By Justice Markandey Katju
The controversy about the directives of the Supreme Court in State of Tamilnadu vs Governor of Tamilnadu rages on, and shows no sign of abatement.
My own view is very clear: Jagdeep Dhankhar and Nishikant Dubey are correct, and the aforesaid judgment is an instance of judicial overreach, that is, encroachment by the judiciary into the domain of Parliament. I have expressed my opinion in the article below :
I agree with Nishikant Dubey that in view of the broad separation of powers in the Indian Constitution between the 3 organs of the state, the judiciary should exercise restraint, and not encroach into the domain of the legislature and the executive, as was done in its decision in State of Tamilnadu vs Governor of Tamilnadu.
This is what I held in Divisional Manager, Aravali Golf Club vs Chander Haas, 2007 ( see from para 17 onwards )
The Constitution nowhere places a time limit on the President or Governor for exercising their power under Articles 200 or 201 of the Constitution. If the judges put such a time limit ,it will be amending the Constitution, something only Parliament can do vide Article 368.
Also, there is no provision in the Constitution for a deemed assent to a Bill passed by the legislature. This again is amending the Constitution, which only Parliament can do.
If there can be deemed assent to a Bill, why can't there be a deemed appointment of a person as a Judge of the Supreme Court or High Court when the Supreme Court Collegium reiterates his name? The Supreme Court has held that if the Collegium reiterates a name, the Government must appoint him. But several names have been reiterated by the Collegium, and yet the President has not appointed. Using the same logic as in State of Tamil Nadu vs Governor of Tamil Nadu, why should the Court not hold that the person will be deemed to have been appointed ?
And using Article 142, which some Judges think is a 'Brahmaastra' given to them by the Constitution, enabling them to do whatever they liked and fancied, why can the Supreme Court not say that since Parliament is not doing its duty properly the Supreme Court will henceforth do the job of Parliament and make laws ? And since the Government is not doing its job properly, the Supreme Court will do its job ?
All this is wading into dark, murky, and dangerous waters, and in this situation, a strong reaction by government leaders, legislators and others is bound to set in, who will then clip the wings of the judiciary. They may well say, using the same logic, that since the judiciary is not doing it's job properly, often taking decades to decide cases, the executive will now take over it's job. What is sauce for the goose is sauce for the gander.
It is true that since Indira Gandhi was Prime Minister, Governors have been behaving like puppets of the Central Government. Withholding assent to Bills passed by the legislature is certainly improper.
But I submit that it is not for the judiciary to fix the problem. It is fallacious to think that it is for the judiciary to fix all problems in the country, and that the judiciary has a magic wand for doing so. Many problems can only be fixed elsewhere, by the political or some other process.
And it is certainly not for the judiciary to try to fix the problem by amending the Constitution by judicial verdicts.
(Justice Markandey Katju is a former Judge, of the Supreme Court of India, and former Chairman of the Press Council of India. The views expressed are his own.)
