“The remedy is not in the judiciary taking over the legislative or executive functions, because that will only violate the delicate balance of power enshrined in the Constitution but also the judiciary has neither the expertise nor the resources to perform these function,” it said. “If the legislature or the executive are not functioning properly, it is for the people to correct the defects by exercising their franchise properly in the next elections and voting for candidates who will fulfil their expectations...The remedy is not the judiciary taking over the legislative or executive functions, because that will not only violate the delicate balance of power enshrined in the Constitution, but also the judiciary has neither the expertise nor the resources to perform these functions.”

These remarks came as the apex court set aside a decision of the Punjab and Haryana high court wherein it had directed creating a post of tractor-driver and then regularizing an employee, who had been working as mali (gardener) in the Aravali Golf Club. The High Court had argued that since the services of a mali were also being used as a driver, there must be a suitable post against which he could then be regularized.

“Courts cannot direct creation of posts,” the judges said. “Creation and sanction of posts is a prerogative of the executive or legislative authorities and the courts cannot arrogate to itself this purely executive or legislative function, and direct creation of posts in any organisation.”

Taking a strong view of the limits of the powers of the judiciary, the judges observed, “W are repeatedly coming across cases where judges are unjustifiably trying to perform executive or legislative functions.” Terming such orders as “unconstitutional”, the court significantly held, “In the name of judicial activism, judges cannot cross their limits and try to take over functions which belong to another organ of the State.”

... contd.