Chief Justice of India S H Kapadia on Saturday said judges should not govern the country or evolve policies and should apply the enforceability test on some verdicts like making "right to sleep" a fundamental right.
Doing some frank introspection on judiciary's functioning, he also wondered what would happen if the executive refuses to comply with judiciary's directives that may not be enforceable.
"Right to life, we have said, includes environmental protection, right to live with dignity. Now we have included right to sleep, where are we going? It is not a criticism. Is it capable of being enforced? When you expand the right, the judge must explore the enforceability.
"Questions which judges must ask are if it is capable of being enforced. Judges must apply enforceability test. Today if a judge proposes a policy matter, government says we are not going to follow. Are you going by way of contempt or implement it," he asked.
Delivering a lecture on "Jurisprudence of Constitutional Structure", he was making an apparent reference to the recent Supreme Court judgment in the Ramlila Maidan police action against Ramdev's supporters in which "Right to Sleep" was declared a fundamental right.
"Judges should not govern this country. We need to go by strict principle. Whenever you lay down a law, it should not interfere with governance. We are not accountable to people. Objectivity, certainty enshrined in the basic principles of the Constitution has to be given weightage," he said,
Kapadia said judges should go strictly by the Constitutional principles which has clearly demarcate the separation of powers among the judiciary,
The CJI said judges must abide by the principles of Constitution while dealing with Centre-State relations and federal policy while dealing with matters arising out of scams and made it a point to clarify he was not mentioning the "coalgate" scandal.
Quoting Justice B P Jeevan Reddy in the SR Bommai case, the CJI said the Constitution was not federal but tilted in favour of the Centre. But at the same time Justice Reddy, had cautioned that it should not mean that States powers are to be whittled, he said.
"Let me give an example. I don't want to mention anything about the coalgate, Let it be understood. When we analyse whether the Centre seeks to whittle the powers, if land is a State subject what is the implication, if State has reservation on a policy can the Centre, override it," he asked, saying judges must keep in mind the principles of the Constitution while deciding the issue.
Justice Kapadia cited the apex court direction for suspending mining activities in Karnataka's Bellary district to say that environmental concerns should be balanced with sustainable development.
"At the same time there is unemployment. Economy will suffer. Therefore, we have to strike a balance," he said, stressing the need for judges to consider the sustainable development of the country.
He referred to his speech on August 15, when he had told the Union law minister that the Constitution should not be tinkered with including the collegium system of appointment for judges unless a better alternative was available.
Laying great stress on the importance of the Constitutional law not only for the legal fraternity but for the common man too, the CJI said the subject should be taught to every student in the country so as to enable every individual to know his or her rights and duties.
