Frederick, Salus, Found an interesting argument at http://newstodaynet.com/20jul/rf11.htm copy appended below.
Lawrence ----- Sound or unsound? The Supreme Court verdict clamping down on the use of loudspeakers after 10. p.m. would be welcomed by all. After all, who wants to have an perforated eardrum at the time of going to bed. The SC has also banned the use of car horns in all residential areas from 10 p.m. to 6 a.m. with immediate effect. The Supreme Court has also decreed that functions and weddings will have to ensure that they keep noise levels below 75 decibels in designated public places and also operate loudspeakers during the designated hours. Noise pollution, in this boisterous and raucous country, is something we tend to take it in our stride. So the SC clamp down is welcome. But there one is disturbing twist in the tale. Quite simply, the end is acceptable, but not the means. In other words, the use of court to legislate is not on firm ground. Does Indian constitution bar freedom of expression beyond 10 p.m.? Since it does not, the court has no authority to make this ruling. This is an erosion of democracy. Courts are not elected by people. Hence, they should just arbitrate. They should not legislate. On the face of it, this might seem to be a silly quibble. You may very well ask if a good is coming, why argue over from whom it is coming. In this case, it is just noise pollution, and it is easy for all of us to find a common ground. But what happens when bigger and weightier issues are at stake? An Ayodhya, for example. Too often, there is a desire to use the courts to achieve political ends deemed 'correct'. But there will always be a flipside to it, and we will understand it soon to our peril. Make no mistake. Some day there will be a bigger price to for granting the judiciary such unchecked and, arguably unconstitutional authority. Recently, a US Court, in a matter on the right of a municipality to appropriate private homes in the interest of economic development, ruled in favour of the municipality. Obviously it has not gone down very well. If this can happen in the US, where private property has long been considered sacrosanct, it can happen anywhere. Courts in, say India, could cite the US decision to interpret their legislations. The point is courts can create favourable social outcomes by using their judicial power to, in effect, legislate, but it's far better to achieve the same using political means in the designated legislature. Absent that, people risk losing more politically than they gained in court. People, through their elected legislatures, should make this judgment instead of unelected judges whose personal political biases will surely influence their judgments. In a country like India, where public interest litigations are so popular and the courts are much too activist, this is something to keep in mind. But the political system in the country has thoroughly discredited itself. People no longer seem to have faith in it. They seem to vote more out of a sense of duty or even practice, but have no expectation from whatever dispensation that comes to power. In such a situation, the courts tend to step into the breach. The watchman may be doing a good job and the head of the family may be lousy. That doesn't necessarily follow that the watchman should be made the head of the family. - NT Bureau