Constitutional Law/Judicial Activism/Judiciary/Courts/Jurisprudence/Legal System/Public Law/Public Interest Litigation/Supreme Court

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SKINNING A CAT*
by Justice B.N. Srikrishna**

Cite as : (2005) 8 SCC (J) 3

I. The Activism Versus Restraint Debate Today

In the sagacious words of Chief Justice Hidayatullah:

"The first principle to observe is that the wisdom of the law must be accepted. A little incursion into law-making interstitially, as Holmes put it, may be permissible. For other cases the attention of Parliament and/or Government can be drawn to the flaw."1

The traditional role of the Judge has been envisaged as that of an impartial arbiter who hears the forensic debate before him and renders judgment without ever stepping into the arena of debate. Lately, however, it has become fashionable for Judges to jump into the fray and actively participate in the debate by supporting one side or the other and this process masquerades under the felicitous name "judicial activism".2 In the name of judicial activism, modern day Judges in India have abandoned the traditional role of a neutral referee and have increasingly resorted to tipping the scales of justice in the name of "distributive justice". The legitimacy of such actions needs critical appraisement at the hands of the legal fraternity, even at the risk of unpopularity by swimming against the tide.

The term "judicial activism" came into currency sometime in the twentieth century to describe the act of judicial legislation i.e. Judges making positive law. Although, the underlying debate on judicial activism has been around since the days of Blackstone and Bentham,3 the credit belongs to a non-lawyer Arthur Schlesinger Jr., for popularising the term "judicial activism". His 1947 article in Fortune4 started the modern debate. It brought into focus the dichotomy observed in the judicial process: unelected Judges versus democratically elected legislatures; result-oriented judging versus principled decision-making; observance versus side-stepping of precedents; law versus politics and so on.5 On the basis of their judicial philosophies, Schlesinger characterised some Judges of the US Supreme Court as "judicial activists", some as "champions of self-restraint" and others as comprising the middle group.6 Scholars of law, practitioners as well as the general public have debated, often fractiously, the correctness or otherwise of this kind of judicial activity, some advocating John Austin's deference to restraint and others Justice Benjamin Cardozo's views which tended towards activism.7

In India, although the activism versus restraint debate existed even in the pre-Constitution period, it did not vigorously take-off till the 1970s when the Supreme Court of India itself became very activist. However, the underlying philosophical issue of the relationship between means and ends has been long debated in Indian philosophy. In recent times, it was Mahatma Gandhi who advocated that the means used for achieving a particular result must also be as acceptable as the result itself.8 As we shall see, the saga of judicial decision-making by the highest court in India indicates that judicial activism or the mere pursuit of ends without regard to the means, has become the dominant approach in judicial thinking.

With this background, it becomes necessary for the Judge to ask, like Hamlet, whether it is nobler in the mind to remain impervious to the dominant discourse around, or to trim the sails of his thinking to the winds blowing around. This is a question of great moment, which must haunt any conscientious Judge. Tradition and good sense demand that, irrespective of the political debate around, the Judge maintains a neutral stance in his decision-making, being guided only by accepted legal principles and the dictates of his conscience. The Judge being human, the social ambience in which he operates is likely to affect his judgment, but the extent to which he disallows this to happen determines his mettle. This is the theme that I propose to explore in this lecture.

II. The Fault Lines in the Debate

The discourse of judicial restraint and judicial activism leads to discernment of distinct fault lines that may lead to volcanic upheavals if not repaired in good time. These fault lines can be examined under distinct heads as discussed hereinafter.

A. The relationship between "proper" judicial review and "improper" judicial activism

(i) Improper exercise of the power of judicial review

The judicial branch is invested with the power of being the final arbiter of constitutional disputes under many democratic Constitutions. India, which has modelled its Constitution, to some extent, on the US Constitution, falls in this category.9 One of the fundamental features of such a constitutional set-up is the judicial power to invalidate legislation on the ground of infringement of the constitutional parameters such as legislative incompetence, violation of guaranteed fundamental rights, inconsistency with an express provision or basic feature of the Constitution, etc. The power of judicial review is an exception to the principle of separation of powers, which demarcates distinct areas for the different constitutional organs to exercise their powers. The power of judicial review postulates that, in the event of a dispute as to whether the legislature or the executive has overstepped its constitutional bounds, the judiciary shall decide the dispute by application of well-established constitutional doctrines and principles of interpretation. Although the doctrine of separation of powers is not watertight or immutable, judicial interpretation must not reduce it to a nullity. Indeed, in some areas, our Constitution-framers have created evident and unambiguous barriers against judicial intervention in legislative or executive domains,10 but even these have been breached by the courts eager to assert their authority.

Indeed, nothing can be headier than the power to invalidate another constitutional organ's action. Such great power must of necessity bring in its wake great responsibility. The problem with judicial activism is its proclivity for excessive and legally improper use of this very great power to invalidate arguably lawful and proper legislative or executive actions. In fact, history abounds with instances where overactive Judges have jettisoned well-established principles to produce incongruous results, which they honestly thought were necessary, even if democratically elected legislatures or executive thought otherwise. I now propose to examine some of these instances in the US, India and the UK.

During the period of the Great Depression in the 1930s in the US, the US Supreme Court invalidated a series of legislative measures taken by the Government under the so-called "New Deal" program.11 These legislations were intended to directly address the problems arising from the Great Depression by generating employment, obligating minimum wages, safe working conditions and other social welfare measures. However, these legislations were struck down by a majority of the Judges on the premise that they interfered with the doctrine of freedom of contract and were, therefore, contrary to the then current philosophy of laissez faire.12 The activism of the Judges in striking down such obviously valid legislation contributed to the elongation of the Great Depression leading to unavoidable loss of life and misery for millions of people. This judicial attitude led the US President Franklin Roosevelt to threaten to "pack" the Supreme Court with Judges who would show restraint and accept the legislative wisdom of the "New Deal".13 With this threat hanging over their heads and with the death or retirement of the activist Judges, the US Supreme Court eventually restrained its activism, leading to the famous quip about the "switch in time that saved nine"14—the nine Justices!

Judicial activism has still a darker history as seen in the infamous case of Dred Scott v. Sandford15 where the US Supreme Court virtually supported slavery by denying the power of the Federal Government to abolish this practice. The preposterous reasoning put forward by the Judges, ignoring clear provisions of law, was that black people were not citizens and could not, therefore, claim constitutional protections. Moreover, since slaves were chattels of the slave-owners, freeing them from slavery meant forfeiture of the slave-owner's property without compensation—something, which in the thinking of those activist Judges was unfair and unreasonable.16 As we shall see later as well, this sort of result-oriented jurisprudence requires embarrassing legal gymnastics from Judges.

Turning to India, I wish to point to a recent and disturbing trend of using the judiciary to second-guess unambiguously legislative or executive powers. Indeed, our Judges have succumbed to the temptation to interfere even with well-recognised executive powers such as treaty-making or foreign relations. A Delhi High Court judgment in 2002,17 made a treaty signed by India with another sovereign foreign State virtually inoperable, by striking down an administrative order connected with it, inter alia, on the ground that the Court did not like the policy being effectuated by it. One shudders to think whither this trend could lead—whether, for example, the constitutionality of a declaration of war or peace treaty signed by India could also be questioned in a court of law? If the courts were to strike down the peace treaty as being "unconstitutional", would the armed forces be compelled to prosecute the war under a judicial mandamus? Indeed, the mind boggles at such eventualities, however improbable they may appear, given the new-found enthusiasm for judicial activism in areas that are inarguably no pasaran18 for Judges.

(ii) Improper non-exercise of the power of judicial review

"Judicial activism", in my view, has both a positive and a negative aspect. It involves both exceeding the judicial sphere as well as refusing to act within the judicial sphere. Improper non-exercise of judicial review is as dangerous as improper overuse of judicial review. Judicial activism of the former variety is best seen in the infamous ADM, Jabalpur v. Shivakant Shukla,19 better known as Habeas Corpus case,19 where the Supreme Court bent backwards to support what was clearly improper executive action in detaining persons without just cause during the "phoney emergency" of the 1970s. It went to the extent of expressing its "diamond-bright, diamond-hard hope"20 that the powers that ought to have been clipped, would not be misused. As we all know, the executive, blessed with the Supreme Court's judgment, did precisely the opposite, confirming Lord Acton's declaration: "power tends to corrupt, absolute power corrupts absolutely".21 This judgment was not, however, totally unexpected because, in previous years, we had seen the spectre of the supersession of "independent" Judges in favour of more politically and ideologically "committed" ones.22 Often judicial independence is compromised at the altar of political or social ideology in the name of activism. Indeed, an activist Supreme Court, eager to jump into the political arena by abdicating its "counter-majoritarian" role as the guardian of the Constitution, almost brought our cherished ideal of a democratic republic to a standstill.

Similarly disingenuous was the judgment of the House of Lords in Liversidge v. Anderson,23 by which the British Government was given virtually unlimited powers to detain persons, even on entirely dubious grounds, during wartime. But, inevitably, there will be conscientious Judges who will not fall prey to such dubious arguments. Thus, Lord Atkin who was the sole dissenter (like Justice H.R. Khanna in Habeas Corpus case19), went on to deplore the majority Judges who according to him:

"When face to face with claims involving the liberty of the subject, show themselves more executive-minded than the executive."24

This abdication of the judicial role led one Judge to later comment that from being lions under the throne, the judgment of the House of Lords had "reduced us to mice squeaking under a chair in the Home Office". Thus, we have seen that judicial activism, especially the explosive admixture of law and politics, whether exceeding or abdicating the judicial function, has a thoroughly disreputable history in many parts of the world including India.

B. "Result driven" decision-making and activist interpretations of Article 14

Activist Judges have often ignored or side-stepped binding legal precedents to arrive at preconceived results, which conform to their conception of justice. However honest and bona fide this exercise, its legal legitimacy is open to question, as I shall presently examine.

E.P. Royappa v. State of T.N.25 is a classic example of this kind of activism in the interpretation of Article 14 of the Constitution, which, as a matter of fact, simply deals with "equality before the law or the equal protection of the laws" and nothing more. The classic formulation of the "Doctrine of reasonable classification" in Anwar Ali Sarkar,26 reformulated in Ram Krishna Dalmia27 and in Special Courts Bill, 1978, In re 28 held the field and became formally recognised as the touchstone for testing legislative and executive violations of Article 14. However, all of a sudden, in E.P. Royappa25 the Supreme Court through the concept of "substantive due process", which had been specifically rejected by the Constituent Assembly,29 equated the concept of "arbitrariness" with "inequality". The Court observed:

"Now, what is the content and reach of this great equalising principle? ... We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be 'cribbed, cabined and confined' within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies.... Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14...."30

From Royappa25 it was a merry ride through Maneka Gandhi,31 R.D. Shetty,32 Ajay Hasia,33 and a host of other cases where the Supreme Court freely struck down actions of the other coordinate branches of the Government on the basis that it was not "reasonable" or was "arbitrary", a standard of judicial review, neither contemplated by the framers of the Constitution nor by the plain text of Article 14.

Indeed, there are numerous other problems with this "New Doctrine" as some have pejoratively dubbed it.34 A noted critic is Mr H.M. Seervai who in his monumental book Constitutional Law of India has found several faults with the "New Doctrine".35

At the outset, Mr Seervai argues that the New Doctrine hangs in the air, because it is propounded without reference to the terms in which the guaranteed right to "the equal protection of the laws" is conferred. Indeed, by obfuscating its true meaning, the "New Doctrine" gives Judges the untrammelled power to strike down legislative and executive action at will with a bald observation that they are not "reasonable". In fact, I would submit that the standard of "reasonability" is no standard at all because what is "reasonable" or "unreasonable" is in the eye of the beholder without reference to any objective examination. It is not the duty of the court to decide whether a certain statute was "reasonable" or not because that is in the policy realm of India's democratically elected representatives. The court's only duty is to examine whether the legislature had the authority to promulgate the statute and examine whether the statute violated one of the Constitution's textually enumerated fundamental rights.

Secondly, the "New Doctrine" involves the logical fallacy of the undistributed middle or the fallacy of simple conversion.36 The "New Doctrine" purports to treat "arbitrariness" and "inequality" as the same thing. In fact, not all arbitrary actions can be termed unequal simply because some arbitrary actions are both arbitrary and unequal. If, for example, all red-haired students are expelled from a school without reason, that action is both arbitrary and unequal vis-...-vis non-red-haired students. If, however, all students irrespective of hair colour are expelled, it is simply arbitrary but not unequal.37 Hence, while "arbitrariness" and "inequality" are conceptually different, this fact is ignored by the activist mindset.

Thirdly, the "New Doctrine" fails to distinguish between the violation of equality by a law and its violation by executive action. Finally, the "New Doctrine", as Mr Seervai argues, fails to analyse certain concepts like "arbitrary", "law", "executive action" or "discretionary power" and fails to recognise the necessary implication of numerous Supreme Court decisions on classification that were arguably binding precedents and certainly settled law.

C. Judicial legislation and separation of powers

(i) "Substantive due process" and Article 21

The Supreme Court, early in its history, in a series of judgments beginning from A.K. Gopalan,38 V.G. Row,39 and others, held that the discredited US concept of "substantive due process" could have no role in the interpretation of Article 21 because it essentially involved substituting a Judge's notion of "reasonableness" with that of the legislature's.40 However, from Maneka Gandhi31 onwards, the Supreme Court introduced into Article 21 the concept of "substantive due process", or in other words, a standard that requires executive and legislative action to be "reasonable" or "fair"—nebulous terms that are totally at the discretion of an activist Judge to use as he pleases. Indeed, as we saw in the examples of the "New Deal" cases and the Slavery judgment in the US, "substantive due process" is a concept with a blackened history. With this in mind, the Drafting Committee of the Constitution of India was not in favour of using the expression "due process" in the text of Article 21 for they were familiar with its misuse in the US context.41 Accordingly, the Drafting Committee while debating the Draft Constitution of India decided that "due process of law" be substituted by "procedure established by law" similar to Article 30 of the Japanese Constitution of 1946.42 What the framers of the Constitution consciously avoided, judicial activism has brought in by the back door.

There are several problems with the use of "substantive due process" in the interpretation of Article 21. The first is the legitimacy of creating fundamental rights through judicial interpretation. With the power of "substantive due process" behind them, the courts have constantly foraged the forbidden fields by creating newer rights by treating them as flowing from the "right to life" in Article 21 of the Constitution. Article 21 simply reads,

"No person shall be deprived of his life or personal liberty except according to procedure established by law."

Article 21 has verily been treated as the cornucopia from which all such newly created rights flow out. Such judicial legislation is only possible by committing violence to the plain words of the article, which, as evident, is only worded in the negative. Founding new rights on Article 21 is, to say the least, debatable. The entire Constitution, in particular Part III, has been designed to provide a framework for regulation of human society in an orderly manner by providing certain specifically enumerated fundamental rights. The argument in favour of judicial legislation on Article 21 is that "new fundamental rights" are intricately connected with the right to life and without these "new fundamental rights" life would itself become meaningless. This argument, however, has a serious flaw. In fact, if these "new fundamental rights" are premised on their intricate connection with the right to life, then the whole of Part III would be redundant, by the same token, as all rights guaranteed therein by specific enumeration would also be similarly connected. In other words, if the judicial legislation argument were correct, the entire scheme of Part III could have been telescoped into only one provision, namely, Article 21!

(ii) Judicial legislation and international law

Judicial activism has even extended to wholesale importation of principles of international law, which are controversial even internationally. For example, principles like "precautionary principle" and "polluter pays" have been made a part of domestic environmental law by the judicial dicta in Vellore Citizens' Welfare Forum v. Union of India43:

"15. Even otherwise once these principles are accepted as part of the customary international law there would be no difficulty in accepting them as part of the domestic law. It is (sic) almost an accepted proposition of law that the rules of customary international law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the courts of law."44

In fact, these principles have been the subject of much critical debate and there is no unanimity amongst scholars as to their exact content. Even the concept of "sustainable development", which the Supreme Court heavily relied upon, is an extremely nebulous concept, a fact even conceded to in the judgment itself!45 If that is the case, then I wonder what purpose was served by making it the fulcrum of a judgment which would obviously bind all subordinate courts in India who would then inevitably fumble when considering what was "sustainable development" or how it should influence their judgments. Let me make it clear that I am not against "sustainable development" as a legislative or executive policy. In fact, I am personally for it; but I am against the courts dabbling in concepts that are beyond proper legal definition.

Further, acceptance of international norms and laws is an exclusively executive function since it is closely associated with questions of national sovereignty. Moreover, even if these particular international environmental law principles are trite for incorporation into domestic law, the Supreme Court's judgment provides for automatic incorporation of all customary international legal principles, whatever their content or validity, into domestic law. This is clearly a judicial overkill.

Similarly, in M.V. Elisabeth v. Harwan Investment and Trading (P) Ltd.46 the Court felt that where statutes are silent "it is the duty of the court to devise procedure by drawing analogy from other systems of law and practice"47 Drawing upon this rather debatable "duty", the Court read into the Merchant Shipping Act, 1958, something that was not even provided for by the said Act, but provided for in international conventions and according to the Court was a part of customary international maritime law. This was despite a catena of Indian precedents to the contrary. Guidance from other jurisdictions is always welcome, but not the wholesale incorporation of foreign principles without concern for the actual state of domestic law and the consequences of such incorporation.48

D. Activism, "political questions" and the problem of justiciability

"Political questions" which were meant to be out-of-bounds for the courts have often been thrown into the laps of Judges. Instead of throwing them back, the courts have, with great enthusiasm, essayed into adjudication of such questions, often with unsatisfactory results. We need to explore first the reasons for excluding the adjudication of "political questions" by the courts.

The "political questions' exclusion" doctrine is best stated in Baker v. Carr,49 where the US Supreme Court held that certain questions were non-justiciable in a court of law when there was:

"... a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it;"50

The recent Jharkhand Assembly dispute would probably fall under the first category because there is a constitutional provision, Article 212,51 entrusting the adjudication of such issues to a coordinate constitutional branch, namely, the legislature, which ideally should have been left free to deal with the question, the courts keeping aloof.

Ayodhya Reference case,52 where the President requested the Supreme Court to answer politically sensitive questions like: whether there existed a temple at Ayodhya before the construction of the Babri Mosque,53 fall in the second category, where the matter cannot be resolved by reference to "judicially manageable standards". It would have in fact required the Judges to opine on a point of archaeology rather than law, and thereby step on to a political minefield. The Supreme Court was perfectly correct in refusing to answer the reference. In fact, such questions have arisen merely on account of the failure of the executive or the legislature to resolve their own political problems and are attempts to pass the buck to the judiciary.54 The Supreme Court should stoutly refuse the temptation to crown itself with political thorns.

Yet, despite the dangers of entering the political Eddystone Rocks,55 the philosophy of judicial activism has propelled Judges to sail into uncharted waters. Judges now seem to want to engage themselves with boundless enthusiasm in complex socio-economic issues raising myriads of facts, and ideological issues, that cannot be adjudicated by "judicially manageable standards".

In Sarla Mudgal56 the Supreme Court made wide-ranging observations on the need to bring in a uniform civil code and directed the State to explain the steps it had taken towards the enactment of the same.57 The question of a uniform civil code is undoubtedly an issue fraught with complex political fault lines involving minority rights, personal laws, women's rights and so on, and the Supreme Court's observations not unexpectedly erupted into a major political issue. In a later case, the Supreme Court was forced to back down by explaining away its controversial observations in Sarla Mudgal56 as having been "incidentally made".58 In other cases, Judges have sought to incorporate ideologically grounded concepts such as "Hindutva"59 and "Socialism"60 into their judgment with no credit whatsoever.

Judicial activism has also extended to the use of authorities with political overtones for deciding cases—a wholly improper approach. For instance, in Shah Bano,61 while the final order granting maintenance to a divorced Muslim woman is probably correct, the Supreme Court's approach of relying on unfamiliar non-legal sources (such as the Holy Qur'an itself)62 and making sweeping generalisations, instead of narrow legal reasoning,63 made the Court the target of unseemly political controversies.

It appears that the Supreme Court has slowly begun to realise the futility of entering upon policy issues, especially economic policy, and this culminated in the following observations in BALCO Disinvestment case64:

"47. Process of disinvestment is a policy decision involving complex economic factors. The courts have consistently refrained from interfering with economic decisions as it has been recognised that economic expediencies lack adjudicative disposition and unless the economic decision, based on economic expediencies, is demonstrated to be so violative of constitutional or legal limits on power or so abhorrent to reason, that the courts would decline to interfere. In matters relating to economic issues, the Government has, while taking a decision, right to 'trial and error' as long as both trial and error are bona fide and within limits of authority."65

This attitude, presently only extending to the economic sphere, should govern all policy-related disputes that are brought to the courts. Indeed, the answers to many socio-economic and political problems lie with Parliament and in a polling booth and not in a courtroom.

E. Enforceability of activist judgments

Arun Shourie's book Courts and Their Judgments66 is a useful chronicle of the difficulties that arise when the courts attempt to do what the executive is constitutionally required to do. The concept of "continuing mandamus" is an admission of the fact that controversial socio-economic issues need constant monitoring over intricate details to be sustained over a considerable period of time. Frequent resort to such orders, which the courts have neither the time nor institutional mechanism to enforce to their ultimate conclusion, eventually erodes the credibility of the judicial institution. Despite the acclaim showered on Bandhua Mukti Morcha67 orders, as pointed out in Courts and Their Judgments, the results came to nought.68

The courts possess neither the power of the sword, nor the purse; they only have to rely upon the goodwill and respect of the two coordinate constitutional branches as that of the general public, for the enforcement of their orders.69 This argument should, however, not be misunderstood as recommending the pursuit of public popularity, or suggesting that Judges be moved by the hysterias of the day, for even Adolf Hitler was popular in his time. It only means that Judges should be conscious of the limitations of the judicial function and the consequent need to remain within the judicial sphere. Indeed, the only power to enforce activist judgments is the power to punish executive or legislative functionaries for contempt of court, which gets stunted with overuse. Moreover, it is not possible for the Court to keep on exercising this contempt power to implement minute details of its orders, the consequences of some of which may not even be fully realised before their implementation.

F. Erosion of the principle of stare decisis

During the 1980s, there was a tendency to deviate from settled principles of law in the name of "innovative principles"; the objective being to render "social justice". On the other hand, Professor Roscoe Pound has stated "Law must be stable, yet it cannot stand still."70 Similarly, Justice Aharon Barak says, "Stability without change is degeneration. Change without stability is anarchy."71 These wise observations imply that changes in law brought about by judicial interpretation must, more often than not, be evolutionary and not be revolutionary or dramatic.72 As dramatically changed interpretations are error-prone and based only on expediency, it would be wiser to take one step at a time than a quantum leap, particularly into unknown regions.73 There may, however, be situations that call for dramatic or sudden changes in law, but exceptions must be few and far between and not easily resorted to, as stare decisis is yet one of the fundamentals of our legal system.

Judicial activists do not easily accept stare decisis as a fundamental principle and in the 1980s the Supreme Court gave the lead to the process of dismantling stare decisis. The judgment in D.S. Nakara74 is a classic example of this approach. In D.S. Nakara74, the Court observed:

"Socio-economic justice stems from the concept of social morality coupled with abhorrence for economic exploitation. And the advancing society converts in course of time moral or ethical code into enforceable legal formulations. Overemphasis on precedent furnishes an insurmountable road-block to the onward march towards promised millennium. An overdose of precedents is the bane of our system which is slowly getting stagnant, stratified and atrophied."75

If the observations of the Court are right, then at any given time the Judge may do what he thinks in conformity with his conception of "social justice" by throwing to the winds established principles of law and binding judgments. Moreover, dramatic changes in law create immeasurable difficulties for the High Courts and the subordinate courts for they are left to flounder in a sea of conflicting precedents. They also create chaos and instability for citizens who have moulded their legal relationships based on the extant law but now find that the goal post has been moved in the middle of the game! Further, when the highest court in the land itself shows scant respect for precedents, it may well encourage the High Courts and the subordinate courts to follow suit, leading to judicial indiscipline and anarchy, which bodes ill for any legal system.

III. Undesirable Consequences Ensuing from Judicial Activism

A. Delay, backlog and abuse of public interest litigation

The judicial system, which is currently unable to handle ordinary litigation, as it faces a huge backlog of undecided cases, has to now contend with non-traditional types of litigation in the form of public interest litigation (PILs) that are attempts to use Judges as "social engineers". Abrogating the principle of locus standi in the name of ushering in social justice and the upliftment of the downtrodden sections of society, the courts opened their doors so wide that they find it difficult to control the influx today. The US Chief Justice John Roberts, writing about the US Supreme Court, which only hears a small fraction of the cases the Supreme Court of India hears, had this to say about the problem:

"So long as the Court views itself as being ultimately responsible for governing all aspects of our society, it will, understandably, be overworked."76

Unmindful of the sobering dicta that Judges have neither the power of sword nor of the purse, the courts have taken upon themselves the duty of monitoring several actions, which fall exclusively within the purview of the executive domain. Often one may not find fault with the final results achieved, but one doubts whether the reasoning by which those results were arrived at is legally supportable.

Articles 32, 136 and 142 of the Constitution invest extraordinary powers in the Supreme Court. Correspondingly, Article 226 invests the High Courts with the all-powerful writ jurisdiction. By abandoning the principle of locus standi, Judges have now become roaming knights-errant on white chargers tilting at windmills of injustice to defend the honour of the Dame of justice.77 Extraordinary powers must be reserved for extraordinary occasions. Its frequent use detracts from its efficacy and produces an incongruous effect. As is said in a well-known subhashita:

""vfrifjp;knoKk lUrrxeuknuknjks HkofrA

ey;s fHkYyiqjU/kzh pUnur:dk"""BfeU/kua dq:rsAA"

("Overfamiliarity breeds contempt and overvisitation results in inhospitality, just as the Bhil woman in the Malaya mountain burns sandalwood for fuel.")

There are a substantial number of bogus litigations, which sneak in as public interest litigation and can simply be collusive, profiteering, or speculative. In my view, the Supreme Court should not be using Justice Felix Frankfurter's words, an "... umpire to debates concerning harmless, empty shadows".78 In fact, the 'P' in 'PIL' often represents "profit", "publicity" or "persecution" as more and more manipulative litigants use the court's shoulder to fire at rivals.79 Frequent use of public interest litigation for dubious purposes, may have a chilling effect on entrepreneurs, who would become wary of venturing into business with the threat of liberally granted injunction order obtained by their business rivals.

B. Expediency and judicial error

The legislative and the executive wings of the body politic, which possess the core competence and specialisation in dealing with complex socio-economic problems, are getting progressively marginalised. The judicial organ of the State, the least equipped to deal with socio-politico-economic issues, has occupied the centre stage, and has got bogged down in more and more of such cases. Sheer expediency or the urge for immediate justice in an abstract sense is hardly a justification for taking on problems with myriad fine details that the court is ill-equipped to handle.

Fine-tuning of administrative details is beyond the capacity of the courts, but unfortunately it is something that they have engaged in with enthusiasm. Judicial forays into policy issues through trial and error, without necessary technical inputs or competence, have resulted in unsatisfactory orders that have been passed beyond "judicially manageable standards". The reliance on affidavits tendered or even placing reliance on a report of a court-appointed Commissioner can hardly supplant a judgment made by a competent executive officer with regard to the actual ground realities.

C. The credibility of the institution

As we have seen, the tendency of the Supreme Court to pronounce on issues, which require purely political decisions, has led to situations where the Court has had to subsequently back down. The most embarrassing instance has been in the case of the directive for a uniform civil code legislation, as we have already seen, where the Court had to later downplay its initial activist observations.

In my view, while activist judgments may bring immediate and transitory succour, if, in the long run, the judgments do not strike at the root of the problem, what follows is loss of credibility and respect for the institution among the other constitutional branches and the general public.80 As Justice Felix Frankfurter said in Baker v. Carr:81

"There is nothing judicially more unseemly nor more self-defeating than for this Court to make in terrorem pronouncements, to indulge in merely empty rhetoric, sounding a word of promise to the ear, sure to be disappointing to the hope."82

Indeed, Justice Frankfurter could well have been talking about the bonded labourers and the Supreme Court of India after Bandhua Mukti Morcha67 orders.

D. Diversion of institutional resources

Instead of playing the role that has been constitutionally assigned to it and utilising its resources towards such role, the assumption of a non-traditional, activist role by the Supreme Court has led to the diversion of its attention and resources. As in cases of "continuing mandamus", where it has to exercise continuous monitoring and supervision over executive authorities, judicial activism strains the institutional resources of the Court. It also diverts the time, talent and energy of Judges into channels that they are neither required to navigate, nor equipped to, for lack of competence, skill or resources.

E. Personality driven rather than institutionalised adjudication

Judicial activism creates labels for Judges such as "pro-labour", "anti-labour", "pro-tenant", "anti-tenant", "progressive", "conservative" and so on.83 This is so because the scope and the extent of judicial activism ultimately depends on the personal predilections of the individual Judge and his/her own conception of what "social justice" ought to be. In effect, the result becomes personality-oriented rather than oriented towards "justice according to law", which is the duty of a Judge. Personality-driven adjudication provides avenues for "forum shopping" by lawyers and litigants. Instead of "justice according to law", the courts would administer justice according to the propensities of the Judge, harking back to the days of justice at the Chancellor's foot in England.

IV. Arguments against Judicial Restraint

A. "Judicial restraint is a 'rightist' ideology"

One of the criticisms of judicial restraint is that it is "pro-government", "pro-rich" and "anti-social justice" and hence a "rightist" ideology. It is a misconception to think that judicial activism arises from "left" or "right" oriented philosophies, two terms with hazy meanings at best. Judicial activism is nothing but jumping the fence. The fact that it is done from the "right" or "left" is hardly of significance because to an activist Judge what he considers to be the correct philosophy matters, "leftist" or "rightist" being sheer coincidence. In fact, as we have seen earlier, the "New Deal" cases, the Habeas Corpus judgment, the "Hindutva" judgments and the pro-slavery judgment are instances of activist Judges with a so-called "rightist" ideology.

More often than not, the individual philosophy of the Judge becomes tailored to the dominant discourse. A Judge is enjoined by the Constitution to often perform a counter-majoritarian role to prevent unjustified executive or legislative incursions into the textually enumerated fundamental rights of citizens, or to prevent abuse of representative democracy. By entering into the political thicket, as evidenced in the Habeas Corpus case, judicial activism can wholly erode judicial independence and run contrary to the Judge's constitutional duty to decide cases "without fear or favour".

B. "Judicial restraint is an activist philosophy in itself"

There can be no difficulty in accepting judicial restraint or legal centrism as a judicial philosophy in itself. But this philosophy is very different from judicial activism that I have spoken against. Despite the high-sounding words, "judicial restraint" only means that the Judge shall stick by the law and decide legal controversies strictly in accordance with established principles of law without foraging the constitutionally forbidden territories reserved for another branch of the government. In my view, that precisely is the role a Judge is called upon to play by reason of the oath that he undertakes. A Judge is not free to render justice as he thinks, but is required to render "justice according to law". As Times of India in an editorial has aptly commented:

"Judges are meant to act as humble interpreters of law, not pose as emperors who adjudicate on a whim. We need faceless, impassive Judges, compassionate but disciplined legislators and an executive that acknowledges the supremacy of the legislature and independence of the judiciary. Sadly, technical Judges are not easy to come by in India. Some arrange marriages between rapists and their victims. Others turn into committed municipal authorities. Courts are meant to be more serious than Bollywood makes them out to be."84

Conceded that in a few cases "justice according to law" may produce less-than-perfect results, but more often than not, "justice according to law" produces an outcome that is in line with crystallised public opinion. Indeed, if "justice according to law" was so abhorrent, then we would have seen a revolution in India and a scrapping of the Constitution. The fact that this has not happened is positive proof that "justice according to law" and "justice without fear or favour" is the correct approach.

C. "Judicial restraint would have meant no Kesavananda Bharati85"

There may occur occasions in judicial history, when Judges must make dramatic, sudden and even revolutionary changes to law, by marginalising the "justice according to law" principle. Exceptional situations may call for drastic steps, but that can happen only exceptionally. In fact, in fifty-odd years of our Constitution, I can only think of one such situation. This was when the executive and legislature in collusion sought to use the Constitution to destroy the Constitution itself. Therefore, in my view, the "Basic Structure Doctrine" evolved by the Supreme Court in Kesavananda Bharati85 is, if at all an exercise of judicial legislation, a justifiable one, because without it there would have been no Constitution and no independent judiciary worth the name. After all, as the maxim goes, necessitas non habet legem.86 That is a different kettle of fish from the activism of the 1980s and 1990s where judicial legislation was resorted to at the drop of a hat to address every socio-economic problem of the day, however unfortunate, but nevertheless lacking the imperative urgency facing Kesavananda Bharati85 court. The Queensberry Rules87 are to be strictly observed except when your own life is at stake!

V. Conclusion

Fortunately, the fervour for judicial activism, which engulfed the courts during the third and fourth decades seems to be ebbing with the progressive realisation that it is preferable to tread the "highways" of justice instead of resorting to the "bye-lanes" of activism in the hope of expeditiously reaching the goal of justice. As I have pointed out, deviation from the well-trodden path frequently leads to wholly unjust outcomes. The wholesome admonition of the Garuda Purana in this respect is worth bearing in mind:

";ks /kzqokf.k ifjR;T;k/kzqoa ifj"ksorsA

/kzqokf.k rL; u';UR;/kzqoa u"Veso pAA"

("He who forsakes that which is stable in favour of something unstable, suffers doubly; he loses that which is stable, and, of course, loses that which is unstable.")88

I began with Chief Justice Hidayatullah and would like to conclude by referring to his quip on judicial activism and restraint:

"There are many ways of skinning a cat. You can do it quietly or you can do it ostentatiously."89

In my view, it is preferable to do the judicial skinning quietly and unostentatiously and in accordance with positive law.

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* Adapted from a speech delivered at the Sesqui Centenary Celebrations of the Government Law College, Mumbai on 1-10-2005. Return to Text

** Judge, Supreme Court of India. Ed.: This is a continuation of the debate initiated through two articles published earlier viz.: Justice M. Hidayatullah, Highways and Bye-Lanes of Justice, (1984) 2 SCC J-1 and Justice V.R. Krishna Iyer, Democracy of Judicial Remedies—A Rejoinder to Hidayatullah, (1984) 4 SCC J-43 Return to Text

1. Justice M. Hidayatullah, Highways and Bye-Lanes of Justice, (1984) 2 SCC J-1 at p. 5. Return to Text
2. For an "anthropology" of "judicial activism" and its contours, see Upendra Baxi, The Avatars of Indian Judicial Activism, Explorations in the Geographies of InJustice, in Fifty Years of the Supreme Court of India: Its Grasp and Reach (S.K. Verma & Kusum, Eds., 2000) at pp. 156-207. Return to Text
3. See Brian Bix, Positively Positivism, 85 VA LR 889 at p. 907 n. 108 (1999) (book review) cited from Keenan D. Kmiec, The Origin and Current Meanings of "Judicial Activism", 92 CALIF LR 1441 (2004) who discusses the divergent philosophies of Blackstone (who favoured judicial legislation) and Bentham (who despised it as "miserable sophistry"). Return to Text
4. See Arthur M. Schlesinger Jr., The Supreme Court: 1947, FORTUNE, Jan. 1947, at pp. 202, 208 cited from Keenan D. Kmiec, The Origin and Current Meanings of "Judicial Activism", 92 CALIF LR 1441 (2004). Return to Text
5. See also Keenan D. Kmiec, The Origin and Current Meanings of "Judicial Activism", 92 CALIF LR 1441 at pp. 1444-50 (2004), who discusses the origins and first use of this term. Return to Text
6. Id. Return to Text
7. Austin's theories and their interpretation over the years has been discussed in W.L. Morrison, Some Myths About Positivism, 68 YALE LJ 212 at p. 214 (1958); Justice Cardozo's own views are best exemplified in his book, Nature of the Judicial Process (1921). Return to Text
8. Writing in Young India, 17-7-1924, he says: "They say, 'means are after all means'. I would say, 'means are after all everything'. As the means so the end. ... There is no wall of separation between the means and the end. Indeed, the Creator has given us control (and that too, very limited) over means, none over the end. Realisation of the goal is in exact proportion to that of the means. This is a proposition that admits of no exception." Return to Text
9. Indeed, unlike the US Constitution, where the power of judicial review has been judicially evolved by the famous judgment in Marbury v. Madison, 5 US 137 (1803), in India, the power of judicial review is textually provided in the Constitution by a combined reading of Articles 13, 32 and 142. Article 13(2) provides: "13. (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void." Articles 32 and 226 give any person the right to move the Supreme Court or the High Court, respectively, for the enforcement of fundamental rights guaranteed in Part III of the Constitution. Finally, Article 142 provides that the Supreme Court "may pass such decree or make such order as is necessary for doing complete justice in any cause or matter" and such decree or order is "enforceable throughout the territory of India". These constitutional provisions leave little doubt that the power of judicial review of legislative and executive action is textually vested with the superior courts in India. Return to Text
10. For e.g. Articles 122 and 212, specifically prohibit the courts from inquiring into proceedings of Parliament and the State Legislature but even this express prohibition has been disregarded in many cases. Return to Text
11. For an excellent analysis of the law, politics and judicial activism surrounding the "New Deal", see Archibald Cox, The Courts and the Constitution (1987, 1989 Indian Reprint) at pp. 145-55. Return to Text
12. The most famous case being that of Lochner v. State of New York, 198 US 45 (1905), which has led to the modern derogatory epithet of "Lochnerism" to describe any "activist judgment". Return to Text
13. See Robert H. Bork, The Tempting of America: The Political Seduction of the Law (1990) at pp. 53-56 (hereinafter Bork). Return to Text
14. A quip that is sometimes attributed to Abe Fortas a future Judge of the US Supreme Court. See NY Times, 15-6-1937, at p. A-19 cited from op. cit. fn 13. However, there is some debate about whether it was President Roosevelt's threat that made the Court change its stance or whether it was simply the death/retirement of the Judges that caused the change, but this is not particularly relevant here. Return to Text
15. 60 US 393 (1857) Return to Text
16. Bork, supra fn 13, at pp. 30-31. Return to Text
17. Shiva Kant Jha v. Union of India (sub nom Azadi Bachao Andolan), (2002) 256 ITR 563 (Del) : 2002 Tax LR 735 (Del), overruled by the Supreme Court in Union of India v. Azadi Bachao Andolan, (2004) 10 SCC 1. These cases were concerned with the Indo-Mauritius Double Taxation Avoidance Treaty. Return to Text
18. No pasaran, which is Spanish for "they shall not pass", was the slogan of the anti-fascist movement in Europe in the 1930s. Return to Text
19. (1976) 2 SCC 521 Return to Text
20. Ibid., at p. 679 (para 421), per Chandrachud, J. Return to Text
21. Lord Acton, in a letter to Bishop Mandell Creighton, 1887. Return to Text
22. See Glanville Austin, Working a Democratic Constitution: The Indian Experience (1999) at pp. 278-92 who in Chapter 12 titled "A Grievous Blow: The Supersession of Judges" describes in vivid detail the circumstances and political rationale for the supersession of certain senior Supreme Court Judges and the elevation of A.N. Ray, J. as the Chief Justice of India. Indeed, later Ray, J. was the Chief Justice of India when Habeas Corpus case was heard and decided. Return to Text
23. 1942 AC 206 : (1941) 3 All ER 338 (HL) Return to Text
24. Ibid., AC at p. 244 : All ER at p. 361 B, per Lord Atkin. He went on further to add, id.: "In this country, amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority, we are now fighting, that the Judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law. In this case I have listened to arguments which might have been addressed acceptably to the Court of King's Bench in the time of Charles I." (All ER p. 361 C-E) Return to Text
25. (1974) 4 SCC 3 : 1974 SCC (L&S) 165 Return to Text
26. State of W.B. v. Anwar Ali Sarkar, 1952 SCR 284 Return to Text
27. Ram Krishna Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538 at pp. 545-46 (para 11) Return to Text
28. (1979) 1 SCC 380 Return to Text
29. The reason for its rejection was aptly stated by Sir B.N. Rau, the Constitutional Advisor to the Constituent Assembly: "The Court, manned by an irremovable judiciary not so sensitive to public needs in the social or economic sphere as the representatives of a periodically elected legislature, will, in effect, have a veto on legislation exercisable at any time and at the instance of any litigant." Cited from T.R. Andhyarujina, The Evolution of Due Process of Law by the Supreme Court, in Supreme but not Infallible: Essays in honour of the Supreme Court of India (B.N. Kirpal et al., Eds., 2000) at p. 195. Return to Text
30. (1974) 4 SCC 3 at SCC p. 38, para 85, per Bhagwati, J. (emphasis supplied). Return to Text
31. Maneka Gandhi v. Union of India, (1978) 1 SCC 248 Return to Text
32. Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489 Return to Text
33. Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 : 1981 SCC (L&S) 258 Return to Text
34. See e.g., H.M. Seervai: Constitutional Law of India (Vol. 1, 4th Edn., 1991) at p. 436 (hereinafter Seervai). See also T.R. Andhyarujina, op. cit. fn 29 at pp. 205-11 (hereinafter Andhyarujina). Return to Text
35. Seervai (Vol. 1), ibid., at p. 438. Return to Text
36. An example would be trite in this context. If, we say a door half-open is also half-closed we may be correct. But this cannot lead us to say that because a door half-open is also half-closed, a door fully closed is also fully open! Return to Text
37. See Andhyarujina, supra fn 34, at p. 207 for this example. Return to Text
38. A.K. Gopalan v. State of Madras, 1950 SCR 88 Return to Text
39. State of Madras v. V.G. Row, AIR 1952 SC 196 : 1952 SCR 597 Return to Text
40. Patanjali Sastri, C.J. in a remarkably insightful observation in V.G. Row, ibid., at pp. 199-200, para 15 (AIR), while discussing the standard to be adopted while examining the reasonability of measures impinging on fundamental rights, states: (SCR p. 607) "In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the Judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable." (emphasis supplied) Return to Text
41. See Andhyarujina, supra fn 34, at pp. 195-98 Return to Text
42. Id. Return to Text
43. (1996) 5 SCC 647 Return to Text
44. Ibid., at SCC p. 660, para 15, per Kuldip Singh, J. (emphasis supplied). Return to Text
45. Ibid., at p. 658 (para 10). Return to Text
46. 1993 Supp (2) SCC 433 Return to Text
47. Ibid., at SCC p. 465, para 64, per Thommen, J. (emphasis supplied). Return to Text
48. I draw support from the position taken by O'Connor, J. (dissenting) in the context of the majority judgment of the US Supreme Court in Roper v. Simmons, 03-633 (decided on 1-3-2005) (Rehnquist, C.J., O'Connor, Scalia, Thomas, JJ. dissenting). The majority judgment held that the execution of juvenile criminals was unconstitutional because world opinion had found the practice abhorrent. In contrast, O'Connor, J. (for herself) observes that while it was correct to refer to international precedent: "... I do not believe that a genuine national consensus against the juvenile death penalty has yet developed. ... I can assign no such confirmatory role to the international consensus described by the Court ... the existence of an international consensus of this nature can serve to confirm the reasonableness of a consonant and genuine American consensus. The instant case presents no such domestic consensus, however, and the recent emergence of an otherwise global consensus does not alter that basic fact." (emphasis in the original judgment) This, in my view, draws the correct balance between use of international precedent and the needs of domestic law. Return to Text
49. 369 US 186 (1962) Return to Text
50. Ibid., at US p. 217, per Brennan, J. Return to Text
51. Article 212(1) unequivocally states: "212. The validity of any proceedings in the legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure." Further Article 212(2) states: "212. (2) No officer or member of the legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers." Return to Text
52. M. Ismail Faruqui (Dr.) v. Union of India, (1994) 6 SCC 360 (Special Reference 1 of 1993 was heard alongside connected matters). Return to Text
53. Ibid., at pp. 384-85. Return to Text
54. See the interview of noted jurist Mr Fali Nariman, commenting on the Jharkhand Assembly orders, quotes an unnamed Chief Justice who says, "Why do politicians approach courts. To solve their problems", in Supreme Court should Rationalise its Action, FRONTLINE, 12-3-2005 to 25-3-2005. Return to Text
55. A rocky islet of southwest England in the English Channel south of Plymouth. It has been the site of a strategic lighthouse since the 1690s to guide ships away from treacherous rocks. Return to Text
56. Sarla Mudgal v. Union of India, (1995) 3 SCC 635 : 1995 SCC (Cri) 569 Return to Text
57. Ibid., at p. 651 (paras 37 and 38), per Kuldip Singh, J. Return to Text
58. Ahmedabad Women Action Group v. Union of India, (1997) 3 SCC 573 at p. 582 (para 14), per Venkataswami, J. Return to Text
59. Three Supreme Court judgments are often referred to as the "Hindutva judgments", namely, Ramesh Yeshwant Prabhoo (Dr.) v. Prabhakar Kashinath Kunte, (1996) 1 SCC 130; Manohar Joshi v. Nitin Bhaurao Patil, (1996) 1 SCC 169; Ramchandra G. Kapse v. Haribansh Ramakbal Singh, (1996) 1 SCC 206. The observations therein on "Hindutva" must be compared and contrasted with the definition of "Secularism" in the seminal judgment of S.R. Bommai v. Union of India, (1994) 3 SCC 1. In fact, as is pointed out in Vikram Banerjee and Sumeet Malik, Changing Perceptions of Secularism, (1998) 7 SCC J-3 at pp. 6-8 not only has the Supreme Court taken conflicting opinions on the meaning of "Secularism" and "Hindutva" but even individual Judges have vacillated in their own views from case to case. Indeed, such problems can only be avoided if Judges avoid reference to ideological conceptions that defy definition by proper and accepted legal construction. Return to Text
60. References and discussions of political ideologies in judgments often lead to inconsistent and gratuitous philosophical debate by Judges. For e.g. in D.S. Nakara v. Union of India, (1983) 1 SCC 305 at SCC pp. 325-26, para 33, Desai, J. observes: "33. Recall at this stage the preamble, the floodlight illuminating the path to be pursued by the State to set up a Sovereign Socialist Secular Democratic Republic... What does a Socialist Republic imply? Socialism is a much misunderstood word. Values determine contemporary socialism pure and simple. But it is not necessary at this stage to go into all its ramifications. The principal aim of a socialist State is to eliminate inequality in income and status and standards of life. ... This is a blend of Marxism and Gandhism leaning heavily towards Gandhian socialism." Compare this with the recent dictum of Sinha, J. (dissenting) in State of Punjab v. Devans Modern Breweries Ltd., (2004) 11 SCC 26 at SCC p. 148, para 307 who takes the diametrically opposite view: "307. Socialism might have been a catchword from our history. It may be present in the preamble of our Constitution. However, due to the liberalisation policy adopted by the Central Government from the early nineties, this view that the Indian society is essentially wedded to socialism is definitely withering away." Return to Text
61. Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556 : 1985 SCC (Cri) 245 Return to Text
62. As commented upon in Badar Durrez Ahmed, Mohd. Ahmed Khan v. Shah Bano Begum: A Critique, (1985) 4 SCC J-9 at p.14 (hereinafter Ahmed): "The honourable Judges of the Supreme Court are men of great learning and legal acumen however they do not possess a complete knowledge of Arabic, of the Qur'an, the hadis and amal of the companions of the Prophet. The Supreme Court in its role of a qazi can certainly apply the Shariat. It cannot however change it or interpret the Qur'an on its own. ... What the Supreme Court has done is to have expressed its 'ra'y' or private opinion or interpretation of the Aiyats. This is highly arbitrary and extremely dangerous. If this is permitted then the entire Shariat, nay, even the meaning of the Qur'an could be twisted. It is this act of the Supreme Court that has caused such a stir amongst the Muslims of India." (emphasis supplied) This unfortunate approach was again repeated in M. Ismail Faruqui (Dr.) v. Union of India, (1994) 6 SCC 360, when the Court this time, referred to Hindu scriptures such as the Vedas to justify a particular notion of "secularism". Indeed, reference to non-legal sources, especially religious texts, to stylistically embellish a judgment is one thing, but using them as a mode of arriving at a legal result is another. Return to Text
63. As is pointed out in Ahmed, ibid., at p. 11, to arrive at the legal result the Court did, there was no need to interpret the Shariat or the Holy Qur'an. This issue could simply have been decided by relying upon the provisions of the Code of Criminal Procedure, 1973 that the Court had anyway found to be secular in nature and therefore, directly applicable to the case. Reference to the Holy Qur'an was, in other words, wholly gratuitous and unnecessary for the disposal of the case. Return to Text
64. BALCO Employees' Union (Regd.) v. Union of India, (2002) 2 SCC 333 Return to Text
65. Ibid., at SCC p. 362, para 47, per Kirpal, J. Return to Text
66. Arun Shourie, Courts and Their Judgments: Premises, Prerequisites and Consequences (2001) (hereinafter Shourie). Return to Text
67. Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 : 1984 SCC (L&S) 389 Return to Text
68. Shourie, supra fn 66, at pp. 13-61. Return to Text
69. See the dictum of Frankfurter, J. (dissenting) in Baker v. Carr, 369 US 186 at p. 267 (1962) who says: "The Court's authority—possessed of neither the purse nor the sword—ultimately rests on sustained public confidence in its moral sanction." Return to Text
70. See Roscoe Pound: Interpretations of Legal History (1923) at p. 1. Return to Text
71. Aharon Barak, A Judge on Judging: The Role of a Supreme Court in a Democracy, 116 HARV LR 16 at p. 29 (2002) (hereinafter Barak). Return to Text
72. See Roger J. Traynor: The Limits of Judicial Creativity, 29 HASTINGS LJ 1025 at pp. 1031-32 (1978) who says aptly: "The greatest Judges of the common law have proceeded in this way, moving not by fits and starts, but at the pace of the tortoise that steadily advances though it carries the past on its back." Cited from op. cit. fn 71. Return to Text
73. As Barak, J. correctly says: "Likewise, we must ensure consistency. In similar cases we must act similarly, unless there is a proper reason for distinguishing the cases. This rule does not bar departure from existing precedent, but it does ensure that departure from precedent is proper; that it reflects reasons and not fiat; and that it is done for proper reasons of legal policy, so that the contribution the change makes to future law outweighs any harm caused by changing the old law, including the instability and resultant uncertainty inherent in change. Indeed, deviation from Supreme Court precedent is a serious matter and must be undertaken responsibly. Precedent is not immutable, but bucking established case-law is not a goal in itself. Departures from precedent should be the exception, not the rule." See Barak, op. cit. fn 71, at p. 31 (emphasis supplied; internal footnotes omitted). Return to Text
74. D.S. Nakara v. Union of India, (1983) 1 SCC 305 Return to Text
75. Ibid., at SCC p. 330, para 41, per Desai, J. Return to Text
76. Judge John Roberts as quoted in Nancy Gibbs, 5 Things to Know About John Roberts, TIME 5-9-2005, at p. 26, prior to his confirmation as Chief Justice of the US Supreme Court. Judge John Roberts said in reply to the US Senate's questionnaire, Judges, "do not have a commission to solve society's problems". Return to Text
77. I draw this analogy, if only in contrast, with the views expressed by Krishna Iyer, J. in Maneka Gandhi v. Union of India, (1978) 1 SCC 248 at SCC p. 342, para 94 where he observes: "Equality is the antithesis of arbitrariness and ex cathedra ipse dixit is the ally of demagogic authoritarianism. Only knights-errant of 'executive excesses'—if we may use a current clich‚—can fall in love with the Dame of despotism, legislative or administrative. If this Court gives in here it gives up the ghost. And so it is that I insist on the dynamics of limitations on fundamental freedoms as implying the rule of law: 'Be you ever so high, the law is above you.' " Words that on first blush I cannot but agree with. In reality, however, the real import of this observation is quite different. As we have seen, equating "inequality" with "arbitrariness" only substitutes executive or legislative fiat with judicial fiat. Indeed, it is quite debatable as to what is more undesirable—the ipse dixit of a democratically elected legislature or executive or the ipse dixit of an unelected activist Judge. In fact, the observation really means: "Be you ever so high, a Judge is above you." Return to Text
78. Poe v. Ullman, 367 US 497 (1961) cited from Henry J. Abraham: The Judicial Process (3rd Edn., 1975) at p. 358. Return to Text
79. See e.g. the expression of caution by the Supreme Court on the abuse of PILs in cases such as Sachidanand Pandey v. State of W.B., (1987) 2 SCC 295 at pp. 334-35; Raunaq International Ltd. v. I.V.R. Construction Ltd., (1999) 1 SCC 492 at pp. 501-02; Malik Bros. v. Narendra Dadhich, (1999) 6 SCC 552; Dattaraj Nathuji Thaware v. State of Maharashtra, (2005) 1 SCC 590; Sanjeev Bhatnagar v. Union of India, (2005) 5 SCC 330. Return to Text
80. As Bharucha, J. has correctly commented: "This Court must refrain from passing orders that cannot be enforced, whatever the fundamental right may be and however good the cause. It serves no purpose to issue some high profile mandamus or declaration that can remain only on paper. It is counter-productive to have people say, 'the Supreme Court has not been able to do anything' or worse. It is of cardinal importance to the confidence that people have in the Court that its orders are implicitly and promptly obeyed and it is, therefore, of cardinal importance that orders that are incapable of obedience and enforcements are not made." See Justice S.P. Bharucha, Inaugural Lecture of Supreme Court Bar Association's Golden Jubilee Lecture Series, in Supreme Court on Public Interest Litigation (Jagga Kapur, Ed.), cited from Ashok H. Desai and S. Murlidhar, Public Interest Litigation, in Supreme but not Infallible: Essays in Honour of the Supreme Court of India (B.N. Kirpal et al., Eds., 2000) at p. 182. Return to Text
81. 369 US 186 (1962) Return to Text
82. Ibid., US at p. 270, per Frankfurter, J. (dissenting). Return to Text
83. Justice Hidayatullah also makes a similar observation, see Hidayatullah, supra fn 1, at p. 3. Return to Text
84. Editorial, The Interpreters: Judiciary should not stray from the rule book, TIMES OF INDIA, 17-9-2005 at p. 24. Return to Text
85. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 Return to Text
86. Latin for: "Necessity has no law". Return to Text
87. The Marquis of Queensberry Rules are a code of popularly accepted rules in the sport of boxing. They were named so because the 9th Marquis of Queensberry publicly endorsed the code. The Rules were meant to persuade boxers that they "must not fight simply to win; no holds barred (was) not the way" and that they "must win by the rules". Return to Text
88. Garuda Purana, 110. Return to Text
89. Hidayatullah, op. cit. fn 1, at p. 7. Return to Text