I thank Mr. Venkatesan for drawing my attention to pieces by two legal jurists in today's papers that adopt a critical perspective on the Mathur-Katju bench ruling. In some ways they echo points already made here, while outlining fresh points with much greater clarity and further context.
Justice Rama Jois - who apart from being a distinguished former Chief Justice of a leading High Court is also a familiar name to generations of law students by virtue of his text book that is prescribed reading in most Indian law schools- has a column in the Express that is critical of the Mathur-Katju bench for “crossing the lakshman rekha of judicial discipline.” He feels that by criticizing Supreme Court decisions that are still the law of the land, the Mathur-Katju bench has done grave damage to the reputation of the Supreme Court. Interestingly, Justice Rama Jois believes that the Mathur-Katju bench was justified in its criticism of the Delhi High court’s decisions.
Rajeev Dhavan, writing in the Mail Today, agrees partially with Justice Rama Jois’ claim but goes much further. In his words:
"What is a matter of worry is that Justice Katju has called into question the entire human rights and social justice jurisprudence evolved by the Supreme Court over the last 30 years."
Dr Dhavan’s views on this issue carry great weight because he has been among the earliest, most diligent and insightful scholarly commentators of the phenomenon of PIL. In recent decades, after he moved from academia to the trenches of the Supreme Court bar, he has been actively involved in several prominent PIL and constitutional cases as counsel and amicus. Here is his main argument, which ends up being quite a devastating critique of the ruling:
"The real problem with Justice Katju's shock treatment approach is two-fold. The first is that his remarks may have been appropriate for a speech but not for a judgement which has created chaos. The phrase “judicial terrorism” comes to mind. Second — and more important — Justice Katju fails to distinguish between “judicial activism” (which is permissible) and “judicial excessivism” (which is not). Judicial activism is inevitable. India has a forward- looking activist Constitution to impart human rights and social justice for all. Judges cannot shy away from fulfilling this dream for all people by inventing new legal techniques to ensure it. Without these techniques, the Constitution would become supine. No doubt there is judicial excessivism. The Jharkhand cases wrongly invaded legislative autonomy. The Forest cases cannot go on for over 10 years whereby the Supreme Court and its infamous committee have virtually become the Ministry of Forests. The Police and Sexual Harassment cases enacted law. Government by judiciary is questionable unless it is disciplined.
I believe such a discipline exists.
The Chief Justice wants to re-examine the principles of PIL. In my view, this would be a mistake. I was an amicus to the court in the Sudipta Majumdar case (1983) where ten questions were formulated to discipline PIL. Around 2000, on my advice, a Constitution bench declined to order straitjacket guidelines because it rightly accepted that guidelines were available. Judges should simply follow these existing guidelines. An assessment of PIL itself will open a Pandora's box, which is neither necessary nor desirable. Judges often make extra-judicial remarks. This one has flown over the cuckoo's nest."