Organs of Constitution should respect limits: Law Minister



New Delhi: Days after the Supreme Court questioned the government over allowing FDI in retail, Law Minister Ashwani Kumar has said the Judiciary, the Executive and the Legislature should respect limits of their jurisdiction and work in harmony with each other.

He also defended a controversial clause in a new bill which debars judges from making verbal comments against people in open courts, saying the provision has a "strong logic" as observations by judges are often "torn out of context" affecting the reputation of people.

"I would like to only reiterate that the three organs of the state (the Executive, the Judiciary and the Legislature) have to work in harmony with each other, respecting the limits of their jurisdiction.

"I have no hesitation in saying that so far the Constitutional parameters of the jurisdiction assigned to each organ have more or less worked in accordance with the scheme of the Constitution and the judges also have themselves stated on a number of occasions that it is not their remit to enter the domain of policy making," he told PTI in an interview.

He was responding to a question on the perception that judiciary was "overreaching" its domain and in this context was referred to the questions raised by the Supreme Court last month over government's decision to allow FDI in retail.

The Supreme Court had asked the government whether FDI in retail was a "political gimmick" and sought its response on how it intends to safeguard the interest of small traders after opening up the retail sector.

Without commenting on the Supreme Court's questions, Kumar said the recent SC judgements have come by way of "reiterating the constitutional boundaries of judicial jurisdiction."

In the wake of the Supreme Court's questions, Commerce and Industry Minister Anand Sharma recently said, "All institutions should respect the constitutional demarcation between the executive, legislation and judiciary."

"It is important that all institutions respect the constitutional demarcation between executive, legislation and judiciary. Any alteration of this balance which confuses the global investors who are keen to invest in India and which leads to job creation, technology upgrade and infrastructure expansion, is better avoided," Sharma had said.

Kumar refused to comment on Sharma's remarks saying, "I have stated what I have stated."

Talking about the Judicial Standards and Accountability Bill which is before Parliament, the Law Minister justified a controversial clause which debars judges from making verbal comments against people in open courts. In December last year, the government had decided to retain the clause in a bill on judicial standards.

He said the judges themselves, and not the government, will decide whether or not an observation made in the court was necessary.

"At the end of the day, it is left again to the peers of the judges within the judicial system to decide whether or not a particular observation or remark was necessary...There is absolutely no intention of, in any way, intruding into the judicial domain of decision making," Kumar said.

He said the provision has a "strong logic" because on occasions it has been seen that observations of judges are "torn out of context" which have the effect of hurting the cause before them or the reputation of people before them.

The Union Cabinet approved amendments to the Judicial Standards and Accountability Bill already passed in the Lok Sabha and is pending in Rajya Sabha.

While deciding to retain the controversial clause, it has made some changes in it to ensure it "stands the test of Article 14 which deals with equality before law," sources said.

The earlier clause prohibited judges from making "unwarranted comments against conduct of any constitutional or statutory authority or statutory bodies or statutory institutions or any chairperson or member or officer thereof, or on the matters which are pending or likely to arise for judicial determination."

The amended clause debars judges from making unwarranted comments against conduct of any "constitutional body and other persons."

Kumar stressed that the government was seeking to make explicit by law "what is an inherent element of self discipline in the judicial system. So why should anyone, least of all the members of higher judiciary, have any objection?"

He was asked whether the clause could attract the ire of the judiciary.

On May 7, 1997, the Supreme Court had in its Full Court adopted a Charter called the "Restatement of Values of Judicial Life" to serve as a guide to be observed by Judges, essential for independent, strong and respected judiciary indispensable in the impartial administration of justice.

The Bill was passed in the Lok Sabha during the Budget session last year amid din over Telangana issue.

Following stiff opposition by eminent jurists and the higher judiciary, government had agreed to have a relook at the clause even as it decided against tabling it in the Rajya Sabha in the last monsoon session.

The Bill allows the citizens to complain against corrupt judges but has been facing criticism for the provision which jurists say would "virtually gag" the judges in open courts.

The Bill will have to go back to the Lok Sabha after its passage in the Upper House.

Then Chief Justice of India S H Kapadia had, addressing a Supreme Court function on Independence Day last year, had cautioned that "the government may make law for making judges accountable. We are not afraid of that. But it should not tinker with the very constitutional principle of judicial independence."

A couple of days after his remarks, the Law Ministry had come out with a statement saying "the Bill has been prepared after holding wide-ranging consultations...The provisions of the Bill do not in any way infringe on the independence of the judiciary which is the hallmark of Indian democracy...The accountability and independence can co-exist in a reinforcing mode and without affecting the working of the judiciary."

In reply to a poser on a Private Member's Bill to ensure that a judge's impeachment proceedings are brought to a logical end and also make acceptance of a judge's resignation by the President subject to Parliament's final decision, Kumar said "at the moment there is no proposal" to amend the Constitutional provisions.

PTI