Courts can cancel unconstitutional policy decisions

New Delhi: Rebutting criticism that the 2G judgement was a case of judicial overreach, Justice A K Ganguly, who was on the two-member bench of the Supreme Court that cancelled 122 licences, today asserted that the courts can certainly scrutinise and strike down policy decisions which are unconstitutional.

"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," he said.

Ganguly, who retired on Thursday last, was reacting to criticism by former Lok Sabha Speaker and noted lawyer Somnath Chatterjee that courts cannot interfere with executive policies and decisions, even by justifying that larger public interest is involved.

"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," Justice Ganguly said in an article in a Kolkata newspaper (The Telegraph).

Justice Ganguly said the right to criticise a judgement 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 judgements by Mr Somnath Chatterjee, ex-Speaker, the Lok Sabha, and a leading lawyer of this country, is equally interesting," he said.

Noting that he has the "greatest of respect" for Chatterjee, he said he can assure the former Speaker on behalf of the bench that the judgement was not delivered "either out of temptation or out of any desire to appropriate executive powers."

"The judgement was rendered in clear discharge of duty by the Court….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," he said.

Recalling a few decisions taken by the country`s railway administration to dismiss a large number of employees who were on strike in 1970s, Justice Ganguly said Chatterjee challenged those decisions in Calcutta High Court on behalf of the employees.

"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," he said in the article.

Justice Ganguly also said at a reception given to him by the Indian Bar Association in Delhi 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," he said.