A few recent incidents have given a fillip to the ongoing debate on the legitimacy of alleged judicial forays into the seemingly exclusive domain of the executive and legislature in the constitutional scheme of separation of powers.

The two most significant of these are the debate on the issue in the last session of Parliament seeking a curb on 'judicial activism' along with enforcement of judicial accountability and now a two-judge bench order of the Supreme Court on December 6. The bench comprising justices A K Mathur and M Katju advocated judicial activism confined to genuine PILs and called for judicial restraint to prevent erosion of the independence of judiciary by the threatened exercise of political power.

The reported observation of the Chief Justice of India made later, while entertaining a PIL, to refer the issue for consideration by a larger bench to frame guidelines and prescribe norms for PILs is a welcome sequel. It is a step essential for consistency and legitimacy of judicial intervention in PILs. It is time this constitutional issue is resolved by a decision of the constitution bench assisted by the leaders of the Bar.

Media reports contain many reactions to the two-judge bench decision. Most of them welcome the call for judicial restraint by the judiciary itself, and the editorials in many national dailies are laudatory.

However, some contrary reactions call the decision a retrograde step inconsistent with the settled practice in favour of PILs. My comments are based on the text of the order.

Para 15 of the order states the principle or ratio of the decision; paras 17 to 40 are an elaboration of that principle and a summary of the conclusion of that discussion. It is settled that the ratio alone, and no other part, of a judgment is binding.

To say that this decision unsettles, its ratio must be inconsistent with binding precedents. Is it so?

The nub of the decision in para 15 says: "The court cannot direct the creation of posts. Creation and sanction of posts is a prerogative of the executive or legislative authorities and the court cannot arrogate to itself this purely executive or legislative function, and direct creation of posts in any organisation. This court has time and again pointed out that the creation of a post is an executive or legislative function and it involves economic factors. Hence the courts cannot take upon themselves the power of creation of a post". Obviously, this is unexceptional and consistent with binding precedents.

The conclusion reached in para 39 of the order after discussing the doctrine of separation of powers, is: "We hasten to add that it is not our opinion that judges should never be 'activist'. Sometimes judicial activism is a useful adjunct to democracy such as in the School Segregation and Human Rights decisions of the US Supreme Court vide Brown vs Board of Education, Miranda vs Arizona, Roe vs Wade etc or the decisions of our own Supreme Court which expanded the scope of Articles 14 and 21 of the Constitution.

This, however, should be resorted to only in exceptional circumstances when the situation forcefully demands it in the interest of the nation or the poorer and weaker sections of society but always keeping in mind that ordinarily the task of legislation or administrative decisions is for the legislature and the executive and not for the judiciary".

There can be no objection to this conclusion, which does not preclude genuine PILs. It reiterates the caution administered so often by the Supreme Court. The discussion in paras 17 to 38 and 40 of the principle or ratio led to the conclusion in para 39. It mainly advocates judicial restraint quoting Montesquieu's theory of separation of powers from his book, The Spirit of Laws, the oft-quoted caution of Benjamin Cardozo from The Nature of the Judicial Process that "the judge is not a knight errant, roaming at will in pursuit of his own ideal of beauty and goodness", and some judgments of the US Supreme Court and Supreme Court of India to buttress that view.

There is a note of caution that the lack of the needed judicial restraint may provoke threat to the independence of judiciary from politicians, which is reminiscent of US President Roosevelt's attempt to pack the Supreme Court when the New Deal measures were blocked.

The current mood in Parliament reflected during the debate on the issue may have prompted these remarks. The interim orders relating to two state assemblies appear to be referred to because of the public criticism that they were encroaching the legislative domain. Maybe, it was unnecessary. But it is neither a part of the ratio nor that of the conclusion to affect the merits of the decision.

The judgment cannot be read as shutting out genuine PILs. In fact, it is a forceful plea for genuine PILs advocating judicial restraint to curb the frivolous filed for extraneous reasons, and to prevent any political attempt to erode the independence of judiciary on this pretext.

I would welcome introspection by the judiciary to strengthen itself, and to ward off the lurking dangers to its independence on the pretext of curbing illegitimate judicial interventions. It generates a healthy debate on a public issue.

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