Justice Markandey Katju’s opposition to Judicial activism continues

Today, W.P.© 580 of 2003, Common Cause v. Union of India & Ors came up for hearing before Justices H.K.Sema and Markandey Katju in Court No.4 of the Supreme Court. Even as the petitioner’s counsel, Prashant Bhushan sought the Bench’s directions to the authorities to implement the Motor Vehicle’s Act which requires that speed-breakers and speed-governors be installed to prevent traffic accidents, Justice Katju expressed his extreme displeasure over the petitioner’s prayer to the Bench to what he called to “legislate”. I am giving here the gist of exchanges which took place between Justice M.Katju(M.K. for short) and Prashant Bhushan (P.B. for short).

M.K: Can the Court direct murders will not take place? It is for the executive to take action. We will not interfere. It is not for us to legislate.
P.B.: I am not asking the Court to direct that accidents will not take place. Your comparison is not apposite. I am only asking the court to direct the authorities to exercise their powers under the M.V.Act. I understand your strong views on this matter. But there have been several examples when this Court has intervened: Vineet Narain, Police Reform case, Whistle-blower case in which the Court has clearly directed that the Government must exercise its powers. In all these cases, the Government had no explanation for its inaction because of vested interests. Take any crime, if the FIR is not registered, can’t the court direct?
M.K.: No. Section 156 Cr.P.C. clearly says that one has to approach the Magistrate, and he must be satisfied.
P.B.: Yes, if there is a statutory remedy. We are not asking the court to direct Parliament to legislate. We are asking the Executive to exercise its powers till the appropriate law is made.
M.K.: It is for the executive to decide whether speed breakers are to be fixed and where; we can’t decide.
P.B: It has been revealed that because of traffic accidents, the country is losing Rs.32,000 crore per year.
M.K.: Take the Yamuna cleaning Plan. Rs.14,000 crore has been spent because the Court directed cleaning up. See what happens. The river still stinks. The other day, I had to perform my mother’s last rites at the river bank. It was stinking. So many directions have been given. What is the result?
PB: Why?
MK: People must not have any illusions that judiciary can solve their problems. Take Price rise. Can the Court intervene?
PB: Many ills have been cured by Courts.
MK: People can cure ills through their creativity, and solve their problems themselves. How you do it, I don’t know. Human mind is so powerful.
PB: Our plea is for improving road safety, minimize traffic accidents. Some specific measures have been suggested.
MK: We will send it to the authorities to consider, we will recommend. We will not direct. We can’t create a cycle lane. That is for the legislature to do.
PB: If your lordship thinks it is a matter for the larger Bench to deal with, it may be considered.
MK: No, we will deal with it.
PB: This PIL may be tagged with another pending petition before another Bench, dealing with similar matter.
MK: We will consider all these. We reserve our judgment.

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Kaushik Krishnan
Kaushik Krishnan
13 years ago

Same as last time with minor corrections

I have to agree with Justice Katju. In the little dialogue between him and Prashant Bhushan, there are two lines that Justice Katju says that I find to be the reason for his actions.
1. “So many directions have been given. What is the result?”
2. “People must not have any illusions that judiciary can solve their problems.”

While I fully commend the judiciary for its continued war against injustice, my problem is with the means and not the end. There are two reasons why judicial activism should be limited. One is the question of enforceability. There are too many decisions that the Court gives that are never implemented. It isn’t enough for the Court to decide in your favor. Unless it is implemented, it’s as bad as before the judgment was given. This in itself should necessitate the search for alternate remedies.

The second reason is scope and priority. The Supreme Court and High Courts have been extending the scope of their jurisdiction with every passing day. In the long run, this isn’t desirable. More importantly, as this happens, more cases are allowed. While each case may be deserving, there has to be a sense of practicality and reality. You must concede that you have finite resources, time and judges. Given these constraints, you cannot handle an increasing number of cases. Hence, it is imperative that you limit your scope to a manner such that the cases you hear are heard well and that quality of justice as opposed to number of cases decided increases.

This narrowing of scope by cutting the limits of judicial activism does not mean that these cases shouldn’t be or will not be decided. For a long time, I’ve been thinking and trying to tell people that the answer is structural. There should be better systems in place to split grievances. This is not a case. There is no lis. These cases should be handled by either the Parliament or the Executive. The answer is to have, Like in the US, lobbying bodies and increased participation between people, their elected representatives and government, without recourse to the judiciary. We can see from the American example that this leads to greater and faster response to these primarily, public policy questions.