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How can judiciary enforce right to sleep? CJI asks -Dhananjay Mahapatra
-The Times of India

Chief Justice of India (CJI) SH Kapadia on Saturday said the Supreme Court might have overstretched the human rights jurisprudence to include right to sleep in the bouquet of fundamental rights, as enforcing such a right would be very difficult.

The CJI, who was delivering a lecture, also seemed critical of the civil society activists for questioning the authority of Parliament to make laws and by draping themselves with "we the people" authority. "This is a dangerous argument. This is a challenge not to the power of Parliament but its authority to enact law," he said.

Justice Kapadia said the SC had been for decades expanding the fundamental rights. But using expansion of human rights jurisprudence without connecting it to core constitutional philosophy could render them unenforceable.

"Right to privacy had been made a fundamental right. But now we hear that right to sleep is also a fundamental right. I am not criticizing. But, is it capable of being enforced? If we lay down a policy and the government says it cannot implement it, can we enforce it by resorting to contempt jurisdiction?" he asked.

"The judges must apply the principle of enforceability before propounding legal principles and passing orders," he said.

On February 23, the apex court in its judgment had slammed the police for its midnight action on June 4 last year against a sleeping crowd at yoga guru Baba Ramdev's rally at Ramlila Maidan in New Delhi and said that a citizen has a right to sound sleep because it is fundamental to life.

ON PM UNDER LOKPAL: The CJI did not make any reference to Team Anna's demand two months ago for a referendum to decide whether the Prime Minister should be included within the purview of Lokpal bill, but said the Constitution did not permit holding of a referendum to decide a controversy.

The CJI said certain concepts were deliberately not incorporated by the framers of the Constitution. "Take for example abolition of untouchability. Had there been a referendum in 1947, the majority community would have defeated the question. That is why the framers put abolition of untouchability under Article 17 in the fundamental rights chapter," he said. "So, the question is: can there be a referendum in India because of certain controversy? The answer is no."

He said every now and them a section raises "we the people" slogan to say Parliament did not represent people.

ON JUDICIAL OVERREACH: From civil society's demands, he turned his attention to judicial self-introspection and said judicial activism could be permissible when it comes to extending human rights principles to give them a constitutional cloak but the policy and legislative domains must not be encroached by judiciary.

"Judges need not govern the country as we are not accountable to the people," Kapadia said.

To the government, the CJI advised that it must not rush with laws that had the potential to tilt the fine balance prescribed by the Constitution for a federal structure of governance.

"That is why the other day I said the government must not tinker with the established provisions relating to appointment of judges and their and transfers through collegium system and the move to fasten accountability through a proposed law without finding a very good alternative by taking opinion of em-inent jurists and doing a thorough research and comparative analysis of systems in other countries."