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.

... contd.