JUDICIAL ACTIVISM v JUDICIAL RESTRAINT

The Indian Supreme Court considered as one of the most powerful court when compared with its counterparts like U.K, Canada, South Africa and U.S.A is now very much fond of increasing its power. In a recent judgment delivered on 3rd March, writ petition no.348 of 2010 in Centre for PIL & Anr. v Union of India & Anr.,  Justice S.H. Kapadia has quashed the appointment of the Commissioner of CVC (Central Vigilance Commission). The judgment begins saying, “Government is not accountable to the courts in respect of policy decisions. However, they are accountable for the legality of such decisions. While deciding this case, we must keep in mind the difference between legality and merit as also between judicial review and merit review.” The validity of the recommendation was in question and to which the we have already seen that the court does not want to go into the policy matters of the government. While checking the legality, what one needs to see is the procedure laid down has been followed or not? Or is there any arbitrary action in the selection or recommendation? These requirements will suffice the legality.

The extent to which the court has gone in while checking the legality is quite courageous but yes! Our supreme Court is famous for its bravery and interference in policy matters and they have shown it time to time with the Vishakha case on top where they have crossed all the boundaries and they have shown that the meaning of Judicial Restraint is jeopardizing from this democratic country.

In the instant case the appointment was done as per the rules laid down for the appointment by an act passed in 2003 which says that it should be approved by the President and shall be nominated by the Prime Minister, Home Minister and one leader of opposition. All these requirements were fulfilled. Then how have they quashed the appointment? They talk of the integrity of the institution and they say, “The HPC must also take into consideration the question of institutional competency into account. If the selection adversely affects institutional competency and functioning then it shall be the duty of the HPC not to recommend such a candidate.” Although the requirement of the Act of 2003 does not include any of these things, then the Supreme Court creates the new requirements. It goes on saying that the candidate in the past shall be a public servant or civil servant is not the sole criteria but this is the only sole criteria given in the law and then the court says that HPC shall also look at the institutional integrity and whether the candidate is capable of performing the same function? The court is again while checking the legality of an action framing guidelines and then quashes the appointment on the grounds which has no justification in law. The writer is also searching for the basis of the reasoning of the said judgment. Anyhow this is again a very good example of how the judiciary while performing judicial activism crosses its boundaries.

Yours Sincerely,
Mr Unknown