New Delhi, Aug 21:
The Chief Justice of India, B R Gavai, on Thursday said judicial activism should not become judicial terrorism, while hearing submissions on the presidential reference, which raised constitutional questions on whether the court can impose timelines for governors and the president to deal with Bills passed by state assemblies.
A five-judge bench led by CJI and comprising justices Surya Kant, Vikram Nath, PS Narasimha, and AS Chandurkar, was hearing submissions made by Solicitor General Tushar Mehta, who was representing the Centre.
Mehta contended that elected people who have a lot of experience should never be undermined.
Mehta said, “I always say that irrespective of the colour of the political party, an elected person cannot be denounced that he is just an elected person”. The CJI asked who said that? The bench said it has never said anything about the elected people.
“I will show who said that. I am not going into….your lordships have not said…”, said Mehta. The CJI said, “I have always said that separation of power….I have said that judicial activism has to remain, but it should turn into judicial terrorism or judicial adventurism…”.
‘Judicial Activism
Mehta continued his submissions, as the hearing in the matter entered the third day, by referring to various verdicts of the apex court on the powers of the governor.
During the hearing, Justice Narasimha said there is nothing like a pocket veto; keep it and do not respond that it is not permissible. “Though you cannot specify a time limit, at the same time, there must be some way in which the process works out. Can it be a situation where not acting on a bill which is sent to the governor…that itself is a full stop and no further…we need your assistance”, Justice Narasimha told Mehta.
Mehta said, “What your lordships very rightly feel pained at is a justification for fixing a time limit, but will not confer jurisdiction to fix a time limit. If that is so, we are not flooded with cases where such situations have arisen. There are instances where one or two states have come along with such situations…the remedy lies with the constitutional framers, the Parliament…” Mehta said the apex court had requested the Parliament and never directed it. “Your lordships never direct coordinate constitutional functionary…”, said Mehta.
Mehta said, suppose a particular governor is sitting over the bill, then there are political solutions and such solutions are taking place, and it is not everywhere the state is advised to rush to the apex court.
“The chief minister goes and requests the prime minister. The chief minister goes and meets the president. There are delegations which go, that this is the bill which is pending, please talk to the governor. Let him take a decision one way or the other…such an impasse is solved”, said Mehta, adding that it would not confer jurisdiction to lay down a guideline by a judgment, and that is the question.
Mehta argued that in the absence of a constitutionally provided time limit, can it be read even if there is a justification? Mehta said such issues have been arising in many states since the last many decades, and he is not talking about any governments. “All bills are not contentious bills. They are kept for one reason or the other. There is an impasse. A lack of communication. Some clarification might be required….they come together and a political solution is found…if you do not want to do it, refer it to the president. The President will examine…”, said Mehta.
The bench queried Mehta to suppose a constitutional functionary is entrusted with certain functions, and that constitutional functionary declines to discharge functions in the absence of any valid reasons, and in such a scenario, are the courts powerless?
The bench said only the apex court has the power to interpret the Constitution. Mehta said interpretation, yes, but not legislation, and emphasised that time limits cannot be stipulated.
The bench orally observed that just because an extreme view may have been taken does not mean that no view can be taken at all.
Mehta emphasised that judicial directions cannot compel the president or governors to meet three-month deadlines. The bench observed that would happen if there is a wrong, there must be a remedy.
Mehta said elected people belonging to whichever political party have to respond to voters directly. People now directly ask questions to them. “Unlike 20-25 years back when things were different, voters are aware and cannot be taken for a ride”, he added.
