To check air pollution in Delhi, the Supreme Court on Wednesday gave five directions:
- Registration of diesel-run SUVs and cars having engines beyond 2000 cc in Delhi and NCR has been banned till March 1, 2016.
- The ‘Green Cess’ being levied on commercial vehicles entering Delhi has been raised by 100%
- Commercial vehicles which are not Delhi bound will not be allowed to enter the national capital through entry points NH-8 and NH-1.
- Commercial vehicles registered before 2005 cannot enter Delhi, and
- Only CNG-run taxis will be allowed to ply in Delhi and the NCR,
Now one can understand the court’s concern about air pollution in Delhi, and one would have had no objection if it had merely directed the government and other concerned authorities generally to urgently check air pollution.
My respectful submission, however, is that the specific directions it has given really pertain to the domain of the executive or legislature.
Under our Constitution, there is broad separation of powers between the three organs of the state, i.e. the legislature, executive, and judiciary. Each of these have their broad spheres of operation, and it is ordinarily not proper for one organ of the state to encroach into the domain of another.
Why separation matters
The theory of separation of powers first propounded by the French thinker Montesquieu (in his book The Spirit of Laws) broadly holds the field in India too, vide the 2007 case Divisional Manager Aravalli Golf Course v. Chander Haas.
In chapter XI of his book Montesquieu writes:
“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.
“Again, there is no liberty, if the judicial power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.
“There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.”
In my opinion, adjudication must be done within the system of historically validated restraints and conscious minimisation of the judges own preferences. The court must not embarrass the administrative authorities and must realise that administrative authorities have expertise in the field of administration while the court does not.
In the words of Chief Justice Neely of the West Virginia State Supreme Court:
“I have very few illusions about my own limitations as a judge. I am not an accountant, electrical engineer, financier, banker, stockbroker or system management analyst. It is the height of folly to expect Judges to intelligently review a 5000 page record addressing the intricacies of a public utility operation. It is not the function of a Judge to act as a super board, or with the zeal of a pedantic school master substituting its judgment for that of the administrator” .
In Ram Jawaya v. State of Punjab, a constitution bench of the Supreme Court Court observed:
“The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated, and consequently it can very well be said that our Constitution does not contemplate assumption by one organ or part of the State, of functions that essentially belong to another.”
Similarly, in Asif Hameed v. State of Jammu and Kashmir, a three judge bench of the Supreme Court observed:
“Before adverting to the controversy directly involved in these appeals we may have a fresh look on the inter se functioning of the three organs of democracy under our Constitution. Although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity but the Constitution makers have meticulously defined the functions of various organs of the state. The legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another.The functioning of democracy depends upon the strength and independence of each of its organs. The legislature and executive, the two facets of the people’s will, have powers, including that of finance, which the judiciary does not. The Judiciary has no power over sword or the purse, nonetheless it has power to ensure that the aforesaid two main organs of State function within the constitutional limits. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. But while exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self imposed discipline of judicial restraint “.
Justice Frankfurter. of the U.S. Supreme Court in Trop v. Dulles (1958) observed :
“All power is, in Madison’s phrase, of an encroaching nature. Judicial powers is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self restraint.
“Rigorous observance of the difference between limits of power and wise exercise of power between questions of authority and questions of prudence requires the most alert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce. No less does it require a disciplined will to adhere to the difference.
“It is not easy to stand aloof and allow want of wisdom to prevail to disregard one’s own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Courts giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorised the judges to sit in judgment on the wisdom of what Congress and the Executive Branch do.
“The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonise qua any matter which under the Constitution lies within the sphere of the legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers.”
Unfortunately, despite these observations courts sometimes overlook the high constitutional principle of separation of powers.
As pointed out by Justice J. S. Verma, the former Chief Justice of India, in his Dr. K.L. Dubey lecture:
“The judiciary has intervened to question a mysterious car racing down Tughlaq Road in Delhi, allotment of a particular bungalow to a judge, specific bungalows for the judges pool, monkeys capering in colonies, stray cattle on the streets, clearing public conveniences, levying congestion charges at peak hours at airports with heavy traffic, etc. under the threat of use of contempt power to enforce compliance of its orders. Misuse of the contempt power to force railway authorities to give reservation in a train is an extreme instance.”
Justice A.S. Anand, another former Chief Justice of India has observed:
“Courts have to function within the established parameters and constitutional bounds. Decisions should have a jurisprudential base with clearly discernible principles. Courts have to be careful to see that they do not overstep their limits because to them is assigned the sacred duty of guarding the Constitution. Policy matters, fiscal, educational or otherwise, are thus best left to the judgment of the executive. 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. Public adulation must not sway the judges. It is imperative to preserve the sanctity and credibility of the judicial process. It needs to be remembered that courts cannot run the government. The judiciary should act only as an alarm bell; it should ensure that the executive has become alive to perform its duties.”
The justification often given for judicial encroachment into the domain of the executive or legislature is that the other two organs are 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 as pointed out by this court in Rajindera Singh vs. Prem Mai & others in 2007.
Judicial restraint needed
If the executive is not functioning properly, e.g. in checking air pollution, the court can certainly give it a general direction to do so, but it should not give specific directions about the manner of doing so, as that is in the realm of executive action. Such specific directions violate the delicate balance of power enshrined in the Constitution, but are also problematic because the judiciary has neither the expertise nor the resources to perform these functions.
Of the three organs of the state, only the judiciary has the power to declare the limits of jurisdiction of each. This great power should therefore be exercised by the judiciary with the utmost humility and self-restraint.
Judicial restraint is consistent with and complementary to the balance of power among the three independent branches of the state. It accomplishes this in two ways. First, judicial restraint not only recognises the equality of the other two branches with the judiciary, it also fosters that equality by minimising inter-branch interference by the judiciary. In this analysis, judicial restraint may also be called judicial respect, that is, respect by the judiciary for the other coequal branches. In contrast, judicial activism’s unpredictable results make the judiciary a moving target and thus decreases the ability to maintain equality with the co-branches. Restraint stabilises the judiciary so that it may better function in a system of inter-branch equality.
Second, judicial restraint tends to protect the independence of the judiciary. When courts encroach onto the legislative or administrative fields, almost inevitably voters, legislators, and other elected officials will conclude that the activities of judges should be closely monitored. If judges act like legislators or administrators, it follows that judges should be elected like legislators or selected and trained like administrators. This would be counterproductive. The touchstone of an independent judiciary has been its removal from the political or administrative process. Even if this removal has sometimes been less than complete, it is an ideal worthy of support and one that has had valuable effects.
The constitutional trade off for independence is that judges must restrain themselves from the areas reserved to the other separate branches. Thus, judicial restraint complements the twin, overarching values of the independence of the judiciary and the separation of powers.
In Lochner v. New York Justice Holmes of the U.S. Supreme Court in his dissenting judgment criticised the majority of the Court for becoming a super legislature by inventing a ‘liberty of contract theory’, thereby enforcing its particular laissez faire economic philosophy. Similarly, in his dissenting judgment in Griswold v. Connecticut, Justice Hugo Black warned that unbounded judicial creativity would make the court a day-to-day Constitutional Convention. In The Nature of the Judicial Process, Justice Benjamin N. Cardozo remarked: “The judge is not a knight errant, roaming at will in pursuit of his own ideal of beauty and goodness. ” Justice Frankfurter has pointed out that great judges have constantly admonished their brethren of the need for discipline in observing their limitations.
In Dennis vs. United States, Justice Frankfurter observed: “Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore, most dependable, within narrow limits. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardised when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures.”
In view of this discussion, I respectfully submit that the Supreme Court should only have given a general direction to the concerned authorities to check air pollution, leaving it to the Central and state governments – and the concerned authorities under the Environment Protection Act, Motor Vehicles Act, etc – to work out the details.
Markandey Katju is a former judge of the Supreme Court of India