Judicial restraint

The country's political class must be ecstatic, now that a two-judge Supreme Court bench has declared that judges should not behave like emperors and must respect the separation of powers enshrined in the Constitution; that the judiciary's role is to ensure that laws are enforced correctly and not to make the laws themselves. The judges' need to assert this is understandable when you look at how much the judiciary has strayed, whether it is virtually re-writing Delhi's rules on admissions to nursery schools, or monitoring the sealing of illegal properties in the capital, and even asking state legislatures to submit reports to it directly. The list of such excesses can go on and includes, if you please, the size of speed breakers on roads and over-charging by auto-rickshaws. While the chief justice has said that he is not of the same view as his brother judges, the original order is binding since the chief justice's views are not part of a formal written order.

While it is legitimate to seek to curb excesses, the suggestion that the courts cannot look into government conduct and policy formulation is tantamount to throwing out the baby with the bathwater. It can be no one's case that the law-making process in the country is beyond reproach. In the case of illegal buildings in Delhi, for instance, it was obvious that the country's political class, cutting across party lines, was in favour of allowing the illegal buildings to stay. So what is the remedy if the government is hell-bent on doing the wrong thing, either in order to gather votes or for any other purpose? Surely it cannot be the court's case that there should be no checks on abuse of power by the executive, or the misuse of legislative power. Indeed, public interest litigation (PIL) was a brilliant technique that the courts promoted, notably during Mr Justice PN Bhagwati's tenure, to ensure that the executive did not ride roughshod over the rights of citizens. A good example of how governments want to legitimise their rights to trample over citizens' rights is the Ninth Schedule of the Constitution, which places matters beyond the purview of the courts "" surely a case of the government interfering with the Constitutional separation of powers, since it is a core function of the courts to look into the legality of legislation.

While it is difficult to disagree, in principle, with the chief justice's formulation that a larger bench be asked to go into framing the guidelines for public interest litigation, so as to take care of the issue of judicial activism, care should be taken to ensure the guidelines don't become so strict that they prevent justice from being delivered. That would be a double tragedy.

It bears pointing out that many politicians will not be happy with the corrective now applied by the court. Governments have frequently found that they are unable to do what requires to be done, because of popular pressure. They are often relieved, therefore, if the court takes notice of an issue and issues orders, because that provides immunity from criticism. The introduction of compressed natural gas for Delhi's public transport, the re-location of polluting industries and many other actions would not have been possible without judicial intervention. It now remains to be seen whether judicial restraint will end up being to the public's detriment.