Well, one would be right to consider such a concern as being inconsistent with the aims of PIL, if she agreed with Justice Katju’s previous formulation of this judicial strategy. But readers would be surprised to know that it is Justice Katju who has given this order and wants to continue to monitor its implementation, in line with his earlier order delivered on March 26, in order to ensure drinking water for everyone. It would have been better if Justice Katju added a paragraph in this recent order how he reconciles this with his previous Aravali judgment which led to a controversy about the limits of PIL. (For background, please read our earlier posts on this).
Supreme Court’s concern to end shortage of drinking water
Further reading
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How long can a Judge, who swears to uphold the Constitution and to administer ‘justice’, remain passive to the circus played out in his courtroom by the Government departments? He will take an activist stance at once.
Further, after some time, he is bound to realise that most of his activist Orders have had no impact whatsoever except some customary mention in a few newspapers and some ridicule by a few critics. He will then choose to remodel his strategy and will discard activism – activism yields little results and very meagre professional satisfaction.
After some time into a passive strategy, someone will sooner or later invite his wrath and make him wonder if his strategy is any good. He will then be forced to change his strategy, yet again.
Extraordinary tales? Hardly. It would be a very nice thing if Judges could ask themselves if they would steadfastedly hold on to a non-jurisprudential view they now thrust upon others, say 5 years later? If they do not or will not, they have no business to impose their temporary resolutions upon others.
By the way, the comment above is not with reference to any Judge or with reference to any Order. Justice Katju is an exceptionally knowledgeable scholar and it would be a disservice to him to take two of his judgments and to identify seeming inconsistencies between them. I would like to see his latest Order achieve the desired impact and for that, the whole country would express immense gratitude to him. All errors are welcome when made in the service of humanity. Judicial errors included.
From para 39 of J.Katju’s opinion in the aravali golf club ruling:
“We hasten to add that it is not our opinion that judges should never be activist. Sometimes judicial activism is a useful adjunct to democracy such as in the School Segregation and Human Rights decisions of the U.S. Supreme Court vide Brown vs. Board of Education 347 U.S. 483 (1954), Miranda vs. Arizona 384 U.S. 436, Roe vs. Wade 410 U.S. 113, etc. or the decisions of our own Supreme Court which expanded the scope of Articles 14 and 21 of the Constitution. This, however, should be resorted to only in exceptional circumstances when the situation forcefully demands it in the interest of the nation or the poorer and weaker sections of society but always keeping in mind that ordinarily the task of legislation or administrative decisions is for the legislature and the executive and not the judiciary.”
That of course begs the question which are these exceptional circumstances and how is one to determine when it is/is not in interest of the nation/poorer/weaker sections. I suppose he sees this as one of the cases that fit this exception (he argues that the right to water falls within Art.21) but then, many PILs are filed supposedly on behalf of some poorer/weaker sections and state/locality if not national interest and would perhaps qualify as well. The contrast is indeed glaring.