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TMI Blog2007 (12) TMI 518X X X X Extracts X X X X X X X X Extracts X X X X ..... against the said posts cannot be sustained and are hereby set aside. Consequently, this appeal is allowed and the judgment and order of the High Court as well as that of the First Appellate Court are set aside and the judgment of the Trial Court is upheld. The suit is dismissed. Judiciary has no power over sword or the purse nonetheless it has power to ensure that the aforesaid two main organs of State function within the constitutional limits. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self imposed discipline of judicial restraint. If the legislature or the executive are not functioning properly it is for the people to correct the defects by exercising their franchise properly in the next elections and voting for candidates who will fulfill their expectations, or by other lawful methods e.g. peaceful demonstrations. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s rejected by the Trial Court which observed that there was no post of tractor driver in the establishment, and the suit was dismissed. The Trial Court held that plying a tractor is part and parcel of the job of Mali in a Golf Club, since the Golf Field of the Club is vast and needs to be maintained with mechanical gadgets. 6. Aggrieved against the said order of dismissal of the suit, the respondents herein preferred an appeal before the Additional District Judge, Faridabad. Their appeal was accepted and the judgment and decree of the Trial Court was set aside. The First Appellate Court observed that the defendants were taking the work of tractor driver from the plaintiffs since 13.8.1999, and hence it directed the defendants to get the post of tractor driver sanctioned, and to regularize the plaintiffs on that post. 7. Thereafter the Divisional Manager, Aravali Golf Club filed a second appeal before the High Court of Punjab and Haryana. The learned Single Judge held that the post of tractor driver should be created as there is no hitch in not creating the posts of drivers especially when tractors were available and there existed need to use those tractors. It was also observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rized as Mali vide order dated 11.5.1999 which was duly accepted by him without any protest. Similar is the case of respondent No.2 herein. He was engaged as Mali on daily wage basis w.e.f. 1.9.1988 and his services were also regularized as Mali vide order dated 11.5.1999. 12. In the written statement in the suit the appellants took preliminary objection that as there is no sanctioned post of tractor driver and hence there is no question of their being appointed on the post of tractor driver. It was also asserted in the written statement that as and when the post of tractor driver will be available their cases will be considered in accordance with law. On the basis of these pleadings, several issues were framed and a finding was recorded by the Trial Court that as there is no sanctioned post of tractor driver, the plaintiffs cannot be regularized in the said post. This is a finding of fact recorded by the Trial Court and it was never disputed at any stage. Aggrieved against the said judgment the respondents herein filed an appeal and the learned First Appellate Court without going into the merit of the matter set aside the judgment and decree of the Trial Court and directed crea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s clearly unconstitutional. In the name of judicial activism Judges cannot cross their limits and try to take over functions which belong to another organ of the State. 18. Judges must exercise judicial restraint and must not encroach into the executive or legislative domain vide Indian Drugs Pharmaceuticals Ltd. vs. The Workman of Indian Drugs Pharmaceuticals Ltd. (2007) 1 SCC 408 and S.C. Chandra and Ors. vs. State of Jharkhand and Ors. JT 2007 (10) 4 SC 272 (See concurring judgment of M. Katju, J.). 19. Under our Constitution, the Legislature, Executive and Judiciary all have their own broad spheres of operation. Ordinarily it is not proper for any of these three organs of the State to encroach upon the domain of another, otherwise the delicate balance in the Constitution will be upset, and there will be a reaction. 20. Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like Emperors. There is broad separation of powers under the Constitution and each organ of the State the legislature, the executive and the judiciary must have respect for the others and must not encroach into each others domains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 5000 page record addressing the intricacies of a public utility operation. It is not the function of a Judge to act as a super board, or with the zeal of a pedantic school master substituting its judgment for that of the administrator. 23. In Ram Jawaya vs. State of Punjab AIR 1955 SC 549 (vide paragraph 12), a Constitution Bench of this Court observed: The Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption by one organ or part of the State, of functions that essentially belong to another (emphasis supplied) 24. Similarly, in Asif Hameed vs. State of Jammu and Kashmir, AIR 1989 SC 1899 a three Judge bench of this Court observed (vide paragraphs 17 to 19) : 17. Before adverting to the controversy directly involved in these appeals we may have a fresh look on the inter se functioning of the three organs of democracy under our Constitution. Although the doctrine of separation of powers has not been recognized unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the Executive Branch do. 19. When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the constitution and if not, the court must strike down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers. 25. Unfortunately, despite these observations in the above mentioned decisions of this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t proclaim that they are playing the role of law maker merely for an exhibition of judicial valour . Similarly, the Court cannot direct the legislature to make a particular law vide Suresh Seth vs. Commissioner, Indore Municipal Corporation Ors. AIR 2006 SC 767, Bal Ram Bali vs. Union of India JT 2007 (10) SC 509, but this settled principle is also often breached by Courts. 28. The Jagadambika Pal s case of 1998, involving the U.P. Legislative Assembly, and the Jharkhand Assembly case of 2005, are two glaring examples of deviations from the clearly provided constitutional scheme of separation of powers. The interim orders of this Court, as is widely accepted, upset the delicate constitutional balance among the Judiciary, Legislature and the Executive, and was described Hon. Mr. J.S. Verma, the former CJI, as judicial aberrations, which he hoped that the Supreme Court will soon correct. 29. Hon ble Justice A.S. Anand, former Chief Justice of India has recently observed : Courts have to function within the established parameters and constitutional bounds. Decisions should have a jurisprudential base with clearly discernible principles. Courts have to be careful to see that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l the three organs. This is a great power and hence must never be abused or misused, but should be exercised by the judiciary with the utmost humility and self-restraint. 33. Judicial restraint is consistent with and complementary to the balance of power among the three independent branches of the State. It accomplishes this in two ways. First, judicial restraint not only recognizes the equality of the other two branches with the judiciary, it also fosters that equality by minimizing inter-branch interference by the judiciary. In this analysis, judicial restraint may also be called judicial respect, that is, respect by the judiciary for the other coequal branches. In contrast, judicial activism s unpredictable results make the judiciary a moving target and thus decreases the ability to maintain equality with the co-branches. Restraint stabilizes the judiciary so that it may better function in a system of inter- branch equality. 34. Second, judicial restraint tends to protect the independence of the judiciary. When courts encroach into the legislative or administrative fields almost inevitably voters, legislators, and other elected officials will conclude that the activities o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his threat was enough and it was not necessary to carry it out. The Court in 1937 suddenly changed its approach and began upholding the laws. `Economic due process met with a sudden demise. 38. The moral of this story is that if the judiciary does not exercise restraint and over-stretches its limits there is bound to be a reaction from politicians and others. The politicians will then step in and curtail the powers, or even the independence, of the judiciary (in fact the mere threat may do, as the above example demonstrates). The judiciary should, therefore, confine itself to its proper sphere, realizing that in a democracy many matters and controversies are best resolved in non-judicial setting. 39. We hasten to add that it is not our opinion that judges should never be `activist . Sometimes judicial activism is a useful adjunct to democracy such as in the School Segregation and Human Rights decisions of the U.S. Supreme Court vide Brown vs. Board of Education 347 U.S. 483 (1954), Miranda vs. Arizona 384 U.S. 436, Roe vs. Wade 410 U.S. 113, etc. or the decisions of our own Supreme Court which expanded the scope of Articles 14 and 21 of the Constitution. This, however, should ..... X X X X Extracts X X X X X X X X Extracts X X X X
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