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Home > News > PTI

Courts cannot create rights where none exists: SC

December 10, 2007 20:55 IST

The Supreme Court on Monday cautioned the judiciary against encroaching on the legislative or executive domain like passing directions on nursery school admissions or improving conditions of hospitals, lest it led to chaos.

"Courts cannot create rights where none exists, nor can they go on making orders which are incapable of enforcement or violative of other laws of settled legal principles," the apex court said.

"They must remember that judicial activism is not an unguided missile, failure to bear this in mind would lead to chaos. Public adulation must not sway the judges and personal aggrandizement must be eschewed," a bench of Justices A K Mathur and Markandey Katju recalled former Chief Justice A S Anand as having said.

The bench passed the observations while quashing an order passed by a court in Haryana, which had directed the government to create posts of tractor drivers to regularise the services of certain malis (gardners).

Constitutional experts pointed out that a two-judge bench cannot comment on the judgments of a larger bench which are binding on smaller benches. They said in case a smaller bench differs with the larger bench, then the case should be referred to a larger bench.

They pointed out that today's observations by the two-member bench were only obiter but judges should not comment on matters which do not strictly arise from the case before them.

The judgment also referred to former CJI Anand's recent observations that courts cannot create rights where none exists nor can they go on making orders which are incapable of enforcement or violative of other laws or settled legal principles.

"With a view to see that judicial activism does not become judicial adventurism, the Courts must act with caution and proper restraint. They must remember that judicial activism is not an unguided missile-failure to bear this in mind would lead to chaos," Anand had said.

Coming down heavily on judicial activism, the court deprecated the tendency of judges to rule on issues like nursery admissions and autorickshaw overcharging and said they should know their limits and not try to run a government.

In a judgment that did a lot of self-introspection, the two-member bench said: "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 takeover functions which belong to another organ of the State."

Justice Mathur and Justice Katju listed a number of local issues like unauthorised schools, criteria for free seats in schools, the size of speed-breakers on Delhi roads and enhancing of road fines dealt with by the Delhi High Court which, they said, were 'matters pertaining exclusively to the executive or legislative domain.'

"If there is a law, judges can enforce it. But judges cannot create a law and seek to enforce it," they observed.

Creation and sanction of posts is a prerogative of the executive or legislative authorities and the court "cannot arrogate to itself this purely executive or legislative function, and direct creation of posts in any organisation," the Supreme Court observed. 

Judges must not behave like 'Emperors' and must have modesty and humility, the court emphasised. The bench was not willing to buy the justification often given for judicial encroachment into the domain of the executive or legislature on the ground that these two organs were not doing their jobs properly.

Even assuming this is so, the same allegation can then be made against the judiciary too because there are cases pending in Courts for half-a-century, they noted.

"Judicial activism's unpredictable results make the judiciary a moving target and thus decrease the ability to maintain equality with the co-branches," it observed.

The judges said if the judiciary does not exercise restraint and over-stretches its limits, there was bound to a reaction from politicians and others. "The politicians will then step in and curtail the powers, or even the independence of the judiciary," they cautioned.

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