A fresh round in the internal debate within the Supreme Court over the limits of Judicial activism

Today’s newspapers are devoting considerable attention to a recent decision of a division bench of the Supreme Court consisting of Justices AP Mathur and Markandey Katju. This is how the news-item in the Indian Express begins: In the strongest censure of itself in recent times, the Supreme Court, admitting that judicial activism is disturbing the “delicate” balance of powers “enshrined” in the Constitution, has sent an unequivocal message to the judiciary: restrain yourself. And has even gone to the extent of questioning a slew of recent orders by the Delhi High Court — on several issues from demolitions to nursery admissions — calling them “illegal.” The title of the report in the Hindustan Times reads: “Supreme Court raps Delhi High Court activism.” The report in the Hindu prefers to adopt a less sensational reporting style, and also opts for longer quotations from the judgment. I tend to be skeptical of news coverage of important court decisions in India, and sought to read the full text of the judgment. Fortunately, the full text of the judgment in the case, titled Divisional Manager, Aravali Golf Club v. Chander Hass (“the Aravali Golf club case”), is available on JUDIS here. After reading through the decision, I cannot help thinking that the newspapers are justified in making a big deal of the decision, and its implications. There are indeed many singular aspects of this decision. The facts at the heart of this case are seemingly innocuous and my first impression was that this was what is referred to as a “typical service” matter. The case arose out of an appeal from the decision of a single judge of the High Court of Punjab and Haryana in litigation relating to an employment dispute. The Supreme Court judgment is quite a short one, extending to 41 paragraphs. The Mathur-Katju bench sets out the basic facts and its decision on them (which consisted essentially of holding that the single judge of the High Court of P & H was wrong, and reversing his decision) in the first 16 paragraphs. The ‘dramatic action’ that is the focus of the news-reports begins at para 17, which reads as follows: 17. Before parting with this case we would like to make some observations about the limits of the powers of the judiciary. We are compelled to make these observations because we are repeatedly coming across cases where Judges are unjustifiably trying to perform executive or legislative functions. In our opinion this is clearly unconstitutional. In the name of judicial activism Judges cannot cross their limits and try to take over functions which belong to another organ of the State. In paras 18-40, the Mathur-Katju bench expands on this theme, and draws upon an eclectic array of sources (prior decisions of the Indian Supreme Court; a quotation from Montesquieu; the views of retired Chief Justices, JS Verma and Anand; and several U.S. Supreme Court decisions) to buttress its central argument. In the process, as emphasized in the newreports, the Mathur-Katju bench called into question specific decisions of the High Court of Delhi (at para 27) and two decisions of the Supreme Court (at para 28, referring to the Jagadambika Bal and Jharkhand assembly cases). The Mathur-Katju decision should be viewed as a follow-up to Justice Katju’s decision in the Bisht case (May 2007), where he had outlined a similar argument, relying at times upon the similar reasoning and the same sources (see this previous post which provides further details about the case). The Bisht case saw a spirited dissent by Justice Sinha; this time around, Justice Katju seems to have found a sympathetic ally in Justice Mathur. What is unusual about this case is that a division bench of the Supreme Court has, arguably without justification or cause (since the case before the Court had no factual or direct legal connection to the Supreme Court decisions that were disparaged), called into question the correctness of larger bench decisions of the Supreme Court. This is the aspect that is focused upon in this news-report in the HT, where, ironically, former Chief Justice Anand is quoted as expressing disapproval of the ruling in the Aravali Golf Club case on this score. Another striking feature of this ruling in the Aravali Golf Club case is that it calls into question the validity of several decisions of the High Court of Delhi (the HT has this short piece identifying these cases in greater detail), some of which are, to my knowledge, still pending. Once again, the facts that gave rise to the decision in the Aravali Golf Club case have no clear connection to the decisions of the High Court of Delhi that were criticised in it. While the Supreme Court is fully entitled to castigate the reasoning in decisions of High Courts that are properly before it, the wisdom of offering unsolicited advice on the legality of decisions of High Courts that are either being implemented or have not yet being challenged on appeal, surely is questionable, to say the least. There is, therefore, considerable irony in the fact that the Mathur-Katju bench, in making its case for judicial propriety, is itself open to the charge of having breached judicial norms. Justice Katju is fast emerging as the outspoken judicial critic of ‘activism’ among the current generation of Supreme Court judges. In doing so, he carries on a long tradition, that dates back to the earliest years of the history of the Supreme Court. Whatever one thinks of the merit of his views, the mode that he (in common with Justice Mathur) has chosen for expressing his views is generating a fair bit of controversy. In the past, Justice Katju has used extra-judicial fora to express his controversial views that are somewhat out-of-step with mainstream judicial thinking (see this post outlining his relatively bold views on current contempt laws). One may wonder why he did not choose a similar vehicle for expressing his views here – while they would still have generated controversy and debate, the reasons would have more to do with their substance than with the process concerns that dominate here.
The judges who decided the two named Supreme Court decisions in the Aravali Golf Club case have since retired. I suspect that the real focus of the Aravali Golf club case is upon decisions that continue to emanate from the Supreme Court while exemplifying the judicial philosophy which the Mathur-Katju bench is strongly critical of. It will, therefore, be interesting to follow the reactions of other judges to this ruling, especially of those who see themselves as constituting the more ‘activist’ members of the Court.

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  • “There is, therefore, considerable irony in the fact that the Mathur-Katju bench, in making its case for judicial propriety, is itself open to the charge of having breached judicial norms.”

    I agree with this. The judges should have limited their judgment
    to the facts of the case and the reaons behind their decisions.
    If one goes by the logic expounded
    by them executive/government can
    do anything in service matters and
    courts should not intervene.

    “The moral of this story,” the judges said, “is that if the judiciary does not exercise restraint and over-stretches its limits there is bound to be a reaction from politicians and others. The politicians will then step in and curtail the powers or even the independence of the judiciary…Therefore it should confine itself to its proper sphere, realizing that in a democracy, many matters and controversies are best resolved in non-judicial setting.”

    This ‘moral’ is scary to say the
    least. It amounts to abandoning
    the role of the judiciary as protectors of citizens’ rights
    and the constitution.

    “Therefore it should confine itself to its proper sphere, realizing that in a democracy, many matters and controversies are best resolved in non-judicial setting”

    As all disputes can be ‘settled’ in non-judicial settings in a ‘democracy’ , why have
    courts at all. We can leave dispensation of justice in the
    hands of politicians and to whom they delegate this power, and then there will be no threat to ‘powers or independency of the judiciary’.

  • A commendable post. It is indeed quite ironical that a reasoned argument for restraint must itself come to be seen as a breach of judicial norms. Mr. Srinivas has highlighted Justice Katju’s comment in para 38 about the danger of adverse political consequences (drawn from FDR’s court packing plan) in response to activism. That possibility has already been largely foreclosed by Keshavananda and its progeny. A political coup of the kind seen in Pakistan is quite unthinkable as is a revolutionary upheaval that would sweep away the constitutional order. If Justice Katju is worried about political intervention, does this mean he also believes Keshavananda itself is out of order? He does not say but it is unlikely since he makes out exceptions for some of the Warren and Burger Courts’ controversial judgments (though everyone now swears by Brown) in the very next para (39). Perhaps, he, like J.S.Verma, believes that there is a line somewhere between good/acceptable activism which is ‘in the interest of the nation and poorer and weaker sections of society’ and a bad/unacceptable activism which is not.

    The other point is what happens when a single or few judges of the SC take a sharply different line from the rest. How do lower courts know whose guidance to follow? This appears to be a fundamental infirmity of the current system with 25 judges operating through numerous distinct benches. A clear divide exists in the US Supreme Court as well but sitting en banc mitigates this to a significant extent. The matter has now apparently been referred to a larger bench (Zee News item) but whether that will bring clarity to this important question remains to be seen.