Restraint needed My Lords – Justice Katju

In Arjun Gopal vs Union of India 2 Judge bench of the Supreme Court has given 17 directions regarding manufacture and sale of firework crackers and their use in Diwali and other occasions. These include ban on manufacture and sale of certain kinds of crackers, ban on use of crackers before 8 p.m. or after 10 p.m. on Diwali Day, or before 11.55 p.m. and after 12.30 a.m. on Christmas Eve or New Years Eve, ban on online sale of crackers, designation of certain fields for community fireworks, etc.

With respect, these directives go directly contrary to the dictum laid down in the earlier Supreme Court judgment in Divisional Manager, Aravali Golf Course vs Chander Haas ( seen online ) in paragraph 26 of which it was stated

” If there is a law, judges can certainly enforce it, but judges cannot create a law and seek to enforce it “.

This judgment was also a 2 judge bench judgment, and therefore it was binding on the judges who delivered the Arjun Gopal vs Union of India verdict. Of course, if they disagreed with it they could have referred the case to a larger bench, but they could not have validly ignored it, which they have done.

Most of the 17 directives issued in Arjun Gopal’s case are legislative or executive in nature. Hence they could have only been issued by the legislature or executive. There is broad separation of powers in the Constitution among the three organs of the state, the legislature, the executive and the judiciary, as observed by the Constitution Bench decision of the Supreme Court in Ram Jawaya vs the State of Punjab ( see online ), and the 3 judge bench decision in Asif Hameed vs State of J&K ( see online ) etc, and it is not proper for one organ to encroach into the domain of another. In particular, judges cannot make law, as making law is the job of the legislature, not the judiciary.

Some people say that the legislature and executive are not doing their job properly, and hence sometimes the judiciary has to do it. But this argument cuts both ways. It can also be argued that the judiciary is also not doing its job properly, as there are 33 million cases pending, some for decades and there is also some corruption in the judiciary. Should then executive officers decide cases?
One can understand the sincerity in the motivations of the judges who gave the Arjun Gopal decision considering the level of air pollution in Delhi, but they could have only made recommendations to the legislature or executive, not given binding directives themselves.

If there were laws which said that crackers of a particular kind cannot be manufactured or sold, or that crackers can only be used within certain timings, or banning online sales of crackers or designating certain fields for community fireworks, etc judges could certainly enforce such laws, but judges cannot create such laws.

Moreover, how can such laws created by the Court be enforced? Will boys and girls who burst such crackers before 8 p.m. or after 10 p.m. on Diwali be arrested? Under which provision of the IPC?

It must be said with regret that in some recent decisions some judges of the Indian Supreme Court have shown lack of the restraint and judicial discipline in adjudication expected of judges of a superior court, which great judges like Justice Holmes, Cardozo, and Frankfurter of the US Supreme Court often emphasized, and which was displayed by Justice Indu Malhotra in her dissenting opinion in the Sabarimala verdict.