“We are not bound by the two-judge Bench (order),” the CJI sitting in a three-judge Bench with Justices R.V. Raveendran and J.M. Panchal said and even refused to look at the judgement of Justices A.K. Mahtur and Markendey Katju when it was sought to be placed on record by a counsel arguing a PIL on the plight of widows in Brindaban.

Though the CJI’s Bench did not say anything further on the controversial judgement, the terse one-line observation made by Justice Balakrishnan on it apparently sent a message to the judiciary that it should not read much in the judgement with several “harsh” observations made by Justices Mathur and Katju in their verdict even questioning the orders of some of the larger Benches of the apex court.

The two judges had also questioned the validity of Delhi High Court’s orders in at least 15 PILs relating to various important issues, in which authorities had not even acted under the provisions of the law and the laid-down rules.

As a result of the judgement, a Division Bench of Justices S.B. Sinha and H.S. Bedi earlier refused to hear a pending PIL further on sex workers’ plight and the Delhi High Court a petition on rehabilitation of beggars and action against a begging racket in the city employing small children.

The CJI, while admitting the PIL on Brindaban widows’ plight today, filed by NGO Environment and Consumer Protection Foundation (ECPF), said any person moving PILs should make a thorough research before approaching the court and not file them merely based on media reports.

The petitioners should go to the spot of happening, collect material and information personally, the court said and questioned the foundation counsel about his information on these points about the widows.

The counsel said the NGO had written to the district authorities of the Uttar Pradesh government on the plight of the widows after reports appeared in media about their pathetic condition.

In the media reports the number of widows living in different temple complexes was put at 25,000 but the district authorities admitted it to be around 3,000. They are paid Rs 6 per day which is not sufficient for their survival and many of them were very old and suffering from various ailments.

After the counsel furnished details about their plight amid thorough grilling by the Bench, the apex court admitted the petition and issued notices to the Centre and Uttar Pradesh Government seeking their replies.

In the light of widespread concern of country's political fraternity and a section of the media, being in the mood of slef-introspection the Supreme Court on Monday scolded lower courts saying that the judges should now their jurisdiction and should not encroach on the legislative or executive domain.

In an unprecedented confession, the Supreme Court has admitted that the judiciary has erred in the recent past in usurping the powers of the executive. Cautioning against judicial activism, it said that if the trend continued, politicians would step in and clip the judiciary's wings. 

"If the judiciary does not exercise restraint and overstretches its limits, there is bound be a reaction from politicians and others. The politicians will then step in and curtail the power, or even the independence of the judiciary," said an SC bench comprising Justices A K Mathur and Markandey Katju. 

In a 22-page judgment, in which the SC overturned a trial court and the high court's ruling on regularising certain employees of a private golf course, the two judges devoted 15 pages to reiterate judicial norms which, in the main, underline that judges as umpires are meant to uphold laws, not create them. 

At least 15 other such examples of judicial encroachments cited by the Bench were mainly from the Delhi High Court, which included the recent order on the Delhi government’s education policy relating to “pre-nursery” admissions for tiny tots, reservation of 25 per cent free seats in private schools for poor students and poor patients in private hospitals set up on public land, demolition of unauthorised constructions, growing accidents and the regulation of city buses, use of ambulances, speed-breakers, overcharging by auto-rickshaws, pollution and begging.

The bench added that in order to maintain the judiciary's independence, judges had to exercise restraint and honour the separation of powers among the three wings of governance, as mandated by the Constitution. 

"The constitutional tradeoff for independence is that judges must restrain themselves from areas reserved for the other separate branches (executive and legislature)," said the bench. 

The SC listed instances where the judiciary had strayed into the executive's domain. These cases included: nursery admissions in Delhi; legality of constructions, identifying buildings to be demolished in Delhi; overcharging by Delhi autorickshaws; growing road accidents and enhancing fines; nature of buses for public transport; air-pollution; free beds in hospitals on public land; world-class ambulance services; world-class burns ward. 

The judgment came on December 6, immediately after MPs vociferously demanded accountability and probity among judges during a debate in Parliament's winter session on the passage of a law putting a year's moratorium on the court-mandated sealing and demolition drive against illegal structures in Delhi. 

Comments From Rajesh Chopra