Advising restraint

BACKSTAGE

The Supreme Court was listening to a limited question: whether a civil court could direct the employer to create a post for an employee on daily wages who had been working as a tractor driver since 1989.

Justice Markandey Katju and A K Mathur, in a 22-page judgment (in which the Supreme Court overturned a trial court and the high court's ruling) said the court could not "" the creation of a post was the prerogative of the executive or the legislature.

But in15 of the 22 pages, the order declaimed pithily that as umpires, judges were meant to uphold laws, not create them. The observations listed instances where the judiciary had strayed into the executive's domain. These included nursery admissions in Delhi, the legality of constructions and identifying buildings to be demolished in Delhi, overcharging by Delhi autorickshaws, growing number of road accidents and enhancing fines, nature of buses for public transport, air pollution, free beds in hospitals on public land, world-class ambulance services, and a world-class burns ward.

The order advised that the judiciary's independence could be compromised unless judges exercised restraint and honoured the separation of powers among the three wings of governance, as mandated by the Constitution.

This has had both the judicial fraternity and the political class in a tizzy. Lawyers are sputtering with indignation at the Katju-Mathur observation. Judges themselves seeking to limit the judiciary's empire? Politicians and bureaucrats, daily at the receiving end of the court's wrath, were wondering how a judge could have said this. He could and he did: because he is Markandey Katju.

This much is clear from the orders he has given in his career: Katju has been preoccupied with the separation of powers for some time now. As Chief Justice of Madras High Court, in Rama Muthuramalingam vs Dy S P, AIR 2005 Madras 1, on the constitutional question of the relationship between the judiciary, the legislature and the executive too, he had emphasised judicial restraint.

In his speech at the first anniversary of the Madurai Bench of the Madras High Court, he said that people have a right to criticise the judiciary as the people were supreme in a democracy, and all authorities including judges were servants of the people.

But while Katju, no stranger to controversy, has in the course of his career ruled in favour of intercaste marriages, he has ruled against relaxing eligibility criterion for the disabled.

In a public lecture, he called, with refreshing candour, for restraints on the Supreme Court's power of contempt of court ("The contempt power should only be used in a rare and very exceptional situation where without using it, it becomes impossible or extremely difficult for the court to function").

At the same time, he has been publicly scathing of the way governments, the Tamil Nadu one for instance, ignores the welfare of retired judges. "I am sorry, this state government is not looking after the retired judges properly. Mr Advocate-General, take note of this and ask your chief minister to issue a notification for medical reimbursement facility and 'multi-purpose servant' provision for retired Judges immediately," he observed as Chief Justice of the Madras High Court, at the farewell function of Justice K P Sivasubramaniam.

Fairminded judge? Or one who shoots from the hip? At 46, Katju was one of India's youngest High Court judges and became Chief Justice of the Madras High Court at 58. With another four years to go before he retires, he stands a good chance of becoming Chief Justice.