"We must refuse to sit as a super-legislature to weigh the wisdom of legislation"
Chief Justice of India S.H. Kapadia on Saturday cautioned judges against “overreach” in the guise of judicial activism, and said they should not ignore the separation of powers as enshrined in the Constitution and become administrators to make policy choices and run the administration.
Delivering the M.C. Setalvad lecture on ‘Canons of Judicial Ethics,' organised here by the Bar Association of India, the CJI noted that after 1980 the court changed its direction to secure the rights of citizens from arbitrary actions of the executive and to create a human rights jurisdiction by an enlarged meaning of Articles 14 (right to equality) and 21 (right to life).
The court, acting on public interest litigation, passed several orders and the jurisdictional peg on which it was done was that such matters affected the ‘life' of the citizen under Article 21. “Its jurisdiction is that the other branches of government have failed or are indifferent to the solution of the problems. In such matters, the court is acting in advance of the political branches of the government. [However] We do not have the competence to make policy choices and run the administration.”
Personal views, not as CJI
At the outset, the Justice Kapadia made it clear that all views expressed here were his own and in his capacity as a student of law, and not as CJI. He said that by and large the orders passed by the court on PIL petitions were considered necessary and welcomed by the public. However, “judicial activism which is not grounded in any textual commitment to the Constitution, unlike activism in cases of human rights and life and personal liberty, raises questions of accountability of the judiciary.”
The CJI said: “The judges of the Supreme Court should revisit the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, which are elected to enact laws. We are not concerned with the wisdom, need or appropriateness of the legislation. We must refuse to sit as a super-legislature to weigh the wisdom of legislation.”
On ethics, he said: “The judge should not accept patronage through which he acquires office, preferential treatment or pre-retirement assignment. These can give rise to corruption if and when quid pro quo makes a demand on such judges. Similarly, when a family member regularly appears before a judge, an adverse public perception can affect the working of the integrity institution like the judiciary.”
“We are fond of giving lectures. Laying down a ‘Restatement of Values' is simply not enough, but now the time has come to practise what we preach,” said the CJI, whose speech was received with ovation.
“We, judges, should remember that the validity of our decisions cannot rest on popularity. Resisting the pressure to please the majority is the strength of the judiciary, not its weakness. Judges inevitably end up in the political arena in deciding controversial cases — whichever side they rule.”
Justice Kapadia was categorical that political protection should not be given to corrupt judges.
No exception to accountability
On judicial accountability, he said it “is a facet of judicial independence. The legislature is accountable to the electorate. The executive is indirectly accountable to the people through the elected legislature. There is no reason why the judiciary should not be accountable to the community for its due performance of the functions vested in it. Power is given on trust and judicial power is no exception. Like other public institutions, the judiciary must be subject to a fair criticism.”
Justice Kapadia's remarks were echoed by Delhi High Court Chief Justice Dipak Misra, who welcomed public accountability on the part of judges. They “should not harbour any misconception of being divine incarnations.”
Earlier, Bar Association of India president Anil Divan set the tone for the occasion, saying the country was facing an “unparalleled crisis in its legal system.”