The Courts can declare and interpret law, remove obvious lacunae and fill up the gaps but they cannot entrench upon in the field of legislation, Supreme Court judge Justice Hemant Gupta said on Wednesday. Justice Gupta, who wrote a dissenting verdict in the judgment on Tribunals Reforms (Rationalization and Conditions of Service) Ordinance 2021, said the three organs of the State i.e., Legislature, Judiciary and Executive have separate and distinct roles and functions as provided in the Constitution.
“All the institutions must act within their own jurisdiction and not trespass into the jurisdiction of others. powers and functions of the three institutions, the Constitution ensures such a structure where the institutions function as per their own institutional strength. “Secondly, it also creates a system of checks and balances as the Constitution provides a degree of latitude for interference by each branch into the functions and tasks performed by another branch,” the judge said.
Justice Gupta said the Constitution does not permit the courts to direct, advise or sermonise other organs of the State in the spheres reserved for them, provided the legislature or executive does not transgress its constitutional limits or statutory conditions. “Independence and adherence to constitutional accountability and limits while exercising the power of judicial review gives constitutional legitimacy to the court decisions. This is the essence of the power and function of judicial review that strengthens and promotes the rule of law,” he wrote.
The apex court judge said judges have the power to spell out how precisely the statute would apply in a particular case and in this manner, they complete the law formulated by the legislature by applying it. “This power of interpretation or the power of judicial review is exercised post the enactment of law, which is then made subject-matter of interpretation or challenge before the courts.
“This Court has observed that if a law is enacted by Parliament or Legislature, even if it is assumably contrary to the directions or guidelines issued by the Court, it cannot be struck down by reason of such directions/ guidelines issued by the Court; it can be struck down only if it violates the fundamental rights or the right to equality under Article 14 of the Constitution,” Justice Gupta said.
Contrary to his views, Justice S Ravindra Bhat, who was part of majority judgement, said that the minimum age limit of 50 years prescribed by the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance 2021 for appointment as members in various tribunals was “arbitrary and discriminatory.” He was unable to agree with Justice Gupta that this court ought to respect legislative wisdom, and that directions issued in past judgements cannot bind Parliament, as they fell outside the judicial sphere.
Independence of the judiciary is one of the foundational pillars of every democracy governed by the rule of law, where the constitution reigns supreme, Justice Bhat said. “The Attorney General’s assertion that since there is no single provision which expressly articulates independence of the judiciary, and that being the case, the court cannot direct the length of tenure or other eligibility conditions which are in the domain of the executive, (which, as a co-equal organ of governance) is exclusively entitled to prescribe criteria for selection of tribunal members, therefore, needs careful scrutiny,” he said.
Justice Bhat said the field of legislation, creating courts, was left to Parliament as well as the states. “The absence of an entry pertaining to tribunals meant that the creation of administrative and quasi-judicial tribunals, or offices and agencies conferred with quasi-judicial functions – was recognised as part of legislative activity, whereby laws could create appropriate bodies for their enforcement in exercise of incidental and ancillary powers adjunct to the concerned legislative head,” he said.
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