Deprecated (16384): The ArrayAccess methods will be removed in 4.0.0.Use getParam(), getData() and getQuery() instead. - /home/brlfuser/public_html/src/Controller/ArtileDetailController.php, line: 73
 You can disable deprecation warnings by setting `Error.errorLevel` to `E_ALL & ~E_USER_DEPRECATED` in your config/app.php. [CORE/src/Core/functions.php, line 311]
Deprecated (16384): The ArrayAccess methods will be removed in 4.0.0.Use getParam(), getData() and getQuery() instead. - /home/brlfuser/public_html/src/Controller/ArtileDetailController.php, line: 74
 You can disable deprecation warnings by setting `Error.errorLevel` to `E_ALL & ~E_USER_DEPRECATED` in your config/app.php. [CORE/src/Core/functions.php, line 311]
Warning (512): Unable to emit headers. Headers sent in file=/home/brlfuser/public_html/vendor/cakephp/cakephp/src/Error/Debugger.php line=853 [CORE/src/Http/ResponseEmitter.php, line 48]
Warning (2): Cannot modify header information - headers already sent by (output started at /home/brlfuser/public_html/vendor/cakephp/cakephp/src/Error/Debugger.php:853) [CORE/src/Http/ResponseEmitter.php, line 148]
Warning (2): Cannot modify header information - headers already sent by (output started at /home/brlfuser/public_html/vendor/cakephp/cakephp/src/Error/Debugger.php:853) [CORE/src/Http/ResponseEmitter.php, line 181]
Notice (8): Undefined variable: urlPrefix [APP/Template/Layout/printlayout.ctp, line 8]latest-news-updates/not-to-grab-executive-powers-2g-judge-by-asok-kumar-ganguly-13007.html"/> LATEST NEWS UPDATES | Not to grab executive powers: 2G judge by Asok Kumar Ganguly | Im4change.org
Resource centre on India's rural distress
 
 

Not to grab executive powers: 2G judge by Asok Kumar Ganguly

Justice Asok Kumar Ganguly,who was part of the two-judge Supreme Court bench that delivered the 2G verdict on Thursday, has written the following article in response to The Telegraph report on Saturday that had quoted former Lok Sabha Speaker Somnath Chatterjee. The former Speaker has since said The Telegraph report had given rise to a wrong impression and his comments were strictly confined to policy, not executive decisions. “What I had stated was that the court itself has held that it will not interfere ordinarily with the government’s policy decisions nor will it substitute such policy with a policy formulated by the court,” Chatterjee said on Saturday after the report was published.

At the heart of the debate is the question whether courts should decide policy — in this case, first-come-first-served policy has been replaced with auction — or confine themselves to adjudicating if a policy is legal and if it had been implemented without breaking the law.

The right to criticise a judgment is virtually part of one’s freedom of speech guaranteed under the Constitution. Justice, on principle, is also not a cloistered virtue but the basis of criticism at times becomes very interesting.

The criticism of 2G judgments by Mr Somnath Chatterjee, ex-Speaker, the Lok Sabha, and a leading lawyer of this country, is equally interesting.

The Telegraph of February 4, 2012, in the front page reported his critical view on the judgment and Mr Chatterjee is reported to have said: “Trying to appropriate executive powers can be very tempting. Well, the Supreme Court is supreme. But it cannot interfere with executive policies and decisions, even by justifying that larger public interest is involved. It has to be kept in mind that nobody is above the Constitution.”

Personally, I have the greatest of respect for Mr Chatterjee and I think he also has some affection for me. Since I am no longer a judge (Justice Ganguly retired on Thursday after the verdict was delivered) but was a party to that 2G judgment, I can assure Mr Chatterjee on behalf of the bench that the judgment was not delivered either out of temptation or out of any desire to appropriate executive powers.

The judgment was rendered in clear discharge of duty by the Court. However, the criticism of Mr Chatterjee that Court cannot interfere with the executive policies and decisions even in larger public interest and, by doing so, the Court assumes that it is above the Constitution is really startling.

Under our Constitution, judicial review is one of its basic features, and, in exercise of such judicial review, the Court can certainly scrutinise and even strike down policy decisions of the executive when such decisions are unconstitutional.

This is the plainest duty of the court under the Constitution and in discharging such duties, Court does not act above the Constitution but acts in accordance with it.

Mr Chatterjee may remember, and I am sure he does, that there was a railway strike in the mid-seventies in the last century and the running of the railways was paralysed throughout the country. It affected our national economy since the railways are the live links in maintaining essential supplies and services across the country.

To deal with such situation, the railway administration took a policy decision to dismiss a large number of employees by invoking powers under Rule 14 (2) of Railway Servants (Discipline and Appeal) Rules. It was certainly a policy decision connected with national economy. Mr Chatterjee, on behalf of the employees, challenged those decisions in Calcutta High Court and, as a junior lawyer, I along with other learned lawyers assisted him. I am sure Mr Chatterjee remembers that the Court interfered and many of the orders of the executive authorities taken as a policy decision were reversed and the employees got back their jobs.

If the logic of Mr Chatterjee’s criticism is accepted, the Court should not have interfered. Now would Mr Chatterjee accept that the Court interfered out of temptation and in order to grab executive powers? I am sure Mr Chatterjee would not say that.

In a reception given to him by the Indian Bar Association in Delhi where I was present, Mr Chatterjee publicly applauded the judicial intervention by Calcutta High Court. You cannot possibly adopt double standards to criticise Court’s orders. In view of my profound respect for Mr Chatterjee’s legal acumen, I am a little disappointed at the logic of his criticism of 2G case.