhi: Cautioning judges not to
overtake the functions of the legislature, Chief Justice S H
Kapadia on Saturday said that judiciary should maintain self
restraint and respect seperation of power.
"We must refuse to sit as a super-legislature to weigh
the wisdom of legislation. We must remember that our
Constitution recognizes separation of powers and that the
legislatures and the government can be made accountable for
their legislation and actions by the electorate if they err,"
Justice Kapadia said.
"In many PILs, the courts freely decree rule of
conduct for government and public authorities which are akin
to legislation. Such exercises have little judicial function
in them," he further said.
Kapadia said that the function of courts is to review
the acts of the legislature and not to substitute their own
policies on the society or the legislature.
"The Judges of the Supreme Court of India should
revisit the original constitutional proposition that Courts do
not substitute their social and economic beliefs for the
judgment of legislative bodies, who are elected to enact laws.
We are not concerned with the wisdom, need or appropriateness
of the legislation," he said.
"Judicial activism which is not grounded on textual
commitment to the Constitution or the statute, unlike activism
in cases of human rights and life and personal liberty raises
questions of accountability of judiciary whose members are not
chosen by any democratic process and whose members are not
answerable to the electorate or to the legislature or to the
executive," he said.
He said that courts should be circumspect in
understanding the thin line between law and governance while
justifying their interference in policy matters.
"Its (courts) justification is that the other branches
of government have failed or are indifferent to the solution
of the problem. In such matters,I am of the opinion that the
courts should be circumspect in understanding the thin line
between law and governance.
"In such matters, the courts must try to ascertain
whether the issue has a legal content or a political content.
In the latter case, the courts should invoke the doctrine of
deference," he said.
He, however, said that holding a law unconstitutional
does not amount to legislation and it is the duty of the
judges to pass such orders.
"Judges who invoke the Constitution to protect the
rights of people and who declare a statute unconstitutional
are not legislating from the Bench, nor are they thwarting the
will of the majority. They are merely carrying out their oath
of office and following the rule of law," he said.