Legal Correspondent

"Resorting to judicial activism frequently is unconstitutional"

  • Courts must not encroach into executive or legislative domain: Bench
  • "Regular process of recruitment has to be resorted to when regular posts are to be filled"

    New Delhi: Cases seeking regularisation of temporary or ad hoc workmen have to be decided on legal principles and not on the basis of emotions and sympathies, the Supreme Court has held.

    A Bench of Justices S.B. Sinha and Markandey Katju said: "The tendency in some courts/tribunals to legislate or perform executive functions cannot be appreciated.

    Fraught great peril

    "Judicial activism in some extreme and exceptional situation can be justified, but resorting to it readily and frequently, as has lately been happening, is not only unconstitutional, it is also fraught with grave peril for the judiciary,"

    Writing the judgment, Justice Katju said, "Courts must exercise judicial restraint and not encroach into the executive or legislative domain. Orders for creation of posts, appointment on these posts, regularisation, fixing pay scales, continuation in service, promotions, etc. are all executive or legislative functions and it is highly improper for Judges to step into this sphere, except in a rare and exceptional case."

    The Bench said: "Jobs cannot be created by judicial orders or even by legislative or executive decisions Large-scale suicides by farmers in several parts of the country also show the level of unemployment. These are the social and economic realities of the country, which cannot be ignored.

    ``One may be very large hearted but then economic realities have also to be seen. Giving appointments means adding extra financial burden to the national exchequer.

    "Money for paying salaries to such appointees does not fall from the sky, and it can only be realised by imposing additional taxes on the public or taking fresh loans, both of which will only lead to additional burden on the people.

    Not a precedent

    It said: "A regular process of recruitment or employment has to be resorted to when regular vacancies and posts are to be filled up.

    ``It is well settled that there is no right vested in any daily wager to seek regularisation, which can only be done in accordance with the rules and not de hors the rules.

    "No doubt, in some decisions the Supreme Court has directed regularisation of temporary or ad hoc employees but it is well settled that a mere direction of the Supreme Court without laying down any principle of law is not a precedent. It is only where the Supreme Court lays down a principle of law that it will amount to a precedent. Often the Supreme Court issues directions without laying down any principle of law, in which case, it is not a precedent."

    The Bench was dealing with an appeal filed by Indian Drugs and Pharmaceuticals Ltd. against a judgment of the Uttaranchal High Court directing regularisation of the services of certain casual workers employed in the company.

    Allowing the appeal, the Bench said, "the Labour Court and High Court have passed their orders on the basis of emotions and sympathies, but cases in Court have to be decided on legal principles and not on the basis of emotions and sympathies."