Judiciary should not intervene just because it disagrees with policy: Supreme Court Justice Sanjay Kishan Kaul

Justice Sanjay Kishan Kaul of the Supreme Court recently expressed concern over the Indian judiciary’s image as a panacea for all evils..The apex court judge said that judiciary should not intervene in a matter merely because it disagrees with a policy decision taken by the government. “I have always said that the judiciary should not intervene just because it disagrees with the government policy or the quality of governance. Yet we see many examples of this in India,” Justice Kaul said.The judge was speaking at an event held last month to mark the launch of a book by former Supreme Court judge Justice (retired) AK Sikri, titled Constitutionalism and the Rule of Law in a Theatre of Democracy..Justice Kaul observed that innovations such as diluting the rule of locus standi have perpetuated an image that the higher judiciary was the solution for various social problems plaguing India.“But what if it is not so? The danger of relying on adjudicatory means for settling fundamental morals and political controversies is that the courts turn into political decision making bodies. This is a serious concern on several levels,” the judge said. .He further explained that such a tendency disregards the principle of separation of powers. Further, he added that judges are not equipped to deal with all such questions.“In fact, several of these questions which are given constitutional colour are not capable of judicial resolution," he added.He also pointed out that if courts are always approached to direct policy changes, it may “insulate substantive policy making from democratic politics.”“In the long run, this can have irreversible consequences such as fracturing the democratic fabric of the country,” he said..He went on to offer alternative modes of effecting changes to policy, other than by approaching the courts. He cited the example of how a Catholic-majority Ireland passed a referendum in 2018 to legalise abortions when the courts could not undo the abortion ban.“Although approaching the Constitutional court remained an option, it was public reason that then persevered. It now stands out as an inspiring instance, where contested, ethical questions were decided by the public themselves and without any judicial intervention,” he said. .He also referred to the MeToo movement as "another example of not choosing to subject every aspect of social life to the lens of judicial or institutional recourse.” “It was a time when numerous accounts of sexual harassment were shared on social media to raise awareness of how common sexual harassment is … The MeToo movement was a watershed movement in the sense that enabled accountability, reconciliation and peacemaking with the perpetrators through the means of public apologies and acknowledgements. It prioritised, without any judicial intervention, restorative justice response to sexual harassment by bringing together victims and responsible parties,” he added.He batted for the promotion of a culture where social and political problems are critically examined, instead of always relegating them to be tried before a Constitutional court.“The solutions arrived at in open are also more equitable and enduring,” he underscored..Retired Justice Rohinton Nariman also spoke at the event, commenting that Justice Sikri’s book was a timely reminder to democratic governments worldwide not to tamper with Constitutional values.In this regard, he spoke critically of how the government of Israel had recently “bludgeoned through a law in the Knesset (Israeli Parliament)” which had “cut at the root of Constitutional democracy.”Justice Nariman noted that this law had “tampered” with the process of appointing judges, as well as with judicial review and how legislation would be judged.“In India, fortunately, we have had the four Judges case... and the upshot of all these judgements ultimately is, we have wrested from the Executive the right to appoint our own judges, and have jealously guarded it by ultimately even striking down a constitutional amendment. Unfortunately, in Israel, today this is not the case. And the idea obviously is, the appointments process (in Israel) is now in the hands of a right wing government which will now appoint only judges favourable to its policies,” he added..He also noted that there were similarities in what the Israel government was trying to implement in their country and certain measures that were tried and set aside in India.“The people in Israel should be given a copy of this book (Justice Sikri’s book), because this book would show them our way of having dealt with each and every transgression that has been made,” he added..Justice Sikri, in his address, recounted that he was driven to author the book through research undertaken when he was asked to contribute to other essays on the Constitution. The COVID-19 pandemic also left him with ample time to study the literature from various countries and how democracies thrived, survived and died, he added..The retired judge further said that apart from essays on Constitutionalism, he has also written about two teachers in the book, namely Professors Upendra Baxi and MP Singh, both of whom were also present at the event..“I feel that they qualities of a good lawyer, and then a good judge, which we acquire over a period of time – the seeds were sown in law faculty by my teachers,” Justice Sikri said..Among other dignitaries present at the event were Justice Sanjiv Khanna of the Supreme Court and Attorney General for India R Venkataramani.The book release was followed by a panel discussion moderated by Prof C Raj Kumar, Vice-Chancellor, OP Jindal Global University.The panelists for the event were Justice Khanna, and Senior Advocates Arvind Datar and Madhavi Goradia Divan..[Watch full event].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.