Cautioning judges against taking over the functions of the legislature, Chief Justice Mr SH Kapadia today said that judiciary should maintain self restraint and respect separation of power. “We must refuse to sit as a super-legislature to weigh the wisdom of legislation. We must remember that our Constitution recognises 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,” Mr 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.
Mr 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.
“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.