If a state has reservations,can Centre override: CJI

Judges should not govern this country.

Written by Jayant Sriram | New Delhi | Published: August 26, 2012 2:34:58 am

In a reference to the row over the allocation of coal blocks,Chief Justice of India S H Kapadia today questioned whether the Centre should have the power to “override” policies framed by state governments.

Making it clear that he was not commenting on the merits of the case,Justice Kapadia said scams needed to be analysed through the constitutional principles of federalism and centre-state relations. In this context,he questioned whether the Centre could override policies decided by states. “If land is a state subject,what is the implication,if state has reservations on a policy,can the Centre override it?” he asked.

Speaking on ‘The Jurisprudence of Constitutional Structures’,Justice Kapadia quoted the judgement in the S R Bommai case by Justice Jeevan Reddy in which he had observed that India’s constitution was not strictly federal,and that power was tilted towards the Centre. “However,Justice Reddy observed that did not mean that the Centre could whittle down the powers of the state,” he said.

Justice Kapadia also said judges should not govern the country or decide policy matters based on their “own philosophy”.

“Judges should not govern this country. Whenever you lay down a law,it should not interfere with governance. We are not accountable to people,” he said.

He also cautioned the judiciary against framing policies that could not be enforced by the government. “Questions which judges must ask 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.

Lamenting the fact that not enough time was being devoted to research on jurisprudence and the Constitution,Justice Kapadia said that courts have to give appropriate weightage to the text of the Constitution while giving policy decisions.

“We are not giving respect to to the Constitution of our country if we decide matters based on our own philosophy. Weightage has to be given to the text of the Constitution. Otherwise,we do not need the 395 Articles that our Constitution has,” he said.

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