A month after the controversial judgment denouncing judicial overreach, it is activism versus restraint in the Supreme Court. A bench of Justices HK Sema and Markandey Katju on Friday openly spoke in different voices on the contentious issue.
During the hearing of a PIL challenging the appointment of PC Pande as Director General of Gujarat Police, the two judges took conflicting stands. Pande was recently transferred from the DGP’s post on the Election Commission’s order but the petitioner apprehended that the newly-elected BJP government might reinstate him.
Even as Justice Katju, who recently delivered a judgment against judicial overreach along with Justice AK Mathur, spoke vehemently against judges dealing with appointments and transfers of bureaucrats, Justice Sema chose to entertain the petition filed by Citizens for Peace and Justice.
The NGO had challenged Pande’s appointment as DGP accusing him of complicity in the post-Godhra riots. The December 6 judgment of Justices Mathur and Katju had led to confusion and debate in the judiciary over its PIL jurisdiction and a larger bench headed by Chief Justice of India KG Balakrishnan had said that it would lay down parameters for entertaining PILs.
At the outset, Justice Katju expressed strong reservations against the Judiciary entertaining petitions on issues that clearly fell into the Executive’s domain and said the appointment of the police chief, the home secretary and other bureaucrats was the job of the state government.
“It is exclusively the jurisdiction of the state government to appoint the DGP, the Home Secretary and others. And the judiciary has nothing to do with that…There should be some self-restraint and judges must exercise self-restraint,” Justice Katju, who had made similar remarks on Thursday during hearing of Star India’s petition challenging TRAI’s authority to regulate broadcast services, said.
“He (Pande) may not be a desirable man but it is for the state government to decide,” he added.
“You are challenging the appointment of a DGP. You can even challenge the appointment of the Prime Minister. Is the judiciary supposed to deal with all these issues? Is there no separation of power?” Justice Katju asked. Since Pande was no more the DGP, the petition had become infructuous, he said.
When the petitioner’s counsel Aparna Bhat expressed the apprehension that he might be reappointed as the DGP, Justice Katju said: “then you can challenge it.”
As Justice Katju stopped speaking, Justice Sema directed the NGO to file an additional affidavit along with the Election Commission’s order on Pande’s transfer from DGP’s post and posted the matter for hearing after two weeks.