As V.R. Krishna Iyer argues, ‘judicial activism’ has developed as a philosophy motivating judges to depart from strict adherence to judicial precedent in favour of progressive policies. Since occasionally these decisions represent intrusions in legislative and executive matters, he calls for “benign interpretation within the parameters of Corpus Juris”. Considering that the contribution by the Indian judiciary in this arena for the past 25 years has been considerable, the restraint implicit in Krishna Iyer’s observations is important.

In fact, despite support for judicial activism by prominent judges like Justice John Marshall and Justice Earl Warren to safeguard individual and collective rights, the US judiciary has not shied away from the accountability debate. The ABA Commission on Separation of Powers and Judicial Independence in 1998 admitted loss of public confidence in the judiciary. Gallup polls between 1986 and 1994 revealed that the percentage of respondents expressing strong confidence in the Supreme Court declined from 54 per cent to 42 per cent. The Commission recommended a number of measures to arrest the trend of increasing confrontation and criticism of the judiciary. Obviously, there are lessons in judicial restraint for India in this experience, despite increasing instances of the executive proving remiss.

The judiciary’s intervention in ensuring individual as well as collective rights of the citizen is an area in which judicial activism has been welcomed worldwide. The contribution of the Indian judiciary since the onset of public interest litigation has been pioneering and rightly lauded. Clearly, executive decisions that impinge on such areas should be scrutinised on request and even perhaps suo motu as well. But those falling in the politico-administrative or governance domains are more difficult to categorise. For instance, bargaining and compromise is an important aspect of political decision-making. Trained in adjudging complaints on the legal balance of right and wrong, the judiciary could trip badly when it comes to pronouncing on intricate issues of governance.

For example, the complex aspects — political, policy, administrative and political — of Delhi’s urban policy and the traders’ protests over the sealing of commercial establishments in residential areas has cast a shadow on the reputation of a former chief justice of India, Justice Sabharwal, which he must clear. The intelligentsia’s protest over contempt charges on journalists and the recent threat to use Article 356 on the Tamil Nadu government reflect the dangers of judicial activism.

Even though the space for the judiciary to pronounce on executive matters has been created by a growing tendency on the part of the executive to indulge in wrongdoing of various kinds, suo motu judicial pronouncements on uncharted issues lying in the executive domain raise both constitutional and governance questions. The executive has the political and constitutional mandate to govern the country. This necessarily limits the judicial domain to constitutional and rights issues.

There is an additional problem. The judiciary lacks the expertise to pronounce on policy guidelines on the varied issues it has now begun to tackle. In dealing with urban issues in Delhi, for instance, the apex court appointed a committee of experts. Such a move raises questions of accountability vis-à-vis the elected executive and the bureaucracy appointed in accordance with constitutional provisions. Often the executive and political parties are happy to leave sensitive matters — such as commercialisation in residential areas in Delhi — to the judiciary, so that they themselves can shrug off their own responsibility. The judiciary is therefore sometimes compelled to step in and address issues that it much rather not, and in fact should not.

There are well-advised justifications for judicial restraint. There is no way the judiciary can put behind bars an entire cabinet for non-compliance and contempt without raking up a huge political controversy and inviting ridicule for an intervention that falls outside its domain. Second, if judicial activism begins to invite public protests, politicisation of the judiciary could follow. Finally, democratic politics is a messy collage of various shades of opinion. Attempts by the judiciary to sort out the mess in black and white could leave it in a difficult position and compromise its own credibility and independence, which are in fact its greatest strengths.

The writer is director, Centre for Public Affairs, Noida