Of the judiciary and its activism

Can a verdict of a two-judge bench of the Apex Court bind the full bench?

I know how you feel, but I was confused , and surprised. Confused, as to what people at large would feel if a two-judge bench of the Supreme Court could comment on the conduct of the brother- judges of the same court, blaming them for their judgement. I am a layman, a journalist, but I do read interesting court verdicts, published in six or seven dailes I subscribe to. Some of these judgements are literary pieces and I am impressed with the free flow of the observations, lucidity of thought and language. Justice V S Krishna Iyer has cultivated a unique style that gives readers a sense of joy. But unless one is well versed in English it is not easy to understand what this great Jurist wants to convey.

Sorry for the digression. As I was saying, I have observed the Apex Court commenting adversely on the conduct of High Courts and the subordinate courts and this holds true in respect of the High Courts commenting on the verdict of district or subordinate courts. But I have not heard or read about a bench of the Supreme Court passing remarks on fellow judges of the same court. This act of the two-judge bench caused me concern for more than one reason.

First, how do the public that still has confidence in the judiciary (not withstanding corruption at some level as publicly commented by the some senior judges also) react to this development?

Secondly, wouldn't the comments by these two judges deter others in the same court or in the High Courts from entertaining PILs ? In case the Apex Court were to think of putting a full stop to PILs, the avenue that is now available for some who are genuinely interested in espousing the public causes would get closed , and they may as well dash their heads against wall.

The the two –judge bench of the Apex Court, Justice Mr Markendy Katju and Justice MrA.K.Mathur, while setting aside the judgement of the Punjab and Harayana High Court directing the creation of the posts in golf course called for judicial restraint. They observed, ” We are compelled to make these observations because we repeatedly come across cases where judges are unjustifiably trying to perform executive or legislative functions. This is clearly unconstitutional. In the name of judicial activisim , judges cannot cross their limits and try to overtake functions, which belong to another organ of the state. The judges must know their limits and must not try to run the goverenment .They must have modesty and humility and not behave like emperors.”

So far so good. True, these two learned judges have raised the issue of judicial activisim, which is being debated from various platforms over last few years, with votaries and opponents holding on to their respective views steadfastly. They not only denounced actions on some cases by the Delhi High Court, but also denounced that of the larger bench of the Supreme Court itself. The moot point is whether they could speak on behalf of the full bench of the SC itself. The irony is that Justice Katju, according to Deccan Herald, was himself a votary of judicial activism.

It must be remembered that doors of the courts at higher level were thrown open to public, to whom these courts were beyond their reach, thanks to Justice P N Bhagwati, who is hailed as the “pitamaha”of public interst litigation. This was indeed a boon for the underdogs whose cry for attention towards their burning problems was not being heard by authorities that betrayed a sense of supreme indifference towards them .The question that may cause concern is: If the two judges were to comment on settled issues, where is the finality ?