Chief Justice of India KG Balakrishnan has finally broken his silence on the controversial judgment passed by a Supreme Court bench against judicial activism, saying that it was not binding.
Entertaining a public interest litigation (PIL) on the condition of widows in Vrindavan and Mathura in Uttar Pradesh on Thursday, a three-judge bench headed by CJI Balakrishnan said the decision to hear or dismiss a PIL depended on the issues involved. The remarks were made by the bench while issuing notices to the Centre and the UP government asking them to respond to the petition seeking rehabilitation of the widows.
The CJI's comments assume significance in wake of the confusion that prevailed after the controversial judgment by Justices AK Mathur and Markandey Katju, in which they denounced judicial activism and 'over-reach'.
Noted jurist Ram Jethmalani said, "No bench can clear the controversy by just making certain observations about that judgment. It requires another well-considered judgment of a larger bench or a constitution bench to clear the confusion. The larger bench can either agree with it or overrule it."
He said, "It is no longer a matter within the judicial family. It has spread to Parliament. Both Houses discussed the issue of judicial over-reach last week. Therefore, somebody has to adopt judicial statesmanship to avoid ugly conflicts between judiciary and other two organs of the State and lay down parameters for entertaining PILs."
Former law minister Shanti Bhushan said, "The correct thing is what the bench headed by Justice Sinha did ie to refer the matter to a larger bench."
He added: "In fact, the CJI should set up a seven-judge bench to examine all the issues raised by the bench of Justices Mathur and Katju and lay down proper guidelines on the issue." Jethmalani and Bhushan sought to emphasise that the bench of Justices Mathur and Katju only drew attention to the problem of judicial over-reach and nowhere said PILs cannot be entertained at all. "We are not against PILs but PILs have become quite a matter of public concern," Jethmalani added.
On Tuesday, another bench headed by Justice SB Sinha had refused to hear a PIL on the rehabilitation of trafficked children and women and referred the issue of PIL jurisdiction to a larger bench in view of the strong remarks against judicial activism by Justices Mathur and Katju's bench. A bench headed by the CJI will take up the issue on Friday and decide whether it should hear the matter or refer it to a constitutional bench.
Justices Mathur and Katju's judgment also led to confusion in the Delhi High Court where some judges refused to entertain PILs while other went on to hear them.
On Thursday, advocate Ravindra Bana, who argued the PIL on the pathetic condition of widows before the CJI's bench, started his submissions by referring to media reports on the judgment against judicial activism.
The CJI's bench said it was not bound by that judgment. "And it also depends on what is the issue," it said and went on to hear the case.
Justice Balakrishnan's remarks got support from former CJI PN Bhagwati, who told PTI: "To my mind if the CJI has made such a statement... he is perfectly right and fully justified." Justice Bhagwati, during whose tenure as top judge PILs came into prominence, said entertaining PILs depends on individual cases. "The observations made by one bench is not binding on another bench," he said.