UNDERSTANDING JURISDICTIONS AND PRESCRIBED ROLES

Letter:
The Chief Justice of India, S.H. Kapadia recently said judges should not govern the country or evolve policies. He made this statement while delivering a lecture titled “Jurisprudence of Constitutional Structure.”  Kapadia added that “Judges should not govern this country. We need to go by strict principle. Whenever you lay down a law, it should not interfere with governance. We are not accountable to people. Objectivity, certainty enshrined in the basic principles of the Constitution has to be given weightage.”
This statement seems to be fit for a country which fails to see jurisdictions and demarcations. We have an uncanny knack to mix and match. Segregation makes no sense to us whether it is the segregation of waste or segregation of the spheres of activities under executive, legislature and judiciary. This is clearly spelt out in the Constitution of India. We often hear or complain about one overstepping on the other.
Keeping aside the functions of executive and legislature aside, let’s examine the function of judiciary. The primary function of judiciary is to 'determine' the facts of laws and to apply them to particular circumstance. It also has law interpreting function. Judiciary is also expected to act as the guardian of the activities as provided in the Constitution. But nowhere do we see the need for judiciary to meddle with the affairs of the executive, especially when the functions and roles of all three have been spelled out clearly without leaving any room for confusion.
Differences in views and opinions of the executive, legislature and judiciary are normal. But what we need to understand is that the three branches are ideally supposed to work in tandem.
The very word judiciary means something that pertains to judgment/ court. It implies no other meaning. Segregation and separation of powers and functions of the three branches are pertinent to the welfare of the State.
Justice Kapadia also expressed his wonder over what would happen if the executive refused to comply with the judiciary’s directives that may not be enforceable. He made this reference to the recent Supreme Court judgment in the Ramlila Maidan police action against Ramdev’s supporters in which the “right to sleep” was declared a fundamental right. This is a very interesting point. This is where the whole argument about enforceability comes into the picture.
If the judiciary interferes with the affairs of executive and legislature, it then becomes difficult to attain the optimal balance between the three branches that is required for smooth functioning of the government.
The recent judgment of the Supreme Court that declared right to sleep as a fundamental right came as a surprise to many. We wondered if such a right could exist. After some research, we realised that the right to sleep is associated with sound health which is an inseparable facet of Article 21 (right to life) of the Indian Constitution. There are some rights which do not sound like rights but have been classified as rights like right to blink. And I always thought that blinking was purely an involuntary reflex! But the judiciary while pronouncing such judgments should be wary of loopholes. The practicability factor has to be kept in mind. It is not possible for the State or government to follow all the judgments of the judiciary to perfection. And judgments should not smack of interference. The judiciary should not make deliberate efforts to hamper the functioning of the state. Doling out rights by the dozen without pausing to think twice can complicate matters for the government. The recent reference of the Chief Justice of India is very appropriate and should be welcomed by all.
Dawa Dadul, Burtuk [recvd on email]