THE JUDICIARY IS NOT A DESPOTIC BRANCH OF THE STATE

THE JUDICIARY IS NOT A DESPOTIC BRANCH OF THE STATE Although the Supreme Court of India has widened its scope of interference in public administration and the policy decisions of the government, it is well aware of the limitations within which it should function. In the case of P Ramachandran Rao v State of Karnataka, reported in (2002) 4 SCC 578, has observed that “The Supreme Court does not consider itself to be an imperium in imperio or would function as a despotic branch of the State.” The Indian Constitution does not envisage a rigid separation of powers, the respective powers of the three wings being well-defined with the object that each wing must function within the field earmarked by the constitution. The Supreme Court of India took all this into account in the judgment reported in (1986) 4SCC 632 in the case of State of Kerala v A Lakshmi Kutty, stating that “Special responsibility devolves upon the judges to avoid an over activist approach and to ensure that they do not trespass within the spheres earmarked for the other two braches of the State.” The judges should not enter the fields constitutionally earmarked for the legislature and the executive. Judges cannot be legislators, as they have neither the mandate of the people nor the practical wisdom to understand the needs of different sections of society. They are forbidden from assuming the role of administrators; governmental machinery cannot be run by judges as that is not the intention of our constitution makers. While interpreting the provisions of the constitution the judiciary often rewrites them without explicitly stating so. As a result of this process some of the personal opinions of the judges crystallize into legal principles and constitutional values.A classic example of the above problem is the recent order by the Supreme Court of India to demolish and seal off all the commercial entities run in residential areas of Delhi. Even though the Delhi Government passed a Bill regularizing all the constructions, which were illegal, theSupreme Court of India took the view that all those places should be sealed off. The Delhi Municipal Corporation was reluctant to continue with the sealing drive because it was against the popular sentiments of the people. However, the Supreme Court remained steadfast in its decision and the municipal authorities had no other option except to go ahead. There were demonstrations and violence against the sealing drive; the Congress Party, which was in power during the sealing drive, lost municipal councillor seats in the elections conducted during that time. The argument over the economic, social and physiological impact the sealing drive would create did not dissuade the court. The Supreme Court of India is well aware of its limitations, and hence exercises self-restraint and caution over encroachment of the field exclusively reserved for the legislature and the executive. The seven judge bench of the Supreme Court declared in P Ramachandra Rao’s case that: “The primary function of the Judiciary is to interpret the law. It may lay down principles, guidelines and exhibit creativity in the field left open and unoccupied by legislation. But they cannot entrench upon in the field of legislation properly meant for the legislature. It is no difficult to perceive the dividing line between permissible legislation by judicial directives and enacting law – the field exclusively reserved for the legislature.” In the case of Keshavanada Bharathi (1973) the Supreme Court held for the first time that a constitutional amendment duly passed by the legislature was invalid for damaging or destroying its basic structure. This was a gigantic judicial leap unknown to any legal system. The supremacy and permanency of the constitution was ensured by this pronouncement, with the result that the basic features of the constitution are now beyond the reach of Parliament. The criticism of this judgment by the Supreme Court is that since the court has not exhaustively defined what these basic features are, the judicial arm can be extended any distance at will. Article 21 of the Constitution of India provides that no person shall be deprived of its life and liberty except according to the procedure established by law has become the most dynamic article in the hands of the Indian courts. A whole new set of rights which were not explicitly provided by the constitution were read into Article 21.