Você está na página 1de 2

"Courts have to function within the established parameters and constitutional bounds.

Decisions should have a jurisprudential base with clearly discernible principles. Courts have
to be careful to see that they do not overstep their limits because to them is assigned the
sacred duty of guarding the Constitution. Policy matters, fiscal, educational or otherwise, are
thus best left to the judgment of the executive. The danger of the judiciary creating a
multiplicity of rights without the possibility of adequate enforcement will, in the ultimate
analysis, be counterproductive and undermine the credibility of the institution. Courts cannot
"create rights" where none exists nor can they go on making orders which are incapable of
enforcement or violative of other laws or settled legal principles. With a view to see that
judicial activism does not become "judicial adventurism", the courts must act with caution
and proper restraint. They must remember that judicial activism is not an unguided missile -
failure to bear this in mind would lead to chaos. Public adulation must not sway the judges
and personal aggrandizement must be eschewed. It is imperative to preserve the sanctity and
credibility of judicial process. It needs to be remembered that courts cannot run the
government. The judiciary should act only as an alarm bell; it should ensure that the
executive has become alive to perform its duties"1

These words depict the unease of the Supreme Court over its own excessive “pro-activist”
role. Though in all fairness, this is not what the Supreme Court was at its inception. Today
sliding from the mean position Supreme Court has move a little right; near to the point where;
on introspection even it feels the need to pull back a little.
In A.K. Gopalan case, the supreme court gave the narrow positivistic interpretation of the
provisions of the Constitution

1
Common Cause (A Regd. Society) v. Union of India, (2008) 5 SCC 511.
CONCLUSION

In Gopalan case Supreme Court judges relied upon English jurist and concluded that personal
liberty means freedom from detention or physical restraint. In this case the validity of the
Preventive Detention Act, 1950 was challenged. However this case is characterized as „a
high watermark of legal positivism‟ in which court was very static, mechanical and purely
literal. There is no legal duty among the judges to endorse the claims of reasonableness and
fairness. This means that even if there is a duty to abide by the principle of justice and good
conscience which sometimes find expression in statutory pronouncements. It does not
necessarily follow that disobedience entails illegality. Given that a decision would continue
to be law, howsoever bad or wrong it might be, this can only mean that the duty is in essence
a moral duty and not actually a legal duty in itself