Asserting that judges should not govern the country or evolve policies, the Chief Justice of India S. H. Kapadia today wondered what would happen if the executive refuses to comply with judiciary’s directives.

He asked judges if they would invoke contempt proceedings against Government officials for not complying with their decisions and disapproved a recent Supreme Court judgement which said the “right to sleep” was also a fundamental right.

“Judges should not govern this country. We need to go by strict principle. Whenever you lay down a law, it should not interfere with governance. We are not accountable to people. Objectivity, certainty enshrined in the basic principles of the Constitution has to be given weightage,” he said, delivering a lecture on ‘Jurisprudence of Constitutional Structure’ here at the India International Centre.

Kapadia said judges should go strictly by Constitutional principles which clearly demarcate the separation of powers among the judiciary, the legislature and the executive.

“Right to life, we have said, includes environmental protection and the right to live with dignity. Now we have included right to sleep, where are we going? It is not a criticism. Is it capable of being enforced? When you expand the right, the judge must explore the enforceability.

“Question that judges must ask is 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.

The CJI said judges must abide by the principles of Constitution while dealing with Centre-State relations, federal policy, etc, in the wake of the recent scandals but clarified he was not mentioning the “coalgate” scandal.

(This article was published on August 25, 2012)
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