It is sheer propaganda to say that PIL amounts to judicial overreach: Prof Upendra Baxi

Prof Upendra Baxi on Friday opined that it is pure political and media propaganda to suggest that Public Interest Litigation (PIL) amounts to judicial overreach.

. The veteran academician spoke on the concept of PIL during a discussion held to commemorate the re-branding of Link Legal India Law Services.

. Former Supreme Court judge, Justice Deepak Gupta , who was also invited to the virtual event, spoke on the issue of tribunalisation.

. Prof Baxi said,

"It is sheer propaganda to say that PIL amounts to judicial overreach...Article 32 is the soul of the Constitution."

. He added,

"Our Constitution does not simply say ‘x’ or ‘y’ institution is sovereign. But it says that each is supreme within its own jurisdiction."

. Further justifying that PIL does not amount to judicial overreach, Prof Baxi said,

"There is no overreach because of the nature of the Constitution. Governance, development, rights and justice are in eternal conflict. Don't believe a word of the Supreme Court when it says “harmonious construction”. When two provisions are essentially at conflict, how can you make it harmonious?"

. He went on to express his dissatisfaction with "Constitutionally illiterates" taking over the job of the "Constitutionally literates".

"The Law Minister is a jurist, his secretary is a jurist, the munshi of a Senior Advocate is a jurist...Kapil Sibal argued in the Ayodhya case that the Court should decide the matter after the elections. He moved for impeachment when there was no ground for impeachment. There is a trend of taking over the function of a judge...This is the real overreach."

. Baxi ended his address by saying,

"I always told my students not to be shoulders of State operations, but soldiers of Constitution values. They should not forget the distinction between soldiers and shoulders."

. Unfortunately, tribunals have become havens for retired judges - Justice Deepak Gupta

. When asked to share his views on the topic of tribunalisation, Justice Gupta said,

"Personally, I have nothing against tribunalisation. When we talk about justice, democracy and rule of law, it is very important that we have a fearless judiciary, and this includes the tribunals. Unfortunately, in the last 20-30 years, my experience of tribunals has not been very good, on the aspect of the fairness of their actions."

. Justice Gupta insisted that tribunals be manned by persons of impeccable integrity adding,

"What you expect from a judge in a court should also be expected from a member of a tribunal. Unfortunately, tribunals have become havens for retired judges."

. He suggested that a two-tier system be implemented where the first appeal lies within the tribunal system itself. The Supreme Court cannot be the first forum of appeal against orders of these tribunals, he said.

. On the topic of the location of administrative tribunals that hear service matters, Justice Gupta pointed out the lack of access to justice to these fora.

"By creating these tribunals, we have denied access to justice for the poor. In states like Himachal Pradesh and Jammu & Kashmir, there are no Central Administrative Tribunals. How do you expect poor people from these states to come to Delhi?"

. Justice Gupta further opined that he regulatory tribunals have done a tremendous job. Yet, he expressed the view that retired judges should not man these tribunals.

"There are some highly specialised fields where judges don't have knowledge or experience. It doesn't make sense for retired judges to man these tribunals."

. With specific reference to the National Company Tribunal, he said,

"NCLT, NCLAT were not required. The High Courts were dealing with company matters very well. When these tribunals don't have heads for more than a year, how are they expected to function?"

. The former Supreme Court judge also called for the creation of a tribunal services, on the lines of the civil services, for the purpose of appointing members to these tribunals. He added,

"There must be longer tenures for tribunal members. Short tenures make a mockery of the independence of the tribunals."

Another suggestion he made was that there must be assessment of the functioning of tribunals from time to time.

. Calling for independence of tribunals, Justice Gupta concluded,

"Most of them function under the state department which may be the biggest litigator before the courts."

It is sheer propaganda to say that PIL amounts to judicial overreach: Prof Upendra Baxi

Bar & Bench

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