Judges must stay clear of policy matters: CJI

NEW DELHI: Judges should not normally interfere with policy matters unless they are in conflict with the Constitution and the law, Chief Justice of India Altamas Kabir said on Sunday at the end of a conference of chief justices of High Courts and state Chief Ministers.


Judges should also refrain from commenting unnecessarily on other constitutional authorities, he said. “As a general principle, we don’t interfere. The general principle is we don’t interfere as far as government policies are concerned, until and unless such policies are in conflict with the constitutional guarantee, concepts or laws,” the CJI said at a joint press conference with Union Law Minister Ashwani Kumar.

The CJI’s remarks can be seen as both introspection and a cautionary note to courts which have been very active of late in policy areas. The top court itself is dealing with several challenges to policy whether it be FDI in retail, coal block allocations or environmental clearances to major industrial projects.

The top court’s decision to set aside 2G spectrum licences over irregularities had marked a remarkable departure from courts’ reluctance to interfere in policy matters. Responding to a question about the proposed Judges’ Accountability Bill, which has a clause that bars judges from commenting on unrelated issues while dealing with a case, the Chief Justice said: “Unnecessary comments should not be made. I agree on that.”

The CJI also seemed to suggest that there was nothing wrong with the present system of appointing judges and that it was necessary to maintain the independence of the judiciary, when he spoke up against the growing political clamour to change the collegium system of appointing judges to superior courts.

The government has in another proposed act suggested an alternative system, involving consultations with the PM, Leader of the Opposition and other legal luminaries. “… a great deal of deliberations on the choice of the judge takes place. It is not that one person sits and decides the name and a judge is nominated. It comes from the High Court. The HC collegium considers various factors. It is not that something comes out of the blue.

They consider various things and send the names. Various other agencies like the intelligence consider the names.” “The name then goes to the state government and after that it comes to the Union Law Ministry. And when it comes to the Supreme Court, it is not that one person decides, but five of us sit, deliberate and decide after extensive discussions".

"Yes, I feel it is the way to maintain the independence of the system. Without understanding the nature of the system, people should not make comments, because the present system undergoes intensive discussions, precautions and deliberations,” Justice Kabir said. The present appointment system has been under attack for a number of reasons, including non-transparency in the selection process, following a spate of allegations which culminated in the near impeachment of two judges.

The CJI also said that it was the duty of the government to inform the family of death row convict about any execution. Law Minister Ashwin Kumar also agreed with this. But both refused to be drawn into any discussion Parliament attack accused Afzal Guru’s hanging.

The Law Minister admitted that the process of disposal of mercy petitions takes undue time and said: “No doubt, law has to be sterilised and there should be no compromise as far as the delay is concerned.” A system, he said, was being evolved to hasten the process.

The CJI said that the three-day conference had been fruitful as it had decided to double the judge strength in the country from the existing 18,871 to 37,000 to ensure that the judge-population ratio was 30 per million as against the existing 15 per million. He said that the judiciary had decided to set up fast track courts across the country not only to deal with sexual offences but also to deal with cases pertaining to senior citizens, children and other vulnerable sections.

The PM, who inaugurated the conference, expressed confidence that the existing policies and pace of development would reduce disparities and ensure dignity of all. He also struck a note of caution against changing time-tested laws to satiate shrill logic.