Supreme Court Observations

While delivering a judgement in December 2007, the Supreme Court of India called for judicial restraint and asked courts not to take over the functions of the legislature or the executive, saying there is a broad separation of powers under the Constitution and each organ of the state must have respect for others and should not encroach on others’ domain. In this context, the concerned Bench of the court made the following observations10 :

1. The Bench said, "We are repeatedly coming across cases where judges are unjustifiably trying to perform executive or legislative functions. This is clearly unconstitutional. In the name of judicial activism, judges cannot cross their limits and try to take over functions which belong to another organ of the state”.

2. The Bench said, "Judges must know their limits and must not try to run the government. They must have modesty and humility, and not behave like emperors.”

3. Quoting from the book 'The Spirit of Laws’ by Montesquieu on the consequences of not maintaining separation of powers among the three organs, the Bench said the French political philosopher’s "warning is particularly apt and timely for the Indian judiciary today, since very often it is rightly criticised for 'overreach’ and encroachment on the domain of the other two organs.”

4. Judicial activism must not become judicial adventurism, the Bench warned the courts Adjudication must be done within the system of historically validated restraints and conscious minimisation of judges’ preferences.

5. "The courts must not embarrass administrative authorities and must realise that administrative authorities have expertise in the field of administration while the court does not.”

6. The Bench said, "The justification often given for judicial encroachment on the domain of the executive or the legislature is that the other two organs are not doing their jobs properly. Even assuming this is so, the same allegations can be made against the judiciary too because there are cases pending in courts for half-a-century.”

7. If the legislature or the executive was not functioning properly, it was for the people to correct the defects by exercising their franchise properly in the next elections and voting for candidates who would fulfil their expectations or by other lawful methods, e.g., peaceful demonstrations.

8. "The remedy is not in the judiciary taking over the legislative or the executive functions, because that will not only violate the delicate balance of power enshrined in the Constitution but also (because) the judiciary has neither the expertise nor the resources to perform these functions.”

9. The Bench said: "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. Second, judicial restraint tends to protect the independence of the judiciary. When courts encroach on the legislative or administrative fields almost inevitably voters, legislators, and other elected officials will conclude that the activities of judges should be closely monitored.