Judiciary: India (powers, functions)

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HC orders regarding judges’ privileges

NHAI to create lanes for judges/ VIPs at toll plazas

NHAI warned against violation of HC ruling, August 30, 2018: The Times of India


A Madras high court bench has directed the Centre and NHAI to issue a circular to create separate lanes for VIPs, including judges, at toll plazas. The court said that toll collectors should ensure that no vehicle other than those of VIPs and sitting judges is allowed to use these special lanes. “Any violation of the order by NHAI will be viewed seriously.”

Unless there is a separate lane at every toll plaza, VIPs and sitting judges would continue to face “unnecessary harassment” that would amount to contempt by NHAI, they said. “It is disheartening to note that vehicles of VIPs and sitting judges are stopped at toll plazas (for the occupants to present) identity documents, causing a lot of embarrassment,” the judges said. “It is very unfortunate that sitting judges are also compelled to wait at toll plazas for 10 to 15 minutes (and that this issue) has not been taken seriously by the Union government and NHAI.”

The bench posted the further hearing of the case to four weeks from Wednesday. the judges said: “People maintaining toll plazas shall not indulge in controversy (regarding) VIPs’ and sitting judges’ vehicles without understanding the ramifications.”

Power of judicial review

On ordinances

The Hindu, January 3, 2017

Krishnadas Rajagopal

SC widens boundaries of judicial review of ordinance

Apex court will scrutinise whether satisfaction to promulgate ordinance was based on relevant material or spurred by an oblique motive

In a blow to Ordinance Raj, a Constitution Bench of the Supreme Court widened the boundaries of judicial review to the extent that it can now examine whether the President or the Governor was spurred by an “oblique motive” to bypass the Legislature and promulgate an ordinance.

In case the apex court concludes that the President or the Governor was influenced by ulterior motives to promulgate the ordinance, such an act by the two constitutional authorities would amount to a fraud on their powers, the apex court held on Monday.

The satisfaction

“The satisfaction of the President under Article 123 and of the Governor under Article 213 is not immune from judicial review,” Justice D.Y. Chandrachud wrote in a common judgment with Justices S.A. Bobde, A.K. Goel, U.U. Lalit and L. Nageshwara Rao.

Justice Chandrachud observed that the apex court would scrutinise whether the satisfaction of the President or the Governor to promulgate an ordinance was based on relevant material or whether it amounted to a “fraud on power or was actuated by an oblique motive.”

The seminal question

The seminal question that came up in reference before the seven-judge Constitution Bench led by Chief Justice of India T.S. Thakur dealt with the constitutionality of seven successive re-promulgations of The Bihar Non-Government Sanskrit Schools (Taking Over of Management and Control) Ordinance of 1989. The State government had approached the Supreme Court after the High Court of Patna declared that repeated re-promulgation of the ordinances was unconstitutional after relying on the D.C. Wadhwa judgment on the dos and don’ts of promulgation of ordinances by another Constitution Bench of the Supreme Court in 1986.

Confirming the High Court’s view, Justice Chandrachud, supported by Chief Justice Thakur in a separate judgment, held that “re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes.”

Mandatory obligation

“The requirement of laying an ordinance before Parliament or the State Legislature is a mandatory constitutional obligation cast upon the government,” Justice Chandrachud held in the common judgment.

Laying down moral guidelines

Racist jokes against Sikhs

SC: Courts can't lay down moral guidelines, Feb 08 2017: The Times of India


The Supreme Court ruled out any blanket ban on “sardar“ jokes, saying the judiciary could not lay down moral guidelines for citizens and that it should not pass orders on how people should conduct themselves.

A bench of Justices Dipak Misra and R Banumathi said it was part of the fundamental duties, as laid down in the Constitution, that people should respect each other and no particular community should be joked about, but expressed its reservations about passing an order to ban the jokes. Courts cannot lay down moral guide lines for citizens.

Although fundamental duties are part of the Constitution and people must have respect, but how can court pass order on such issues,“ the bench said, while referring to Article 51A which says that it shall be the duty of every citizen of India to promote harmony and the spirit of common brotherhood among all, transcending religious, linguistic and regional or sectional diversities.

The apex court has been examining the case since October 30, 2015, when it agreed to hear a PIL seeking a ban on sardar jokes for being racist, ridiculing Sikhs and projecting them as foolish and naive. The petitioner, advocate Harvinder Chowdhury , contended that cracking jokes against a particular community amounts to racial abuse and hurting religious sentiments. The bench, however, said it was for Parliament to frame laws. “Some people laugh when they hear jokes, some are reserved.How can we issue guidelines as to how people should conduct themselves?“ the court said.

Legislative, executive functions appropriated

SC:`Resist meddling in policy decisions’

AmitAnand Choudhary, Jan 25, 2017: The Times of India


Defining the scope for judicial intervention, the Supreme Court said on Tuesday that policy decisions taken by the government should not be open to judicial review if they pass the test of reasonableness.

A bench of Justice Ranjan Gogoi and Justice Ashok Bhushan quashed the judgements of Delhi HC and Madras HC which had set aside the Centre's decision not to increase the number of attempts for physically handicapped candidates belonging to OBC while increasing the number of attempts for the physically handicapped belonging to the `General' category from 4 to 7 in the 2007 Civil Services Examination.

The court said there was nothing arbitrary in the decision taken by the Centre and the HCs should not have interfered with it.

“It is not in the domain of the courts to embark upon an inquiry as to whether a particular public policy is wise and acceptable or whether better policy could be evolved. The court can only interfere if the policy framed is absolutely capricious and non-informed by reasons, or totally arbitrary , offending the basic requirement of Article 14 of the Constitution,“ the bench said.

It said it was for the government to decide on how and in what manner the reservations should be made and such a policy decision normal ly would not be open to chal lenge, subject to its passing the test of reasonableness.

“There is one more rea son due to which we are unable to subscribe to the vi ew taken by the Madras HC and Delhi HC. The horizontal reservation and relaxation for the physically handicapped category candidates for the Civil Services Examination, is a matter of governmental policy and the government after considering the relevant materials has extended relaxation and concessions to the physically handicapped candidates belonging to the Reserved category as well as General category ,“ it said.

SC: line separating adjudication from legislation should not be crossed

AmitAnand Choudhary, Don't try to play lawmaker, SC tells judges, Dec 9, 2016: The Times of India


`Respect Line Separating The 3 Organs'


Judges should not exhibit “judicial valour“ by passing sweeping orders that encroach on the domain of the executive and legislature as the separation of powers among the organs of the state must be honoured, the Supreme Court has said.

A bench of Justice Dipak Misra and Justice Amitava Roy said the power to enact a law has not been conferred on the judiciary and the courts cannot add words to a statute or read words that are not there into it and expressed concern over increasing instances of courts dabbling in policy and law-making.

Examining an Allahabad HC ruling seeking a specialised cadre of police, the SC agreed with the concern over criminals getting away due to shoddy probe, but said the or der exceeded judicial remit and dealt with an issue that was not before the HC.

The court set aside the HC order of April this year in which a slew of directions were passed to the state government on police reforms.It had also asked the government to prescribe educational qualifications for recruiting investigating officials.

Quashing the HC order, the bench said the directions passed by the court were uncalled for as the issue was not before the court and some of the directions were in the exclusive domain of the legislature.

The SC said: “The judges should not proclaim that they are playing the role of a lawmaker merely for exhibition of judicial valour. They have to remember that there is a line, though thin, which sepa rates adjudication from legislation. That line should not be crossed or erased.“

“A judge should not perceive a situation in a generalised manner. He ought not to wear a pair of spectacles so he can see what he intends to see.There has to be a set of facts to express an opinion and that too, within the parameters of law,“ the bench said.

It held the court cannot issue any direction to the legislature to make law because under the constitutional scheme, Parliament and legislative assemblies exercise sovereign power to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation.

“Some of the directions are in the sphere of policy .A court cannot take steps for framing a policy . As is evincible, the directions issued by the HC and the queries made by it related to various spheres which... the court should not have gone into. ..the directions may definitely show some anxiety on the part of judges, but it is to be remembered that directions are not issued solely out of concern,“ it said.

Uttarakhand HC stays Centre's HMT unit order

AmitAnand Choudhary, Don't try to play lawmaker, SC tells judges, Dec 9, 2016: The Times of India


Uttarakhand HC stayed the closure of the HMT factory in Ranibagh near Haldwani terming the Centre's order “unfair“ and “without proper adjudication of the disputes raised by employees.“ The Centre had in January decided to close three non-viable units of HMT, including the Ranibagh watch factory. However, employees went on protest since February 16, arguing that over 500 procured machines could be utilised if the factory was converted into an ordinance set-up.

‘Judicial overreach’

A critique

ANIL DHARKER | CJI as CFO? The case for judicial overreach is weak | Apr 16 2017 : The Times of India


[In March 2017], the Te Awa Tupua river in New Zealand was recognised as a living entity with the same legal rights as a human being. A week later, our own Ganga and Yamuna got the same recognition. Now here's a crucial difference: the Kiwi decision was taken by their government, ours by the Uttarakhand High Court. That one example neatly encapsulates Judicial Overreach, two words that now inevitably go together.

More often than not, the judiciary's activism is for a noble cause, and what can be more admirable than cleaning up a revered river? However, one of Narendra Modi's first actions on becoming PM was to set up a ministry to clean up the Ganga. Presumably the ministry has drawn up an action plan. But cleaning up is not going to happen in a hurry: the river gets 1.5 billion litres of untreated sewage and 500 million litres of industrial waste per day . Does the HC's fiat override the ministry's plans? The court even appointed three `legal custodians' for the newly anointed living entity and decreed that a management board be set up in three months.

As a nation, we have been faced with this dilemma for the last few decades: governments either do not act, or do so slowly or wrongfully , often in vital areas. When that happens, we turn to the courts for redress. This became more pronounced during the era of coalition governments, when the system was either paralysed or abused. What began then as necessary judicial intervention, turned into occasional judicial activism, which in turn became unrestrained judicial overreach.

We get examples of this every day . The most recent one is the Supreme Court ban on liquor outlets near national and state highways. Some astonishing figures might justify this: a 1km stretch passing through Mahe in Puducherry has 64 liquor outlets, which means one every 15 metres. A stretch of less than 300km from Panipat to Jalandhar has 185 vends. To say this is excessive is an understatement. However, these are legal establishments approved by state governments. You could argue that this is faulty town-planning, but it is within the domain of town-planning. If there is no illegality , why do the courts step in?

Of a similar arbitrary nature was the SC's sudden ban on diesel cars above 2000cc in Delhi and NCR region some months ago.

Judicial overreach is now everywhere, some of it in frivolous matters, some of it serious. In the latter category are these cases -early last year the SC appointed the UP lokayukta, whereas it was the governor's prerogative to do so in consultation with the Allahabad HC chief justice and the leader of the opposition. Then in May 2016, to resolve the political instability in Uttarakhand, the court ordered a floor test to establish majority in the assembly under its supervision! A few days later, the SC `revoked' President's rule in the state for a couple of hours to enable the floor test to be held. Surely , President's rule can be imposed or revoked only by the President of India? The `frivolous' cases, unfortunately, are far too numer ous. The SC's taking over the running of cricket in India has led to such absurdities as contained in this news report: `SC allows BCCI to spend Rs 1.33 crore for organising the two remaining Test matches between India and England... A bench led by Chief Justice T S Thakur also allowed BCCI to incur expenditure of up to Rs 25 lakh each for the three one-day internationals and three T20 matches against the English team.' CJI as CFO?

Here are some more: `SC bars firecrackers in NCR', `Discipline errant auto-drivers, HC tells government', `HC asks ministers to take personal interest in malnutrition fight', `HC allows school to hike fees', `[Bombay] HC to hear plan on penguin viewing', ` Apex court refuses to lift ban on glass-coated manja for flying kites'.

Judicial overreach reached its nadir -because there was no wrong being righted here, no illegality being corrected -with the ruling that the national anthem should be played in all cinema halls and everyone must stand to instil a sense of `constitutional patriotism' (whatever that means).

Chief justices come and go, but judicial overreach goes on forever, and seems to extend itself farther and farther into areas where no questions of law are involved. This is so in a system where the backlog of cases has reached such numbers that it can never be cleared. Instead of dealing with the vexed problem in the best possible way , our benches seem to seek new areas in which to show judicial valour.

See also

Supreme Court: India (mainly SC's rulings)

Supreme Court, India: Administrative issues

Supreme Court: India: Chief Justices

Supreme Court: India: Sitting judges

Judicial appointments, senior: India mainly the Collegium debate

Judiciary: India (powers, functions)

Judiciary, superior: India

Judiciary: India

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