What Is The Harm, If Now The Judiciary Is Trying To Improve Its Performance By Chasing Injustice?


Extract reproduced below from ‘Walk the Talk’ on NDTV 24×7 with The Indian Express Editor-in-Chief Shekhar Gupta, former Supreme Court judge and now chairman of the Press Council of India, Justice Markandey Katju, talks about ‘judicial overreach’ and ‘media excesses’ (posted on Indian Express website: Tue Oct 18 2011, 03:52 hrs)

“But the anger that we are generally seeing is more of what the executive now complains about—obiter dicta.

I don’t want to comment about other judges but I became a judge in the Supreme Court in 2006 and shortly after, I gave a judgment in which I said that the judges must know their limits and not behave like emperors. They must not try to run the government; judges must not ordinarily encroach into the domain of the legislature or the executive. Judges must know their limits, they must be restrained, particularly in economic and social matters. When it comes to civil liberties and fundamental rights, then a judge must be an activist.”

In my humble view, by and large, even the judiciary is completing a “formality” in delivering the judgments as detailed below. With respect, my views are as follows.

(1) Recently, hon’ble Supreme Court in A. Subash Babu Vs State of A.P (Criminal Appeal No. 1428 of 2011; Decided on July 21, 2011) has held, inter alia, as follows.“19…….The limits of Supreme Court WHEN IT CHASES INJUSTICE, IS THE SKY ITSELF. Further, the powers under Article 136 can be exercised by the Supreme Court, in favour of a party even suo motu when the Court is satisfied that compelling grounds for its exercise exist…..”  

COMMENT (1): Whether, District Courts and High courts are not duty bound by the Constitution to CHASE INJUSTICE?

(2) Further, a three Judge bench of hon’ble Supreme Court in Rajeev Hitendra Pathak & Ors. vs Achyut Kashinath Karekar & Anr {(2011) 9 SCC 541; Decided on 19 August, 2011} has observed and, inter alia, held as follows (SCC Pp 550, para 34 and 36)

“34. On a careful analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the Statute and derive their power from the express provisions of the Statute. The District Forums and the State Commissions have not been given any power to set aside ex parte orders and power of review, and the powers which have not been expressly given by the Statute cannot be exercised.

36. In our considered opinion, the decision in Jyotsana's case {supra (1999) 4 SCC 325; Decided on 22.01.1999} laid down the correct law and the view taken in the later decision of this Court in New India Assurance Co. Ltd. {supra (2000) 3 SCC 242; Decided on 28.02.2000} is untenable and cannot be sustained.”

COMMENT (2): As aforesaid, surprisingly, even hon’ble Supreme Court could not keep track of its own JUST ONE YEAR OLD judgment of fundamental importance, leave alone High Courts and District Courts. Then, as to why one shall be  not be justified to carry an impression that the judiciary is not fulfilling its duty with due care and diligence as precisely expected by “WE, THE PEOPLE OF INDIA”?

(3) Still further, hon’ble Supreme Court in Remdeo Chauhan @ Rajnath Chauhan Vs Bani Kant Das & Others  [JT 2010 (12) SC 516 = 2010(12) SCALE 184; Decided on 19.11.2010] in SECOND REVIEW petition set aside its judgment dated 08.05.2009 on Article 32 petition and observed as follows:

 “93. For the reasons discussed above and considering the aforesaid legal issues, this Court concludes as follows:(i) The JUDGMENT OF THIS COURT dated 8.5.2009 on Article 32 petition and which is under Review is SET ASIDE…….”

COMMENT (3): Whether, every litigant is financially capable of filing an appeal to Supreme Court, much less a SECOND REVIEW petition, otherwise he may have to face death penalty due to a wrong judgment?

(4) Also, hon’ble Supreme Court in Remdeo Chauhan further observed thus:

“62. There is no doubt that the majority judgment of this court in the ADM Jabalpur case {Citation-5 judge Constitution Bench (1976) 2 SCC 521} violated the fundamental rights of a large number of people in this country………..” (capitals mine in all above paras)

COMMENT (4): What is the harm, in case, now the judiciary is trying to improve its performance by chasing injustice?

Note: The views expressed are my personal and a view point only.



Narendra Sharma,

Consultant (Corporate Legal)

E-mail: nkdewas@yahoo.co.in

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