Weighing words

Justice Kapadia does well to emphasise judicial restraint and enforceability of court orders

Delivering a lecture on "Jurisprudence of Constitutional Structure", Chief Justice of India S.H. Kapadia analysed the current judicial functioning with rigour. He called for judgments with a sense of proportion and for more realistic, implementable orders. While the courts have been expansively interpreting human rights, stretching them to include, for instance, the "right to sleep" may be untenable, suggested Justice Kapadia. He was referring to the Supreme Court admonishing the government for police action against Baba Ramdev's meeting at Ramlila Maidan — the court had declared sleep a fundamental right and linked it with Article 21, the right to life. Earlier, the Delhi High Court had made a similar pronouncement while hearing a petition by residents of the capital's Vasant Kunj whose sleep was ostensibly disturbed by aircraft noise, because they live near the airport. Before writing orders, Justice Kapadia said, judges must ask themselves a simple question: "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?"

Wise words, and a welcome counter to the occasional court order that, with the best of intentions, asks for practically infeasible action, or one that meanders into highly subjective territory. For instance, the right to water, to shelter, or to privacy may be critical, but in interventions in these areas, the courts sometimes fall short in terms of justiciability. This can have the unfortunate effect of diluting the gravity of the court's word. Justice Kapadia spoke of the need to consider complex tradeoffs when passing orders — for instance, while safeguarding the environment, it is also important to think of the effect on employment. He called for deeper study of the Constitution, and for judgments that hew closely to the text, rather than "deciding matters based on our own philosophy".

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