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Dr. K. N. Katju Memorial Lecture on ‘Separation of Powers andJudicial Activism in India’, New Delhi, 26 April 2007.

Hon’ble Justice Verma; Hon’ble Justice Katju and other Hon’bleJudges; Shri Fali Nariman; Shri Arun Jaitley, Dr. A. M. Singhvi; ShriVinod Mehta; Other Distinguished Members of the Bar; Office-bearersand Members of the Dr. K. N. Katju Memorial Trust; Ladies andGentlemen:

I feel greatly honoured and privileged to have been invited to deliver thelecture instituted in the memory of Dr. Kailash Nath Katju, an eminentfreedom fighter and a great jurist and administrator. As a Minister in theerstwhile United Provinces, as a Union Minister handling the importantportfolios of Home, Law and Defence in the early years of our Republic, asthe Governor of Orissa and later of West Bengal and as the Chief Minister ofMadhya Pradesh, he left an indelible imprint of his personality on the diversefields with which he was associated. I take this opportunity to pay myrespectful homage to his memory and wish to compliment the Trust namedafter him for organizing the Lecture Series.

Dr. Kailash Nath Katju was a colossus in the field of law and was known forhis sharp intellect, objective approach and great oratorial skills. He wasacknowledged as one of the most successful lawyers in the Allahabad HighCourt in the pre-independence years, who had set the highest standards ofefficiency and integrity. A lawyer of outstanding ability and acumen, hisbrilliance and mastery of the intricacies of law and procedure placed him in adistinctive position among most of his contemporaries.

A person with a broad outlook, Dr. Katju had a deep and abiding concernfor the poor and the downtrodden and was indeed one of the makers of post-independence India. He was an ardent champion of democratic principles andalways considered himself to be accountable in the discharge of his publicduties.

As a tribute to his memory as a jurist of eminence, concerned and committed

to the orderly and healthy functioning of the democratic system in the country,I have decided to speak, as was also suggested by the Trust, on the subject,'Separation of Powers and Judicial Activism in India', which is a theme ofgreat relevance, particularly, in the context of the growing feeling amongvarious sections of the country’s socio-political spectrum, of the need to havea healthy debate and discussion on the power and responsibilities of the

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a healthy debate and discussion on the power and responsibilities of thedifferent organs of our Constitution.

However, I approach the subject with considerable trepidation, because ithas been felt in some quarters that the present Speaker of the Lok Sabha isindulging in the criticism of the judiciary for allegedly encroaching into thepowers of the Legislature and the Executive and a periodical has even gone tothe extent that the Speaker has 'fired the first salvo' against the Judiciary for itsactivism. If I may humbly say that I yield to none in holding the Judiciary inhighest respect and I am proud of the manner in which our Judiciary has beendischarging its paramount function of judicial review. Having spent nearly halfa century in courts of law as a lawyer and having been in the Parliament fornearly four decades, I am convinced that there is no need for nor there existsany confrontation between the Judiciary and the Legislature. Of late, a viewhas been expressed and rightly, if I may say so, in many quarters that it wasdesirable to have a proper debate and discussion on some of the fundamentalissues concerning the state of our nation, including in particular, on therelationship between the three Organs of the State.

As a matter of fact, in recent times, opinions have been expressed on some ofthe related issues by eminent persons, including Learned Judges, past orpresent, distinguished lawyers and leading media persons. Hon’ble Mr.Justice B.N. Srikrishna, while being a Member of the Apex Court, Hon’bleShri J.S. Verma, former Chief Justice of India in separate Lectures and in apublication 'The Supreme Court vs. the Constitution – A Challenge toFederalism', edited by Sri Pran Chopra, the well-known journalist anddistinguished former Chief Justices, Justice Ahmadi and Justice Anand, ShriKuldip Nayar and many other eminent persons from different walks of life,have thrown considerable light on the issues involved. I have taken the libertyof quoting from a few of those writings and observations in this lecture.

As is well-known, the doctrine of separation of powers, is an inseparable partof the evolution of democracy itself. The French philosopher Montesquieudrew the attention of political theorists to the dangers inherent in theconcentration of Legislative, Executive and the Judicial powers, in oneauthority and stressed on the necessity of the concept of checks and balancesin constitutional governance. His writings considerably influenced the viewsand thoughts of the framers of many modern constitutions. No democracyindeed contemplates conferment of absolute power in any single authority.

Separation of powers with the system of checks and balances is one of themost characteristic features of our constitutional scheme. As has beenobserved by the Hon’ble Chief Justice Balakrishnan, 'the Constitution laysdown the structure and defines the limits and demarcates the role and function

of every organ of the State including the judiciary and establishes norms fortheir inter relationships, checks and balances.'

Our institutions of governance have been intentionally founded on the principleof separation of powers as a bulwark against tyranny of any or more organsof the State and the Constitution does not give any unfettered power to anyorgan and all the three principal organs are expected to work in harmony 'in ajoint and participatory role … instead of an exclusive primacy of any one inthe process', to quote former Chief Justice J. S. Verma. He has furtherobserved that the basic constituent principle of the Indian polity is that nosingle public functionary will have absolute power, which is anathema in ademocracy.

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The obvious consideration before the Constituent Assembly was to preserveand protect the freedom and democratic rights of the people and thesupremacy of the popular will in our system of governance. The centrality ofthe will of the people finds its best expression in the Preamble of theConstitution itself. The words, ‘We, the People of India’ and ‘do herebyAdopt, Enact and Give to ourselves this Constitution’ recognize thesovereignty of the people and their primacy in our constitutional system andconvey its eternal message. It is in exercise of this sovereign power that we,the People, have given unto ourselves the Constitution making India aSovereign, Socialist, Secular and Democratic Republic. And, through theprovisions of the Constitution, we have enumerated the powers andresponsibilities of the organs of the State to be the facilitators of national weal,leaving hardly any scope for doubt or confusion in the mutual relationship.

To quote Chief Justice Verma, 'The sovereign will of the people findsexpression through their chosen representatives in the Parliament … The realpolitical executive is the Council of Ministers, which also controls the LokSabha, wherein lies the real legislative power. Parliament exercises politicaland financial control over the Executive, and there are inherent checks andbalances to keep every organ within the limits of constitutional power. Thegrey areas are meant to be covered by healthy conventions developed on thebasis of mutual respect keeping in view the common purpose to be served bythe exercise of that power'.

The Legislature has been accorded a pre-eminent position in ourconstitutional and political set-up, with power inter alia, to make laws, toexercise control over the nation’s purse, to make the Executive accountableto the popular House, and when considered necessary, also to amend theConstitution. But obviously the Legislature has to function within theparameters laid down by the Constitution.

The framers of our Constitution took infinite care to provide for anindependent and impartial Judiciary as the interpreter of the Constitution andas the custodian of the rights of the citizens through the process of judicialreview, which gives the mandate to the judiciary to interpret the laws but, if Imay humbly submit, not to make them, nor to lay down general norms of

behaviour for the government or to decide upon public policy. The concept is'judicial review' and not 'judicial activism' which is of recent coinage andextends, as one finds, much beyond review. The scope of judicial review isconfined to the enquiry as to whether an impugned legislation or an executiveaction falls within the competence of the Legislature or of the executiveauthority or is consistent with the Fundamental Rights guaranteed by theConstitution or with its other mandatory provisions.

The Constitution does not contemplate a Super-organ nor confers an over-riding authority on any one organ. No organ has any power to superintendover the exercise of powers and functions of another, unless the Constitutionstrictly so mandates.

It is obvious that all organs of the State should act only according to theconstitutional mandate and should not be astute to find any undisclosedsource of power or authority to expand its own jurisdiction, which will giverise to avoidable conflicts and affect the harmonious functioning of thedifferent organs of the State.

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Intervening in the debate in the Constituent Assembly, many learned membershad expressed the view that the doctrine of judicial independence was not toenable the Judiciary to function as a kind of a ‘super Legislature’ or a ‘superExecutive’. In the words of Pandit Jawaharlal Nehru, while speaking in theConstituent Assembly: (I quote)

'No Supreme Court and no Judiciary can stand in judgment over thesovereign will of Parliament, representing the will of the entirecommunity. If we go wrong here and there, it can point it out, but in theultimate analysis, where the future of the community is concerned, noJudiciary can come in the way… ultimately the fact remains that theLegislature must be supreme and must not be interfered with by theCourt of law in measures of social reforms.' (unquote).

In the early years of the Republic, the Supreme Court had already recognizedthat the Indian Legislature had a distinctly superior position vis-à-vis the otherorgans of the State. The observations of the then Justice S. R. Das, who lateradorned the office of the Chief Justice of India with great lustre, in the famouscase of A. K. Gopalan v. State of Madras (1950 SCR 88) made it very clearand I quote:

'Although our Constitution has imposed some limitations … [it] has leftour Parliament and the State Legislature supreme in their respectivelegislative fields. In the main, subject to limitations … our Constitutionhas preferred the supremacy of the Legislature to that of theJudiciary… and the Court has no authority to question the wisdom orpolicy of the law duly made by the appropriate Legislature … and thisis a basic fact which the Court must not overlook.' (unquote).

Similarly, commenting on the nature of separation of powers delineated byour Constitution, one of our most eminent Judges, the Hon’ble Chief Justice

B. K. Mukherjea, in the Supreme Court, in Ram Jawaya Kapur v. State ofPunjab (AIR 1955 SC 549), observed:

'Our Constitution does not contemplate assumption, by one organ orpart of the State, of functions that essentially belong to another.'

However, of late, it is being noticed that the lines demarcating the jurisdictionof the different organs of the State are getting blurred, as a section of theJudiciary seems to be of the view that it has the authority by way of what isdescribed as 'judicial activism' to exercise powers, which are earmarked bythe Constitution for the Legislative or the Executive Branches.

However, one may point out that the Hon’ble Supreme Court has itselfconstrued that the concept of Separation of Powers is a 'basic feature' of theConstitution. That being so, necessarily, each organ of the State has separateareas of functioning, into which no other organ can enter or intervene, unlesspermitted by the Constitution itself, and if it so does, it will be contrary to oneof the 'basic features' of our Constitution and that includes the Judiciary also.

There was a lot of appreciation when our Supreme Court was pleased tohold that justice can be provided, through an innovative procedure, to theoppressed citizens, especially those belonging to the vulnerable sections of thecommunity, who have no means, no facilities and, in fact, no possibility ontheir own to approach the Court even in cases of glaring injustice anddiscrimination, by giving a liberal meaning to the concept of locus standi,without in any way, entering into the areas preserved for the legislature or the

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without in any way, entering into the areas preserved for the legislature or theexecutive.

But today, there is a considerable feeling even in well-meaning quarters thatwe have travelled a long way from that objective. On many occasions, theHon’ble Supreme Court itself has felt it necessary to condemn motivated andfrivolous approaches to Court in the garb of Public Interest Litigation (PIL),which goes much beyond the scope of Judicial Review. By way of warning,Chief Justice Verma, in his lecture, has drawn attention to 'the deliberatemisuse of the judicial process by some vested interests to settle politicalscores, or to shift the responsibility to the judiciary for deciding some delicatepolitical issue found inconvenient by the political executive for decision.'

No one can take exception to any decision in the exercise of Judicial Review(subject, of course, to the provision of review or appeal, where it lies)invalidating any law or executive action, but where it seeks to lay down somenew policy to be adopted or actions to be taken and uses its supposed powerto compel executive action on the same without any known authority orprocedure, serious questions necessarily arise about the source of suchpower. Chief Justice Verma has expressed the view that 'Judicial activismshould be neither judicial ad-hocism nor judicial tyranny and that whilecommanding performance by the concerned authority, the judiciary should nottake over the function itself, as it will not be a legitimate judicial intervention,which can only be when it comes within the scope of permissible judicialreview.'

Now-a-days, there are umpteen instances where judiciary has intervened inmatters entirely within the domain of the executive, including policy decisions.As the learned Chief Justice Verma has pointed out in his Dr. K. L. DubeyLecture:

'….Judiciary has intervened to question a ‘mysterious car’ racing downthe Tughlaq Road in Delhi, allotment of a particular bungalow to aJudge, specific bungalows for the Judge’s pool, monkeys caperingcolonies to stray cattle on the streets, cleaning public conveniences,and levying congestion charges at peak hours at airports with heavytraffic, etc., under the threat of use of contempt power to enforcecompliance of its orders. Misuse of the contempt power to forcerailway authorities to give reservation in a train is an extreme instance.'

Recently, a media correspondent has compiled a list of issues and matters inwhich the Courts have apparently, if not clearly, strayed into executivedomain or in matters of policy. He has noted that the orders passed by theHon’ble High Court of Delhi in recent times dealt with subjects ranging fromage and other criteria for nursery admissions, unauthorized schools, criteriafor free seats in schools, supply of drinking water in schools, number of freebeds in hospitals on public land, use and misuse of ambulances, requirementsfor establishing a world class burns ward in the hospital, the kind of airDelhiites breath, begging in public, the use of sub-ways, the nature of buseswe board, the legality of constructions in Delhi, identifying the buildings to bedemolished, the size of speed-breakers on Delhi roads, auto-rickshaw over-charging, growing frequency of road accidents and enhancing of road fines.And I am sure, there are umpteen such instances in the records of other HighCourts as well.

The Jagadambika Pal case of 1998, involving the Uttar Pradesh LegislativeAssembly and the Jharkhand Assembly case of 2005, to my mind, are two

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Assembly and the Jharkhand Assembly case of 2005, to my mind, are twoglaring examples of deviations from the clearly provided constitutional schemeof separation of powers. The Interim Order of the Supreme Court in thesetwo cases, to my mind, upset the delicate constitutional balance between theJudiciary and the Legislature. I feel that these were instances of unfortunateintrusion by the Supreme court into well-demarcated areas of powers of theLegislatures, contrary to the provisions of Articles 122 and 212 of theConstitution. Chief Justice Verma has recently described the orders in theU.P. and Jharkhand cases as judicial aberrations and has expressed his hopethat the Supreme Court would soon correct them.

I do agree that there is some cynicism among our people about the way ourinstitutions function, particularly the Parliament and the Executive. Many atime the judiciary is applauded for its interventions in forcing the arm of theExecutive to do certain things or in restraining it from doing certain things.People appreciate it, at least, that is what the media reports. Criticisms of theExecutive and Legislatures, from time to time, have been made from theBench in very strong words while hearing what are described as PublicInterest Litigations (PIL). A former Chief Justice of India has been reported

to have observed from the Bench that the Legislature in India has not doneanything worthwhile in the last 30 years, or something to that effect.

In my humble view, the contention that the judiciary should take on itself theonerous responsibility of the governance of the country, in matters, which theConstitution has imposed on either the Executive or Legislature, has seriousimplications.

In a democracy, where rule of law and not laws of men prevail, for its everyaction or inaction, the executive authority must be and is accountable to thepeople. But where the judiciary interferes with policy decisions of theexecutive and takes decisions clearly of administrative nature, I feel that it maythen be proper to ask: is the Judiciary accountable to anyone for thedischarge of functions of executive nature and what are the constitutional andlegal sanctions behind such orders made and directions given by courts, byway of judicial activism?

While he was a Judge of the Supreme Court, Hon’ble Justice Srikrishna,observed very appropriately, if I may say so, in a lecture delivered at a LawCollege, that 'In the name of judicial activism, modern day Judges in Indiahave abandoned the traditional role of a neutral referee and have increasinglyresorted to tipping the scales of justice in the name of distributive justice. Thelegitimacy of such actions needs critical appraisement at the hands of the legalfraternity.' Further, his Lordship pointed out that 'Political questions whichwere meant to be out-of-bounds for the courts have often been thrown intothe laps of Judges. Instead of throwing them back, the courts have, with greatenthusiasm, essayed into adjudication of such questions, often withunsatisfactory results.'

As the former Chief Justice of India, Justice Ahmadi has stated, sometimesthis activism has the potential to transcend the borders of judicial review andturn into populism and excessivism. 'Activism', according to him, 'is populismwhen doctrinal effervescence transcends the institutional capacity of thejudiciary to translate the doctrine into reality, and it is excessivism when acourt undertakes responsibilities normally discharged by other coordinateorgans of the government.'

In a very recent article, Mr. Soli Sorabjee, former Attorney General of India

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In a very recent article, Mr. Soli Sorabjee, former Attorney General of Indiaand a known votary of judicial activism, has observed that 'Undoubtedly therehave been at times judicial aberrations. This cannot be avoided becauseinfallibility has not been divinely guaranteed to the judges.' One may ask thenwhat is the redress against such aberrations? If there is legislative andexecutive aberrations, the judiciary can exercise its power of Judicial Reviewby correcting the same though not by substituting its own decisions in matterswithin executive or legislative domain. After stating that even if there ismalfunctioning in the House of Parliament, the Judiciary cannot interfere withthe internal functioning of the Parliament, Mr. Sorabjee admits that 'Problemsreally stem from the judiciary’s role in entertaining Public Interest Litigationpetitions. Some orders and directions passed are beyond the judicial sphere

and at times smack of judicial adventurism… . Judges must withstand thetemptation of publicity and also rid themselves of the belief that the judiciaryalone can solve all the problems that afflict our nation and remember that PILis not a pill for every ill … friction can be avoided if each organ of the statecorrectly understands and respects the constitutional functions of the otherorgans.'

Justice A. S. Anand, former Chief Justice of India, has recently observed that'Courts have to function within the established parameters and constitutionalbounds. Decisions should have a jurisprudential base with clearly discernibleprinciples … . Courts have to be careful to see that they do not overstep theirlimits because to them is assigned the sacred duty of guarding the Constitution… . Policy matters, fiscal, educational or otherwise, are thus best left to thejudgment of the executive. The danger of judiciary creating a multiplicity ofrights without the possibility of adequate enforcement will, in the ultimateanalysis, be counter productive and undermine the credibility of the institution.Courts cannot 'create rights' where none exist nor can they go on makingorders which are incapable of enforcement or violative of other laws orsettled legal principles…. With a view to see that judicial activism does notbecome 'judicial adventurism', the courts must act with caution and properrestraint. They must remember that judicial activism is not an unguided missile– failure to bear this in mind would lead to chaos…. Public adulation must notsway the judges and personal aggrandizement must be eschewed. It isimperative to preserve the sanctity and credibility of judicial process. It needsto be remembered that courts cannot run the government … . The judiciaryshould act only as an alarm clock but not as a time keeper. After ringing thealarm bell, it should ensure that the executive has become alive to perform itsduties.'

Shri Rajeev Dhavan, a leading lawyer of the Hon’ble Supreme Court, in arecent article in the media has observed that 'Public Interest Litigation was awonderful tool to help the poor and the disadvantaged and to explore publiccauses. But how far will the court go? Today, it is acting as the Ministry ofForests in the Godavarman case. No electricity line, school, project can bebuilt in India without the Supreme Court’s permission and its dreaded self-appointed committee which is a law unto itself … .' The Supreme Court mustrecognise that 'policy' is for the government, and 'law' for the court.' Inconnection with a recent matter, Shri Dhavan has further observed that 'forthe government, equality means social and economic opportunity for all. TheSupreme Court protects merit, meritocracy and an elite equality. This is avery serious clash of ideology … about social justice – albeit with politiciansseeking votes and the judges enjoying public attention.'

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A leading journalist, Dr. Harish Khare, in a recent article, has stated that 'itgoes without saying that judges have to resist the temptation of getting swayedby the political partisanship of the day. Judges do tend to render themselvesvulnerable to such temptation given the selection process as also the creepinginstitutional arrogance… . Public policy-making in such a situation entailsdifficult choices, invariably pitting one section of society against others. The

judiciary finds itself embroiled in the making (or unmaking) of these difficultchoices, and the nature of judicial intervention is often defined less by anypronounced jurisprudential doctrine and more by the judge’s personalpredilections.'

Shri Anil Divan, a respected Senior Advocate of the Supreme Court and astrong supporter of judicial activism has observed recently that 'there is nodoubt that sometimes these orders in 'PIL' are triggered by righteousindignation and emotional responses.' One may legitimately ask whether suchfeelings can justify judicial intervention in matters beyond its jurisdiction.

The Hon’ble Mr. Justice Markandey Katju of the Supreme Court has, whiledealing with some matters before him, is reported to have observed, that 'ithas become a fashion to file PILs raising almost all matters before the courtwhich normally fell within the domain of the executive. I do not subscribe tothe view that judiciary should be seen as running the government. Everythingis being raised through PILs. The judiciary must know its limits, otherwisethere would be a reaction.' While dealing with another petition, Mr. JusticeKatju expressed his annoyance with the court’s appropriating jurisdiction onall sorts of issues and that he would even lodge a formal complaint against thepractice. He observed from the Bench as reported in the media that 'I amentitled to register my objection to entertainment of all sorts of PILs. Judgesshould exercise some self-restraint. The Supreme Court has become anauthority on all subjects, be it health, education or even election. I am going tolodge my complaint.'

In a recent editorial in one of the leading national dailies, it has been statedthat 'Judicial Activism, by definition, tends to encroach. Like other organs ofcivil society, the judiciary should hold itself up for occasional introspectionand consider whether restraint is actually the better part of intellectual valour.'

On 14 April 2007, it has been reported in the Press that a Bench of theSupreme Court while hearing a petition under PIL observed as follows:

'Courts cannot interfere with government policies on the ground that abetter, fairer or wiser alternative is available. Legality of the policy, andnot the wisdom or soundness of the policy, is the subject of judicialreview… . Courts do not and cannot act as Appellate Authoritiesexamining the correctness, suitability and appropriateness of a policy.Nor are courts advisors to the executive on matters of policy which theexecutive is entitled to formulate… . The scope of judicial review whenexamining a policy…is to check whether it violates the fundamentalrights of citizens or is opposed to provisions of the Constitution oropposed to any statutory provision or (is) manifestly arbitrary.'

One wonders who is listening to these observations of the highest judicialauthority in the country.

As Justice Srikrishna recognized in his Lecture that 'the answers to manysocio-economic and political problems lie with Parliament and in a polling

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socio-economic and political problems lie with Parliament and in a polling

booth and not in a courtroom,' and that such activism 'strains the institutionalresources of the court. It also diverts the time, talent and energy of Judgesinto channels that they are neither required to navigate, nor equipped to, forlack of competence, skill or resources.'

Justice Srikrishna’s warning of the inherent dangers in such intrusions into thedomains of the other branches of the government merits serious attention. Hesaid, (and I quote):

'The legislative and the executive wings of the body politic, whichpossess the core competence and specialization in dealing withcomplex socio-economic problems, are getting progressivelymarginalized. The judicial organ of the State, the least equipped to dealwith socio-politico-economic issues, has occupied the center stage,and has got bogged down in more and more of such cases. Sheerexpediency or the urge for immediate justice in an abstract sense ishardly a justification for taking on problems with myriad fine details thatthe court is ill-equipped to handle.'

The above views of many eminent judges, learned lawyers and leading mediapersons, with which I humbly associate myself, emphasize important issues,which should be looked into, if I may say so, primarily by the judiciary itselfas also by others. The concern has been expressed not by those associatedwith the Legislature and the Executive alone. With all humility and sincerity, Ifeel that there should be introspection by all the organs of the State, so thatthey can work harmoniously to strengthen our democratic set-up.

If I may submit, the responsibility for managing public affairs should be wellleft to those on whom the Constitution has imposed such obligation and forwhich, in the ultimate analysis, they are accountable to the people. Thisaccountability is what differentiates democracy from other systems ofgovernance. Discharge of executive responsibilities by any other authority,howsoever highly placed, but non-accountable, is anathema in a democracy.There should be no assumption that any particular organ has any inherentsuperiority or a monopoly over concern for the people or that it alone cansolve their problems. I believe that activism of any institution has to be, firstand foremost, directed to the due discharging of its own basic andfundamental duties.

To my mind, what is required for any institution to perform most effectively is,to start with, a realistic role-perception within the broader systemicframework. Once the Judiciary gets involved with an issue, which falls withinthe executive domain, it precludes the possibility of the Legislature exercisingits assigned role of ensuring executive accountability through effectivelegislative scrutiny. It is important for the Judiciary to remind itself, if I mayhumbly submit, that its 'task does not include an amorphous supervision of thegovernment.' Let us not forget the basic premise, as Sri Fali Nariman says inhis recent book ‘On saving the Legal System,' that : 'Under our constitutionalscheme the social, economic and political aspects of justice (stated in the

Preamble) are left primarily to the Law-makers (Parliament and the StateLegislatures). The entire legislative process, it is assumed, is influenced byconsiderations of Justice and Reason… .'

It is often seen that the Judiciary is applauded for its 'activism'. The issueinvolved, however, is more serious than perception of a section of the people,

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involved, however, is more serious than perception of a section of the people,who have access to the media. It is about the very basis of our constitutionalscheme of power-relationship. Self-restraint is the primary balancing elementin the exercise of judicial power. Justice Frankfurter of the US SupremeCourt reiterated this in the Trope v. Dulles (1958), when he said:

'… it is not the business of this Court to pronounce policy. It mustobserve a fastidious regard for limitation on its own power, and thisprecludes the Court’s giving effect to its own notions of what is wise orpolitic. That self-restraint is of the essence in the observation of thejudicial oath, for the Constitution has not authorized the justices to sit injudgment on the wisdom of what Congress and the executive branchdo.'

The people occupy the pivotal position in any democratic set-up, asdemocracy draws its strength from the sovereignty of the people. Thepeople’s representatives decide what laws have to be enacted for thegovernance of the country. The Council of Ministers has to execute thepolicies and programmes through the executive set-up. The Legislature hasthe inalienable constitutional right to scrutinize and oversee the functioning ofthe Executive and can require the executive authorities to act according to thelaws framed by the Legislature and the policies and programmes that have itssanction. Elaborate procedures have been laid down for the Legislature todischarge such functions of enforcing the accountability of the Executive to itand through the elected representatives, to the people themselves. Obviously,the Judiciary is not accountable to the Legislature for orders of executivenature or which are in legislative domain passed by way of judicial activism.

The provisions of the Chapter IV of Part V of our Constitution dealingparticularly with the Union Judiciary clearly provide for a close relationshipbetween the Judiciary and the Legislature, not in a manner of controlling eachother but of a mutually complementary relationship, which should necessarilybe based on harmony between the two most important organs of the State.

Under Article 140, it is the Parliament which by law make provision forconferring upon the Supreme Court such supplementary powers notinconsistent with any of the provisions of the Constitution as may appear to benecessary or desirable for the purpose of enabling the Court more effectivelyto exercise the jurisdiction conferred upon it by or under this Constitution.

Article 142(1) of the Constitution provides that any decree passed or ordermade by the Hon’ble Supreme Court 'shall be enforceable' throughout theterritory of India in such manner as may be prescribed by or under any lawmade by Parliament and, until provision in that behalf is so made, in suchmanner as the President may by order prescribe.

I would humbly refer to what I consider some very important issues inconnection with the exercise of an activist role of the judiciary:

a) What are the laws, legal principles or authorities which will beapplied or followed by the judiciary in deciding matters which willrequire exercise of jurisdiction assigned to some other organ orauthority? Would that depend on the ipse dixit of the learned judge orjudges when the matter is res integra? and

b) What is the method or procedure provided by the Constitution orany law for enforcement of such orders?

In the absence of any procedure under any law made by the Parliament for

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In the absence of any procedure under any law made by the Parliament forenforcement of orders made in the PIL, relating to executive or legislativematters, can the courts enforce such orders by adopting novel methods likeappointing Monitoring Committees, thus themselves entering into the arena orby taking recourse to the jurisdiction in terrorem, namely, the power topunish for contempt of court? I believe that the nation is entitled to know theanswers.

I humbly submit that for any organ or authority under the Constitution, toenjoy any power, not specifically or by clear implication conferred by theConstitution, the source of power is or can be only the Parliament and noother authority. As has been held, the Supreme Court can declare the law andcannot enact law.

Almost all votaries of judicial activism, including the Hon’ble Judgesthemselves, while exercising power in such assumed jurisdiction justify it onthe supposed failure of the legislature or the executive authorities in takingproper action to mitigate the people’s grievances or to find solutions topeople’s problems.

But with regard to dispensation of justice, how many ordinary citizens of thecountry, who are oppressed and subjected to various forms of discriminationand denial of rights, particularly women who are victims of torture andexploitation, can have access to the courts, specially the highest court of ourcountry, if he or she needs to approach the courts or contest effectivelyproceedings initiated against them? How many dismissed employees, howmany victimized teachers, how many senior citizens, how many disadvantagedpeople staying in far flung areas of the country, who would need to seekjustice can approach the Apex Court of our country? The geographicaldistance, prohibitive cost of litigation, inordinately long time taken for disposalof matters, discourage or otherwise make it impossible for ordinary litigants toapproach the Court. The situation should disturb the nation’s conscience.

The large number of arrears pending in almost all the courts is affecting thepeople’s faith in our justice-delivery system. These issues require to be givenvery serious attention not only by the Legislature or the Executive but also bythe Judiciary. One has to admit that in many instances the Judiciary (withoutattributing any fault to it) is not able to cater to the needs of the common

people of the country in adequate measure. Now, in such a case, can anyother organ of the State take up on itself the right to exercise Judicial powerson the plea that judiciary has not adequately been able to do so? Obviouslyneither the Legislature nor the Executive can do so, because it has no suchpower under the Constitution. We can assess the validity of some contentionsby extreme examples. So, in my submission, no organ under the Constitutioncan take upon itself the function of any other organ on the ground that there issupposed malfunctioning or non-functioning or inadequate functioning of thatparticular organ.

It is my earnest hope that, both in letter and spirit the Constitutional scheme ofseparation of powers and, with it, the checks and balances, that areindispensable to democratic governance, will be respected, and the spirit ofmoderation and mutual respect, animated by a common commitment to theConstitution will be applied in all cases for improving the social and economiccondition of our people.

The principle of separation of powers, clearly provided for in our

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The principle of separation of powers, clearly provided for in ourConstitution, to my mind, is not an optional feature to be selectivelyrecognized by the organs of the State, but is one of the most essentialdirectives of our Constitution, which has to inform every aspect ofadministration in the country. Otherwise, the constitutional basis of ourRepublic and the credibility of our democratic institutions itself will bequestioned, as they are now, which will not strengthen due governance of thecountry.

In a democratic set up, the space and role of every institution is expected tobe clearly earmarked in the Constitution that creates it. It is in the effectivedischarge of those functions, that it serves the people for whom the institutionsare meant. This can be accomplished without intruding into or trivializing therole of the co-ordinate institutions or without undermining the importance offundamental democratic processes. To my mind, when institutions succeed infunctioning strictly within the domain assigned to each, not only do they growin public esteem, but they also create the ideal conditions for the effectivefunctioning of the entire system.

The commitment and sensitivity to democratic values demonstrated by ourFounding Fathers and other leaders in the formative years of our Republicand also by our Apex Court have all contributed immensely to the building upof the democratic edifice in the country over the decades. When, during atumultuous period of our history, the Judiciary had left the citizens, at themercy of the executive with ‘diamond bright’ and ‘diamond hard’ hope forprotection of their Constitutional rights, which were being blatantly abused bythe administrative machinery of the State, but perceived by some elements inthe judiciary as something as good as ‘maternal care’ and as such chose tolook the other way, when the ordinary citizens would have needed theirsupport the most, it was the later Parliament itself that was elected by thepeople at the earliest opportunity through free democratic elections that finallyrestored the basic rights of the people and put in place stronger defences for

our democracy and for safeguarding the interest of the citizens through the44th Constitution Amendment Act in 1978. No other institution could matchthat capacity for alertness and collective sensitivity to popular feelings.

In conclusion, I reiterate that there is definitely sufficient space in our systemfor all the institutions to co-exist and work together for the common weal. AsI have repeatedly said, the people look up to the courts, which are temples ofjustice, with great expectation, hope and confidence. Similarly, people lookup to the Parliament and State Legislatures, of which the Executive is a part,with as much, if not more, expectation and hope, because under theConstitution, the Parliament is the supreme legislative institution of the country,the people’s institution par excellence, through which laws for the people aremade and Executive accountability is enforced. We must recognize thatConstitution is the supreme law and no organ of State should go beyond therole assigned to it by the Constitution. It is the duty of all concerned, includingthe Legislature, the Executive and the Judiciary, to ensure that this balance isscrupulously adhered to. No organ can be the substitute of another. Visionaryleaders like Dr. Katju strove all through their life to preserve and protect thislofty ideal of our constitutional system, an ideal which needs repeatedreiteration, as it has an eternal bearing on our parliamentary polity andconstitutional and democratic framework.

With these words, I once again pay my humble tributes to Dr. Kailash NathKatju. I would also like to convey my gratitude to Justice Markandey Katju

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Katju. I would also like to convey my gratitude to Justice Markandey Katjuand the other Members of the Dr. Kailash Nath Katju Memorial Trust fortheir kind invitation to me to associate with this lecture series.

Thank you.

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