JUDICIAL ACTIVISM ACCOUNTABILITY · 2014-01-04 · the theme of Public Interest Litigation (PIL) which can be said to comprehend judicial activism or give rise to it. Even during

JUDICIAL ACTIVISM&

ACCOUNTABILITY

SIDDHARTH PUBLICATIONS10, DSIDC Scheme II, Okhla Industrial Area Phase II

New Delhi - 110 020

DR. BHURE LAL

JUDICIAL ACTIVISM&

ACCOUNTABILITY

First Edition: 2004

Copyright © Author

The views expressed in this book are of the author and havenothing to do with the discharge of his official duties.

ISBN : 81-7220-158-3

Price: Rs. 400/-

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Foreword

Judicial activism has become a buzzword today inIndian political discourse and legal circles. It has won theapprobation of the general public, but it has also generatedquite a few misgivings about the role of the executive andthe legislature on one side and the judiciary on the other.This is because of a number of unfortunate developmentsin recent times in the country and also due to the lack ofadequate appreciation of the distinct roles of theseinstitutions under the Constitution and the mutuality oftheir relationships. The entire problem has acquired anemotional overtone. Accountability of the various arms ofour constitutional system is the fulcrum of the very schemeof our Constitution and the thinking that preceded it,during the freedom movement as well as during the debatesin the Constituent Assembly.

The phenomenon of judicial activism is not peculiar toour country. At different times not only in the United Statesof America but in other commonwealth countries there havebeen controversies and debates on the subject. A great dealof legal and political literature has also developed in thisfield and is of considerable interest from a comparativestandpoint. But in India, till recently academic explorationof the subject has been limited in nature, though somescholarly monographs and brochures have come out onthe theme of Public Interest Litigation (PIL) which can besaid to comprehend judicial activism or give rise to it.

Even during the initial years after the promulgation ofthe Constitution there was sometimes adverse criticismwithin Parliament and elsewhere of many judicial decisionse.g., about the questioning of the validity of land reforms,due to which a constitutional amendment was resorted to.There have been other instances of what appeared at onestage to be a confrontation between the U.P. LegislativeAssembly and the High Court which was amicably

6 Judicial Activism & Accountability

resolved. When reference is made to the words of PrimeMinister Jawaharlal Nehru that the Supreme Court cannotact as the 'third chamber' one cannot ignore the ideologicalnuances of the differing standpoints. The judiciary was evendescribed as the bastion of conservatism and lacking aprogressive outlook. But in recent years, the judicialactivism has received a fillip due to the dormancy,inertness, and indifference of the Executive and theinsensitivity and apathy of administration on one side andthe inability of the Legislature to hold the Executiveaccountable for its acts of omission and commission.Another factor that has further compounded the situationis the rampant corruption and the series of scams leadingto the rapid decline of prestige as well as effectiveness ofthe Executive and the Legislature and devaluation ofdemocratic politics in the country. The erosion of the morallegitimacy of the authority of the two important wings ofour constitutional system led people to approach the higherjudiciary for redressal of their grievances or for morespecific action in pursuit of public good. Over the yearsthe Supreme Court has handed down landmark decisionsabout human rights, environmental protection andpollution control. It emphasized the significance of thedirective principles of state policy drawing the attentionof the government to its alleged acts of commission andomission. All this has won for the judiciary tremendouspublic approbation. As in name, so in the constitutionalframework there cannot be any vacuum. The Judiciarybegan to step in to fill many gaps and further earned mediaand popular adulation. Judiciary, which had to share a gooddeal of blame for its not very creditable role, barring someshining exceptions, during the Emergency, becameincreasingly assertive. In the popular mind the vagueconcepts of the rule of law and public accountability beganto assume a clearer and more concrete form.

Thus, there is now growing interest in the role and

7

relationship of the various organs of one constitutionalsystem. While providing checks and balances, the framersof our Constitution visualised and provided for arelationship of equipoise and harmony among them. Somepeople genuinely feel that this balance of relationship isbeing disturbed. They believe that while the Executive andthe Legislature may be at fault and have to set their housein order, the judiciary has also to adhere to its own welldefined responsibilities without transgressing the functionsand authority of the two other pillars of democracy.

Dr. Bhure Lal has tried to explore the various facets ofthis ongoing debate in its historical, legal as well ascomparative and political perspectives. As far as one cansee, the author effectively brings out that accountabilitywithin the broad parameters of the Constitution is thevirtue as well as the necessity for all the three vital organsof constitutional governance. After referring to somepolitical and constitutional concepts and their operationalimplications, he goes on to discuss the important landmarksand developments in the Indian legal and political systemwhich have blossomed into the much talked of judicialactivism. He dilates on the nature of this activism from theangle of accountability and the likely consequences andpitfalls. He has quoted from a wide variety of views andthe opinions of scholars and jurists while developing histheme and his argument. His citation of legal cases andjudicial decisions is apt and comprehensive. To clarifyissues he often takes recourse to the constitutionalexperience as well as legal and political history in otherdemocratic countries. His exposition of the infirmities ofthe judicial activism and its probable adverse impact ongovernance is couched in a balanced, detached andinformed manner. The monograph bears testimony to thewide reading as well as deep reflections by the author onthe subject. As a matter of fact, Dr. Bhure Lal could havewritten a much bigger volume on the subject rather than

Foreword


only this rather slim and erudite monograph, in view ofthe material that he has obviously consulted so adequately.He, however, deserves our commendation for themonograph which informs and stimulates us to ponder onthe issue in all its aspects.

For us in India, the issue is not just of political polemicsor legal sophistry. It is vital for the future of our democraticpolity. The author brings out the need for reforms ingovernance in order to restore the desired equilibrium, asoriginally contemplated in our constitutional system. Thisis a stupendous but exhilarating task in which citizens aswell as all those manning these institutions have their owncontribution to make.

Judicial activism should not be construed as a generalassault on politicians as a class. The Legislature and theExecutive must be reinforced and regain theirpurposefulness, sense of direction, value system and peopleorientated politics has to be purged of its moral dross. It isonly the politics of probity and purpose that can restoremoral legitimacy to the political system. Both the Executiveand the Legislature have to shake off their lethargy andindolence through a process of self-inspection and self-correction so as to impart dynamism as well asaccountability to the working of our political system. Itwould be unfortunate if a political party personalises theissue only because a number of political stalwarts have toreckon with the law of the land. In the enforcement oftransparency, rule of law and accountability, the Executiveshould not seem to drag its feet or seem to circumvent thelegal requirements, necessitating the recourse to unusualprocedures like monitoring of investigating agencies bycourts. The Legislature should also not be led to believethat there is transgression of its law-making authority andinterference in its internal functioning. But it is also evidentthat democracy does not permit immunity formisdemeanors in the name of parliamentary privileges.

9Foreword

What is called for is the mutuality of trust, reciprocity inaccording respect and appreciation of the specific roles asstipulated in the Constitution in proper spirit on the partof the three organs. This does require considerable self-restraint on the part of each of these wings despite thesame seeming to be irritants.

The phenomenon of judicial activism has been criticizedfrom many angles by jurists and political commentators.They need to be looked into thoroughly. There should beno scope for misunderstanding that there is any elementof either one-upmanship or showmanship. The guiding starhas to be the spirit of the Constitution. The constitutionalbalance of power should in no way suffer any lastingdamage. It is obvious that in a country of our geographicalspread, the judiciary cannot run the administration but canonly awaken, alert and activate it to its own responsibility.Any creeping paralysis or further acceleration in the presentmiasma of administrative mistrust or distrust will provedisastrous to polity. It is neither necessary nor possible toeven make brief mention of the many misgivings andmisapprehensions that have been expressed by differentpeople. They have been ably and succinctly summed upby the learned author. Many vulnerabilities of the Judiciaryhave been mentioned by many knowledgeablecommentators. The fact that all of us as human beings havefeet of clay cannot be ignored. Despite high respect for theinstitution, the judiciary has not always been immune tovarious allegations. And again, it is obvious that thejudiciary does not command either the battalions or thepower of the purse. This naturally has its implications inoperational terms. The need for transparency, openness andaccountability within its own working has been stressed.Some have questioned the very practice of many of thedecisions in sundry matters regarding the judiciary beingtaken by the courts themselves. All these matters shouldnot be looked at as some kind of confrontation between


the elected representative and the judges individually orcollectively. The dignity and independence of the judiciaryshould in no way be compromised. Anybody who tries tobuild up or promote tension on this score will not servethe national interest in the long run. Posterity will neverforgive such shortsightedness.

The present debate does indicate the need for positivethought and action in certain directions. The selectionprocedure through a representative and reliable panel orcommission has been often suggested. A legislative measureis already on the anvil. Similarly, the conduct of individualjudges will also at times require more effective scrutiny. Itis unfortunate that the pusillanimity of the UnionGovernment at that point of time caused the fiasco in thecase of Justice Ramaswamy which might have establishedpublic answerability of the judiciary. The public is alsoworried particularly about the pressures on andinadequacies of the lower courts. Mounting arrears is themost ostensible symptom. Is the monitoring adequate inthis regard? What kind of speedy relief can people expect?The code of conduct as drawn by the judges themselves, inthe perspective of the public, continues to be in coldstorage. According to many legal activists, it is thedraconian law of contempt which shrouds judicial working,which is not always healthy. For people in authority, be itlegislative, executive or judiciary, transparency andaccountability from various angles is a must. It has beensuggested that an Ethics Committees must be set up forthe various constitutional wings of governance foroperational effectiveness of these well-accepted democraticconcepts. A host of such issues arise from Dr. Bhure Lal'serudite analysis in his book and will continue to agitatethe minds of the right thinking people while discussing itslimitation and possibilities.

It is not a matter of just moral or constitutionalsuperiority of one wing over the other. It is a question of

11

overall institutional adequacy, alertness, stability, vibrancyand responsibility under our constitutional system. Thepress and citizens also have a significant role to play inensuring that the possibilities of institutional decay ofvarious sorts is prevented. Judicial activism is neither apanacea nor a daily dose of vitamin. Some believe that ithas served its purpose effectively by awakening the nation'sconscience and bringing home without fear or favour, theimperative of constitutional proprieties and goodgovernance, and the moral dimensions that must underlineand condition the constitutional system, and suffuse ourdemocracy for it to flourish and fulfill its promises to thepeople.

I am thankful to Dr. Bhure Lal, who has a longexperience of administration and its interplay in our polityand economy, for asking me to introduce his book. Hedeserves our congratulations for his learned and bold effort.The publishers have also done a very commendable job. Ihave no doubt that this book will be welcome to itsdiscerning readers and will contribute meaningfully to thecontinuing dialogue, discussion and debate on a subject ofgreat contemporary interest.

Raj Bhawan, T.N. ChaturvediBangalore Governor23rd September, 2003 Karnataka

Foreword

Contents

Foreword 5

1. The Separation of Powers 15

2. Judicial Activism 33

3. Judicial Review 75

4. The Contempt of Court 85

5. Public Interest Litigation 99

6. Judicial Independence 111

7. Impeachment 119

8. Judicial Accountability 127

9. Judicial Reforms and Judicial Commission 151

10. Limitations 163

11. Conclusion 181

References 187

Chapter 1

The Separation of Powers

To Plato, justice resides in the State and is to beidentified with complete virtue which is composed of fourelements i.e. wisdom, courage, temperance (self-control)and justice. Justice consists in the will to concentrate onone’s own sphere of duty and not meddle with the sphereof others; and its habitation, therefore, is in the heart ofevery citizen who does his due in his appointed place.Justice is the condition of every other virtue of the Stateand grows with specialisation of functions.1

The conservative view of the judiciary is limited to thedetermining as to whether the law has been enforcedcorrectly. Judges must ensure that the statute does notinvade individual liberty, guaranteed by the Constitution.The courts afford the accused persons an opportunity tobe heard. “The fundamental requisite of due process oflaw is the opportunity to be heard.” The hearing must be“at a meaningful time and in a meaningful manner.”

There are three organs of government – legislature,executive and judiciary. Each organ is required to performa specific function. The legislature gives shape and directionto national policies and programmes and formulates laws.The Indian Parliament and the State legislatures haverightly started realising their role to act as the vehicle ofsocial change and progress in accordance with the idealsset out in the Preamble of our Constitution. The executiveimplements laws, policies and programmes.

The judiciary is hamstrung by a number of constraintson its independence and, therefore, depends on otherbranches in matters like “the creation and regulation ofnew courts, the appointment or impeachment of judges,judicial salary increases, and even the prospective (and


sometimes retrospective) modification of judicial decisions.It is in this sense that the judiciary has been described assimultaneously independent of and accountable to otherbranches of government. Although talented members ofthe bench, bar, and legal academy have wrestled with theenterprise of refining and clarifying these institutionalcontours, the tension between independence andaccountability remains palpable and largely unresolved.”2

A state legislature can do whatever it deems fit to dounless it is restrained by some express prohibition in theConstitution or laws made under it. The advocates ofrestraint theory advise courts to be careful and not to extendsuch prohibitions beyond their obvious meaning.

Executing the law is the executive’s function, makingthe law is the legislature’s function, judging is a passiveprocess.In short:1. The legislature enacts a statute making a certain conduct

a crime and providing for punishment.2. Someone violates the law.3. The prosecution then prosecutes.4. Only upon the confluence of these events does the judge

become involved. The judge evaluates the evidencewithin the ambit of statute. The judge has no discretionover the course and outcome of the prosecution. Thejudge will convict or acquit after evaluating theevidence.The American Constitution is probably singular in

having separation of powers in its purest form. The doctrineoriginates in John Locke’s Second Treatise, wherein theordering principle of mixed government is replaced by adifferentiation between legislative and executive functions.Montesquieu, who built upon Locke’s writings, set forthin detail the requirements and purposes of the separationof powers. His principal work, Spirit of Laws, (1749) had aprofound impact on American political thinking during the

17

country’s founding era. The almost universal acceptanceof the separation of powers by Americans arose from thebelief that the combination of any two of the three powers– Legislative, Executive or Judicial – in the same handswould lead to tyranny. The founders ensured completeseparation of the judiciary from the executive departmentand its establishment as a coordinative branch ofgovernment.

Madison said that “The accumulation of all powers,legislative, executive and judiciary, in the same hands,whether of one, a few, or the many ... may justly be calledthe very definition of tyranny.” But he argued that this“did not mean that these departments ought to have nopartial agency in, or no control over, the acts of each other.”3

To reduce the risk of tyranny, the three branches arecreated coequal, each limiting the power of the other.

When each of the three organs of the state respects therole of other organs within its own sphere, harmony wouldbe the resultant product, which would go a long way inbringing about socio-economic changes in the country.

Judiciary is important because it prevents the excess ofthe executive and the legislature and protects the rights ofcitizens.

The Report of the Commission on Separation of Powersand Judicial Independence (US) lays down that the“Constitution established an independent judiciary for tworeasons – decisional independence to ensure impartialdecisions in individual cases and institutionalindependence to check overall concentrations of power inthe political branches.”4

The position in the Indian Constitution is very different.As a commentator has remarked: “The rigid separation ofpowers under American Constitution does not apply toour country. Many powers which are strictly judicial havebeen excluded from the purview of the court.

Likewise, there are powers given to executive of



imposing Emergency which attempt to exclude the judicialfunctions of the Supreme Court from being operative inspecific matters of life, liberty and property during theperiod when emergency is in force.

“The categorical imperative for stability in democracyis, therefore, to see that every instrumentality is functionallykept on course and any deviation or misconduct, abuse oraberration, corruption or delinquency is duly monitoredand disciplinary measures taken promptly to make itunprofitable for the delinquents to depart from the code ofconduct and to make it possible for people, social activists,professional leaderships and other duly appointed agenciesto enforce punitive therapeutics when robed culprits violatemoral legal norms.” (Justice V.R. Krishna Iyer)

The judiciary has been put under the constitutionalobligation to hold the scale of justice in any legal combatbetween the rich and the poor, the mighty and the weakwithout fear or favour by keeping all authorities –legislative, executive, administrative, judicial and quasijudicial – within bounds. The judiciary in India is theexpression of the law created by Indians and for Indians.No doubt it is the most respected and powerful organ ofthe state. Nevertheless, it was never the intention of theframers of the Constitution to make Judiciary a despot.

The function of the judiciary is to block the enforcementof an unjust law proscriptively, rather than give prescriptivedirections as to how remedial actions should be taken bythe Executive.

The Supreme Court of India held in the case of AsifHameed v. State of J&K : “Although the doctrine of separationof powers has not been recognised under the Constitutionin its absolute rigidity but the Constitution-makers havemeticulously defined the functions of various organs ofthe State. Legislature, Executive and Judiciary have tofunction within their own spheres demarcated under theConstitution. No organ can usurp the functions assigned

19

to another. ... Judiciary has no power over sword or thepurse, nonetheless it has power to ensure that the aforesaidtwo main organs of the State function within theconstitutional limits. It is the sentinel of democracy. Judicialreview is a powerful weapon to restrain unconstitutionalexercise of power by the legislature and executive. Theexpanding horizon of judicial review has taken in its foldthe concept of social economic justice.”

However, Thomas Jefferson felt : “The opinion whichgives to the judges the right to decide what laws areconstitutional and what not, not only for themselves intheir own sphere of action but for the legislature andexecutive also in their spheres, would make the judiciarya despotic branch.”

Regardless of one’s view of judicial authority, it mustbe apparent that the founders did not intend judges to rulethe nation, promote their own civil agenda, or overrulestate and local governing bodies exercising their democraticauthority.

Judges are not elected. They are appointed by theelected representatives. They are rendered accountable tothe elected legislatures only through the power ofimpeachment. Their undemocratic office and limitedfunction puts a check on their creativity. The judiciaryshould leave the detailed reforms to legislatures.Unfortunately, parliaments are indifferent and often appeardisinclined to attend to important issues of publicimportance. Unless the parliamentarians judge a particularmeasure is likely to get them votes, they will not likely toundertake it. As long as they are a part of the game ofpolitics the need for reforms is dismissed by manypoliticians on the ground that there are no votes in it.

The court should assert its constitutional powers insteadof questioning every executive decision.

Alexander Hamilton believed that an activist judiciaryundermined self-government. In a case where the power



of judging is not separated from the legislative andexecutive powers, there could be no liberty.

Elected legislators respond to the will of the people.Assuming that a statute is constitutional, the job of the

courts is to vindicate the statutory scheme enacted by thelegislature.

Law and liberty are on conflict with each other. Everyindividual at his liberty may do whatever he wants butunder law he is permitted to do only that which the lawhas not prescribed. Thus the individual cannot haveabsolute liberty under the rule of law. Absolute liberty islost-subsumed to the will of one’s community. ThomasHobbes rightly observed about 350 years ago that “toomuch liberty results not in happiness but despair.... Toomuch liberty results in life that is nasty, brutish, and short,but, as the lives of people in the totalitarian states of thetwentieth century made painfully clear, too much law isno better.”

The members of the court rule with little concern forother authorities.

“Of course, it is equally disconcerting that thelegislature and the executive have been indulging incorrupt and not-so-corrupt stultification of their vitalfunctions. However, that is no alibi for judges to misbehave,especially because justice is the foremost human right andthe first constitutional promise. Moreover, there is aspreading rash of judicial delinquency in many formsundreamt of in the past, unimaginable even today, andunprovided for by the founding fathers by way ofcorrectional methodology”. (Justice V.R. Krishna Iyer)

Justice Iyer further says, “The judiciary occupies, amongthe Trinity, the highest place in the people’s conscienceand confidence”.

“Constitutionalism by dividing power provides asystem of effective restraints upon governmental action.For studying it, one has to explore the methods and

21

techniques by which such restraints are established andmaintained. Putting it in another, more familiar, but lessexact way, it is a body of rules ensuring fair play, thusrendering the government ‘responsible’”.5

Judges are in a position to help attain justice. Therefore,judges should declare void any law that is not just.

The justices speak as the voice of moral reason and aregiven authority to check majority impulses because theelectoral majority may behave tyrannically. If the courtbecomes autocratic, there remains the remedy ofimpeachment via activation of the elected representativesof the people.

Former Chief Justice P.N. Bhagwati, an activist judge,expounded the Supreme Court’s power over other organs:“It is necessary to assert in the clearest terms, particularlyin the context of recent history, that the Constitution issupreme lex, the paramount law of the land, and there isno department or branch of government above or beyondit. Every organ of government, be it the executive or thelegislature or the judiciary, derives its authority from theConstitution and it has to act within the limits of itsauthority. No one, howsoever highly placed and noauthority, howsoever lofty can claim that it shall be thesole judge of the extent of its power under the Constitutionor whether its action is within the confines of such powerlaid down by the Constitution. This Court is the ultimateinterpreter of the Constitution and to this Court is assignedthe delicate task of determining what is the powerconferred on each branch of government, whether it islimited, and if so, what are the limits and whether anyaction of that branch transgresses such limits.”

The judiciary is required to administer the law in adetached manner. The conservative view of judiciary isstatus quoist. On the other hand, the legislature and theexecutive have to continuously adjust to the changing socialorder. Thus in a developing society, with the State acting



as the engine of socio-economic transformation, a conflictbetween the legislature and the judiciary invariably arises.

Due deference to the legislature demands an attitudeof self-restraint on the part of the courts, because thedecision has been made by the legislature due to thediscretionary judgment of the administrator. But sincediscretionary powers are capable of gross abuse, resultingin injustice to individuals, the urge to intervene in theinterests of justice pulls them to the opposite direction,favouring an activist attitude.

The government itself had become a major violator ofhuman rights and a demolisher of norms and institutions.Not only had it forsaken its progressive and caring role, ithad emerged as a threat to democratic polity.

Crime, politics and the police are the three sides of thevicious triangle within which the future of democratic Indiaand its free people are trapped. The nexus between corruptpoliticians, and criminals is posing a serious threat to lawabiding citizens.

Ultimately political sovereignty vests in the people ofthe country.

Politicians in or out of power and bureaucrats in or outof office sometimes commit shocking crimes but they areamenable to judicial justice.

Politicians protect criminals from the law whilecriminals reciprocate by acting as their henchmen.Policemen try make money. This is the way this nexus ofvile power-brokers, preys on innocent people, bloating onthe blood of the hapless masses.

The much-talked about Vohra Committee report hasalready conceded the existence of such a nexus; but evenit did not puncture the air of superiority that was/isassumed by all those who speak in the name of the“people”.

A democratic state gains in legitimacy where peopleparticipate in governance through regular elections and

23

hold the political executive accountable and ‘responsible’.The democratic and electoral legitimacy of the Indian Statehas been seriously questioned because the electoral processhas eroded the legitimacy and constitutionality of theIndian State.

How can Indian political executive and bureaucraticinstitutions gain democratic strength when elections havebecome a contest of sectarianism? Political leaders haveintensified sectarian violent conflicts, and it requires regularintervention and involvement of the paramilitary forces inthe routine governance of India

Right to personal liberty is a fundamental rightguaranteed by the Constitution and executive interferencewith this right is conditioned by the safeguards containedin Article 22. The Supreme Court of India, as a guardian ofconstitutional democracy is a watchdog of the FundamentalRights of the Indian citizens. It is only natural for thejudiciary to adopt an activist stance in applying the test of“relevance” to an executive order of preventive detention.

“The people in the mass obviously cannot exercisemonitoring, controlling, disciplining and like functions.Therefore, we need checks and balances so that powervested anywhere may not go haywire and may becomeamenable to the constitutional fundamentals andanswerable to those who are the ultimate masters or donorsof the power”. (Justice V.R. Krishna Iyer)

Soon after the adoption of the Constitution in 1950,various state governments enacted laws to abolishZamindari rights. But the Bihar High Court annulled theAbolition of Zamindari Act as it violated the fundamentalright to property.

The government came up with the first amendment tothe Constitution in 1951, which placed Zamindari AbolitionActs outside the protection of fundamental rights.

But this did not help as the courts held thatcompensation for acquisition of property should be paid



at market rates. This would have rendered the abolition ofZamindari meaningless, and the amounts involved wouldhave far exceeded the resources of the State. The legislatureplayed its role and amended the Constitution and placedthe compensation to be paid beyond the reach of the court.

There is a fundamental conflict between an activistdemocracy and a judicial democracy in that one can haveadministrators with clearly defined powers oradministrators with great powers, but one cannot haveboth.

There are problems of striking the right balance ofpower between the legislature, the executive and thejudiciary.

The courts have overstepped the sphere assigned tothem by the Constitution in this regard. Eminent juristslike Justice H.R. Khanna have likened the courts’ activismto a trespass. Then the court’s administration of thecontempt law is open to criticism. It has been going thewrong way in upholding its prestige. But more than allthis, the court has unwittingly allowed the abuse of publicinterest litigation.

Judicial activism or innovative interpretation came intobeing in 1804 in Marbury v. Madison decided by Chief JusticeMarshall of the US. He observed, “it is for the court to saywhat the law is”. A law repugnant to the Constitution isvoid. If there was conflict between a law made by theCongress and the provisions in the Constitution, it was theduty of the court to enforce the Constitution and ignorethe law. Thus, he laid down the foundation of two concepts– judicial review and judicial activism. In 1857, theAmerican Supreme Court headed by Chief Justice Taneyruled in Dred Scott v. Sandford that Negroes were not equalto whites and that the rights guaranteed under theConstitution were not available to them. The decision leadto the civil war between the Northern and Southern States,ultimately resulting in the abolition of slavery and

25

strengthening of the Union.If the judiciary, through judicial despotism, tries to take

over the government of the country, it will be diluting theresponsibility of the executive. There may be manyimperfections with other wings of the democracy. Thejudiciary is not the last bastion. “Let us not condemnParliament or Government to praise the judiciary.” (V.Narayanan, Editor, Hindustan Times)

“The illegitimacy of the court’s departure from theconstitution”, says Rovert Bork, is underscored by the factthat no justice has ever attempted a justification of thepractice. At most, opinions have been offered, as if it solvedsomething, the observation that the court has never felt itspower confined to the intended meaning of theConstitution. True enough, but a long habit of abuse ofauthority does not make the abuse legitimate. That isparticularly so when the representative branches ofgovernment have to adopt effective way of resisting thecourt’s depredations (Robert Bork, “Our Judicial Oligarchy”,First Things, Nov. 1996).

Although patterned after the British parliamentarysystem, the Supreme Court of India has the power ofjudicial constitutional review, long denied to the SupremeCourt and Court of Appeals in England (see Glendon,Gordon, & Osakwe, 1984). The Supreme Court in India isthe final interpreter of the test of constitutionality throughthe review powers of the court.

The court once was merely the interpreter of laws,authorised only to spell out the meaning of theConstitution. But the new dimensions which judicial reviewbrings is an attempt to tread on territory hitherto reservedfor the executive and the legislature.

Political power, by nature, is controversial, and politicalpersuasions had never been dissimilar in any period inhistory, It is only natural that judicial review gives rise tomuch anxiety in the executive and the legislature, especially



at the continuing prospect of an over-reaching judicialsojourn into the traditional areas of executive power.

On a practical level, it is charged that in the process ofjudicial review, a lot of political power for the purpose oflegislation, is coming into the hands of the judges. Andbecause of its growing dimensions, the up-to-date legalphilosophy classifies this power under two heads –interpretivism and non-interpretivism.

Interpretivism does not give rise to any controversy asit only supports the traditional job of courts to interpretthe law. But non-interpretivism is a new power assumedby courts, justifying the issue of value judgments on policyquestions, and this is the controversial part of review powerchallenged by the other two branches. The executive andthe legislature fear that their power is coming under theincreasing pressure of a judicial takeover. This fear is onlya nightmare, but one cannot fail to note that the time hascome for courts to take serious note of the dividingboundary.

“The tendency to clutch at jurisdiction and expand thescope of judicial review has to be resisted by the judiciaryitself.”6

The Constitution is the source of power and limitationon every organ including the court’s powers. Hence, thenecessity of interpretation of the Constitution. Thoughappearing as self-evident and unchallengeable, noConstitutional text can be discovered for the propositionthat the Supreme Court, the interpreter of the Constitution,is also assigned the task of determining what is the powerconferred on each branch of government. There is no articlein the Indian Constitution which lays down that theSupreme Court is also assigned the task of determiningwhat is the power conferred on each branch of thegovernment. Chief Justice Marshall’s dictum that “It ishardly self-evident that only judges can interpret laws”7

applies in the context of India also.

27

If the Supreme Court is the “ultimate interpreter of theConstitution” inevitably it will be “sole judge of the extentof its own power under the Constitution” – a power whichthis hypothesis denies to other organs functioning underthe Constitution.

In State of Himachal Pradesh v. Umed Ram, a three-judgeBench held that judicial directions were permissible in casesof executive inaction only within limits because“interference with administration cannot be meticulous inour constitutional system of separation of powers.”8

How can the judges claim to know more about publicinterest than the elected representatives of the people? Tojurist Archibald Cox, “activism in constitutionaladjudication” gives rise to “institutional worries”. Thecourts may damage their own legitimacy by crossing theboundary defined by their traditional role, and they mayalso diminish the moral responsibilities of the people totake corrective measures on their own initiative. Thus, self-government may receive a setback.

Like other public policies, judicial policies are notimplemented by their originators. Chief executives,legislatures, and courts must all rely on others to transformdoctrine into action. Thus the implementing populationconsists of the set of actors that perform an enforcement orservicing function in the political system by applying rulesto individuals subjects to their authority.

The legislature enacts laws and the executiveimplements the legislative instructions. The judiciaryinterprets the laws and the constitutional text. However,all the three wings of the State are to act within theparameters laid down by the Constitution. What actuallyare the constitutional limitations, the task has been assignedto the judiciary to interpret and explain the law. But if thejudicial interpretation does not conform to the intentionsof the legislature, the latter has been given the power toamend the law and the Constitution so as to bring it in to



conformity with the legislative intent.The economic policies pursued by the rulers in

independent India have failed to augment wealth in amanner which would have eliminated poverty, generatedgrowth with justice and eliminated social and economicinequalities. Can the courts now achieve these socialisticgoals just simply by announcing theories of justice in theirpronouncements? Stopping exploitation and oppression isthe task of the political executive and other social andeconomic institutions and professional organisations andnot of the judges.

When one is engaged in reform through law, one isseeking transformation in the way of life. The values whichhe seeks are controlled by other institutions and the socialmilieu. It then becomes clear that the courts are helpless totake positive steps to afford these groups jobs, food, shelter,education, etc. because they do not have them at theirdisposal.

To make judiciary free from executive influences PrimeMinister Jawaharlal Nehru was in favour of a clear-cutdemarcation of functions between the executive and thejudiciary. He stated during the course of debates in theConstituent Assembly:

“… so far as the government is concerned, it is entirelyin favour of the separation of judicial and executivefunctions. I may further say that the sooner it is broughtabout, the better, and I am told that some of our ProvincialGovernments are actually taking steps to that end now. Ifanyone asked me, if anyone suggested the period, my firstreaction would have been that this period is too long. Whyshould we wait so long for this? It might be brought about,if not all over India, in a large part of India much soonerthan that. In any such directive there should not be anydetails or time limit etc. It is a directive of what the Statewants, and your putting in any kind of time limit, therefore,rather lowers it from high status of a State policy and brings

29

it down to the level of a legislative measures, which it isnot in that sense. I would have preferred no time limit tobe there”.9

This vision of Nehru was translated into practice in thesouthern region of our country much earlier than in thenorthern part. But with the enactment of a Union law,namely Criminal Procedure (Amendment) Act 1973 theseparation between judicial and executive functions hasbeen finally done.

“…No Supreme Court and no judiciary can stand injudgment over the sovereign will of Parliamentrepresenting the will of the entire community. If we gowrong here and there it can point it out, but in the ultimateanalysis, where the future of the community is concerned,no judiciary can come in the way, ultimately the wholeConstitution is a creature of Parliament. But we mustrespect the judiciary the Supreme Court and the HighCourts of the land. As wise people, their duty is to see thatin a moment of passion, in a moment of excitement, eventhe representatives of the people do not go wrong; theymight. In the detached atmosphere of the courts, theyshould see to it that nothing is done that may be againstthe Constitution, that may be against the good of thecountry, that may be against the community in the largersense of the term. Therefore, if such a thing occurs, theyshould draw attention to that fact, but it is obvious that nocourt, no system of judiciary can function in the nature ofa third House, as a kind of their House of correction. So,it is important that with this limitation the judiciary shouldfunction. Ultimately… the legislature must be supreme andmust not be interfered with by the courts of law in suchmeasures of social-reform/abolition of Zamindaris.”10

Under the scheme of the Indian Constitution, it isexpected that the executive, the legislature and the judiciarywill function within their respective spheres withouttransgressing into others’ areas. The judiciary and



Parliament are supreme in their respective spheres and innormal circumstances they will not interfere with theworking of each other. The constitutional position is thusclear as under:

Article 121 of the Constitution specifically says that “Nodiscussion shall take place in Parliament with respect tothe conduct of the judge of Supreme Court or the HighCourt in the discharge of his duties except upon a motionfor presenting an address to the President praying for theremoval of a judge as hereinafter provided”.

Conversely, Article 122(1) provides that “the validityof any proceeding in Parliament shall not be called inquestion on the alleged irregularity of procedure”.

“No officer or Member of Parliament in whom powersare vested by or under this Constitution for regulatingprocedure for the conduct of business, or for maintainingorder in Parliament shall be subject to the jurisdiction ofany court in respect of the exercise by him of those powers.”

But there have been occasions when there was a disputebetween the judiciary and Parliament. The Judiciarypronounced certain verdicts which affected both theexecutive and Parliament. Politicians want to use theJudiciary for their own political ends and, therefore, havehad to remain silent despite unpalatable decisions by thecourts. The judiciary has asserted and reasserted its rightto have the final say in matters of transfers andappointments of judges and Parliament had to concede tothe judiciary. The Speaker of Manipur Assembly wasordered to be produced before the Supreme Court and theCentral Government was directed to ensure the presenceof the Speaker. In the case of the executive, the SupremeCourt ordered the executive to stop tyrannical acts againsthelpless persons. The courts have emerged as the greatestsaviour of the fundamental rights of the people and thusprevented the tyrannical acts of the State and the CentralGovernments by granting relief to victims.

31

It was further held that under Article 38(2) of theConstitution, access to life for the Hillmans, should be anobligation of the State but it is primarily within the domainof the legislature and the executive to decide the priorityas well as determine the urgency.11 (State of Himachal Pradeshv. Umed Ram)

It was the legislature which knew the needs of thepeople and under the Constitution it was they who wereauthorised and entitled to “fix priorities for expenditure tosatisfy basic needs of the people, upon the judgment andrecommendation of the executive.”12 (State of HimachalPradesh v. Umed Ram)

“A principle is different from a policy. Abuse ofdiscretion is not fair meddling. The preserve of politiciansto act in public interest is supreme. The court must respectParliament. Justifiability must be the cornerstone of Justice.The judge must reinforce representative Government, notundermine it,” says Professor Jeffrey Jowell from England.

We have to elect the right type of public representativeswho will protect the system of separation of powers. Itwill be wrong to abdicate responsibility of curing socialevils to judiciary. Policies cannot be left to the whims ofun-elected judges over the will of the peoples’ electedlegislators.

Outlining the guiding principles of judicial activism,Prof. Jowell said if the executive exceeds the terms of powerconferred on them, judges can intervene. So can they if thestate refuses to comply with the statutory provisions. And,they should also see to it that the policy is not sacrificedfor principle.

The three instrumentalities of the government-legislature, executive and judiciary have played asignificant role in translating the philosophy of distributivejustice as the principal instrument to ensure justice, socio-economic and political to poor bonded labourers, workingclass women, children, downtrodden, scheduled castes,



scheduled tribes and backward classes etc. Each organ hasits specific role and utility to society. If any of theinstrumentality becomes dormant it will disturb thebalance, causing difficulties to people. If the executive failsto address effectively to mitigate public grievances avacuum will be created in the society and some otherinstrumentality will come forward to fill this vacuum. Theonus will fall on the judiciary to come to the rescue ofaggrieved citizens. The other instrumentalities i.e. executiveand legislature may call it mistakenly as judicial activism.

Notes and References :1. D.R. Bhandari, History of European Political Philosophy, 1959, p. 18.2. ABA Report, supra note 2, at 45, 1997, (nothing the tension over

inter-branch conflict, that it is both “intractable” and “inevitable,”and offering little in the way of resolution other than a vaguenotion of “mutual respect”).

3. The Federalist Papers (Clinton Rossitor, ed.), New York, Mentor,1961, p. 302.

4. Report of the Commission on Separation of Powers and JudicialIndependence. American Bar Association, p. 5.

5. Carl J. Friedrich, Constitutional Government and Democracy, Oxfordand IBH, (Revised Edn.), 1966, p. 26.

6. R. Venkataraman, President of India, Inaugural Address, SilverJubilee Celebration of the Allahabad High Court, Dec. 1991.

7. The Role of the Supreme Court in American Government, OxfordUniversity Press (1976), p. 12.

8. (1986) 2 SCC 68 (R.S. Pathak, V.D. Tuzapurkar and S. MukharjeeJJ).

9. CAD. Vol. VII, p. 58910. CAD. Vol. IX, pp. 1195-9611. (1986) 2 SCC 80 (R.S. Pathak, V.D., Tuzapurkar and S. Mukharjee

JJ).12. (1986) 2 SCC 78 (R.S. Pathak, V.D., Tuzapurkar and S. Mukharjee

JJ).

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Chapter 2

Judicial Activism

It is ultimately the Constitution toward which the juristis “activist” or “restrained”. Judicial restraint impliesfocussing on the concept of “original intent”.

Judicial activists have historically come in variouspolitical varieties. The fear in the case of judicial activismis that the judge will impose his own personal preferencesin his decisions. He may go to the extent of negating thevery meaning of law.

The lack of concern by the legislature for some pressingproblems of the people and the near-disappearance ofresponsible and responsive governance by the executivehave compelled the court to enforce the rights of citizensthrough novel and innovative strategies to meet the needsof the times. Whether it is environmental pollution, thescandal in allotment of government accommodation or theHawala case, the court is upholding constitutional rights;the right to life in the first example and the right to equalityin the latter two.

According to Justice William J. Brennan, the advocatesof judicial activism stand for going beyond:

1. The original cognitive meanings of laws.2. They keep their eyes open to the social progress and

adapt themselves to “changes of social circumstances”.3. “The genius of the Constitution rests not in any static

meaning it might have had in a world that is dead andgone, but in the adaptability of its great principles tocope with correct problems and current needs.”

The changing social scenario necessitates theconstitutional amendments. Publicly desired changes arethwarted for lack of institutional arrangements. It may be


a wrong charge against the judges that they are de factoamending the Constitution. Judges are the public’s lastresort and carry out the public’s thwarted desire for change.“A more equal society is a better society even if its citizensprefer inequality”.

In the laissez faire system, justice could be purchasedby those who could afford its costs.

Judicial Activism cannot be a substitute for executiveefficiency and the social and economic change in a societyorganised around privilege, patronage and power, cannotbe brought about just by a few Public Interest Litigationactions, however well intentioned.1

The courts can act as critics and monitors ofgovernment. However, they possibly lack the capacity forcontinuing monitoring and surveillance. All these thingscan be done by politicians, administrators and enlightenedpublic opinion.

According to Senator Hatch, “a judicial activist is,simply put, a judge who exceeds the proper limits of hisor her authority and usurps the authority delegated toanother branch (or institution) of government. In its mostbasic sense, activism is when judges make the law insteadof applying it.2

Unfortunately, because of indifference on the part ofthe executive and the legislature to discharge their dutiesconstitutionally, courts have been compelled to correctinstitutional abuses, restrain individual defiance, minimiseoppression and discrimination and enforce the rule of law.

Often legislation inadvertantly leaves many openquestions that must be resolved during the course oflitigation. The courts and the judges resolve such issues byjudicial pronouncements.

“It is clear that unless a community lives under theRule of law; it will tend to be lawless. Also if there is to beRule of Law there should be independent judges toadminister that law.” There should be a strong, efficient

35

and independent judiciary for upholding the rule of law ina parliamentary democracy.

A judge has to find out the law on the subject, interpretit with the aid of existing precedents and in a manner thatadvances the cause of justice and suppresses the mischief.If there is a violation of the law, he has also to decide whataction has to be taken to maintain the rule of law and inwhat manner and to what extent the situation is requiredto be remedied.

According to Blackstone, “a law ... against sheddingblood in the street should not apply to a surgeon treatingan injured man”. Judges are justified in considering thereason and spirit of law and the causes which move thelegislator to enact it.

It is the judge’s morality (or the judge’s conception ofsociety’s morality) which is extrinsic to the Constitution.The case for recognising that there is morality in law is nota case for judges’ introducing morality into law whenHolmes defined law as essentially a “prediction of theincidence of the public force”.

The morality of the law as enacted must bedistinguished from the morality of the judge interpretingit. The courts must ensure that the game is played accordingto the rules, whether somebody likes it or not.

To Oliver Wendell Holmes, the legal interpretation didnot mean to get into the mind of someone who said it.When a legal document “does not disclose one meaningconclusively according to the rules of the language” Holmessaid, the question was “not what this man meant, butwhat those words would mean in the mouth of a normalspeaker of English, using them in the circumstances inwhich they were used.” He said: “We do not inquirewhat the legislature meant; we ask only what the statutemeans.”

Holmes further said, “I do not expect or think itdesirable that judges should undertake to renovate the law,”

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he said, “That is not their province.” Like Blackstone,Holmes would, as a last resort, try to “read what the writermeant into what he tried but failed to say”. He wasattempting a cognitive explanation rather thanphilosophical or psychological.

Justice Brennan said “ambiguity, of course, calls forthinterpretation.” He ignored the more fundamental questionof whether it was interpretation which called forthambiguity.

The Constitution is not to be read as a set of rules butas an expression of values, to be given specific content inthe particular case by the jurist. Those on the other side,who propose remaining within the original cognitivemeaning, often raise another issue as to the right of ademocratic majority to govern through its representatives.

The Constitution, according to Tribe, “is not simply amirror, nor is it an empty vessel whose users may pourinto it whatever they will.” The Constitution should bepredominantly concerned with substance and not onlyprocess.

In a constitutional democracy, the moral content of thelaw must be given by the morality of the framer or thelegislator. It must not be given by the morality of the judge.Moral neutrality has nothing to do with defining the limitsof a judge’s institutional role. To say that a moral rightsexists is not to say that a legal right exists, or thatjudges are authorised to create one not already in theConstitution.

Historically, the ending of the enslavement of blacks inthe United States was not the work of courts but of ademocratically elected president.

The implementation of this legal equality was retardedfor decades by the courts’ restrictive reading of theFourteenth Amendment in racial cases, while they readthe Amendment ever more expansively in areas remotefrom the “original intent” of the enactment.

37

Chief Justice Taney said in the Dred Scott case, that ablack man “had no rights which the white man was boundto respect.” Courts of the “substantive due process” erastruck down much government regulation.

The courts have played a prominent role in thedevelopment of jurisprudence of India. The callous attitudeof the State administration in keeping hundreds ofthousands of people in prison was exposed. No liberty issafe without a court to protect it.

In B. Krishna Bhatt v. Union of India, it has been heldthat to make the State accept a particular policy, howsoeverdesirable and necessary it might be, is not the function ofArticle 32 of the Constitution. Article 32 of the IndianConstitution is not the nest for all the bees in the bonnetof “public spirited persons.”

The judicial stand taken in B. Venketraman v. State ofMadras, State of Madras v. Champakam, Balaji v. State ofMysore, R. Chitralekha v. State of Mysore, Basalingappa v.Minichinnippa, P. Rajendra v. State of Madras, State of AndhraPradesh v. Sagar, Triloki Nath v. State of J&K, Periakaruppan v.State of Tamil Nadu and Janki Prasad Parimoo v. State of J&Khas really promoted judicial activism in the field ofawarding protective discrimination benefits to thebackward classes. (AIR 1950. SC. 229; AIR 1951 SC 226;AIR 1963 SC 649; AIR 1963 SC 1823; AIR 1965 SC 126; AIR1968 SC 1012; AIR 1967 SC 1233; AIR 1969 SC 1; AIR 1971SC 2303; and AIR 1973 SC 930).

A few instances like Yusuf Abdul Aziz v. State of Bombay,Mrs. Rajbans v. State of Punjab and Others, Walter Alfred Baidv. Union of India, C.B. Muthamma v. Union of India, Air Indiav. Nargesh Mirza, Ramchandra v. State of Bihar, Shamsher Singhv. State of Punjab, Pritabha Rani v. Suraj Kumar, Brijlal v.Prem Chand, Vadde Ram Rao v. State of Andhra Pradesh, ViramDeo Singh v. State of bihar and Mohd. Khan Ahmed v. ShahBano Begum are eye opener judgements upholding the spiritof distributive justice in favour of women and children.

Judicial Activism


(1954 AIR 530; AIR 1966 Pat. 214; AIR 1970 P&H 372; AIR1985 SC 628; AIR 1989 SC 1661; Criminal Journal Vol. 96 Sep.(1990); AIR 1988 SC 1982; AIR 1990 SC 292; AIR 1985 SC945).

The landmark case which gave the court anotheropportunity to do battle with Parliament was BangaloreWater Supply v. A. Rajappa (1978). The court’s decisionopened new vistas in industrial relations by includinggovernment employees, doctors, and teachers as potentialworkers within the meaning of ‘worker’ under theIndustrial Disputes Act. In its decision, the court declaredthat education is an industry, and that industry, in general,has a wide import.” This was done to allow teachers accessto the same adjudicating machinery and protection as wasavailable for workers in general. As one Indian legal scholarput it, the decision rocked the industrial scene in India”(Prasad, 1980). Subsequent to the decision came apronouncement in several cases with which the court wasable to bolster its position, including Bhaskaran v. SubDivisional Officer and KRB Kaimal v. Director of Postal Services(1979). Under the expanded definition provided byBangalore Water Supply v. A. Rajappa staff and clerical helpwithin government services (in this case postal andtelegraph), and public hospitals, were demanding the samemachinery for redressal of grievances as workers in otherindustries. Prior to 1978, teachers, doctors and governmentemployees were basically left out of the ambit of theIndustrial Disputes Act 1948.

A five-member Bench of the Andhra Pradesh HighCourt in D. Satyanarayana v. N.T. Rama Rao has gone to theextent of laying down the proposition that the executive isaccountable to the public through the instrumentality ofthe judiciary.

The Golak Nath case is an example of judicial activism.The Supreme Court by a majority of six against five laiddown that the fundamental rights as enshrined in Part-III

39

of the Constitution are immutable and beyond the reach ofthe amendatory process. The power of parliament to amendany provision in Part-III of the Constitution was takenaway. In Kesavananda Bharati case by a majority of sevenagainst six, the Supreme Court held that by Article 368 ofthe Constitution, Parliament has amending powers. But theamendatory power does not extend to alter the basicstructure or framework of the Constitution. The basicfeatures of the Constitution being : (i) Supremacy of theConstitution; (ii) Republican and Democratic form ofgovernment; (iii) Secularism; (iv) Separation of powersbetween the legislature, the executive and the judiciary;and (v) Federal character of the Constitution. Supremacyand permanency of the Constitution have thus beenensured by the pronouncement of the summit court of thecountry with the result that the basic features of theConstitution are now beyond the reach of Parliament.

The Supreme Court made very pertinent observationsin C. Ravinchandran Iyer v. Justice A.M. Bhattacharjee(judgment by Justice K. Ramaswamy): “In this ongoingcomplex of adjudicatory process, the role of the Judge isnot merely to interpret the law but also to lay new normsof law and to mould the law to suit the changing socialand economic scenario to make the ideals enshrined in theConstitution meaningful and reality. Therefore, the judgeis required to take judicial notice of the social and economicramification, consistent with the theory of law.”

In 1983, Justice Mehmood of the Allahabad High Courtdelivered a dissenting judgment which was the beginningof activism in India.

Much less reported was a case in Calcutta where theHigh Court, which was not actually monitoring the case,even fixed the dates, time and place of interrogation of theaccused by the enforcement directorate. “Such kind ofsupervision on the inquiry or investigation under a statuteis uncalled for,” observed the bench of Justices M.K.

Judicial Activism


Mukerjee and K.T. Thomas, deciding on an appeal by theenforcement directorate. “We have no doubt that such typeof interference would impede the even course of inquiryor investigation into the serious allegations now pending.It is not the function of the court to monitor investigationprocesses so long as such investigation does not transgressany provisions of law.”

In the Amitabh Bachchan Corporation v. Mahila JagranManch case, the court found that the desirability ofconducting beauty pageants and how to deal with theprotests against them were not matters which could bejudicially assessed and “the pressure which the agitatorsbring to bear ought not to sway the court into exercisingjurisdiction.”

The Supreme Court ordered “nationalising” seats inmedical colleges in India on June 22, 1984 in Pradeep Jainv. State of U.P.3 The Judgement does not even mention thefacts of Dr. Pradeep Jain, whose case the court wasconsidering, but treats admissions to medical colleges bystudents all over India as a problem of unity and integrityof India to be solved by the court. The court stated that itwas “laying down the law for the entire country.” Theconspicuous exercise of judicial law making resulted inutmost confusion and trouble for the students in India forseveral years.

In the case of workers of Rohtas Industries v. RohtasIndustries Ltd. (1989), AIR 1990 SC 481, the State and theUnion of India were ordered to provide funds to revivethe company. A moratorium was ordered on claims againstthe assets of the company and the law of limitation wasjudicially suspended under the orders of the court.4

Judicial Activism has, at times, led to wasting precioustime of courts. The increasing number of cases involvingpolitical problems or having political overtones is seen fromthe Supreme Court’s work in the period September 1990 toOctober 1991. During that period the court was seized of

41

regular hearings in three such major cases involving manydays viz., – the Mandal Reservation Case for 42 daysbetween September 1990 to March 1991 and remained partheard till October 1991 and thereafter adjourned to a laterdate; the Bofors Case, which engaged the court for 34 fulldays, and the Anti-Defection Cases which commenced frommid-September 1991 to 12th November 1991. In the BoforsCase, the dust and din of the political interparty fightscompelled the court to record, “the introverted andextroverted rhetorical submissions made by the learnedcounsel were punctuated sometimes with inflammatoryremarks occasionally with discordant and embittered notesas well as esoteric statements intermittently with politicalovertones......”5

In India, where there is a widespread violation offundamental rights by the police and security forces,shocking administrative apathy and callousness towardsthe common people, and arbitrary exercise of powers bythe State, judicial activism is necessary. Where the law isused to circumvent the ends of justice, judges have to stepin.

Judges are called on to exercise the sovereignprerogative of choice – in doubtful cases.

The virtual abdication of their roles by the Executiveand the Legislature has led to judicial activism. Theirconduct, even at the present stage, does not providegrounds for optimism. With the Executive and theLegislature failing to discharge their functions, can theJudiciary be blamed for its activism?

Advocates of judicial activism urge that extrinsicmeanings be used, even if intrinsic meanings are known.Ronald Dworkin, for example, rejects a “strictinterpretation” of the constitutional text because it limitsconstitutional rights “to those recognised by a limited groupof people at a fixed date of history.” It would be wrong,according to Dworkin, in interpreting the constitutional

Judicial Activism


phrase, “cruel and unusual punishment” for the SupremeCourt “to be much influenced by the fact that when theclause was adopted capital punishment was standard andunquestioned.”

In his view, “the court can enforce what the Constitutionsays only by making up its own mind about what is cruel.”More generally, “rights may vary in strength and characterfrom case to case, and from point to point in history.”Dworkin called for “a fusion of constitutional law andmoral theory.”

The pronouncements made at the 150th anniversary ofcourt and bar at Chikadi in Karnataka by the then PrimeMinister, Shri Narsimha Rao, said, “The executive headcannot decide whatever it wants to do. It is subject to therule of law.” The observation might be taken to mean thatany decision that the Prime Minister desires to take woulddepend upon the approval of the judiciary.

“We must accord utmost importance to independenceof the judiciary. It has a special role to see whether theexecutive has acted justly.”

Directing investigation in the hawala case, the SupremeCourt noted that certain dark forces sought to derail theinvestigations.

To eliminate any impression of bias and avoid erosionof credibility of the investigations being made by the CBIand any reasonable impression of lack of fairness andobjectivity therein, it is directed that the CBI would nottake any instructions from, or report to, or furnish anyparticulars thereof, to any authority personally interestedin or likely to be affected by the outcome of theinvestigations into any accusation.” (The Supreme Courtorder dated March 1, 1996.)

The essential function of the judiciary is to interpretthe law and not make it, but the failure of the politicalestablishment has forced it to the latter.

The crux of the problem lies in the total lack of

43

confidence of the people in the efficacy of the legislatureand the executive, as effective instruments, in redressingthe basic ills which have plagued the society for a numberof years. It is, therefore, not surprising that the people havestarted approaching the higher courts to get relief. In fact,if the courts too take a nonchalant attitude, the verysurvival of these institutions of democracy might be indoubt. We have now come to a phase in which even thelegislature has lost confidence in the bonafides of theexecutive. How can judiciary be blamed for having takenover somebody else’s role?

Whenever it was convenient, the Centre has made useof the higher judiciary to shirk its own responsibility totake decisions. Some recent examples of this are theAyodhya issue, the Mandal controversy and the CauveryWater dispute. The government left these highly emotiveand politically sensitive issues to the courts, instead oftaking firm political decisions and leaving it to theaggrieved parties to approach the courts.

The government has also used the courts to stonewallembarrassing questions in the press and Parliament onmajor controversial issues. An outstanding example of thisis the notorious hawala transaction case involving severalprominent leaders of the ruling and opposition parties,businessmen and bureaucrats.

The recent decisions of the higher courts on matterssuch as environmental protection, human rights violations,review of long overdue cases of undertrial prisoners,accountability of public servants, custodial crimes andothers have been widely welcomed. Some woes pertainingto Delhi such as out-of-turn allotments of governmentaccommodation, continued occupation of governmentaccommodation by those not entitled to it, large-scaleencroachments on public lands, regularisation ofunauthorised colonies by successive governments,unscrupulous encroachments on the reserved forest area

Judicial Activism


of the Ridge, and large-scale accumulation of garbage andfilth creating unhygienic conditions are only a few examplesof the total breakdown of administration and governancein the very capital of the country. These are only a few ofthe public interest petitions to which the apex court had toaddress itself in recent years. Can there be a more eloquentcomment on the functioning of the government?

Judges’ have specialized training as conjurers of law.The institutional structure keeps them away from electoralpressures. The absence of those pressures reduces theincentives for judges to distort the rules in their own self-interest.

The judiciary’s no-nonsense attitude in the hawalascandal has emboldened, for the first time, the humblecitizen to reject the humbug of the political class as well asunderstand the moral cowardice of the so-called intellectualcommunity that danced attendance on the politicians allthese years. Whatever else the hawala scandal may or maynot have done for individual political leader’s reputationsor career, the polity can no longer go on conceding to thepolitician a status above law, even if he happens to speakin the name of the poor and disadvantaged segment ofsociety.

Justice Verma of the Supreme Court has helped thecountry to achieve a breakthrough and emboldened everyvigilant citizen to question the veneer of respectabilityarrogated by the very crook of a politician.

Among those at the top of the ladder in the country –the politicians, bureaucrats, businessmen, policemen andcriminals – there is a camaraderie; resulting in a conspiracyof silence. The Hawala case which began in 1991 wasplayed down for so many years until, it appears, theSupreme Court forced the hand of CBI.

The public impression of rampant corruption is basedon the conspicuous inertia of the government in not takingany action to punish the guilty figuring in a whole host of

45

mega-size corruption cases. For a number of years, noprosecution had been launched nor any firm action takenin any of the cases that had come to light. Leave aloneBofors, what action has been taken in the securities scam,or the sugar scandal, or the urea scam. The Chandraswamycase is being closely watched by the man in the street.

The court has also given a directive that it would wantto be satisfied before the Central Bureau of Investigationcould ‘close’ a case against anyone.

Even a single case can serve as a warning to politiciansand hawala operators to be on their guard and therebycurb the range of such operations. Biju Patnaik has beenvery specific. He came out with a warning that the peoplehave lost faith in politicians as they have “failed to meetthe aspirations of the people”, and so have forfeited themoral right to rule the country.” (The Hindu, New Delhi,Dt. 25.1.1996)

The situation has forced the court to pass such ordersas: “Get back to us if government drags feet in hawalacase”,

This is a piquant situation. Veteran Marxist SomnathChatterjee has rightly called it a serious constitutional crisis.“It should not be taken as a mere routine matter,” he saidin the Lok Sabha. “The Prime Minister is further in chargeof the department that is dealing with this (hawala case)and which has administrative control over the CBI. Whatis the consequence of the direction given by the SupremeCourt on March 1st? If the Supreme Court was acceptingthe position of the assessment of the CBI director, asexpressed through the Solicitor-General, then such a drasticorder need not have been made at all.

“The second aspect is very important,” Chatterjeeadded. “What we want to know is what the effect of thisorder is. As far as the CBI is concerned, it has, today,become sui juris (self-governing). There is nobody to controlit in the government. It has no political authority over it.

Judicial Activism


No minister is any longer responsible for what is happeningregarding the hawala transactions.”

The ongoing hawala case is far from complete. But it isalready clear that every section of the Establishment hasbeen muddied by the scandal. It has exposed the “sham”of independent investigatory agencies. The government ofIndia was “forced” to take action because of the SupremeCourt.

Upto the point where the courts stepped in, the CBIhad not taken action against any politician, despite all theindications of guilt. For four years it seemed as if thehawala case was nothing more than a series of bureaucraticmisdeeds.

Without putting any gloss on the situation, let it besaid that almost no one believes that any action againstthe alleged beneficiaries of the hawala racket ofphenomenal proportions would have been possible but forthe Supreme Court’s close and consistent monitoring ofthe investigations.

A peculiar situation was created by the Supreme Court’sorder to monitor the progress in the Hawala Case, whichhad security dimensions also. What would be the situationof the Prime Minister vis-a-vis Parliament if questionsrelating to Hawala Case & internal security are raised inthe House? The Prime Minister would not be in a positionto reply to any question & his accountability of theexecutive to Parliament would be flouted. If the PrimeMinister cannot reply to the debate in Parliament he loseshis right to continue as head of the Govt. & the leader ofthe Lok Sabha.

So the authorities did what comes best to them: sit tight.And this might well have been the end of the dismal storywere it not for the public interest litigation in the SupremeCourt with a view to compelling the CBI to take its statutoryduties more seriously and to bring to book those who mighthave profited from the alleged perpetrators of the hawala

47

racket.Shri Rajiv Dhavan felt that during the past four years

the Supreme Court has proved itself to be a problem solver.“Look at the decisions regarding Mandal (1992), BabriMasjid (1994) and introduction of order in the ElectionCommission by forcing Chief Election Commissioner, T.N.Seshan to act collectively with his colleagues (1995).”

It has ruled that it has inherent powers to grant anyremedy it deems fit. It has performed investigativefunctions in several PIL actions; the strategy normallyadopted is to constitute fact-finding missions at stateexpense.

Judicial activism can force the executive to come cleanand this is not to be dismissed lightly, To that extent, thespecific directive to the investigating machinery is a callor command for probity in public life, yet, it is doubtfulif frequent judicial intervention is what a nation wants,to be free of corruption, scandals, and should be lookingfor.

What really turned the probe into a tightrope walk wasthe intervention of the Supreme Court in the matter seenby the vast majority as salutary piece of judicial activismaimed at upholding the supremacy of the rule of law. Infact, the apex court did not stop at that; it has beenoverseeing the case on a regular basis.

The Supreme Court directed the political parties todisclose the sources of their income. This is a verysignificant step leading to cleansing the country’s publiclife a great deal. “Unless the money power influencingpolitics is recognised and made legal, one cannot stopincidents like hawala transactions.”

In Shivajirao Nilangekar Patil v. Mahesh Madhava Govai,the Supreme Court was greatly disturbed by the decline ofpublic morality in public life and remarked:

“This Court cannot be oblivious that there has been asteady decline of public standards or public morals or

Judicial Activism


public morale. It is necessary to cleanse public life in thiscountry along with or even before cleaning the physicalatmosphere. The pollution in our values and standards is(sic) an equally grave menace as the pollution of theenvironment. Where such situations cry out, the courtsshould not and cannot remain mute and dumb.”6

The reluctance of the legislature and the executive totake hard and unpleasant decisions has contributed tojudicial activism. In recent times we have noticed instancesof one wing of the government avoiding a decision on apolitically sensitive issue by passing it on to another wing,but the latter not being expected to make that decision.This tendency has manifested itself at the Central as wellas the State levels. In case where the sensitive issue is ‘not’pushed into the lap of another institution, we have noticedthat it remains unattended and unresolved, making thepeople restive and forcing them to take it to the courts,”(Justice Ahmadi). On the other hand, fear psychosis hasgripped both the legislature and the bureaucracy. In theaftermath of scams and hawala diary case, the decisionmaking process has come to a standstill in New Delhi. ShriP.A. Sangma, Former Speaker, Lok Sabha was pained toread the news item stating that “Union Minister forInformation and Broadcasting, C.M. Ibrahim, has appointeda committee to select television serials. Among others thecommittee will consist of two officers of Central Bureau ofInvestigation. This is a dangerous trend. Is the CBI goingto run the country?” he asked.

The motives behind judicial activism may well becompletely honourable and, in part, an understandablereaction to the manner in which the ruling party has usedcourts to abdicate political responsibility. The Ayodhyareference was a classic instance of an inactive governmentattempting to pass the buck of political decision-making tothe courts.

Eminent jurist Soli Sorabjee feels that the Supreme Court

49

can hardly procrastinate when the executive shows acallous indifference to its mandatory duties and thus affectsthe basic right of the people. He puts the issue in a broaderSouth Asian and global context where the judiciary isasserting itself. Sorabjee quotes the dramatic precedents inPakistan, Bangladesh and Nepal and in the UK and theUS. He reminds us that when the US Supreme Court in ahistoric judgment outlawed segregation of black and whitestudents in the field of public education they were shouteddown by many as “having no business to run and ruin thecountry.”

In India the court has generally been the harbinger ofsocio-economic legislation. Harsh and oppressive laws insocial and economic matters have passed the court’sscrutiny. From about 1974, the court’s emphasis shifted tocorrecting executive actions of government for theirunreasonableness particularly in administrative matters.With the help of public interest litigation and dilution ofthe requirements of locus standi, the court has become itselflegislative in character, prescribing and mandating coursesof action and conduct and setting up administrative bodiesby its decrees.

Today, the judiciary’s powers over the State are soexpansive that no activity of the State is beyond judicialscrutiny as such. Of no subject can it be said that the courthas no jurisdiction at the threshold to entertain it, provideda formal compliance of the court’s jurisdiction is made out.The only limit, it seems, is the court’s own sense ofpropriety or desire not to interfere on the merits of theissue.

Even then the judiciary, according to Former ChiefJustice Ahmadi, does not seek an ‘expanded role’ for itself.Rather it has been forced to “deliberate upon andpronounce judgments on some of the gravest politico-legaland socio-economic issues – the Mandal agitation and theAyodhya crisis stand out prominently.”

Judicial Activism


In his Judicial Activism & Constitutional Democracy, T.R.Andhyarujina, praises the Supreme Court for extending itspowers for the protection of personal liberty and for makingjustice more accessible to the disadvantaged.

The courts have played a significant role in ensuringfair and impartial action by the legislative and the executiveparticularly in protecting and enforcing personal freedomsand human rights. The executive and the legislative haveoften failed to prove equal to people’s expectations. Thecourts have won the faith and confidence of people.

On their part, courts in India have too readily acceptedthe responsibility thrust on them and encouraged suchtrends. It is natural that the judiciary, like every otherauthority, tends to accumulate power. Prof. Wade notesthat “it is part of the good judge to extend his jurisdiction.”7

Courts have, therefore, easily augmented their authorityin proportion as other branches of government have shirkedor failed in their responsibility or become indifferent tothe citizenry or encouraged judicial intervention.

Judicial apparatus is autonomous and omnipotent. It isbelieved that a liberative judicial opinion will beautomatically translated into social reality, though it maybe mere delusion.

The expanded role of the court has not gone unnoticedin the attempt to analyse what has been called the“resurgence of judicial activism”. There are those whoallege that Parliament has abdicated its primaryresponsibility, while others accuse the court of transgressinginto the spheres reserved for Parliament and theexecutive.

Political parties are divided over the issue of judicialactivism. In the aftermath of the JMM payoff case theCongress was pressing for a debate on the subject, but BJPand Leftist Parties find no fault in the action of the court.Priyo Ranjan Dasmunshi and Vayalar Ravi requested thePrime Minister to summon a special parliamentary session

51

to consider the impacts of ‘judicial activism.’“Unfortunately the developments in recent times

represent a deterioration of the relations among theseinstitutions (Parliament, judiciary and executive) and havecreated an impression of superiority of the judiciary overthe legislature. The arrest of the Speaker of Manipurassembly strengthened this impression,” they contended.

They further said that “the JMM pay off case falls withinthe purview of the right of members of Parliament and theprivilege of the House. The conduct of a member ofParliament within the House cannot be questioned by anyother authority except the House itself. It includesquestions, speeches and voting in the House.” This seemsto be an erroneous view as a bribe was taken outside thehouse, whereas the effect of the bribe, i.e. casting of thevote took place in the house.

Where legal and constitutional rights of the people areinvolved, the court always has jurisdiction. Only mattersinvolving some kinds of rights have generally been viewedas not possessing “adjudicative disposition” and the courtshave preferred to leave the enforcement of those rights tothe political and administrative processes.

The only area where one can perceive the judicial rolein the right perspective has been the development of humanrights jurisprudence. The notable pronouncements of theapex court in Menaka Gandhi, Hussainara Khatoon, SunilBatra, Khatri, Rudul Shah, Bandhua Mukti Morcha andSheela Barse cases have shown positivistic approachtowards enforcement of fundamental rights and other legalrights of the citizens and thereby making the governmentaccountable to the people of this county.

The Shah Bano case can definitely be said to be alandmark of far-reaching significance, especially to a largesegment of society which has been traditionally subjectedto unjust treatment. The impact of this case is that the oldphilosophy of treating woman like a commodity has been

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discouraged and efforts have been made to create an equalsociety of men and women. The exploitation of woman bythe cruel husband has been discouraged and he has beenput under statutory obligation to maintain his wifeirrespective of provision of personal law which may beapplicable. (AIR 1985, SC 945).

The judiciary has also played a significant role instriking a proper balance between protection of womenand children and social interests.

The decline in the role played by the other twoinstitutions of the state have inexorably changed the roleof the court, from being a “sentinel on the quit viva” to asaviour on call. The Supreme Court, as the final court ofappeal, is known as “the court of the last resort”. But thewide writ jurisdiction enjoyed by it has often made it thecourt of the first and the only resort.

Of late, there has been considerable concern in thecountry over the judiciary’s “excessive activism.” To anextent, this concern is understandable because the dividinglines between the executive, the legislature and thejudiciary should not be allowed to be blurred. But whatare citizens to do if the executive authority would not doanything about the spreading canker of corruption in publiclife and the legislature.

Having lost all hopes of any self-reform by the politicalsystem and the executive setup, most Indians have startedviewing politicians of all hues with cynicism, evencontempt. They look up to the higher judiciary as the onlypossible redeemer of the despairing situation. Some recentevents like the hawala case are bound to strengthen thistrend, not weaken it.

The other constitutional authority which is under anobligation to prevent the subversion of the Constitution isthe judiciary. The Constitution Bench of the Supreme Court,in its decision reported in (1964) 4 SCR 733, held that eachand every authority in the State, including the government

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must act in a bona fide manner. When a court is satisfiedthat there is an abuse or misuse of power and its jurisdictionis invoked, it becomes the constitutional obligation of thecourt to intervene and ensure the rule of law. The decision,reported in AIR 1952 Nag 330, establishes the competenceof a court of law to issue a writ of quo warranto to aconstitutional authority – be it the President, the PrimeMinister or the government – to satisfy the court thatthere has been no usurpation of public office or abuse ofpower.

With its new activist stance, the judiciary has becomea radical force for reform, whereas the legislature and theexecutive are desperately trying to conserve the existingdefunct order.

A Critique of Judicial ActivismCourts are among the institutions least able to monitor

continuously the ramifications of their decisions and leastsubject to incentives to admit being wrong, much less toviolate their own precedents and change.

Judicial restraint is not meant to predetermine everydecision but to safeguard constitutional government.

The ultimate issue between judicial activism and judicialrestraint is the institutional locus of discretion, and noamount of insistence on the desirability of change ormorality answers the question as to who is to decide whatspecific changes or what specific morality is needed.

Even within the judiciary the differences in substantivevalues have been significant. “It is ultimately not a questionof the relative merits of particular political or social creedsbut of the long-run consequences of opening the floodgatesto the generic principle of constitutional decisions basedon “substantive values”. Once you have opened thefloodgates, you cannot tell the water where to go.” (JudicialActivism Reconsidered, Thomas Sowell)

The distinction between ad hoc judicial activism,

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according to the individual judge’s own subjectiveinclinations, and “principled” judicial activism, accordingto some general moral theory, has been advanced to suggestthat the latter is more moral. But ultimately, this differenceis one between retail and wholesale judicial activism.

Those who have set themselves the very different taskof weighing values from various constitutional, statutory,and other sources, have taken on a much heavierresponsibility, a more vaguely defined goal, and a questwithout legal authorisation.

If no authorisation is needed for judges to introduce“change,” neither is it needed for generals and admirals todo the same-as in fact happens in a number of countries.Judges can conduct limited coups d’état surreptitiously,while a military coup is usually overt and sweeping.8

Judicial activism leads to usurpation of power underpressure. This provides the precedent for larger usurpationby others with different social visions.

Judicial activism is necessary to rescue people from thebondage of the past.

Judges substantive values must not governconstitutional decisions.

“When a judge is swayed by his own sentiment ratherthan considerations of deference, predictability, anduniformity, he fails by definition to apply the law faithfully.This is the essence of judicial activism. It is impossible tosay with certainty in any given case that the judge’ssentiments will lead him to a “bad” decision, but no onecould say that they never would. Any of us wouldappreciate a judge’s merciful departure from a draconianlaw. How many of us, though, would appreciate a judge’sdraconian departure from a merciful law? The remedy fora bad law is to change the law through legislative action,not to depart from it one way or the other in the courts.The solution, in short, is democracy – the political process– and not judicial activism. Judicial activism is not always

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easily detected, because the critical elements of judicialactivism either are subjective or defy clear and concretedefinition. For instance, a critical consideration is the stateof mind of the allegedly activist judge. Judicial activismmeans not the mere failure to defer to political branches orto vindicate norms of predictability and uniformity; itmeans only the failure to do so in order to advance another,unofficial objective.”9

Decisions that manifest judicial activism lack democraticvalidity and also predictability and uniformity. The will ofone judge or a few judges will be substituted for the willof the popular majority, elected representatives accountableto the people. The democratic republic will disappear intowhat Thomas Jefferson famously reviled as “oligarchy”.

Judicial activism will undermine the judiciary itself.Courts lack power to enforce their own judgments. Theyrely on the executive for their implementation. Judicialactivism erodes this confidence and thereby erodes theefficacy of the judiciary as a whole.

President Franklin Delano Roosevelt wanted to put theAmerican economy on a sound footing when it wassuffering from widespread economic dislocation during1930. He initiated certain innovative measures to cure theeconomic malaise through the New Deal. The SupremeCourt invalidated several measures initiated by PresidentRoosevelt. Then the President pursued a plan to “pack”the Supreme Court by increasing its membership so thathe could appoint enough new justices to win a majority infuture cases. He succeeded in getting the favourable ordersfrom the Supreme Court subsequently. Thus the SupremeCourt became the casualty of its own judicial activism.

There is the fear that judges may become a little morethan politicians in robes.

Judicial activism may result in lack of confidence injudicial decisions inviting political intervention. “Apolitician in robes is no judge at all. Once a judge imposes

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his will as legislator, he loses his democratic legitimacy. ....A judge who wields power like a politician enters thepolitical process. Having forsaken neutrality, he will soonlose his independence. .... Judicial activism encouragespolitical interference both in the process of judging andselection of judges.”10

Thomas Jipping says that the activist judges continuethe revolution by substituting their values and other agendafor those of the people. “Judges are hijacking the culture,hijacking democracy, hijacking freedom itself.”11

“The issues favored by the courts almost always err onthe side of “liberty without restraint”, while religiousprinciples and traditions are quickly dismissed. In 1980,the US Supreme Court ruled that the Ten Commandmentscould not be posted in schools because it could bedangerous to children. Such a poster, the justices ruled, “...may induce children to read, meditate upon, perhaps tovenerate and to obey the commandments.”12

The courts have laid down that “No person ... shall becompelled ... to be a witness against himself.” In Mirandav. Arizona (1966) the Warren Court proclaimed thatpolicemen must take positive steps to protect criminalsfrom the consequences of their own stupidity. In theMiranda case the indigent Mexican defendant was aseriously disturbed individual with strong sexual fantasies.The records did not reveal overt physical coercion or patentpsychological ploys. The police made a mistake of notrecording a note that the interrogation and the statementsof the accused were truly the product of free choice. InAmerica Professor Paul Cassell has estimated that“Miranda warnings” prevent police from solving upto359,000 crimes each year. Every unsolved crime keeps acriminal out on the street committing more crimes.13

The system of checks and balances gives legislature thepower to curb judicial activism. But the legislature isunwilling to exercise such powers. A glaring example of

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judicial activism is reported from Kansas City: “In KansasCity, a federal judge decided that voters were spendingtoo little money on the school system and ordered a taxincrease in excess of $1.7 billion. He then took it uponhimself to direct the spending of this money to supportpolicies that he believed the school district should foster.Following the judge’s instructions, the school systemconstructed: a 2,000 square foot planetarium; greenhousesand vivariums; a 24 acre farm with an air-conditionedmeeting room for 104 people; a model United Nations wiredfor language translation; broadcast capable radio andtelevision studios with editing and animation labs; movieediting and screening rooms; a temperature-controlled artgallery; a 3,500 square foot, dust-free diesel mechanicsroom; and 1,875 square feet of animal rooms for use inelementary school zoo programs. Although providingpublic schools with such facilities might be good publicpolicy, elected officials, not a ‘judge, should decide this. Inthis instance, a judge adjudicated a case, imposed atax and supervised the spending of the money. This ishardly the separation of powers envisioned by ourConstitution.14

In Philadelphia, a federal judge took over the runningof the prison system. The prison was overcrowded,therefore, the judge ordered the release of 600 prisonersevery week. This led to a spurt in the crime rate inPhiladelphia. A judgment based on judge’s personal policywhims rather than on the law, can have dire consequences.

Bork points out that the persons “who use theirpositions and authority” to enforce rules on the basis oftheir personal views contrary to the voice of the peopleviolate not only the constitutional principles but also makethemselves “a band of outlaws”.

Judges put defending the court’s image ahead of anycompeting value.

Richard Posner, a federal appeals court judge, admitted

Judicial Activism


in a book that he wrote that judges were partly to blamefor the increase in crime rates. But he didn’t offer anyestimates of how many crimes they actually caused.

Judges strike down laws and replace them with theirown policy preferences. A judge believes that a law is unjustand substitutes it with his own personal policy. This isalso known a judicial law making. The judges usurp thelegislative authority and replace the law with rules of theirown making. The people in general are deprived of theirmost fundamental right – the right to self-government. Inits extreme form, it may culminate in government byjudiciary.

The issue of judicial activism is critical but we have toproceed with caution. We have to ensure that we don’tthrow out the baby with the bath water.

Judicial activism is judicial overreaching. Brutusobserved in 1788 in a series of articles that judiciary istotally independent both of the people and the legislature.Non (constitutional) errors they may commit can becorrected by any power above them ... nor can they beremoved from office for making ever so many erroneousadjudications. Such a system is dangerous, he argued,because judges, like all men, can be tenacious of power.This could drive them to extend the powers of the courtsand to construe the Constitution as much as possible insuch a way as to favour (sic) (greater power). Because suchactivist judges could give the Constitution a constructionaccording to its spirit and reason, and not confinethemselves to its letter nothing would prevent such judgesfrom reading their own policy preferences in the spirit ofthe Constitution. In short judges could mould (sic) thegovernment.15

One individual should not, with the stroke of a pen, beable to nullify statute that the citizens or the legislatorshave adopted.

Judicial independence is a requisite to guard the

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Constitution and the rights of individuals. It serves as acheck against majority oppression. The rights of theminority must be protected and the majority cannot betrusted to do this.

Distrust of politicians creates a feeling that legislaturesare not well equipped to solve our social problems. Thisnaturally leads us to judiciary. The people are confidentthat judges are best equipped to cure our social ills. Publiceducation is the only effective way to reduce judicialactivism in the long run. We must learn our civics properlyand understand that separation of powers is essential toprotect our most fundamental right – the right to self-government.

Public Interest Litigation (PIL) is a manifestation ofjudicial activism. It involves judiciary in publicadministration. The sanctity of locus standi and theprocedural complexities are irrelevant in cases of PIL. ThePIL has been used to benefit the disadvantaged section ofsociety who cannot afford legal protection due to povertyand ignorance.

The legislators in India wanted to ameliorate theconditions of landless labourers and small and marginalfarmers by abolishing the Zamindari system. The surplusland was to be acquired after fixing ceiling on landholdings. Compensation was to be paid to the landlords.The Supreme Court reiterated its view expressed in SubodhGopal and Dwarkadas cases that compensation was ajusticiable issue. Compensation must be “a just equivalentof what the owner has been deprived of”.

Judicial activism undermines the theory of separationof powers and the authority of the legislature and theexecutive by encroaching upon the spheres reserved forthem. The Constitution provides for checks and balancesto prevent concentration of power by any branch notconfided in it by the Constitution.

It is the duty of the executive to implement faithfully

Judicial Activism


the laws made by the legislature. When the executive failsto discharge its obligations, it befalls on the judiciary tocompel the executive to perform its lawful functions. Whencrimes are committed by men in power and attempts aremade to conceal them by rendering the official machineryineffective, recourse to the judiciary becomes inevitable. Itbecomes the duty of the judiciary to take cognizance of theexecutive’s lapses and issue appropriate directions.

A judge could not secure a reserve berth on a train atNew Delhi railway station. He did not allow the train tomove and held an open court on the platform. He chargedthe station master with contempt.

The Supreme Court in India has played a welcome roleand pronounced a series of landmark judgments such asthe right to go abroad; the right to privacy; the right toprotection against solitary confinement; the right not to beheld in fetters; the right of an indigent person to havelegal aid; the right to speedy trial; the right againsthandcuffing; the right against custodial violence; the rightagainst public hanging; the right, in certain circumstances,to medical assistance; and the right in certain cases to theprovision of physical shelter. Recently, a decision of theSupreme Court of India has been widely publicised inAustralia. It concerned the case of underage child workersand the need to afford practical redress for theirpredicament.

Attorney General Soli Sorabjee has pointed out that“indignant critics forget that it is the Executive’s failure toperform its duty and the notorious tardiness of legislaturesthat impels judicial activism and provides its motivationand legitimacy. When gross violations of human rights arebrought to its notice, the judiciary cannot procrastinate. Itmust respond”.

When a vacuum is created due to the failure of otherbranches of government, judiciary steps in to respond tothe urgent social and legal needs of the people.

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The Supreme Court of India has entertained letters andtelegrams addressed to it as petitions. This has come undercriticism but it must not be forgotten that the courttransform a theoretical right into actual enforcement of thelaw which brought justice to the masses.

According to Lord Chancellor (Lord Mackay ofClashfern), judges have developed the law over thecenturies. “Development of the law is part of the traditionalrole of the judges over the years under our system. It hasbeen a healthy and a powerful influence on the law and onthe development of the law and the protection of our peoplein the various centuries when it has been done, and itcontinues with complete health and robustness at thepresent time.”

Thus, the judiciary not only applies and interpret butalso develops the law. It is the adjudicative duty of thejudges to make the law. It may be ensured that the judicialdecisions are principlled.

Sir Owen Dixon restricts the role of judiciary to legalismonly. “There is no safer guide to judicial decisions in greatconflict than a strict and complete legalism.” According tohim, the law making function of the judges was verylimited. A judge should not abandon the legal principle,“in the name of justice or of social necessity or of socialconvenience”.

Sir Frank Kitto of the High Court of Australia said “todiscuss the case in terms of ‘judicial policy’ and ‘socialexpediency’ is to introduce deleterious foreign matter intothe water of the common law in which, after all, we haveno more than riparian rights.” He added, “The role whichthe court assumed for itself in these cases involves afundamental shift in political responsibility from theParliament to the High Court. Politically contentious issuesare best handled by the Parliament as part of the politicalprocess and not by the court.”

Judicial activism leads to ad hoc decision making. The

Judicial Activism


ethical judge is a passive creature. The activist judges arepolitical activist.

The issue centres round an interventionist court andreplacing such a trend with constitutional decision makingby the courts through effective legislation by Parliament.

Professor John Gava in The Rise of the Hero Judge hascautioned, “The worst result of activism is that the judgesmay end up losing the public’s faith in their most importantattribute the perception that they are impartial refereesdeciding according to the rule of law. Judge’s do deservetheir reputation for fairness impartiality. Losing that wouldbe a tragedy.”

If judicial ethics plunges to a new low, judicial activismmay become a new despotism and the protection of humanrights of the people may prove to be a myth.

In India society is undergoing tremendous social andeconomic change. This creates an urgent need for judicialactivism but the temptation should be restrained.

Judicial activism is beneficial to the noble cause ofjustice. A judge must not transgress the line which will bedecided by other prevailing factors in the society. JusticeAnthony Kennedy of the United States Supreme Courtremarked, “a society that leaves all or most of its hardestdecisions to the courts is a weak society.”

When the Delhi Administration failed to clear garbagefrom the streets, when the Taj was threatened by industrialpollution, when parks were being converted into houseplots, when the CBI failed to register cases against hawala-accused, public-spirited men agitated the courts. In itsanxiety to right all the wrongs, the court issued hundredsof directives, hauled up government officials and issuedwarnings to the executive. The executive was merelycomplying with the court directives. The executive and thelegislature seemed either too weak to hit back.

A judge of the Kerala High Court constituted acommittee under his supervision having representatives

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from various branches to eradicate mosquitoes in Kochi.In one public interest case the petitioner sought

educational institutions for children of prostitutes. JusticeK. Ramaswamy gave directions for constituting a committeeto examine the prostitutes’ plight and devise means toameliorate them, and eradicate prostitution.

The Supreme Court has ordered that the rivers of Indiashall be linked within 10 years which is estimated to costRs. 5,60,000 crores. To mobilise this amount is a herculiantask. Plan outlays are barely adequate even for thecompletion of projects already undertaken.

A form that judicial activism has taken in India is theassumption of the right to ask public authorities why theyhave not been discharging their responsibilities.

Through PIL an attempt has been made to reach thejudicial remedies to the indigent, illiterate and alienatedpeople who find the court system complicated and beyondapproach. PIL is people-oriented judicial radicalism andhas protected the indigent people. They can seek relief fromthe courts through PIL against administrative high-handedness.

Torture by the police is common and the court is theonly protector of the people.

Abuse of PIL will hijack justice from the poor as it canbe used as an intimidatory tool.

When the political organs of the state fail to dischargetheir duty specially in the field of socio-economic fields,the judiciary will assert with judicial power and assumethe role a policy maker, legislator and a monitor to overseethe implementation of its direction. Judiciary startsexercising control over the acts of both executive andlegislator. Judicial activism has given relief to the peopleand made the court a power at the service of the people.

Judicial activism is not an abuse of office. It is the resultof the fragility of constitutional government.

Judges are protected by the constitutional norms of

Judicial Activism


judicial independence, and are immune from formalconsequences of their misconduct. Judicial activism is nota risky path for them. The cost is paid by the communitythrough the damage that is done to the system ofgovernment.

Moral judgment is personal, individual, controversialand not objective. Hence the need for tough public scrutinyand critique, not on the motives of judges, but of theirjudicial conduct. Judges who cannot bring themselves toenforce the existing law ought to resign. If applying a clearlaw goes against their moral convictions, they should resignrather than put the law on one side and replace it withtheir philosophy. No judge has a choice betweenimplementing the law and disobeying it.

Threats to judicial activism will be in the form of takingaway court jurisdiction, altering rules of court procedure,limiting the number of judges not filling the vacancies andfailing to give full effect to court orders. These actions maynot appear confrontational but their cumulative effect cansubstantially erode the capacity of the judiciary.

“Judicial activism has resulted in demoralisation of theadministration and delegitimisation of both the governmentand Parliament.” (Justice H.R. Khanna)

Judges are not speaking through their judgments butare speaking to the gallery.

Judges are social engineers and carry out judiciallegislation. This may be at the peril of the judge but suchlegislation gives to judicial office its highest honour and atrue judge should not shirk this responsibility. Throughjudicial legislation the judges ensure justice to thecommunity.

Karnataka High Court entertained a PIL and issueddirections for monitoring the beauty pageant through courtofficers to prevent obscenity and nudity. The Supreme Courtordered stay of High Courts order. This is high time thatthe Supreme Could laid down rationale of PIL to protect

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the fundamental rights of poor people who are unable toapproach the court. PIL must not be permitted todegenerate into political or publicity litigation otherwise itwill loose its significance.

Judicial activism, however, came into its own only inthe last couple of years. In his Dr. Zakir Hussain MemorialLecture, Former Chief Justice of India A.M. Ahmadi said,“In recent years, as the incumbents of Parliament havebecome less representative of the will of the people, therehas been a growing sense of public frustration with thedemocratic process. This is the reason why the (Supreme)Court had to expand its jurisdiction by, at times, issuingnovel directions to the executive.”

Prof. Baxi sees judicial activism as “an aspect of postemergency catharsis”, “an expiratory syndrome” and“attempt to refurbish the image of the court tarnished bya few emergency decisions.”

He refers to the practice as “creeping jurisdiction.” “Thecourt rules through interim orders and directions. Bit bybit, it seeks improvement in the administration, making itmore responsible than before to the Constitutional ethicsand law. Creeping jurisdiction takes over direction ofadministration in a particular area from the executive.”16

The executive upto 1960s successfully dominated boththe houses of Parliament. The Supreme Court was generallyvery cautious up to the 1960s in limiting executiveauthority. But after the nightmarish experience of theEmergency, the judiciary has become more aware of thedangers of executive tyranny in India and started ensuringimplementation of its orders. There is nothing wrong if thejudiciary monitors implementation of its orders by the othertwo organs of the government. The crux of the problem ofjudicial activism, however, is when the judiciary, insteadof interpreting the law as it is it starts pronouncing on thenormative aspect of law by imparting its own philosophy.

In India “Eighteen High Courts, with the Supreme Court

Judicial Activism


at the apex, correct the entire gamut of the country’sadministration. Universities, colleges, schools,municipalities, banks, ports, electricity and telephoneundertakings, railways, airlines, dairies, warehouses andindeed anybody having some government favour or somepublic duty having some government favour or some publicduty to perform or receiving government aid may comeunder the court’s supervision and correction as a “State”within the meaning of Article 12 or for purposes of Article226. It even seems that the supreme Court can sit injudgment in exercise of its original jurisdiction underArticle 32 of the Constitution over a sports body like theBoard of Control of Cricket when it disciplined errantcricketers.”17

However, the anti-climax to “judicial activism” isprovided by the Supreme Court in the case of SkipperConstruction Company. While ordering confiscation anddisposal of assets, the Supreme Court observed that “theway courts have dealt with the Skipper case impels themto warn judges to use their power with more responsibility.”

“What happened in this case is illustrative of what ishappening in our country on a fairly wide scale… somerich and influential persons have… developed an utterdisregard for law… feeling law is meant for lesser mortalsand not for them. Courts have been trying to combat thistrend, with some success… but how to swing the polityinto action, a polity become indolent in its vitals?… weask, in anguish, what have we made of our country in lessthan 50 years? Where has the respect and regard for lawgone?”

“On this occasion, we must refer to the mechanicalmanner in which some of the courts have been grantinginterim orders – without realising the harm suchmechanical orders cause to the other side and in some casesto public interest.”

“It is no answer to say, ‘Let us make the order and if

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the other side is aggrieved, let it come and apply forvacating it.’ This is not a correct attitude. Before makingthe order, the court must be satisfied it is a case whichcalls for such an order. This obligation cannot be jettisonedand the onus (cannot be) placed upon the respondents/defendants to apply for vacating it.”

“Take this very case. A person purchases a property inauction. He does not pay as stipulated. He obtains a seriesof extensions. Still he doesn’t deposit and when the vendorproposes to cancel the allotment, the court is approachedand it stays the cancellation. The vendor (DDA) appliesfor vacating it but nothing happens except repeatedadjournments.”

“We find as and when Skipper was not able to manageDDA, he approached the court and it provided him abreather. He then gets time to manage DDA. This went onupto the end of 1990 when, fortunately, the Delhi HighCourt came with a tonne of bricks upon Skipper, whichorder was affirmed two years later by this Court.”

“Ultimately, no doubt, Skipper has met its nemesis. Butmeanwhile hundreds of persons are cheated out of theirhard-earned monies; their dreams of owning a flat areshattered rudely ... each of us in this land should wake upto his duty and try to live up to it.”

(Times of India, New Delhi, 14.05.1996Justice Jeevan Reddy and

Justice K.S. Paripooran)“There are thousands of cases pending in different

courts of the country but we hardly get to hear of them.Instead, the judiciary is in such a situation that it has togive judgment on keeping Delhi clean. This is purely awastage of talent and time.”

(former Prime Minister Chandra Sekharaddressing a group of students at

JNU in Delhi on 6.3.1996)Indian judiciary has primacy over other organs under

Judicial Activism


the Constitution. It defines powers of other organs ofgovernment vis-a-vis its own powers. Any curb on itspower can be declared by it as violating “the basic structureof the Constitution”.

Judges are also entrusted with determining otherundefined concepts in the field of Constitutional Law likereasonable restrictions on fundamental rights or in the fieldof common law like natural justice, reasonable conduct,negligence, obscenity etc. It is one thing to allow judgesthe powers of law making and policy making in the fieldsof common law and interpretation of legislation, and quiteanother to allow them powers to make or unmakeConstitutional changes for all times.

One of our ablest lawyers, F.S. Nariman, writes, “Inasserting the “basic structure” theory the Supreme Courtof India has in this sense asserted political power in theguise of judicial interpretation. By propounding it, theguardians over the Constitution, Constitution adjudicatorshave assumed the role of Constitutional governors.”18

The courts have enormous powers over the politicalbranches and the subjective views of judges prevail overthe legislative will.

The court as interpreter is stating only what theConstitution truly prescribes, But the reality is that thecourt is controlling the Constitution by its interpretation.Felix Frankfurter when he was a Professor at Harvard wroteto President Franklin Roosevelt, “People have been taughtto believe that when the Supreme Court speaks it is notthey who speak but the Constitution, whereas of course itis they (the judges) who speak and not the Constitution.”19

Judges are prone to propound their own private notionsof eternal values or prejudices in essentially vague conceptsderived from the field of architecture like “basic structure”,basic framework”, edifice of the constitution”, “pillars ofthe constitutional philosophy” and the like which have beenfreely employed by the judges to denote what they believe

69

are enduring and unchangeable values embodies in theConstitution.”

That social activism has become largely extra-parliamentary in character, is, per se, not objectionable.But what arouses misgivings over an unstated agenda isthe fact that the legislatures and political parties (someLeft parties apart) appear to have no place in the schemeof activism.

“The candid citizen must confess that if the policy ofthe government upon vital questions affecting the wholepeople is to be irrevocably fixed by decisions of theSupreme Court, the people will cease to be their own rulers,having to that extent, practically resigned their owngovernment into the hands of that eminent Tribunal.”20

Due to the failure of responsible government andpolitical parties, the vacuum is sought to be filled in bythe courts. Despairing of correction from the politicalbranches, the community easily judicialises individualgrievances, social and political ills and problems ofmaladministration and brings them to the courts for theirsolution. Thus, courts are made to pass judgement oncorrupt Chief Ministers as the legislatures cannot removethem. Unwise laws as opposed to illegal ones, are soughtto be set aside in courts as legislators have ceased to debatelegislation or do not have the time or competence toconsider their merits. Essentially political matters or socialproblems are brought to courts. Social evils e.g. the practiceof Sati, are dressed up as legal problems of religiousfanaticism, e.g. when it was moved to stop the Ram-Shilaprocession to Ayodhya in November 1989.

The political branches of government have themselvesencouraged this tendency. The court’s orders orinterventions are often found to be a convenient way ofresolving embarrassing political or social problems inwhich the government fears to take a decision. The SupremeCourt’s order on the Central government to constitute the

Judicial Activism


Cauvery River Water Dispute Tribunal21 as well as theCentral government’s decision on July 28, 1991 to make aPresidential reference to the Supreme Court on theexplosive quarrels between Karnataka and Tamil NaduStates on the interim order of the Cauvery Tribunal areexamples of this. Or having taken a controversial or difficultdecision, government finds the court’s verdict on it aconvenient way out of it. The Supreme Court’s order tostay implementation of the Mandal Commissionrecommendations for reservations in government servicein the wake of immolations by students is an example ofthis.22 The political nature of that case is seen by the pleaof counsel in the marathon hearings of that case to thecourt to render its decision before the Parliamentaryelections of May 1991.23 We are witnessing what Tocquevillesaid many years ago of the US Constitution with far lesserjustification in that country: “Hardly any political problem,”he said “arises in United States that is not resolved sooneror later into a judicial question.”

“How easy the job of activist judges – new or old –who do not find but only make the law. No great effort,intelligence or integrity is required to read one’s merelypersonal preferences into the Constitution – a great deal isrequired to keep them out.”24

Judicial power is sacrosanct and it cannot be diminishedand its preservation alone can guarantee its freedom, ruleof law, equality etc. Constitutionality has become equatedwith preservation of judicial power!

The principle of “non-arbitrariness” pervades Article14 like a “brooding omnipresence”. “Whenever there isarbitrariness in State action whether of the legislature orof the executive or of an authority under Article 12, Article14 immediately springs into action and strikes down suchaction.25 It can correct any action of the State at will if itfinds the action unreasonable in its view.

With the acquisition of powers to correct unreasonable

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actions there has been no constraints on the court’s powerto control actions of the other branches of government.Today, the superior courts not only correct unreasonableconduct of the State but also lay down norms of reasonableconduct for the State. These rules of conduct and schemesare akin to those made by administrative agenciesthemselves. Thus taking cases of the Supreme Court alone,the court has prescribed norms for running prisons andmental homes26 and for protective homes for women,27

issued detailed instructions to government to implementlabour laws at construction sites,28 ordered industries to berestarted with mandatory financial help of Stategovernment,29 reorganised admission in medical collegesthroughout India laying down their examinationschedules,30 prescribe hawking zones in metropolitancities31 ordered pavement dweller should be givenalternative sites on eviction, and slum dweller should berehabilitated,32 given clearance to noxious factories torestart on technical reports of safety measures,33

recommended safety measures for railways,34 orderedmunicipalities to construct drainage systems,35 prescribedpoverty limits for low income urban housing,36 set up anexpert panel headed by a retired Supreme Court judge toassess the available technologies for controlling “vehicularpollution in the world and how these could help in India.”37

By a judicial order under Article 32 of the Constitution thecourt has ordered the setting up on an All India JudicialService.38

The judiciary in India wields the power of the pursewhich should belong to the executive and the legislature.A municipality is ordered to provide drainage systems bythe court irrespective of its budgetary limitations and thesubordinate court is ordered to oversee the implementationof the scheme and the Environment Ministry is ordered tofence the ridge in Delhi. The pension of retired governmentemployees is enhanced with retrospective effect affecting

Judicial Activism


the finances of government adversely.This has led to a collapse of responsible government

by the political branches of government. The judiciary’sanxiety is to be relevant and creative in the social changesin a developing society and indeed to actually contributeto it on its own. The executive is so much scared that itmade reference to Election Commission whether the exportof cotton would constitute a violation of Model Code ofConduct after the announcement of election. The ECcommunicated to the government that it should not be donetill the completion of election. Accordingly, the farmers andpublic commercial undertakings were not allowed thebenefit of higher price by exporting till the permission wasgranted by the court. The court passed strictures againstboth – the EC and the executive. The point to bring homeis that there was no necessity at all for the executive tomake a reference to EC.

Courts fail to draw the line between legal problemsand social and political ones. They fail to distinguishbetween problems of abuse of power on the one hand andmaladministration on the other, between matters which canbe within the courts’ manageable field and those in whichthe courts lack the competence or institutional ability tosolve such problems.

It must not be forgotten that the people come to thecourts and the courts do not go to the people. People failto get relief from the concerned authorities and apply tothe courts for redressal of their grievances as a last resort.Naturally, the callous machinery will not find the courtorders favourable to them and would often find thejudiciary as activist. The other pillars of democracy shouldbehave responsibly and conscientiously to discharge theirobligations to the society. So long as they are foundwanting, judicial intervention will remain inevitable.

Judicial activism, in so far as that expression is used ina contemptuous sense, is a misnomer. A judge, true to the

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oath he takes under the Constitution, must always remainactive; he must discharge the duties enjoined upon him tothe best of his ability and capacity. To maintain the rule oflaw and even handed justice, he must act as a sentinel ofthe quivive. Judicial activism in this sense is a tribute tothe judiciary rather that a bane of its criticism. What,however, sometimes becomes a source of worry is when ajudge, while delivering justice, oversteps the sphereassigned to the judiciary and unjustifiably encroaches uponthe powers and functions which are in the domain of theexecutive or the legislature. That is judicial arrogance orimpropriety but not judicial activism.

Notes and References :1. Parmanand Singh “Thinking about the limits of Judicial vindication

of public interest”, (1985) 3 SCC (Journ.) p. 10.2. Address of Senator Orrin G. Hatch before the University of Utah

Federalist Society Chapter, Judiciary Committee News Release,February 18, 1997.

3. AIR 1984 SC 1420, (1984) 3 SCC 654.4. D.S. Nakara v. Union of India (1983) 1 SCC 305, AIR 1983 SC 130.5. The Janta Dal v. H.S. Chowdhary (1991) 3 SCC 756.6. (1987) 1 SCC 227.7. Constitutional Fundamentals Hamlyn Lectures, p. 65.8. Judicial Activism Reconsidered, by Thomas Sowell.9. On Judicial Activism by Judge Diarmuid F. O’Scannlain.10. On Judicial Activism by Judge Diarmuid F. O’Scannlain.11. Judicial activism run amok by Thomas Jipping.12. Issues Tearing Our Nation’s Fabric, The Center for Reclaiming

America, Judicial Activism Chapter Fourteen.13. Handcuffing the cops? A thirty-year perspective on Miranda’s

harmful effects on law enforcement,” by Paul G. Cassell andRichard Fowles.

14. Judicial Activism and Self Government by R. Alexander Acosta.15. Judicial Activism and Self Government by R. Alexander Acosta.16. AIR 1985 Ker. 24.17. Workers of Rohtas Ind. v. Rohtas Inds. Ltd. (1989) Supp. 2 SCC 481,

AIR 1990 SC 481.18. Judicial Review of Constitutional Amendments by F.S. Nariman in the

Indian Advocate (1991) Vol. XXIII, p. 1.19. Roosevelt and Frankurter – Their Correspondence, 1928-1945, p. 383.

Judicial Activism


Mr. Friendman ed. 1967 quoted by R. Berger in Govt. by theJudiciary, Harvard University Press, 1977, p. 354.

20. Abraham Lincoln, First Inaugural Address.21. Tamil Nadu Neerppasana etc. Sangam v. Union of India & Others (1990)

3 SCC 440.22. Orders of the Supreme Court on October 1, 1990 staying

implementation of the Mandal Commission recommendations.23. The Times of India, 15th March, 1991.24. Wallaco Mendelson, “Supreme Court & State Craft”, p. 16.25. Ajay Hasia v. Khalid M. Sehravardi & Ors. (1981) 1 SCC 722-741, AIR

1981 SC 487-498-499. In a pejorative sense O.W. Holes J., said:“The common law is not a brooding omnipresence in the sky ...“Southern Pacific Co. v. Jensen, 244 US 205-222 91917), 61 L ed.1086-1101.

26. Sunil Batra v. Delhi Admn. (1980) 2 SCC 488; Sheela Barse v. State ofMaharashtra (1983) 2 SCC 96.

27. Dr. Upendra Baxi v. State of U.P., AIR 1987 SC 191.28. Labourers on Sala Hydro Electric Project v. State of J & K (1984) 3 SCC

538.29. Workers of Rohtas Ind. v. Rohtas Inds. Ltd., AIR 1990 SC 481.30. Pradeep Jain v. State of U.P., AIR 1984 SC 1420, (1984) 3 SCC 654; Dr.

Dinesh Kumar v. Motilal Nehru College, Allahabad (1987) 4 SCC 122.pp. 46-50 infra.

31. Bombay Hawkers Union v. B.M.C., AIR 1985 SC 1206, (1985) 3 SCC528; Delhi Municipal Corporation v. Gurnam Kaur, AIR 1989 SC 38-44.

32. Olga Tellis v. B.M.C. (1985) 3 SCC 55, AIR 1986 SC 180.33. M.C. Mehta v. Union of India (1986) 2 SCC 176, (1986) 2 SCC 325.34. Dr. P. Nalla Thampy Thera v. Union of India (1983) 4 SCC 598-609.35. Municipal Council of Ratlam v. Varidcham (1980) 4 SCC 162, AIR

1980 SC 1622.36. Shantistar Builders v. L. Narayan (1990) 1 SCC 520.37. M.C. Mehta v. Union of India (1991) 2 SCC 353.38. All India Judges’ Association v. Union of India & Ors. J.T. (1992) 1 SC

119.

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Chapter 3

Judicial Review

Under the concepts of judicial review, public interestand social activism make the judiciary a body competentto review each and every action of other organs functioningunder the Constitution and order their courses of actionlike an elected political body.

Courts have radically changed the role of judiciary inIndia. The principle of “checks and balances” is at risk, thejudicial activism in America has been described by JudgeRobert Bork as “judicial oligarchy”, that is, a governmentheaded by a small group of powerful elites.

The judicial power under our Constitution is vested inthe Supreme Court and the High Courts, which areempowered to exercise the power of judicial review bothin regard to legislative and executive actions. EvenDistrict Courts are empowered to examine an executiveaction.

The courts may not know their actual ideal points whenthey make a decision. To make ideal decisions, the courtsmay lack perfect information.

Judiciary reviews the decisions of legislatureand executive based on “imprecision and ideologicalbias”.

In the United Kingdom, Parliament is the source of allpower. It is sovereign. But recently, the judiciary has beenplaying a very active role. It has been striking downministerial decisions on judicial review. Lord Irvine of Lairgsaid that there was: “unprecedented antagonism betweenthe judges and the government both over judicial reviewof ministerial decisions and the restrictions which thegovernment proposed on judicial discretion in sentencing.Certainly there have been a string of decisions striking


down Ministerial actions as unlawful. That has even led tosome conservative politicians calling judicial review itselfinto question. The public must be perplexed by what theyperceive as a major clash over the distinct roles ofparliament, ministers and the judges”.

He further cautioned, “In exercising their powers ofjudicial review, the judges should never give grounds forthe public to believe that they intend to reverse governmentpolicies which they dislike. That is why I regard as unwiseobservations off the Bench by eminent judges that the courtshave reacted to the increase in the powers claimed bygovernment by being more active themselves, and addingfor good measure that this has become all the moreimportant at a time of one-party government. It suggeststo ordinary people the judicial invasion of the legislature’sturf.”1

The power of judicial review is all pervading andextends not only over the legislature, the executive, andthe administration but also over the Constituent power ofthe nation to amend the Constitution. Prof. Nathan Glazerof Harvard University described the activist judiciary inUSA as “The Imperial Judiciary.” The judiciary whichcondemns any unlimited and final power in any authorityor person as subversive of the rule of law under theConstitution, is the only institution which at its apex levelpossesses such power. There is nothing like unfettereddiscretion immune form judicial reviewability. The truth isthat in a government under law there can be no such thingas unreviewable discretion.

It was the US Supreme Court which started the biggame in judicial review and acquired this unusual powerthrough a careful strategy.

In 1954, in the Brown case, the US Supreme Courtdeclared that separate segregated schools for blacks andwhites were unconstitutional. The court did somethingwhich Congress and the President feared to do because of

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the dangerous political fallout it would produce. Acontroversy was set in motion by the judicial fiat and manycalled it illegitimate.

What the court did in the Brown case was to issue avalue judgement on a sensitive politico-national issue,unresolved for centuries. The decision became asmomentous as a constitutional amendment sanctioningequal protection to blacks who till then were under theshadow of half citizenship.

The struggle between the Executive and the SupremeCourt of the USA led to the famous case of Marbury v.Madison which was decided in 1803. Even after JohnMarshall had decided on a judicial review, as late as in1820, Thomas Jefferson said, “to consider the judges as theultimate arbiters of all constitutional questions…. wouldplace us under the despotic of an oligarchy.”

The issue of judiciary overstepping its limits wasdebated in the House of Lords recently. DistinguishedParliamentarians including Lord Woolf, Lord Wilberforceand Lord Simon of Glaisdale participated. Theirinterpretation was that, “liberty is threatened and thatjudicial review is required”. Judicial intervention willalways be needed to contain the executive which isomnipotent and all pervasive.

The concept of judicial review dictates the need for atruly independent judiciary to sit as the final arbiters andenforcers of the Constitution’s limitations on the power ofthe political branches of the government.

A legislative entity can act as a judicial actor.Legislatures act in a manner that is de facto reviewing andoverruling the perceived errors in statue interpretation bythe judicial.

In order to prevent the judicial review function fromcollapsing into the legislative function, such normativeconsiderations must extend beyond the narrow confines ofthe case before the court. The non-textual considerations

Judicial Review


are irrelevant under following two situations. (1) theconstitutional text is capable of only one rationalconstruction, or (2) though a number of constructions arerationally conceivable, the construction claimed to bederived from external considerations of social policy orpolitical theory is not among them. Potentially conflictingprovisions must be individually construed in a manner thatseeks to view them as part of a broader, organic,synthesized textual whole. Such a holistic form ofinterpretation is necessary, even if the framers themselvesfailed to recognize the potential conflicts among provisions.Otherwise, a slavish adherence to a narrow modernperceptions of the framers’ intent can lead to contradictory,or even nonsensical constructions – hardly a result onecould imagine the framers would have chosen had theyrecognized the dangers.

Why are judges authorised to revise moral decisionsalready made and ratified? Judges should choose resultsbased on moral principle, but can judges choose socialresults also?

The ancient view that the law is the command of thesovereign to be interpreted, explained and enforced bycourts has been exploded with the advent of reviewpower.

Governing authorities are the people’s deputies,assigned to carry out the rules. If government agents violatethe rules, judges enforce them by judicial review: theydeclare void the rule-breaking statutes.

The court produces an interpretation of the Constitution.The public experiences its impact for a while and reacts. Ifthe interpretation is intensely and widely unpopular, it islikely to become a matter of electoral debate, influencingelections. People will elect a political party whose viewsthey regard as appropriate on the issue in the hope thatcorrective legislative measures will be initiated by the party.

In the context of the Indian Supreme Court, Former

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Chief Justice Pathak in Union of India v. Raghubir Singh(1989) observed “The range of judicial review recognisedin the superior judiciary of India is perhaps the widestand most extensive known in the world of law.”

Former Chief Justice Bhagwati says: “Judicial review isa basic and essential feature of the Constitution and nolaw passed by Parliament in exercise of its constituentpower can abrogate it or take it away. If the power ofjudicial review is abrogated or taken away the Constitutionwill cease to be what it is.”

“When the judges are carrying out the function ofjudicial review the final responsibility of the people isappropriately guaranteed by the provisions for amendmentof the Constitution itself and the benign influence of timewhich changes the personnel of Court. Given the possibilityof Constitutional amendments there is nothingundemocratic in having responsible and independentjudges act as important Constitutional mediators.”2

A highly activist judiciary with an unlimited power ofjudicial review without accountability can create seriousadministrative problems. Tenured judges cannot be madeaccountable like the politicians and the executive. At theapex level the command of the judiciary are irreversibleexcept by itself. An activist judiciary also brings into focusthe social and political philosophy of judges of superiorcourts into focus. In Kesavanand Bharti v. State of Kerala, thecourts could nullify even the exercise of a Constituent Lawon substantive grounds which was contrary to Nehru’sassertion that Constitutional amendment was the limit ofjudicial power.

With the passage of the 42nd Amendment, Parliamentagain sought to restrict the court from review of anyconstitutional amendment. In a subsequent case in 1980(Minerva Mills Ltd. v. Union of India), the court struck downthis portion of the 42nd Amendment, and returned to itsposition in Kesavananda v. State of Kerala and effectively

Judicial Review


reestablished the supremacy of parliament and was seenby many to have subordinated fundamental rights to“directive principles”.

In 1967 in Golak Nath v. State of Punjab3 the SupremeCourt for the first time attempted to amend fundamentalright.

Accordingly, the court in Golak Nath v. State of Punjabdeclared the 17th Amendment void as it affectedfundamental rights relating to inherited property(Madhyava, 1980).

Did Kesavananda Case hold that Parliament had nopower to alter the “basic structure of the Constitution”?This would depend on a ratio to that effect emerging fromthe eleven judgments delivered by 13 judges in that case.It is stated, “Article 268 does not enable Parliament to alterthe basic structure or framework of the Constitution.” This“View of the majority” was signed by nine out of thethirteen judges. When the judgements were delivered incourt the four remaining judges refused to sign this “viewof the majority” at the time of delivery of the judgements.Presumably, they declined to do so because they did notbelieve that was the ratio of the case.

A substantial number of the laws people live underwere adopted by legislatures elected entirely by personsnow deceased, but that fact does not produce a demandthat all statutes be repassed annually or biennially. Popularacquiescence to laws, as long as it occurs within a politicalsystem that allows the majority institutionalized controlover legislatures, can properly be viewed as consent tothose laws.

Judiciary has the power to nullify on substantivegrounds even an amendment made to the Constitution bythe amending body if it changes “the basic structure orframework of the Constitution” – a concept of judicialcontrol over the Constitution evolved by and known tocourts in India only. No other judiciary in the world has

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asserted such a power.“Basic structure of the Constitution” will imply that

any constitutional amendment which abrogates judicialreview of superior courts will be void.

“The Legislatures’ undoubted privileges, even in respectof their internal proceeding are controlled by the court andmade subject to the courts’ scrutiny. Disobedience of thecourt’s stay orders in such cases is threatened with noticesfor contempt of the court. Despite the most categorical barto the jurisdiction of any court imposed by the Constitution(para 6 of the Tenth Schedule), in respect of any matterconnected with the disqualification of a member of thelegislature by the Speaker, the court can stay thedisqualification ordered by the Speaker.”

The power of judicial review apparently sets itself nolimits – it punishes official such as Mr. Vasudevan (an IASofficer of Karnataka cadre, who was imprisoned forcontempt of court by Supreme Court), and demoralises thebureaucracy as a class; pulls up the election Commissionof India; monitors the quantum of rainfall and irrigationwaters; checks and regulates admissions to professionalcolleges by issuing memoranda on capitation deregulation;orders the closure of fume-emitting factories and measuresup pollution levels; calls up data on deforestation; decreesCBI inquiry into scandals, crimes and custodial death;enquires into temple administrations; grants promotion aswell as increments to officials; restrains and censureshuman rights violations; reviews violation of skyline normsand what not, but stops short of imposing taxes.

It directs the chief executive to engage in a politicalnegotiation with a sense of urgency. A refusal to convenethe meeting is viewed with alarm as it will lead to aconstitutional crisis.

The court itself cannot involve in political negotiationsincluding the quantum of water for irrigation, theavailability or non-availability of water in storage, the

Judicial Review


domestic political compulsions to store more for self andgive less to the neighbour.

Are such judicial encroachments legitimate andconstitutionally permitted? Is not the court non-interferingand non-interventionist? In the context of the unrestraineduse of review power, where is its limit to be found, andhow safe are the powers in the hands of the executive andlegislature? What are the basic principles on which judicialreview is founded and what is the line where the judgeswill stop? Are not these judicial provocation’s leading to a‘government by the judiciary’ which is unsupported byany popular mandate and, therefore, counter-majoritarian?

The court is not an institution to initiate a politicaldialogue. Judicial directives, unless clear and result-oriented, tell upon the respect of the court – its greatestasset. An advisory, conciliatory, debatable policy-move cannever assume the status of a court verdict. How can thecourt direct the Prime Minister to negotiate in a particulardispute, convene and discuss, or travel to a place anddeliver a speech? Everything political today can be judicialtomorrow, but the executive power shall belong only tothe executive. Do such directives produce any definiteresult, giving a new right to anyone or taking away thevested right of anybody else? Here comes the charge thatjudicial review is overstepping its boundaries.

An essential principle in judicial review is that the courtcan issue a policy verdict only on facts and principleshaving a permanent value. It has no machinery forcollection of political, social or economic data, except thecommon sense of the judges. Also the court system is notmeant to operate and modulate its principles to helpexamine and accommodate individual claims arising outof unforeseen situations. It is an administrative job. It, also,will remain an untenable job for the court to do a levelingoperation under a system watch.

The strongest argument against an unlimited amending

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power is its misuse, as was witnessed during theEmergency of 1975. Like all powers, the amending powercan be abused. This was freely recognised by the majorityof the judges in Kesavananda case.

The court has not only the power to review but alsothe power to review constitutional amendments if theyinterfered with fundamental rights.

The phrase, “the basic structure or framework of theConstitution” has not been defined. It is subjective andvague. We have a written Constitution which lays downthe basic structure of the government.

Judicial review over all State actions is all pervadingand judicial interference is at the will of the judges whoconsider the action irrational. We are not far from havingjudicially written a “due process” provision of ourConstitution enabling courts to correct all State actions fortheir unreasonableness.4

The contradiction between Parliamentary sovereigntyand the power of judicial review came to a head whenIndira Gandhi nationalised 14 banks in 1969 and theSupreme Court set aside the decision in 1970, holding itviolative of the fundamental right to property.

Judicial review is recognised and even enjoined by theConstitution e.g. Article 32 and Article 226. It should beexercised with restraint and in deference to the judgmentof the political branches of government.

Mr. Soli Sorabjee, Attorney General, said that Judicialreview was one of the techniques for checking or controllingthe abuse of power. But the judiciary, according to him,cannot effect the transfer of the decision-making right fromthe legislature and the executive to the courts in respect ofmatters of policy.

Notes and References :1. Bar Association of India Lecture 1997 – Judicial Activism by Hon.

Justice Michael Kirby AC CMG.

Judicial Review


2. The Role of the Supreme Court in American Government, Oxford Univ.Press p. 28.

3. Eugene Rostow. “The Democratic Character of Judicial Review”, 66Harvard Law Review 193 (1952).

4. AIR 1967 SC 1643, (1967) 2 SCR 762.5. This point made by A.M. Bhattacharjee J. in W.B. Power Dev. Corp.

v. Union, AIR 1990 Cal. 125-128.

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Chapter 4

The Contempt of Court

Historically, the law of contempt is a legacy of Britishrule in India. This law relies on the English principle thatthe judges are supposed to be “King’s or Queen’s judges”whereby, “like the British monarch, they can do no wrong”.Accordingly the laws of contempt were introduced inEnglish law in the 18th century as a self-defencingmechanism for parties in the judgment to silence critics.

Lord Salmon remarked: “The description, ‘contempt ofcourt’, no doubt has a historical basis, but it is nonethelessmost misleading. Its object is not to protect the dignity ofthe courts but to protect the administration of justice.”

Contempt of Court is an expression of contempt forlaw. Court exercises judicial control over the executive andthe legislature through the writs of Certiorari (wrongfulaction) and Mandamus (wrongful inaction). When the lawfails to govern the government and the government startsgoverning the law, the weapon of contempt of court comeshandy enabling the court to exercise judicial control. Thecourt asserts the fundamental of law irrespective of thehigh status of the contemner. His high status does notprovide him immunity from the application of law. Thecourt ensures equality in the application of law withoutwhich there can only be anarchy.

Lord Templeman of England says that if judges areattacked for being dishonest or not true to their consciencethey have a sufficient cause to initiate contemptproceedings. Mere criticism should not be treated as fallingunder the category of “scandalising the court”.

Legitimate criticism of decisions is acceptable, but thoseattacks that threaten the judge’s position present a hazardto judicial independence.


A five-member bench of the Delhi High Court expressedstrong views on the subject of contempt against the WahIndia magazine. The judges condemned the poll held bythe magazine among senior lawyers to rate the judges onthe basis of their various qualities including integrity.Outrage was expressed by the Bench, condemning thepress. “The press is meant to be a watchdog not abloodhound, the judgment remarked while demanding anunconditional apology. The judges equated the powers ofthe press to those of nuclear power, ... it can create anddestroy and when it is aimed at the judiciary it finds a softtarget”.

In 1972, E.M.S. Namboodiripad, then chief minister ofKerala, was held guilty of contempt for casting aspersionson judges by suggesting that they were prey to the biasesof their class and their judgments were weighted againstexploited peasants and workers.

In 1990, the Bombay High Court, moving againstMadhav Gadkari, editor of a leading Marathi newspaper,for contempt, refused to accept the plea of truth as hisdefence. It argued that it was better to suffer a judge whomight be corrupt rather than expose the whole judiciary toa public trial, which would be the case if the truth of theallegation were to be examined.

Two social activists, Medha Patkar and Arundhati Roy,made certain remarks against the court. The Supreme Courtdid not pursue the contempt proceedings. Justice Bharuchaobserved, “the court’s shoulders are broad enough to shrugoff their comments”. Similarly, the Supreme Court took nonotice of scurrilous allegations against judges in the KalChakra magazine.

A five-judge bench of Justices S.C. Agarwal, G.N. Ray,A.S. Anand, S.P. Bharucha and S. Rajendra Babu laid downthat the special jurisdiction of punishing for contemptshould be exercised “sparingly and with caution” and that“it cannot be expanded to include the power to determine

87

whether an advocate is guilty of professional misconduct,giving a go-by to the procedure under the Advocates Act.”

The apex court expanded the scope of its punitivepowers in V.C. Mishra’s case (1995) by declaring thecontempt powers as inherent, unfettered and not subjectto any limit. Can the court disregard the provisions of theConstitution in view of its inherent powers and deprive acontemner of his means of livelihood?

The definition of criminal contempt is vague. JusticeJ.J. Krishna Iyer and P.N. Bhagwati in Baradakanta Mishra’scase of 1974 have given an interesting opinion. The apexcourt had punished a district judge for criminal contempt.They described the contempt power as “vague andwandering jurisdiction with uncertain frontiers, a sensitiveand suspect power to punish vested in the prosecutor, alaw which makes it a crime to publish regardless of thetruth and public good and permits a process of brevi manuconviction.”

Justice B.K. Mukherjea ruled in 1952 that “a libelattacking the integrity of a judge may not in thecircumstances of a particular case amount to contempt ofcourt at all, although it may be the subject matter of libelproceedings.”

In the 1952 case, he said: “The article in question is ascurrilous attack on the integrity and honesty of judicialofficer. Specific instances have been given where the officeris alleged to have taken bribes.” Note his ruling: “If theallegations were true, obviously it would be to the benefitof the public to bring those matters to light. But if theywere false, they cannot but undermine the confidence ofthe public in the administration of justice and bring thejudiciary into disrepute.” In this case, however, thecontemner could not prove his charge, admitting that it“was based on hearsay”. But truth was accepted as adefence.

Strong judicial orders in the exercise of contempt



jurisdiction are not instances of judicial activism. A courtwhich is not “active” in enforcing its own orders or inseeing that the course of justice is not interfered with losesits raison d’etre. “Activism” refers to the phenomenon ofthe courts dealing with issues which they have traditionallynot touched. A civil judge in Haryana threatened to haulthe Haryana Chief Secretary and Deputy Commissioner ofHissar to the Supreme Court if his wish for a “status house”was not granted within 15 days. The Supreme Court ruledin 1994 that the onus of granting status accommodationlies on the Chief Secretary and “drastic action” would betaken for a default. A large number of senior civil servantsare staying in accommodation much below theirentitlements in Delhi. To whom should they represent? Thecourt may also decide whether the cardinal principle ofjustice that nobody will be a judge in his own cause isbeing adhered to or not while ordering statusaccommodation for judges.

A Public Interest writ petition had been filed before theRajasthan High Court. In their order, Justice M.G. Mukharjiand Justice V.G. Palsikar observed that they were, primafacie, of the view that contempt law is circumscribed byjudicial decisions of the apex court and the High Courts. Itis not to be exercised as a matter of reprisal by the HighCourts or the Supreme Court. The writ was filed by Sh.Dalpat Raj Bhandari, an advocate, and they stated thatunder the Act truth is no defence.

A judge who exhibits tolerance when his own interestsare involved, enhances his prestige and status.

Former Supreme Court judge V.R. Krishna Iyer is ofthe view that judges should not feel threatened every timetheir actions are challenged. He said, “To jettison freedomof expression in the name of immunising fair judicialhearing is a poor compliment to justices, as if they are sosoft and feeble to be swayed in their judgments by passingmedia winds.”

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According to the US courts, contempt can be invokedonly in extraordinary situations when there is “a clear andpresent danger”. The Canadian courts have held thatpunishment for contempt to scandalise the courts isunconstitutional.

In 1911, the High Court of Australia laid down alandmark ruling that a charge of lack of impartiality onthe part of a judge, “so far from being a contempt of courtbe for public benefit.” Citing this ruling, Lord Salmonopined in 1969 that if there is “just cause for challengingthe integrity of a judge ... it would not be contempt ofcourt to do so. Indeed, it would be a public duty to bringthe relevant facts to light”.

The law of contempt has been liberalised in both theUK and the US. In the UK, the statute has been amendedon the recommendation of the Phillimore Committee toprovide for truth as a defence to a charge of contempt byscandalising. In the US, the courts have evolved a moreliberal standard of “clear and present danger” to theadministration of justice. Thus, recently the New York Timescharacterised the judgment of the US Supreme Court onthe recounting of Florida votes in the recent Presidentialelections as “corrupt” and one, which “stole the election”.But no action was initiated for contempt because there wasno clear and present danger to the administration of justice.

According to the definition, in the Contempt of CourtsAct of 1971 (India), criminal contempt means to speak orwrite any matter which is scandalous or tends to lower theauthority of any court or tends to interfere with a judicialproceeding or obstructs the administration of justice.

The Contempt of Court is of two types: 1. CivilContempt, 2. Criminal Contempt

Section 2(a) of the Contempt of Courts Act defines civilcontempt as “wilful disobedience to any judgment, decree,directions, orders, writs or other process of court, or wilfulbreach of undertaking given to a court”. Similarly, “any



act of publication (whether by words, spoken or written,or by signs of by visible representations, or otherwise)which scandalises any court or lowers its authority, orprejudices or interferes with any judicial proceedings, orobstructs or interferes with the administration of justice inany other manner amounts to criminal contempt”.

Section 2(c) of the Contempt of Court Act, 1971, definesthree forms of ‘criminal contempt’ by any publication:

“(i) scandalises or tends to scandalise, or lowers or tendsto lower the authority of any courts, or

(ii) prejudices, or interferes or tends to interfere withthe due course of any judicial proceeding; or

(iii) interferes or tends to interfere with, or obstructs ortends to obstruct, the administration of justice inany other manner.”

The Supreme Court exercises this punitive power underArticle 129: “The Supreme Court shall be a court of recordand shall have all the powers of such a court including thepower to punish for contempt of itself.”

The State High Courts exercise this power under Article215: “Every High Court shall be a court of record and shallhave all the powers of such a court including the power topunish for contempt of itself.”

The Supreme Court and the High Courts have beenvested with this power because of their being the courts ofrecord. In addition, the Contempt of Courts Act, 1971exclusively deals with contempt matters and also spellsout the quantum of punishment to be awarded to thecontemner. The maximum punishment provided is sixmonth simple imprisonment or a fine of Rs. 2,000 or both.

The government is contemplating amending theContempt of Courts Act 1971 by introducing truth as adefence which would make judiciary more accountable.Restricting this defence only to cases involving publicinterest will certainly reduce the scope of this amendment.The amendment ignores some of the suggestions made by

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the Constitution Review Commission (CRC) which hadrecommended amendment of Article 19(2) of theConstitution, dealing with restriction to the right toexpression. A proviso was to be added: “In matters ofcontempt, it shall be open to the court on satisfaction ofthe bona fides of the pleas and of requirements of publicinterest to permit a defence of justification of truth.”

The article permits only “reasonable” restrictions onthe fundamental right to freedom of speech and expression.A law which divorces a citizen from making a truthfulstatement appears to be illogical.

The CRC had also recommended that the powers of acourt to punish for contempt of itself should be restrictedto the Supreme Court and High Courts and as a privilegeto Parliament and state legislatures. “No other court,tribunal or authority should have, or be conferred with, apower to punish for contempt of itself.” (CRC)

Over protection to judiciary from criticism can paralyzepolitical instincts, and allow atrocities. Criticism – at leastof the kind directed upward, toward authority – is the bestguarantor of liberty.

The judicial system in our country is based on theprinciple of “Satyameva Jayate” (truth alone shall prevail).Therefore, truth must be a good defence to a contemner.

Whether truth is to be accepted as defence in a contemptcase, has not yet been decided by the Supreme Court. It isyet to be seen whether the trial will be fair if the adjudicatorhimself is a party to the case.

The power of defining, “Public interest would be vestedin the courts, truth as a defence might not be effective.

Professor A. Goodhart has pointed out, “Scandalisingthe court means any hostile criticism of the judge as judge;any personal attack upon him, unconnected with the officehe holds, is dealt with under the ordinary rules of libeland slander.”

In 1996, this ruling by a Constitution bench of five



judges was overlooked by a bench of three judges. It heldthat “it would not be open to the contemner to bringforward evidence or circumstances to justify or to showwhether and how fairly imputations were justified becausethe judge is not before the court”.

H.M. Seervai, a constitutional expert, contended thatwhen the Constitution provides for the impeachment ofjudges of the Supreme Court and the High Courts it wouldbe absurd to say that “no one can offer proof of such mis-behaviour except on pain of being sent to jail for contemptof courts”. Besides, the judge who takes bribes “is not actingas a judge but using his position as a judge to secure illicitpersonal gain”.

The Contempt Act should not cover judge’s conductoutside the court. Section 2 is the most commonly invokedsection pertaining to “scandalising the court”. This isstrictly limiting the judge’s conduct in the court. If thecourt’s jurisdiction is arbitrarily extended to areasbelonging to executive and legislature criticism will beinevitable.

Respect should be commanded, not demanded. Thejudiciary emphasis on the latter and on its “perceivedinfallibility” could prove detrimental to democracy.

Bona fide statement of facts should not constitutecontempt. The law of contempt should not be misused toprotect the dignity of an (arrogant judge).

Fair criticism of the judiciary should not attractcontempt of court proceedings.

Judiciary has to earn reverence through the test of truth,not contempt.

The power is dependent on the subjective evaluationof a judge. It denies the accused of many guaranties ofbasic human nature with little hope for meaningful appealor review.

The guiding principle of judicial administration is : Beyou ever so high, you’re not above the law. Can the

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judiciary then claim for itself a place that is so privilegedthat no criticism can touch it? Can the judges be held to beabove all judgment?

Justice Michael Kirby of Australia, addressing the BarCouncil of India Conference on “judicial activism” said:“Judges are not gods. Judges in my experience, are serious,hard working, middle-aged human beings A healthy societyaccepts criticism of all institutions, even the judiciary.”

Lord Hailsham, Lord Chancellor of England, once said,“so long as a judge keeps silent his reputation for wisdomand impartiality remains unassailable: but every utterancewhich he makes public, except in the course of his actualperformance of his judicial duties, must necessarily bringhim within the focus of criticism”.

In Scanadivian countries – Norway, Denmark andSweden – there is no contempt law. The citizen in thesecountries can freely criticise court judgments.

It will be highly befitting if the judges themselves curtailtheir privileges.

Justice Khanna warns against the dangers of criticisingthe judiciary. “Something needs to be brought about tocure the maladies that have afflicted the judicial system.But, it should not be a kind of counterblast to thetremendous good work that is being done by the judiciaryto clean up the system.”

Justice Khanna (Retd.) advises judges to exercisetremendous restraint. “Genuine criticism has to be accepted.Punishment under the Contempt of Court Act is no answerto positive criticism. Some of our best judges have alwaysproved in their judgments why tremendous restraint isrequired while exercising such jurisdiction.”1

Courts are the guardians of all public liberties includingfree expression. The law of contempt should not be usedto shield the judiciary from criticism. Restrictions can beimposed on free expression only in cases of pre-trial andpending cases. After the pronouncement of judgement there



should be no legal restraints on comments and criticism.The critics of contempt of court point out that there are

many aberrations of which judges are guilty and thatenforcement of the Contempt Act requires careful andrealistic handling because many of the improprieties gounnoticed behind the iron curtain of Contempt of Court.Law of contempt has been overdrawn because it is ofcolonial vintage. Judges, like other constitutionalfunctionaries, must face the law if they depart from ordeceive the law. Justice is no cloistered virtue and the rightof criticism, even if exaggerated, must be permissible sincefreedom of expression is a guaranteed right applicable asmuch for the judges as against the judges.

The B.C. Ray Committee, appointed by the then ChiefJustice Sabayasachi Mukherjee, to advise him on how todeal with the allegations against Justice V. Ramaswami,observed, “there has indeed been a growing sense ofcynicism and concern in the public and about the fall inthe standards of judicial conduct and of the wisdom ofsuch constitutional immunity for judicial improprietiesfrom public security and censure. Every institution, social,political and legal is under pressure of reassessment of itssocial relevance and utility. It would be an ostrich-likeunrealism to be insensitive to these sweeping changes ofpublic mood and to take shelter under mere legal andconstitutional protectionism. Today, incantation of maximsof high judicial morality have few takes. Acceptable preceptis acceptable example alone. Sunlight, perhaps is the bestdisinfectant.”

It will be befitting to recall the perspective provided bythe B.C. Ray Committee, “...... the standards of ethical andintellectual rectitude expected of judges are directlyproportional to the exalted constitutional protection thatthey deserve to enjoy. The country is entitled to be mostexacting in its prescription and expectation of the standardsof rectitude in judicial conduct. What might be pardonable

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in an ordinary citizen or officer might in the case of ajudge look indeed unpardonable. His morals are not ofstandards of the market place but the punctilio of a highercode.”

The Sawant Committee which inquired into JusticeRamaswami’s conduct, went a step further and said thateven legally the word ‘misbehaviour’ in relation to a judgemust be construed to imply not only his official conductbut his private acts as well.

Even healthy criticism is taken amiss by the judiciaryand, at times, the voice of truth is strangulated by thecontempt of court law.

There is the citizens’ right to examine the integrity ofthe judicial process. But in actual fact, the superior judiciaryitself has obliterated this right of the citizen by the way ithas started to administer the contempt law. The citizen isin for trouble if he opens his mouth against any act ororder of the judiciary.

The iron curtain of contempt of court will not silencethe populace when the time for storming the Bastile arrives.The cult of the robes must yield to the command ofdemocratic discipline. Jerome Frank elegantly expressedthe obsolescence of the hands-off doctrine:

“The robe as a symbol is out of date, an anachronisticremnant of ceremonial government. An immature societymay need or like to fear its rulers, but a vital anddeveloping America can risk full equality. A judge who ispart of a legal system serving present needs should not beclothed in the quaint garment of the distant past. Just asthe robe conceals the physical contours of the man, so itneedlessly conceals from the public his mental contours.When the human elements in the judging process arecovered up, justice operates darklingly. Now that theSupreme Court has declared the judiciary a part of candiddemocratic government, I think that the cult of the robeshould be discarded.” (Jerome Frank, Courts on Trial, p.



260-261).The Indian Constitution provides for one extreme

punishment, namely, impeachment. The procedureprescribed by Article 124(4) is too restrictive and difficultto comply with. We need an urgent measure for systemiccorrection and suitable mechanism because accusations areno longer exceptions and judges must suffer criticism.

The bench and the bar must be mutually accountable.If the bench or the bar chooses to indulge in grave vicesand, when exposed, it will unwittingly become its owngrave-digger! Bhutto, before he was executed wrote in thelast part of his tragic book, “there is something in thehuman history like retributive, and it is the rule of historicalretributives that its instrument be forged not by theoffended, but by the offender himself.”

A democracy functions on the understanding of checksand balance between the executive, legislature andjudiciary. Any excess by one organ is counter-checked bythe other. It will amount to judicial excess if the judiciaryunilaterally decides that it will haul up any one who daresdiffer with its views. The judiciary intervenes to check theexcesses by the executive and legislature, the judicial excessalso needs to be checked.

A District Magistrate, in Uttar Pradesh, had to facecriminal contempt of court proceedings for shifting theinspection bungalow reservation from one place to another,in respect of one visiting High Court judge. This was donein view of the unscheduled arrival of a Chief Minister ofsome other state.

Certain provisions of the Contempt of Courts Act havebeen challenged on the ground that these are against theConstitution of India.

Bhandari has challenged the provisions relating to thedefinition of criminal contempt; the prescribed punishment,and the procedure where contempt is in the face of theSupreme Court or a High Court.

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The contempt law is violative of the freedom of speech– a fundamental right under the Constitution. Accordingto Bhandari, there cannot be criminal contempt to speakthe truth in court or to publish true account.

He has contended that at a time when other organs ofdemocracy – the executive and the legislature, are beingopenly criticised, corruption charges are being freelylevelled, judges need no more protection. Removal of theContempt Act from the statue books will result in levelplaying field for all the organs of the state and ivory towertreatment meted out to judiciary will vanish.

Shri Dalpat Singh, Advocate, Rajasthan has prayed theHigh Court to declare Article 2152 of the Constitutionrelating to the court Act as ultra virus and illegal. He hasfurther prayed to set aside section 123 of Contempt of CourtAct.

Contempt of Court law is a potent weapon to wake upcallous executives who are indifferent to implement whatis expected of the contemner. The court ensures that justiceis delivered to the victims without delay. It is also necessarythat our Courts do not use the law of contempt to settlepersonal grudges or satisfy their ego.

“Today virtually every constitutional institution ofgovernance is non-functional or dys-functional, except thejudiciary. Irresponsible attack on the judiciary might resultin its collapse as it happened in Malaysia in the 80s”

Criticism of Contempt of Court Act notwithstanding,the importance of this Act cannot be minimised. It protectsthe judiciary’s honour and dignity, nobody can take courtslikely or obstruct judicial proceedings. It has helped inmaintaining judiciary’s independence, sanctity and themajesty of the law. It ensures speedy compliance of court’sorders.

Notes and References :1. Hindustan Times dated Jan. 11, ....... “Judging the judge is

everyone’s right”.



2. Every High Court shall be a Court of regard and shall have all thepowers of such Court including the power of punishment forcontempt of itself.

3. Section 12 of Contempt of Court Act punishment for – “save asotherwise expressly provided in this Act, or in any other law ofcontempt of Court may be punished with simple imprisonmentfor a term which may extend to six months or with a fine whichmay extend to Rs. 2000/- or with both.” Provided that the accusedmay be discharged or the punishment awarded may be remittedon apology being made to the satisfaction of the court.

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Chapter 5

Public Interest Litigation

“The great wish of some is to avenge themselves on someparticular enemy, the great wish of others to save their ownpocket. Slow in assembling, they devote a very small fraction ofthe time to the consideration of any public object, most of it tothe prosecution of their own objects. Meanwhile each fanciesthat no harm will come of his neglect, that it is the business ofsomebody else to look after this or that for him; and so, by thesame notation being entertained by all separately, the commoncause imperceptibly decay.” (Thucydides c. 460-400 B.C.)

PIL has been variously described as, “extra-textualist,”“non-interpretivist,” “supplementers” or “fundamentalrights jurisprudence.” (Thomas Grey (1974 and 1978) coinedthe first two terms and then argued (1985) for replacingthem with the third. Paul Brest (1981) coined the fourth).The concept emphasises the normative principle concerningthe role of federal judiciary and Acts of elected governmentwhich conflict with these “extra-textual” rights are struckdown.

In the early stages of the working of the Constitution,criticism had been voiced against the judiciary for its“contra-constitutional approaches” to matters like agrarianreforms, moves for nationalisation and socialistic measuresto benefit the poorer sections of our society. However, inthe eighties the rise of judicial activism has created a“swadesh” jurisprudence by interpreting the law for thebenefit of the disadvantaged, dispossessed and depressed,and thus making the Constitution a remedial tool for them.The Supreme Courts’ role in the development of humanrights jurisprudence, social action litigation and povertyjurisprudence has been highly commendable. Thus, thejudiciary is taking the Constitution seriously and shaping


the social order to the benefit of the lowliest.Public interest law has developed extensively in India,

particularly after the evolution of a unique jurisprudence,PIL, in 1979 and its growth since then.

The initiation of PIL in India with the under trialprisoners’ case was the result of the coinciding in time ofseveral factors such as free Press, activism of a section ofthe Bar, judicial activism subsequent to the 1975 Emergency,democracy and dehumanising poverty along with its socio-economic implications.

PIL jurisprudence has ensured distributive justice andthe access of law to the underprivileged millions. Theteeming millions of India have realised not only thegrandeur of court but have also felt justice distributed byit.

PIL social Action Litigation aims at making law andjustice accessible to the poor and underprivileged.

PIL/Social Action Litigation in India not only leads toend of governmental lawlessness but also creates conditionsfor appropriate legislation. Justice is made accessible tothose who are denied their constitutional rights and areunable themselves to apply to court for legal relief. “PILempowers the victims to use the courts to enforce thegovernment to fulfil its commitments.”1 PIL is “Judge led.”

According to Prof. Baxi, the Supreme Court of Indiahas become “the Supreme Court for Indians.” It hastransformed the court room from “an arena of legalquibbling for men with long purses” to an arena of hopefor the oppressed.

“Where a legal wrong or a legal injury is caused to aperson or to a determinate class of persons by reason ofviolation of any constitutional or legal right,… and suchperson or determinate class of persons is by reasons ofpoverty, helplessness or disability or socially oreconomically disadvantaged position, unable to approachthe court for relief, any member of the public can maintain

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an application for an appropriate direction or order.” Theconcept now is wider; it includes deprivation of aconstitutional or legal right.

Justice Krishna Iyer recognised the need for a widerbasis of access to justice in India which in his opinion stillsuffered from “the pathology of mid-Victorian conceptsabout causes of action.”

A public interest litigation suit may be initiated by themere writing of a letter to a Court or a Judge.

In the case of Mukesh Advani v. State of Madhya Pradesh,the court accepted a clipping of a newspaper article on thesordid state of bonded labourers working in stone quarriesin Madhya Pradesh, as the basis for a petition.2

In Social Action Litigation (SAL) judicial involvementdoes not end with the granting of an order. In a bid toensure corrective action, courts monitor the implementationof their directions at periodic intervals to secure theenforcement thereof.

In SAL the grievance is mainly about the violation ofconstitutional or legal rights by governmental action orinaction. “Much of SAL focuses on exposing repression bythe agencies of the State… close to this category are caseswhich seek to ensure that authorities of the State fulfil theobligations of law under which they exist and function…The other distinctive feature of SAL proceedings is that allof them are Article 32 petitions; i.e. Writ proceedings forthe enforcement of fundamental rights.”3

Some prominent cases under PIL “The Right to a SpeedyTrial – Hussainara Khatoon v. State of Bihar.” (ParmanandSingh; “Access to Justice: PIL and the Indian SupremeCourt, Delhi Law Review Vol. 10 and 11, 1981-82, p. 159.)

The Right to Human Dignity – Dr. Upendra Baxi v. Stateof U.P. In the protective home for women at Agra theinmates were living under barbaric conditions. The courtcame to the relief of these women.

The Right to be Free from Exploitation – Bhandhua Mukti



Morcha v. Union of India and Others.4

The Right to Livelihood – Olga Tellis v. Bombay MunicipalCorporation.

The Right Against Pollution – Rural Litigation andEnvironmental Kendra, Dehradun v. State of U.P., The SupremeCourt established the right to be free from pollution forthe first time.5

The Right to be protected from Industrial Hazards andEnvironmental Pollution – The right to be protected fromIndustrial hazards and environmental pollution wasestablished by the Supreme Court in M.C. Mehta v. Unionof India.

Shriram Fertilizers was private corporation, as opposedto the State, the court allowed a PIL case to be broughtagainst it.

The Right to a Clean Hygienic Environment – “TheGanga Water Pollution Case” – In M.C. Mehta v. Union ofIndia, the court issued directions to the tanneries to stopoperations and not to let out effluents either directly orindirectly into the river without subjecting them to a pre-treatment process.6

The Right to Legal Aid – Sheela Barse v. Union of Indiaestablished the Right to Legal Aid.

Prevention of Abuse of Power and Maintenance of Ruleof Law through PIL – In the case D.N. Satyanarayana v. N.T.Rama Rao.

The Right to freedom of Speech – This fundamentalright was upheld in the case of Indira Jaising v. Union ofIndia.

Right to Equal Pay for Equal Work – This right wasupheld by Bhagwati CJ, in the case Dhirendra Chamoli v.State of U.P.7

In India, Justices P.N. Bhagwati and V.R. Krishna Iyer,who inaugurated the activist phase of the Supreme Courtof India were bitterly criticized for their innovations inlaw. Late H.M. Seervai, a leading jurist, had time and again

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expressed his open dislike of judicial activism. In thepreface to the Constitutional Law of India (Vol. I) he writes:“A fashion has grown up in the Supreme Court tocommunicate to the law-abiding community the glow oflife giving principles rooted in social sciences.” Justice V.D.Tulzapurkar in a speech at Pune, while criticizing hisbrother judges, Mr. Bhagwati and Mr. Iyer without namingthem, told the audience that the task of a judge is not tomake law but only to dispense justice in accordance withthe law. Justice Hidaytullah in his “Highways and Bye-Lanesof Justice” deridingly compared public interest litigationwith Emperor Jahangir’s Zanjir-e-adil. Several othereminent people connected with the Bench and the Bar haveexpressed their fears about treating letters written to thecourt of law as writ petitions, and their misgivings aboutthe dangers that may follow the liberalized rule of standing.

In Fertilizer Corporation Kamgar Union, Sindri v. Union ofIndia, Justice Krishna Iyer enunciated the need for PublicInterest Law in the clearest terms, “Law is ….. a socialauditor and this audit function could be put into actionwhen someone with real public interest ignites thejurisdiction…. In a society where freedoms suffer fromatrophy, the activism is essential for participative publicjustice, some risks have to be taken and more opportunitiesopened for public minded citizens to rely on the legalprocess and not to be resigned from it by narrow pedantrynow surrounding locus standi.8

PIL today has become a byword for judicial involvementin social, political and economic affairs of the society.

The cases surveyed above show that PIL today coverslimitless fields. Even a song-sequence in a film calledKhalnayak was subjected to PIL on the ground that it wasvulgar and obscene. The appointments of Shri P.V.Narasimha Rao and Shri H.D. Deve Gowda as PrimeMinister were challenged through public interest litigation.Holding of elections and making of public appointments



are subjects of PIL.PIL must be accompanied by adequate judicial control

so as to prevent this technique from being used as, “aninstrument of coercion, blackmail or for other obliquemotive.”9

The relaxed standards of proof and reliance on expertCommissions to adduce evidence is a cause of concern andit has been suggested that this may give the court a partialand possibly biased view.10

Another problem has been referred to as “chronic overcommitment to the judiciary to enlarge justice.” This andthe relaxed rule of standing has resulted in courts beinginundated with requests for relief from all manner ofsuffering.11

It has been stated that the practice of retaining PILpetitions by the addressee Justice “erodes the institutionalpersonality of the Supreme Court and deprives the ChiefJustice of India of his docket management power.”12

It is also maintained that the practice “confers aprivilege on the complainant to choose judge or a Forumof his own choice which is clearly subversive of the judicialprocess which enjoins that no litigant can choose hisForum.”13

PIL could be pushed for enforcing existing legalentitlements and not for compelling the government toadopt a particular policy.

PIL, originally conceived as an instrument of last resort,has been trivialised into publicity gestures for petty causesranging from banning autobiographies, supplying rationsto terrorists holed up in Hazratbal, determining sittingarrangements in a beauty pageant and formation ofcommittees to control mosquito menace etc.

The situation is not entirely of the judiciary’s ownmaking. Whenever there is collapse of responsiblegovernment in India the judiciary has to step in andrespond to make political or policy making judgements.

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The PIL in purely administrative matters diverts the courtfrom its traditional duties and functions. The judiciary isforced to enter into fields in which it has no competence.The judiciary cannot be made a substitute for the failure ortheir responsibility of the other branches of government.Otherwise it will compromise with its independent,detached status and thus get dragged into politics. It willincreasingly meddle into problems of peoples’ politics anddeliver legislative or administrative “judgments”. Thejudges will be reduced to a group of bureaucrats and thecourt of law to a bureaucratic institution.

The judiciary has itself claimed to be an activeparticipant in social reformative changes. It has encouraged,and at times initiated, social action litigation or publicinterest litigation. In such cases, courts have discardedtraditional and necessary constraints on themselves suchas the requirements of standing, ripeness of the case andadversarial forms of litigation and have assumed functionsof investigator, counsellor and monitor of administration.Relaxation of such procedural and customary rules ofinvoking a courts’ jurisdiction is directly related to theexpansion of judicial power, carrying its own danger tothe institution. As Professor Archibald Cox says, “Behindthese doctrines requiring standing and judiciallymanageable standards lies the policy of avoidingweakening the courts by embroiling them unnecessarily inturbulent waters of political controversy.” Their activitybecomes indistinguishable from that of commissioners ofgrievances.

The vision of a resurgent India taking its place in theworld as a secular democracy mindful of its obligations toprovide social and economic justice for its people lay buriedunder a heap of broken political promises. It is no more soas the executive is on its toes. In the words of Prof. UpendraBaxi, “the PIL movement is fighting against the lawlessnessof the State.”



Senior Supreme Court lawyer Rajeev Dhawan adds,“The court is one of the three sites (the other two beingPress and direct social action) of democratic struggle… TheSupreme Court has effectively established the foundationof the rule of law.”

Miscomprehension about PIL stems largely from theissue of locus standi: A person can move a public interestpetition, unlike as in the writs and ordinary suits, evenwhen his interests are not directly affected. In the Boforscase, a motivated PIL writ was filed before the Delhi HighCourt with the objective of obstructing and delayingproceedings before Swiss Courts. There could be no publicinterest involved in not disclosing the recipients of bribesin Bofors deal.

PIL was used as a ruse to subvert the smoothfunctioning of the executive, and a gimmick to grab theheadlines. It has nuisance value and nobody raised theissue when public interest petition was moved to helpJustice Ramaswamy, a person who deserved no sympathy”.

PIL verdicts have created the impression of“government by judiciary”. But “when all the limbs of thegovernment refuse to function, the citizen has no choicebut to go to the court.”

Prof. Upendra Baxi explains, “Parliament does not seemto have time for legislation… the Supreme Court is onlyguaranteeing rights that were supposed to have beenimplemented by the executive and the legislature.”

Delivering the inaugural address at the seminarorganised at Pune on “Judicial Process – social Legitimacyand Institutional Validity”, Former Chief Justice Ahmadideclared that while he was appreciative of the SupremeCourt’s innovative approach, which had resulted in theevolution of public interest litigation. He, however,cautioned that the valuable weapon of public interestlitigation, which could do a great deal of good to society,would get blunted if used recklessly.

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Justice Pathak in the Bandhua Mukti Morcha v. Union ofIndia, expressed, “In most cases the jurisdiction of court isinvoked when a default occurs in executive administration,and sometimes where a void in community life remainsunfilled by legislative action. The resulting public grievancefinds expression through social action groups, whichconsider the court an appropriate forum for removing thedeficiencies. Indeed, the citizens seem to find it moreconvenient to apply to the court for the vindication ofconstitutional rights that appeal to the executive orlegislative organs of the State. In the process of correctingexecutive error or removing legislative omission the courtcan so easily find itself involved in the policy-making of aquality and to a degree characteristic of political authority,and indeed run the risk of being mistaken for one. Anexcessively political role identifiable with politicalgovernance betrays the court into functions alien to itsfundamental character, and tends to destroy the delicatebalance envisaged in our Constitutional system betweenits three basic institutions.”

The judiciary exists for the limited purpose ofinterpreting the law. It cannot and should not be made thearbiter of political controversies.

The pivotal role of the legislature in the governance ofIndia needs reaffirmation as there is today a seriouspossibility of the national agenda being hijacked byunelected unrepresentative groups armed with a plethoraof PIL.

At the same time, the gap between commitment andperformance has resulted in chronic over commitment ofthe judge to provide relief from all kinds of critical socialills affecting the Indian Society. Almost anything underthe sun is covered under the umbrella of ‘public interestlitigation.’ The new claims based upon right to life haveonly led to disillusionment and frustration as the courtshave declined to provide positive social goods by



affirmative judicial action.“We risk a progressive impairment of the effectiveness

of the Federal courts if their limited resources are divertedincreasingly from their historic role to the resolution ofpublic interest suits brought by litigants who cannotdistinguish themselves from all taxpayers or all citizens.”14

The courts’ institutional capacity to do justice to theordinary litigant is greatly reduced.

In Chhetriya Pradushan Mukti Sangharsh Samiti v. State ofU.P.,15 decided on August 12, 1990, C.J. Mukharji cautionedagainst the abuse of the judicial process by the so-called“protectors” of public interest. Rejecting the petition, thelearned CJ cautioned that Article 32 “should not be misusedor preventing other genuine violation of fundamental rightsbeing considered by the court. That would be an act orconduct which will defeat the very purpose of preservationof fundamental rights.”16 He warned the petitioner againstthe abuse of judicial process of settling his private dispute.He clearly stated that judicial intervention could be soughtonly in cases of breach of fundamental rights of membersof the public. In Ram Sharan v. Union of India,17 he ruledthat when one sought relief for breach of Article 21 right,one must confine oneself to some “direct, overt or tangibleact which threatened the fullness of his or lives of othersin the community.”

It is one thing for a court to acknowledge the basicneeds to food, housing, work, education, minimum income,pure drinking water, medicare, etc. as a legal right. It is,however, quite another thing to enforce thesereconceptualised rights through judicial orders. It is futileto hold that Article 21 includes all graces of humancivilisation, the right to hygiene, food pollution-freeenvironment, dwelling, work, education, minimum income,and a horde of other human rights and then to hold thatthe realisation of these claims depends on the active andwilling co-operation of the government and its officials.

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“One would realise that the events occurring on thenational scene owe their origin to the humble citizen. Thepresent situation is not really a case of one democraticinstitution trying to exert itself over another; rather, it is acase of citizens finding new ways of expressing theirconcern for events occurring at the national level, andexerting their involvement in the democratic process.”

And when this humble citizen, mindful of his civicrights, approaches the judiciary “the Supreme Court is leftwith little choice but to act in deference to itsconstitutionally prescribed obligations. This is the reasonwhy the court has had to expand its jurisdiction by, attimes, issuing novel direction to the Executive; somethingit would never have resorted to, had the other twodemocratic institutions functioned in an effective manner.”According to eminent jurist Fali S. Nariman “The judiciaryis the strongest force in the country. Even a Parliamentaryamendment can be made only after passing through thejudiciary”.

Make the delinquent constitutional functionariesperform. After all, the citizen “cannot be expected to waitfor the system to correct itself; he will and can be expectedto take upon himself the task of enforcing the rights grantedto him by the Constitution.”

PIL could be pushed for enforcing existing legalentitlements and not for compelling the government toadopt a particular policy.

Public interest litigation is a very valuable weaponwhich can do a great deal of good to the people and societybut which can be blunted if wrongly and carelessly used.

Notes and References :1. Parmanand Singh, “PIL”, Annual Survey of Indian Law 1988,

p. 123.2. Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161; and

Annual Survey of Indian Law 1987 Vol. XXIII, p. 143.3. AIR 1979 SC 1360.



4. 1986 4 SCC 106.5. 1986 2 SCC 68.6. 1987 4 SC 463.7. AIR 1989 Bom. 24.8. Fertilizer Corp. Kamgar Union, Sindri v. Union of India (1981) SCC at

584.9. Parmanand Singh, “Thinking about the limits of Judicial

Vindication of Public Interest”, p. 25 (1985) 3 SCC (Jour) 1.10. Parmanand Singh, “Justice Sabyasachi Mukharji’s Perception of

Judicial Function in PIL – a Tribute”, p. 149 Delhi Law ReviewVol. 13, 1991.

11. Jamie Cassels, “Judicial Activism and PIL in India – Attemptingthe Impossible?” The American Journal of Comparative Law Vol.37 p. 507.

12. Parmanand Singh, “Judicial Socialism & Promises of Liberation”,(1985) 3 SCC (Jour) p. 344.

13. The Judgement of Pathak J. in Bandhua Mukti Morcha v. Union ofIndia (1984) 3 SCC 161, p. 229.

14. US v. Richardson, 41 L Ed. 2d, 678-696.15. (1990) 4 SCC 440.16. (1990) 4 SCC 452.17. (1989) Supp. (I) SCC 251.

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Chapter 6

Judicial Independence

Judicial independence means that judges can decidecases in an environment free from fear and threats. Theirpronouncements may be against the mightiest of the landand the powers that be.

Judicial independence is the independence frominterference of the government officers. Public officialsshould not infringe judicial authority. Judicialindependence is threatened by powerful non-governmentalinterest acting legally to ensure themselves advantages.

A high degree of judicial independence will createconducive conditions for the maintenance of the rule oflaw. Powerful persons – particularly elected officials cannotmanipulate legal proceeding to their advantages. Onlyconstitutionally valid laws will be enforced and those lawsenacted by legislature against the spirit of the Constitutionwill be set aside. Thus judicial independence will promotecollective public good. Independent judges will ensure legalstability and equality before law.

Threats to rule of law comes from public officials,military, economic interest and unified popular majorities.

“Judicial independence” may be too loaded a term torefer to all the ways in which judges may “war(d) offinterference,”1 so too “threats” may be too loaded a termto describe all the constraints on that freedom. Judicialindependence is not an end in itself.

Judicial independence consists of the ability to avoid apowerful source of coercion. It consists of a judge’s freedomto pursue his own conception of truth, good, the just andthe law. These values remain constant and do not changewith changing circumstances.

A judicial officer is exercising the authority vested in


him. He should be free to act upon his own convictions,without apprehension of personal consequences to himself.(Bradley v. Fisher, 80 U.S. 335, 347 (1872)).

Judges will continue to apply the law regardless ofpolitical consequences, without fear or favour. They takean oath to this effect which requires them to be neutralunder all circumstances and pressures.

Independence is a paramount goal and the entire socio-legal structure protects the judicial freedom of action. Ifjudicial independence is threatened, then the goals ofjudicial impartiality and political stability are jeopardised.

Judge’s independence might be compromised by fearsof physical threats and elimination. “If judges were subjectto pressures like the ancient writ of attaint or physicallycoerced into reaching particular results, they would lackthe minimal safe space within which to perform theirjudicial role.2

“At early English law, if a judge or other royal authoritydisagreed with a jury verdict, he could seek a writ of attaint.Under attaint proceedings, a second jury of twenty-fourjurors was empaneled to hear the original dispute again. Iftheir verdict differed from the verdict of the first jury, thetwelve original jurors were immediately arrested andimprisoned, their lands and property were forfeited to theking, their wives and children were thrown out of theirhomes, their houses were torn down, their trees were rootedup, and their meadows were ploughed.” (Elizabeth I.Haynes, Note, United States v. Thomas: Pulling the Jury Apart,30 Conn. L. Rev. 731, 742 (1998)).

One of the most fundamental precepts of the process isthat no man can be a judge in his own case, that is, that ajudge should not stand to benefit directly from hisdecisions. (Ward v. Monroeville, 409 U.S. 57, 62 (1972); Tumeyv. Ohio, 273 U.S. 510 (1927)).

Judges must be free from having their financial well-being depend on the outcome of cases before them.

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Bribery statutes make the outright sale of judicialdecisions a crime.

In Pierson v. Ray, 386 U.S. 547, 554 (1967) it has beenlaid down that a judge’s “errors may be corrected onappeal, but he should not have to fear that unsatisfiedlitigants may hound him with litigation charging maliceor corruption. Imposing such a burden on judges wouldcontribute not to principled and fearless decision makingbut to intimidation.”

Even a judge who acts maliciously or corruptly cannotbe sued by the parties he has injured.

Threats to career prospects pose a threat to judicialindependence. Judges may fall a prey to temptations andtemper justice with self-preservation.

A judge’s personal ambitions may interact with politicalcontrol to constrain him. A judge may calculate constantlywithout adding anything. He may see all but “lack vision”.There can be no fair trial before a judge lacking inimpartiality and disinterestedness. “The sunlight ofawareness has an antiseptic effect on prejudices. Freelyavowing that he is a human being, the judge can andshould, through self-scrutiny, prevent the operation of thisclass of biases.”3

The judicial process may be more “free from” thebackgrounds of individual judges when the judiciary ismore truly representative.

Judges should not face discipline for expressing theirview of the law. Judges should, therefore, do everythingthey can, within their role as judges, to resist.

“When a judge is threatened with a call for resignationor impeachment because of disagreement with a ruling,the entire process of orderly resolution of legal disputes isundermined.”4

Judges are not to be influenced by bias againstparticular litigants or by a personal interest in the outcomeof a case. Every state has a code of conduct that prohibits



a judge from deciding a case in which he has a personalinterest. This will ensure their impartiality and sustain theRule of Law. Decisions are not to be influenced either bythe politicians or other branches of the government.

It is the judges themselves who bear the greatest burdenof sustaining judicial independence in an age of politicaland media scrutiny.

The judges cannot right every wrong unless there is alegal basis. The judges do not set their own agendas. “Tomost citizens the judge is nothing less than a symbol ofjustice. He/she not only administers the law, but alsoembodies the law.”5

The constitutional requirement that “due process” beprovided prior to the taking of life, liberty or property isproperly construed to dictate a requirement offundamentally fair procedures.

Judges are not (or not entirely) state officials. Judgesare independent in that their jurisdiction is defined by anindependently transmitted canon of texts. But judges areanswerable to the tradition which they serve; their “inde-pendence” means obligation and commitment, not license.

Judges remember Harlan as a “prophet”, and describehis Plessy dissent as “prophetic”.6 He accurately forecastthe subsequent history of race relations.

Constitution “neither knows nor tolerates distinctionsamong classes.” Plessy v. Ferguson, 163 U.S. 537, 539 (1896)(dissenting opinion).

“As a judge, one must be other than the King”; onemust stand ready to rebuke and confront the King.

The agency role of a judge is, in principle, as applicablein a monarchy as in a republic, but in a constitutionaldemocracy the additional issue of the peoples right of self-government is involved.

“Judges who act like guerrillas behind enemy lines haveno moral claim to exemption from the fate of guerrillasdiscovered behind enemy lines. At a minimum, guerrillas

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have no moral claim to tenure.”“A judge confronts the law as it is written and the facts

as they have been placed in evidence. His power may begreat over the parties before him, but almost none of it –if exercised properly – can be exerted to advance a judge’sown objectives. It is to guarantee this neutrality that he isgiven independence.”7

Judges are under the protection of constitutionallyprotected judicial independence.

Adjudicator be both neutral between and independentof the litigants.

The judge must defend the constitutional harmonybetween law and liberty as memorialised in the text of theConstitution itself. To disturb this harmony (or to allow it tobe altered) is not faithfully to apply the Constitution but toamend it-to usurp a power reposed exclusively in the people.

The very concept of law requires the judge to apply itin a manner that is both predictable and uniform.Predictability ensures that everyone knows what the lawis at any given point in time. Uniformity ensures that thelaw is applied in the same way by any judge to any partyanywhere in the country.

The courts do not deliver a “service”. The courtsadminister justice in accordance with law and Constitution.“The Constitution is what the judges say it is.”

Lord Simon of Glaisdale talking about the quality ofjudge said, “The first quality that is required of a judge(was expressed) when the eminent American judge andjurist Felix Frankfurter was asked about the three mostimportant judicial qualities, he said: ‘First, detachment;secondly, detachment; and thirdly, detachment’. AlthoughI would certainly put detachment first, there is also roomfor intuition particularly by judges of instant jurisdiction,and for logical rigour, particularly on the part of appellatejudges. However, I entirely agree that detachment mustcome first.... We must remember that every time a judge is



called to conduct ... an inquiry, he is embroiled in acontroversial issue and his detachment may becompromised. Indeed, the reputation for detachment of thejudiciary as a whole may be compromised.”8

Some judges will make mistakes or abuse their office.Fixing mistakes and abuses after they occur imposes greatcosts on particular litigants, and is damaging to the rule oflaw.

It is difficult to guarantee that all judges will haveappropriate character and temperament. Courts are neededby the powerful as well as the weak. Therefore, we shouldhave judges with a protective belt and insulate them frompressure. But too much insulated judges may abuse thetrust placed in them. Competent judges with good characterare the need of the day.

The eighteenth century conception of republicationgovernment, expressed by Montesquieu and Madison, sawthe legislature as the most dangerous department ofgovernment because of its close ties to the people. Madisonnoticed that the state legislatures were the most frequentsource of dangerous and unjust legislation. “The mutabilityof the laws of the States is found to be a serious evil. Theinjustice of them has been so frequent and so flagrant as toalarm the most steadfast friends of Republicanism.... Areform therefore which does not make provision for privaterights (as against the States) must be materially defective.”9

A fearless, wise judge exercises an independent mindin rendering justice.

“Independence is a cry judges raise only when they aredoing something that others question. Most of their workis routinised, bureaucratised butchery. Cover was right –they do operate against a field of pain and death.”10

The concept of judicial independence has been severelycriticised as under :1. “Few judges stood up against McCarthyism or the

Salem witch trials,11 even fewer against slavery.”12

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2. “Everyone knows that the German judiciary and barmeekly went along with the excesses of Nazism andthe Holocaust.”13

3. Cases like Buck v. Bell14 and Dred Scott15 mar the careersof some of our most eminent judges, who seem to havegone right along with the spirit of the times.16 If theyhad independence, they chose not to exercise it.”Commenting on Rodrigo’s Committee Assignment: A

Skeptical Look at Judicial Independence, Richard Delgadonarrates a conversation between Steinglass and Rodrigo asunder :

“Judges like to affect false modesty,” Rodrigointerjected. “We’re the least powerful branch. We defer topolitical questions. In diversity cases, we are oh-so-carefulnot to overstep on state sovereignty. We are bound byprecedent. All we do is read and apply the statute. But tryattacking or criticising a judge, and the iron fist comes outof the velvet glove. The false modesty disappears. You canbe thrown in jail for contempt or condemned by your barassociation for unseemly expression.”17

Judicial independence can serve as a vital bulwarkagainst excesses of statism and atrocities like those we sawin Germany.

Judges have objected to judicial discipline and regardit as an inherent infringement of judicial independence.

The judges must not use the independence argumentto cover up their lack of judicial accountability. “TheConstitution has ensured that Indian judges are freer thantheir counterparts. In any case, independence also dependson good conduct. Judges get away with a lot because oftheir privileges and immunities. You take away theircontempt power and they will find their level.”18

Judiciary stands above popular sanction. The judges havesecurity of tenure, they are not affected by political changes.They are not subject to legislative or executive whims.

Judges should be autonomous moral agents, free from



venal or ideological considerations. Independence is adesirable aspect of a judge’s character. Judicialindependence is instrumental to the pursuit of other valuessuch as rule of law or constitutional values. Judges mustbe independent and free from worries about the personalconsequences of their decisions.

Notes and References :1. Isaiah Berlin’s lectures on Concepts of Liberty.2. Cf. Bushell’s Case, 124 Eng. Rep. 1006 (P.C. 1607) (jurors were

imprisoned for refusing to convict).3. In re J.P. Linehan, Inc., 138 F.2d 650, 651-53 (2d Cir. 1943).4. Joint statement of 2nd Circuit chief judges, issued March 3, 1996.5. Feerick, John D., “Judicial Independence and the Impartial

Administration of Justice,” 215 New York Law Journal 1996.6. Justice William J. Brennan, Jr., “In Defense of Dissents,” 37 Hastings

L.J. 427, 431-432 (1986) “(Harlan’s Plessy dissent) is at onceprophetic and expressive of the Justice’s constitutional vision, andat the same time, a careful and methodical refutation of themajority’s legal analysis... (Harlan) spoke not only to his peers,but to his society, and, more important, across time to latergenerations. He was, in this sense, a secular prophet, and wecontinue, long after Plessy and long even after Brown v. Board ofEducation to benefit from his wisdom and courage.”

7. On Judicial Activism by Judge Diarmuid F. O’Scannlain.8. Bar Association of India Lecture 1997 – Judicial Activism by Hon.

Justice Michael Kirby AC CMG.9. James Madison, “letter to Thomas Jefferson Oct. 24, 1787” 10 The

Papers of James Madison, (Robert A. Rutland, ed.) 206.10. Robert Cover, Violence and the Word, 95 Yale, L.J. 1601, 1601 (1986).11. Peter Charles Hoffer, The Devil’s Disciples: Makers of the Salem Witch

Trials (1996); William F. Buckley, McCarthy and His Enemies (1954).12. Leon Higginbotham, In the Matter of Colour: Race and the American

Legal Process: The Colonial Years (1978).13. Michael Stelloeis, The Law under the Swastika: Studies on Legal History

in Nazi Germany (1998).14. 274 U.S. 200 (1927).15. 60 U.S. (19 How.) 393 (1857).16. Norms, supra note 25, at 1929-31, 1934-52.17. Rodrigo’s Committee Assignment: A Skeptical Look at Judicial

Independence by Richard Delgado, p. 41-42.18. The Sunday Express 18th May, 2003, Justice V.R. Krishna Iyer.

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Chapter 7

Impeachment

Impeachment can be initiated for treason, bribery, or“other high crimes or misdemeanours.” These words solelydescribe criminal behaviour.

So far as India is concerned, under the provisions ofArticle 124(4) of the Indian Constitution, the ground forimpeachment is “proved misbehaviour and incapacity.”This may include criminal as well as civil misconduct.

Impeachment power may give rise to the possibility ofintimidation. Judges may become susceptible to politicalintimidation in cases where extremely large portion of thegovernment or the public have been angered by judicialdecisions.

The scope of impeachable offences must be constant,not varying on the basis of the nature of the officer soughtto be impeached.

Picking a judge may be easy, but the consequences canbe complex and drastic.

A judge may be impeached because of incorrectness ofhis constitutional decisions, then a judge will always bepotentially subject to external political pressure in hisconstitutional decision making. Impeachment should notbe permitted because of a particular decision. It must beconfined only to proved criminal and civil misconduct.Inaccuracy in decisions must not be made the basis ofimpeaching a judge. A relevant question to be answered inthis regard will be : how to deal with the judges who getengaged in public drunkenness, or behaviourdemonstrating insanity? This type of behaviour can not bedescribed as criminal but can result in undermining publicrespect for judiciary. This can lead to situations that arepragmatically untenable.


In the USA, federal judges are given life tenure in orderto insulate them from external political pressures on theirdecision making. But Congress may remove federal judgesfrom office any time it finds their behaviour to be “bad”.

In America a judge serves during “good behaviour”unless impeached for “high Crimes and Misdemeanours”.Misdemeanour need not necessarily be criminal only.

Federal judges are seldom called to answer for theirperformance on the job. Judges are difficult to remove anddemote. Their salaries cannot be diminished during office.They are the most independent constitutional officers.

Judicial impeachments give rise to substantial politicaltensions. In India only one impeachment case was broughtbefore Parliament. It created political rivalries and tensionson the basis of caste, religion, region and the judge wentscot free. The conduct and behaviour of the judge was notconsidered at all.

Martin H. Redish, in his article has observed: “........impeachment is the sole means of judicial removal, onemust ask whether judges who have not been subjected tothe impeachment process may nevertheless be subjected tocriminal prosecution, at least when the result of thatpersecution is imprisonment. As a practical matter, ofcourse, imprisonment precludes a judge from performingthe functions of his office. Yet it is widely assumed thatfederal judges may be subjected to criminal prosecution,even when they have not been previously subjected to theimpeachment process. The rationale appears to be that eventhough imprisoned, federal judges remain in office. Whileof course they are unable to handle a caseload, presumablythey still can be paid their salaries while in prison.”

The Constitution concerns both judicial independenceand judicial discipline. It remains the law of the land.

The Court of Judicial Discipline of the commonwealthof Pennsylvania has jurisdiction over all judicial officers inPennsylvania, and must hear and decide formal charges

121Impeachment

which are filed against a judicial officer. The Court ofJudicial Discipline has the authority to impose sanctions,ranging from a reprimand to removal from office, if theformal charges are sustained.

Chief Justice John Marshal of the USA, duringimpeachment hearings of Justice Samuel Chase for arbitraryuse of judicial powers, wrote: “a judge giving a legalopinion contrary to the opinion of the legislature is liableto impeachment.” Earlier, George Mason, a framer of theConstitution, had said that “attempts to subvert theconstitution” were always grounds for impeachment; andAlexander Hamilton added that any “violation of somepublic trust” could bring about impeachment.

Republican Tom DeLay of Texas, Majority Whip of theHouse of Representatives, said in an April 3, 1997 letter tothe New York Times: “I advocate impeaching judges whoconsistently ignore their constitutional role, violate theiroath of office and breach the separation of powers. TheFramers provided the tool of impeachment to keep thepower of the judiciary in check. It is a tool Congress shouldexplore using.”

In India, a judge of the Supreme Court or a High Courtcan be impeached on the ground of proved misbehaviouror incapacity and the power in this regard is vested inParliament vide Articles 124(4) and 217(1)(b). When a judgeis impeached, Parliament acts as a judicial body and itsmembers must decide the guilt or otherwise of the judgefacing the indictment objectively uninfluenced byextraneous considerations.

The Supreme Court has neither administrative controlover the High Courts nor the power on the judicial side toinquire into the misbehaviour of a Chief Justice or a judgeof a High Court.

The Supreme Court has ruled that the Chief Justice ofIndia and two senior colleagues on being prima faciesatisfied about the correctness and truth touching the


conduct of a High Court judge inconsistent with such highoffice could proceed against him through a process otherthan impeachment. In such a case, the judge concernedcould be offered the option of resigning or facing an inquiry.

The Constitution of a Committee of Judges to inquireinto the misconduct could be initiated by the Chief Justiceand his two colleagues and need not await the initiationby the Members of Parliament required for impeachingthe judge, as mandated by the Constitution.

A committee, which comprises three High Court judges,two of them Chief Justices, was empowered to probe thereported misconduct of the three Karnataka judges at aresort near Mysore. A little earlier, another such committeewas set up to investigate the role of three Punjab andHaryana High Court judges.

Impeachment is much too unwieldy a procedure topunish judges who are guilty of corruption or misuse ofauthority and office. Not a single judge has been removedfrom office under this constitutional provision, somethingthat not only points to the fact that the impeachmentprocess is impractical but also underlines the need foralternative mechanisms to discipline errant members of thehigh judiciary.

When such a judicial function is discharged byParliament, it is highly debatable whether political partiescan issue whips directing their members to vote in aparticular manner. An interesting case study in this regardis the impeachment proceedings against Justice V.Ramaswamy which ended unsuccessfully.1

Former Chief Justice of India, S.P. Bharucha was painedwhen he stated that the integrity of about 20 per cent ofthe higher judiciary was in doubt.

The process of impeachment is cumbersome and theresult uncertain. Alternative disciplinary process must beevolved to restrain judges from indulging in wrongactivities. In a democracy where rule of law prevails the

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judiciary is the sentinel to protect the fundamental rightsof people.

The integrity of the higher judiciary has never beendoubted. As the Supreme Court has said, “judicial office isessentially public trust. Society is, therefore, entitled toexpect that a judge must be a man of high integrity,honestly and required to have moral vigour, ethicalfirmness and impervious to corrupt or venal influences.”2

Francis Bacon, in his essay on ‘Judicature’, emphasisedthat “the place of justice is a hallowed place; and thereforenot only the Bench, but the foot pace and precincts andpurpose thereof ought to be preserved without scandal andcorruption.” But such is the irony that Bacon disgracedhimself by indulging in acts of bribery and favouritism atthe fag end of his career.

In house committee records a positive finding againsta judge for misconduct or corruption? With impeachmentbeing the only legal process to divest judges of their jobs,the only option would be for the Chief Justice of India topersuade them to resign. What such a procedure assumesis that a judge with any shred of self-respect willvoluntarily relinquish his job the moment there is anadverse finding against him by a committee comprisinghis fellows in the judicial fraternity.

The National Commission to Review the Working ofthe Constitution (NCRWC) also suggested that committeesof senior judges be set up to examine complaints abouttheir fellows.

The NCRWC argued that the concept of ‘provedmisbehaviour’ needs to be considerably widened. Whilesuggesting that it is not enough if misbehaviour is limitedto bribery, misappropriation or other serious crimes, thepaper wondered why it should not include relatively lesserlapses such as regularly failing to observe punctuality incourt or not delivering judgments for years.

There is a need for a mechanism that holds the superior

Impeachment


judiciary accountable for acts which are less grave thancrimes that reflect gross moral turpitude and also, theintroduction of effective and less cumbersome proceduresto judge the judges and hold them accountable for theirbehaviour.

At a conference of Chief Justices of the High Courtsheld in New Delhi in December 1999, the then Chief Justiceof India, Dr. A.S. Anand, initiated a debate on “in-houseprocedures” to make the judiciary accountable. Theconference unanimously resolved to adopt the “Restatementof Values of Judicial Life”, a code of conduct, which hadbeen adopted at a full court meeting of the Supreme Courton May 7, 1997.

The code lists 16 principles to be followed by everyJudge in order to reaffirm people’s faith in the impartialityof the judiciary. One of the items (No. 16) of the coderequires a judge to practise a degree of aloofness consistentwith the dignity of his (or her) office. Another item (No.11) bars judges from accepting gifts of hospitality exceptfrom family members, close relatives and friends. Otheritems are: not contesting any election, avoiding closeassociation with individual members of the Bar, notpermitting any member of the immediate family or anyother close relative to appear before him or her in court,and not associating in any manner with a cause to be dealtwith by that relative who is member of the Bar etc.

The code prescribes that no member of the Judge’s familywho is a member of the Bar shall be permitted to share theJudge’s residence or other facilities for professional work.A Judge should not hear and decide a matter concerning acompany in which he or she holds shares or stocks. Also,he or she should not engage directly or indirectly in tradeor business, or accept contributions, or actively associatewith the raising of any fund for any purpose.

Code of conduct lacks sanction in the absence of anyprovision to impose penalties on those who violate the

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code. He described the code as “inadequate”.The only real barriers to impeachment are political. In

politically controversial cases, impeachment remains acumbersome, costly and visible process that exposesparliamentarians to electoral dangers. This was proved soin the only impeachment case of Justice Ramaswamy, inIndia. In 1968 the Judges Inquiry Act was enacted whichdealt solely with the impeachment procedure. The JusticeRamaswami case failed the Parliamentary procedures inArticle 124 and 217 of the Constitution and also the JudgesInquiry Act 1968. This leaves us with the question: ifimpeachment is unwieldy and cumbersome, then what isthe remedy?

Judges today cannot be impeached purely for politicalreasons.

In 1980 America enacted the Judicial Councils ReformAct empowering the Judicial Councils to reprimand andimpose sanctions against a judge for misbehaviour, whichincluded both acts of corruption and unbecoming conducton or off the Bench.

To initiate disciplinary proceedings, “There has to be astatutory procedure, a council to reject frivolous or dubiousclaims, an effective, independent, investigative machinery,a rigorous procedure by a statutorily designated committee,a published report and a final due process. Secret reportscompound secret procedures. The reports must be availablefor public scrutiny.” (Rajeev Dhawan)1. Corruption of the judiciary will lead to vitiated,

distorted decisions and a judiciary which is viewed ascorrupt, will introduce uncertainties into the businessworld. Reduced corruption will bring about sustainablehuman development.

2. Political decisions are increasingly being made in courtrooms rather than in Parliament.

3. Corruption is higher where judicial institutions are notwell developed and politically dependent.

Impeachment


4. The action of the judiciary is said to be less“predictable” if “there is little hope of independentjudicial resolution of important cases.”“..... If we don’t question ourselves, the people may

enact a law empowering somebody to question us. Thesedays, we (judges) are telling everyone what they shoulddo. But, who is to tell us? We have the task of enforcingthe rule of law. But, that does not exempt and evenexonerate us from following it....” (Chief Justice J.S. Verma,March 1997)

Judicial integrity is under a cloud. The B.C. Raycommittee, which was set up by the late Chief JusticeSabyasachi Mukherjee, to advise him on how to deal withthe allegations against Justice V. Ramaswamy, tersely wrote:“There has indeed been a growing sense of cynicism andconcern in the public mind about the fall in the standardsof judicial conduct and of the wisdom of protecting suchconstitutional improprieties from public security andcensure.”

It is the public perception of the conduct of a Judgethat matters, rather than whatever defence a Judge mightput forth in order to face any allegations levelled againsthim or her in public.

A judge must maintain the dignity of the office he holds.He must not misuse or abuse his power and authorityvested in him by the Constitution. He must be prosecutedfor criminal and civil misdemeanour. Since it is difficult toimpeach a judge, it is therefore necessary to have anintermediate system to warn the defaulting judges byinitiating disciplinary proceedings against them. This taskcan be entrusted to the proposed judicial commission. Theextreme punishment of dismissal or removal should beinvoked only after impeachment.

Notes and References :1. Article by Justice M.N. Rao, Judge, High Court of Andhra Pradesh.2. Judicial Accountability (article by Rajinder Sachar).

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Chapter 8

Judicial Accountability

When all the three organs of the State – the legislature,executive and the judiciary – owe their existence to theConstitution, no single organ can claim immunity fromaccountability. Alexander Hamilton describes the judiciaryas the “least dangerous branch”.

Accountability of judiciary is through institutionalconstraints. When court struck down the forced Cherokeemarch from Georgia to Oklahoma Jackson remarked “JohnMarshal has made his decision now let him enforce it”[Marbury v. Madison (1803), Worcester v. Georgia 6 Pet. 515(US 1832)].

A highly activist judiciary with an unlimited powerof judicial review without accountability can createserious administrative problems.

Accountability and independence look in oppositedirections. The mechanisms of accountability may dodamage to judicial independence. These mechanisms havebeen chosen by the framers of Constitution to ensure theRule of Law. It is the Rule of Law to which the judges areultimately accountable. Judicial independence is only ameans to this end. Judges must base their decisions on thelaw.

Accountability of judges will inspire confidence amongpeople. Lack of faith in judiciary will lead to collapse ofdemocracy. Some judges retire without deliveringjudgements after hearing long arguments at the expense oflitigants. Performance audit by the public will expose suchjudges. Justice V.R. Krishna Iyer laments the conduct “a lathe Chawla melodrama” taking “one’s breath away”. Headvocates that “we need an instrumentality which at oncesafeguards judicial dignity and independence on the one


hand and tracks down judicial turpitude, overt or covert,through some effective ombudsman apparatus. Justice V.R.Krishna Iyer in his article “Judicial Accountability to theCommunity – A Democratic Necessity” says, “Our foundingfathers have laid down for us a constitutional jurisprudenceof judicial power, but the integral component of judicialaccountability has not been designed with a sense ofprincipled pragmatism. As a result the escalatingmisconduct of judges has often gone unpunished. Barringthe extreme measure of impeachment, the law is silent, somuch so that one might well say that the accountability ofthe judiciary is the vanishing point of jurisprudence. Thisvoid, unless competently covered by well thought-outlegislation, is bound to undermine the democraticcredibility of the judiciary ....” “the place of justice is anhallowed place; and therefore, not only the bench, but thefoot-pace and precincts thereof, ought to be preservedwithout scandal and corruption”. The recent happening inShameet Mukherjee case is a serious jolt to the prestige ofthe judiciary.

Trusteeship and accountability go together, and constantmonitoring plus social audit of the power process are awatchdog factor. Executive power is accountable to theParliament in direct sense. Nevertheless, being a democraticinstitution, the judicature must be answerable to thepeople.”

The autonomy to make impartial decisions is at theheart of judicial independence. But it is the accountabilityaspect that justifies autonomy and independence ofjudiciary. The judiciary’s, first and foremost accountabilityis to the law.

The popular will manifesting itself through theelected body thus prevails subject to judicial check ofa nonelective and non-accountable body l ike thejudiciary provided by the Constitution. It is theCouncil of Ministers responsible to the House of the

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People under Article 75 of the Indian Constitution.“Expectations of accountability and efficiency remain

consistent with the imperatives of judicial independenceand the maintenance of the quality of justice. Accountabilityis something that everyone is “for” – like democracy orfreedom.”1

Mechanics of accountability pose fundamentalchallenges to the rule of law.

Judicial Accountability is an urgent issue havingimpacts on all of us. People are unaware about what ishappening in courts. As they have been operating behindclosed doors. Court corruption is hardly talked about inthe general public. At times court abuses its powers anddenies constitutional rights to people. The people are scaredto talk openly against the judges. Whose jurisdiction is tocheck corruption in courts? The CIET Internationalpresented accountability sheets before the NinthInternational anti-corruption conference in Durban, SouthAfrica in 1999 in respect of Bolivia, Nicaragua, South Africaand Uganda. According to its report on judiciary it ismentioned that corruption in the judicial process is morefrequent when intermediaries are involved. The CIETquotes a village woman in Tanzania saying, “Judges havebecome agents selling government laws and people’s rightsinstead of protecting them.” What we need today arechanges in the law so that the general public can easilyhold corrupt judges accountable for their actions.

If transparent systems of accountability are put in place,then the institution of the judiciary will be protected frompublic denunciation which is inimical to judicial credibility.

Judicial secrecy sits ill with the repeated assertions injudgments and speeches of Supreme Court judges that thejudiciary represents the people of India.

This is said to rebut the ruling politicians’ argumentbefore the Supreme Court that judges are not accountablebecause they are not elected.



The Indian Constitution has provided for a complexweb of checks and balances to ensure ‘accountability’ and‘responsibility’ of every public institution and publicfunctionary. Parliamentary democratic State ensuresaccountability of the political executive through competitivepolitics and periodical elections, on the basis of universaladult franchise. The political executive is dependent onthe verdict of the voters and it has to abide by the decisionsof the independent Supreme Court which is the guarantorof the Constitution and the Rule of Law.

“Judges have another powerful mode ofcommunication: judicial opinions. It is here that judges aresupposed to justify their decisions on the basis of the law.As one judge put it, Candor is a necessary means of judicialaccountability... Candor insures decisional quality, satisfiesthe right of litigants to a justification for the resolution oftheir case, and is necessary to put future litigants andlawyers on notice of the state of the law.”2

Authority without accountability leads to anarchy.Judiciary as an institution must be accountable to thecountry and “be punishable for unbecoming behaviour,dereliction of duty and common criminality” (Justice V.R.Krishna Iyer).

When judges misconduct themselves, theiraccountability is important. They may have to be punished.The punitive process must not affect the fearlessperformance of judicial functions.

Performance of judges and their accountability foralleged improper activities is crucial in a democracy.

The judicial disciplinary machinery is inadequate tocope with the situation.

Many a time judges have been found to act inconjunction with the attorneys, abusing their judicialindependence at the cost of the confidence of the people.They disregard the rules; allow the distortion of facts; donot take cognisance of evidence; rely on laws which have

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no relevance to the legal and factual issues and fabricatefacts contrary to the record. The “due process of law” isnot followed.

“Of judges, the community expects honesty, integrityand learning. Increasingly, it also expects efficiency,timeliness and attention to case management. Prejudice andpartiality have no place in the judicial function. The peoplehave a right to expect the judge to be calm, objective andneutral.”3

Judges enjoy judicial immunity and are not required toexplain their conduct while acting in a judicial capacity.They are unaccountable to the public or to any other branchof government. But they do not usually have the privilegeto decline the obligation of decision. They have to abideby judicial ethics which includes among other so manyfactors: judicial officers should not support political causes,frequent hotel bars, fall asleep on the bench. Moreimportant is that the judges should attend to their judicialduty and do justice according to law.

A judge who hears a case should deliver the judgment.In a large number of cases judgments have not beendelivered despite final hearing.

The average time span for a dispute to be resolvedthrough the court is very long. Litigation has become aconvenient method for avoiding prompt retribution bymany people on the wrong side of the law. The corruptand the enemies of law escape its clutches by takingadvantage of delays in the system.

The delays in the judicial system are pernicious. Justicedelayed is justice denied. The administrative control of theChief Justice of India over the judiciary is limited. It is themoral authority of the Chief Justice which is moving thevehicle.

The Parliamentary Committee under the chairmanshipof Pranab Mukherjee, attributed the delay in the justicedelivery system resulting in a backlog of over two crore



cases to the “politics of the judiciary”. “The situation isalarming,” it said and added “the failure to fill up thejudicial vacancies promptly cannot be shielded or defendedin the name of judicial independence.”

To have bias is a judicial sin. We need judges who areimpartial and unbiased and listen to both the parties. Theymust act in accordance with the fundamental principles oflaw. Judges maintain the rule of law and thus serve thesociety.

“The highest is not above the law; the humblest is notbeneath the law. The true conception of the administrationof justice is that the lowly concern of the least person is ofthe highest consideration to the state and the court.”4

Breach of trust and abuse of judicial power willundermine the foundations of constitutional democracy.

The courts must follow certain principles governing thejudicial process such as: Natural justice, i.e. nobody shouldbe condemned unheard and the court must hear both thesides.

Nobody should be a judge in his own cause. Judgesmust not have a personal interest in the case.

Justice should be within the reach of all people. That isthe judicial process must not be cumbersome andexpensive.

Unbecoming behaviour of a judge cannot be toleratedmerely on the alibi that he who commits it is a judge. Anaggrieved person is unable to bring a legal action againstthe rude or unfair judge. Lord Denning explained in a 1974Court of Appeal decision that “ever since the year 1613, ifnot before, it has been accepted in our law that no actionis maintainable against a judge for anything said or doneby him in the exercise of a jurisdiction which belongs tohim. The words which he speaks are protected by anabsolute privilege. The orders which he gives, and thesentences which he imposes, cannot be made the subject ofcivil proceedings against him. No matter that the judge

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was under some gross error or ignorance, or was actuatedby envy, hatred and malice, and all uncharitableness, he isnot liable to an action. Judges of a superior court are soprotected even when acting outside their jurisdiction, solong as it is a good-faith exercise of the office in the beliefthat the judge has jurisdiction over the matter. Judges ofan inferior court are not so immune if they act outsidetheir jurisdiction, or if they act within their jurisdictionmaliciously and without reasonable and probable cause.We are a long way from the recent development in judicialliability in the USA. Some American judges have takenour malpractice insurance because of an increase in claimsagainst them based on their court decisions” (DavidPannick, Judges, Oxford University Press, 1988, p. 95).

It is only through appropriate accountability that thejudges can enhance their own legitimacy and thereby helpto guard the judicial independence.

In a constitutional democracy, an unrepresented andunaccountable judiciary has no legitimate authority tooverrule decisions of majoritarian branches of governmentwithout grounding in the text of the counter majoritariandocument. On the other hand, judiciary has no authorityto prevent the majoritarian branches to contravene or ignorethe constitutional limitations on its authority.

The differencia specifica of a democratic state isrepresentationalism and accountability. Governance is inthe hands of the people who are representative of thepeople and accountable to the populace. Ultimateaccountability is to the people.

Fundamental decisions affecting the people are madeby officials who have not been chosen by them and willseldom be accountable to them for their decisions andactions at the time of polls.

A new theory of judicial exposure and accountability isintegral to the Republic’s moral survival. Says Laski:“Obviously, therefore, the men who are to be chosen, the



terms upon which they shall hold power, these, and theirrelated problems, lie at the heart of political philosophy.When we know how a nation-state dispenses justice weknow with some exactness the moral character to which itcan pretend.” (Harold J. Laski, A Grammar of Politics, p.541-542).

Justice V.R. Krishna Iyer has observed, “their lordshipsin full panoply will still invite contempt unless they becomeinstitutionally and individually accountable to the countryand be punishable for unbecoming behaviour, derelictionof duty and common criminality. The versatile genius andthe vagarious vices of judicial deviants take myriad shapes.Some judges, even of the highest court, do not believe inthe creed of delivering judgments. They are a law untothemselves. During the seventies and eighties, justices andchief justices practised the dubious art of non-delivery ofjudgments even years after arguments closed. Some of themhave retired without pronouncing judgments, althoughlong arguments, at great expense, have already beenaddressed.”

The unaccountable judiciary would be able to exceedits intended limited role through what amounts to “lawlessdecision making”. The unaccountable judiciary usuallyusurps political authority and thus ultimately removesjudiciary as a counter majoritarian check on the politicalbranches.

The judiciary enjoys substantial power but are notanswerable either to the people or to the legislature.Exercise of power reflects the will of the people as inferredfrom electoral results in USA. Judges are delegates ofelected officials and hence delegates of people. A delegateis expected to act on behalf of or pursuant to the directionsof his master. A judge is not expected to act on any personsbehalf or pursuant to any one’s direction. A judge actswithout concern for his master. Judges are not supposed toact under the screening of any authority. It is the lack of

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this oversight which makes the judges unique. Judges areexpected not to exercise their personal power at all. Theyhave neither force nor will, only judgement.

The quality of justice can not be measured but is thebasic mechanism of judicial accountability. Inefficienciesin the administration of justice can be intentional “There isno doubt that a much greater volume of cases could behandled by a specific number of judges, if they could sit incamera, not be constrained by obligations of proceduralfairness or the need to provide a manifestly fair trial, andnot have to publish reasons for their decisions. Even greater“efficiency” would be quickly apparent if judges had madeup their minds before the case began. There are placeswhere such a mode of decision making has been, andindeed is being, followed. We do not regard them as rolemodels.”5

The promotion of efficiency is not only saving moneyfor government but also involves substantive issues likethe quality of justice being administered, delays, excess tojustice fairness and above all the public confidence in theadministration of justice.

Right type of treatment to the litigants costs nothing.At the same time it helps in enhancing the image of judges,lawyers and others who deal in judicial processes. Zemans,Frances Kahn in his book “In the Eye of the Beholder”observes “that the attitudes of citizens who haveparticipated in the judicial process is not so much a matterof whether they have won or lost, but very much of howthey perceive they have been treated. People seem to caremost about having neutral, honest authorities who allowthem to state their views and who treat them with dignityand respect... And views of the legitimacy of legalauthorities are linked to the perceived fairness of theprocedures used by those legal authorities.”

David Pannick, to make judiciary accountable, hassuggested, “litigants should have the power to refer to the



commission a complaint about the conduct of judge.” TheLord Chancellor should have such power, and should beobliged to exercise it prior to dismissing a judge. (Thiswould not prevent a judge resigning to avoid publicity onthe matter). In May 1986 Lord Hailsham expressed supportfor the introduction of an independent complaints boardto investigate the facts and make recommendations to theLord Chancellor prior to the dismissal of a Circuit judge.He said (understandably) that he was troubled by theabsence of a fair procedure at present.

The jurisdiction of the commission would need to coverall members of the judiciary and should not be confined tocases where the Lord Chancellor is contemplating dismissal.Whoever the complainant may be and however high thejudicial status of the investigate, the value of thecommission would be in the presentation of a reasoned,public and objective analysis of the relevant criteria and ofthe facts of the case (Op cit, p. 103).

Professor Michaell Gerhardt, has argued that becauseof the unique need to preserve judicial integrity, membersof the federal judiciary should actually be held to a higherbehavioural standard than are executive officers.

Justice must not only be done, but must also appear tohave been done. For this reason, judges are commanded toavoid not only actual impropriety but also the appearanceof impropriety in all of their activities.

“Law is the expression of the public will. It must be thesame for all, whether it protects or punishes ... all citizensbeing equal in its eyes or equally eligible for all publicdignities, places and employments according to capacitiesand without distinction of their virtue and talents.” Butwhen law starts discriminating and recognising faces, thelegal operations become painful, devoid of justice. JusticeKrishna Iyer is pained to point out that a particular personwas granted bail at midnight whereas a large number ofpoor people are languishing in jails without any trial.

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Lord Bryce makes mention of four kinds of equality,civil equality, political equality, social equality and naturalequality. Bryce’s classification may be supplemented byeconomic equality. To sum up, civil equality consists in theenjoyment by all citizens of the same civil rights andliberties. All should be subjected to the law and equal beforethe law. Its basis, is thus, equalitarian. Some people becomemore equal than others because of certain considerations.They hijack the judiciary system and make the judges toabuse their office. Such judges who abuse their office eitherby way of consideration or through disability or personalchoice may be asked to relinquish office.

The quality of justice being degraded by delay, accessto justice, fairness and ultimately public confidence in theadministration of justice is getting shaken.

Courts are no longer passive recipients of a caseloadover which they exercise no influence. They are nowexpected to plan for the future and do so. In the immortalwords of an English footballer: “If you have the courage tolook far enough ahead, you too can see the carrot at theend of the tunnel”.

Pressure to maximise the number of cases dealt withby a court, let alone in the form of a number per judge,will inevitably compromise the achievement of the primaryvalues of the administration of justice.

With respect to the administration of justice qualitativeconsiderations are of overwhelming significance.

Quantitative measurement appears to be objective andvalue free. Qualitative assessment appears to be subjectiveand value laden. In fact statistics, by reason of theirselectivity, contain and conceal important value judgments.

The greater the clarity with which the law is stated injudgments, the greater the likelihood that lawyers canproperly advise their clients to avoid prosecution orlitigation.

The transfer of “Chandraswamy – Lakhubhai Pathak”



cheating case granting relief to the former Prime Minister,P.V. Narasimha Rao, has been described as “shocking” bythe legal experts. The court believed that the ChiefMetropolitan Magistrate, “had acted fairly and impartially”.It is puzzling that the court considered it necessary totransfer the case on the grounds that “justice should notonly be done, but should be seen to be done.” It is moreimportant that justice should be seen to be done ratherthan it should be done.

The court did not cast any aspersion on the conduct ofthe CMM and upheld the latter’s order summoning theformer Prime Minister P.V. Narasimha Rao as co-accusedin the case. The court observed “we consider it appropriatein the interest of justice to make it clear that any observationthat been made by the CMM, in his order dated July 9,1996, would not preclude the concerned court fromconsidering on merits submission of the petitioner againsthis being added as an accused under Section 319 Cr. PC orhis discharge.”

The change was being enacted “keeping in view theprinciple that justice should not only be done, but appearto be done, though there is no cause for apprehension inthe mind of the petitioner that he would not receive aproper hearing if the matter goes before the same judicialofficer.”

Recall of a case by the Supreme Court from a lowerCourt has happened in the past also. In the Union Carbidecase in 1989, the Supreme Court transferred the case toitself from the District Court of Bhopal. The court assertedthat under Article 142 of the Constitution, it could doanything to do “complete justice” to the parties. Article139-A is not a bar for transferring a case from the DistrictCourt to the Supreme Court, the court held. It observed,“the purported constitutional plenitude of the powers ofthe apex court to ensure due and proper administration ofjustice is intended to be coextensive in each case with the

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needs of justice of a given case and to meeting anyexigency”. The Supreme Court further held that “the powerunder Article 142 is at an entirely different level and of adifferent quality. Prohibitions or limitations or provisionscontained in ordinary laws cannot ipso facto act asprohibitions or limitations on the constitutional powersunder Article 142”. Since then the court have beentransferring cases from a magistrate to another even whenthere was no law permitting it to do so.

It is beyond comprehension to understand the rationalebehind shifting the case to other court? Shifting does notanswer the question of jurisdiction under Section 319 ofthe Code of Criminal Procedure.

Justice R.S. Narula remarked that the judgement hasgiven the “impression that the vehicle has started going inthe reverse direction. The sudden reversal has shocked thepeople. What appears to have shocked the people all themore is the fact that there was no petition either before theDelhi High Court earlier or the Supreme Court for thetransfer of the case to another court ...... A case could havebeen transferred if the court was convinced of the groundsof apprehension. But as the Supreme Court verdict itselfhas made it clear, there was no such ground”. He furthersays, “the point is that the court is going on a track whichis unprecedented. I have been at the Bar since 1939,remained on the bench for 13 years and was Chief Justicefor four years. I have not heard of a case yet – which hasbeen transferred merely because it will appear to be just.What I am worried about is that what appears to be just,it must be just.”

Former Union Law Minister and Senior Lawyer, ShantiBhushan, regards the transfer as “really disturbing”. Thisorder has jolted public opinion. So far, the Supreme Courtwas appreciated for applying the law equally to all, nomatter how high the person may be. But this order hasdone the opposite. Mr. Rao had no basis at all for the



apprehension of not getting justice from CMM, yet the casewas transferred.” He further says, “Hereafter any accusecan claim the same right. It is contrary to the establishedlaw, which says unless you can clearly show reasonableapprehension of not getting justice, non can ask for atransfer of his case to another Court”. The court wasconvinced about the neutrality of the CMM. There did notappear to be any ground for the acceptance of the plea ofNarasimha Rao counsel that his client apprehended thathe might not get justice from the trial Court. The IndianExpress in its editorial dated August 23, 1996, under thecaption – “Judiciary v. Judiciary” wrote “the Supreme Courthas done itself and the entire judiciary a grave disserviceby passing a bewildering order in P.V. Narasimha Rao’sappeal against the Delhi Chief Metropolitan Magistrate’sdecision making him a co-accused in the Chandraswamy-Lakhubhai Pathak cheating case. Rather than pronounceits verdict on the core issue – whether or not Rao shouldbe implicated as a co-accused, midway through a trial – ithas deftly skirted the issue by transferring the case toanother judicial officer. The editorial further says “byagreeing to the plea, the Supreme Court has unwittinglyconveyed the signal that whereas everyone is equal beforelaw, some politicians are more equal than others. This isdangerous, not only because it undermines popular faithin the rule of law, but because it demoralises uprightjudicial officers .... questions of law should seen to be abovepolitics”. C.R. Irani of Statesman writes (September 3,1996),” ...... the status and position of a petitioner hasbecome a relevant consideration in Criminal proceedings.”The Supreme Court order “... is only a short distance tothe conclusion that the rule of law and equality before thelaw can be suspended in certain cases. This is a terribleburden to impose upon the country ....”.

Moreover, the transfer order will open up a Pandora’sbox. The Supreme Court is entitled to transfer the case

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from one state to another while only the High Court cantransfer a case from one judge to another within thatCourt’s jurisdiction. The Supreme Court’s direction to aHigh Court transferring a case from one magistrate toanother raises vital questions of jurisdiction apart fromjuridical questions.

The courts have no agency of their own to enforce theirdecisions and have to depend upon the executive. However,the executive is baffled, at times, to enforce the court’sorders and finds itself between the devil and the deep seaas implementation may result in social upheavals andbloodshed and non-implementation will invite the wrathof the court. Following illustrations are worthy ofconsideration.

In Gulam Abbas and Other v. State of U.P. and Others, theSupreme Court maintained that the customary rights beenforced even if petitioners are unable to prove theirexisting or established title either to the concerned plots orto the structures standing thereon.

Gulam Abbas & Others v. State of U.P. & Others (CivilMiscellaneous Petition No. 4939 of 1983, in Writ PetitionNo. 4675 of 1978, decided on September 23, 1983). JusticeV.D. Tulzapurkar, Justice D.A. Desai and Justice A.P. Sendirected the shifting of two graves and installing them atsome other spot. The order was to be carried out by theDistrict Magistrate of Varanasi under the directions andsupervision of Divisional Commissioner of Varanasi andin the presence of the representatives of Shia and Sunnicommunities.

The State Government had advised that the operationof shifting the grave yards would result in violence,bloodshed and breach of peace. The court insisted that “theState must discharge its constitutional duty to implementthis court’s order.”

In its judgement on 9th January, 1996 on the publicinterest litigation writ petition filed by the National Human



Rights Commission, the Hon’ble Supreme Court directedthe State Government of Arunachal Pradesh to forwardapplications of the Chakma and Hajong refugees for grantof citizenship to the Central Government for itsconsideration.

A Core Committee on Chakmas headed by ArunachalChief Minister Gegong Apang regretted that “The identityand culture of our State and its protection were notappreciated in the judgement of the Supreme Court andthe direction given therein to provide continued protectionand status to the refugees have affected its interest andhopes.”

Arunachal Pradesh State Government has beendemanding removal of Chakma and Hajong refugees fromthe State. These refugees are the cause of simmeringdiscontent among the indigenous tribal people of ArunachalPradesh as the settlement of these refugees in ArunachalPradesh is against the legal protection of the indigenoustribal people and their traditions, culture and customswhich have been granted to them under schedule VIth andXth of the Constitution.

Both the Hon’ble High Court of Guwahati and theHon’ble Supreme Court of India have uniformly held thatChakmas and Hajongs are foreigners. The focus has shiftedfrom “cultural identity” of the tribal community ofArunachal Pradesh to the “human rights” of the refugees.

The Supreme Court Bench comprising Justice KuldeepSingh and Justice R.M. Sahai ordered the government toenact uniform civil code. The Central Government hasexpressed its helplessness in enacting such a code andpleaded that “unless initiative for such changes come fromthose communities, the government, on its own, cannotinterfere”, with the personal laws of minority community.The Hon’ble Supreme Court has reiterated, recently, thenecessity of uniform civil code again.

In IA No. 29 writ petition 4677 of 85, M.C. Mehta v.

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Union of India, the Supreme Court ordered all constructionactivities within a radius of five kilometers from BadkalLake must stop. The court had rightly issued this order toprotect the environment. The court, it appears, went beyondinterpreting the law and laid down a policy. Framing policydoes not fall within the sphere of the court.

The Supreme Court on a writ petition filed by PachimKhet Mazdoor Samity ordered on May 6, 1996 – thatdenying hospitalisation to critical patients is a contemptcase. Emergency treatment has been recognised as afundamental right of critical patient. The writ was filedunder Article 21 of the Constitution. Pleas of non-availability of vacant beds or paucity of funds will beuntenable and can not be accepted as valid ground fornon-compliance. The order is well intentioned but cannotbe implemented. (Justice S.C. Agarwal & G.D. Nanawati).

Above examples illustrate that as judicial activismadvances towards judicial governance, it may lead toadministrative anarchy.

The court had also left another question hanging in theair when it held that doctors come within the purview ofthe Consumer Protection Act so long as they charge moneyfor the services rendered. The definition of a service thusbecame more muddled than ever. A service is a servicewhether or not money is charged for it. Medicalpractitioners in government hospital will be outside thepurview of the Act whereas private practitioners will bewithin its ambit.

In the case of violation of the order to adopt anti-pollution measures the court has chosen to close down theindustrial undertakings which has caused loss of jobs tomany. It would have been in line with the concept ofdistributive justice had the court simultaneously passedan order rehabilitating the displaced workers whosefamilies are confronting miseries.

According to Article 144 of the Constitution, all judicial



and civil powers have to act in aid of the Supreme Court.But in certain cases the civil power – the government ofthe day – may be having reasons for not executing thejudicial orders. For example, there was in 1992 theKarnataka capitation fee case. The issue before the courtwas the discrimination in the matter of fees, allegedlypractised by a recognised medical college, between studentsbelonging to Karnataka and those coming from other statesof the country.

The discrimination pointed out was removed by thecourt’s orders passed under relevant provisions of theConstitution. But, then, the court went far ahead. Itexpanded the orbit of Article 21 in the context of Preambleto the Constitution and the Directive Principles laid downin Chapter IV of the Constitution, and observed that everystudent had the fundamental right to receive education ofhis or her choice at various levels. Here was law whichcould not be enforced and which was not even desirable toget enforced. The court ignored the fact that according tothe research conducted in certain developed countries, notmore than 15 to 20 per cent of school-leaving students arefit to receive higher education, and it would not only be awaste of resources to throw open the institutions of higherlearning to all and sundry but would also result in dilutionof standards of education.

According to Article 21 of the Constitution, no one“shall be deprived of life”. It will earn banner-headlines inthe print media if the court holds that Article 21 reallymeans that the citizen is entitled to lead a comfortable andmeaningful life, which will obviously postulate good food,proper education, health care and at least a house of sorts.But as things are, millions of citizens are roofless and areeven unable to get two square meals a day. The court mayput any interpretation of Article 21. But that will make notangible differences for millions of people. The courtjudgment will only slip into history.

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In Union of India and Other v. Pratibha Bonnerjea andOthers, it was held that a High Court Judge is a holder ofa constitutional office and not a government servant andhence accordingly CAT rightly decided the pension of viceChairman of CAT appointed after retirement as a HighCourt Judge. It was to be determined according to the HighCourt Judges (conditions of service) Act, 1954.

It was also held that the subordinate judiciary wasindependent of the provisions of chapter 6, part 6 of theConstitution. It was free from the influence of the executiveand the legislature. Not only the Judges but also the staffmember of the High Court are free from executive influence.

In Shiv Dayal Srivastava and Other v. Union of India andOthers, it was held that the pension of all retired Judgesand Chief Justices of the High Courts and Supreme Courtwill be calculated and paid according to the rates or scalesenvisaged by the Amendment Act of 1986. This will bedone irrespective of the date of retirement of the learnedJudges. This Order is not to be treated as a precedent forany other purpose since it was made by consent. (WritPetition no. 502/87, Supreme Court, Hon’ble JusticeChinnappa Reddy and Hon’ble Justice K. JagannathaShetty.)

Service conditions of subordinate judiciary werechanged by a Supreme Court directive.

The Supreme Court in a far reaching judgement on“environment protection law” in the “Tamil Nadu Tanneries– Pollution Control matter” directed that the Centralgovernment shall constitute an “authority” to be headedby a retired judge of the High Court. Does it not amountto creating avenues for re-employment after retirement?

Government should not interfere with the Warrant ofPrecedence:

The Chief Election Commissioner, Shri T.N. Seshan,raised an issue in his letter to the Prime Minister inDecember 1991 requesting that the Chief Election



Commissioner be placed at No. 9 in the Warrant ofPrecedence at which position the judges of Supreme Courtfigures. The government as a consequence had raised theposition of the CEC alongwith Comptroller and AuditorGeneral of India and placed CEC at No. 9A. The SupremeCourt in writ petition (Civil) No. 805 of 1993, No. 791 of1993, No. 825 of 1993 and No. 268 of 1994 held that“Maintenance of the status of Judges of the Supreme Courtand the High Courts is highly desirable in the nationalinterest. We mention this because of late we find that evenpersonnel belonging to other fora claim equation with HighCourt and Supreme Court Judges merely because certainjurisdictions earlier exercised by those Courts aretransferred to them not realising the distinction betweenconstitutional and statutory functionaries. We would liketo impress on the government that it should not conferequivalence of interfere with the Warrant of Precedence, ifit is likely to affect the position of High Court and SupremeCourt Judges, however pressing the demand may be,without first seeking the views of the Chief Justice of India.We may add that Mr. Ramaswamy, learned counsel for theCEC, frankly conceded that the CEC could not legitimatelyclaim to be equated with Supreme Court Judges. We dohope that the government will take note of this and do theneedful.”

Thus, judiciary has well fortified its place in the Warrantof Precedence under its own order.

Entertaining petitions like judges should have red lightsand fly a flag on their cars is a sheer waste of the valuabletime of the court.

Judicial fiats cannot achieve much. It is not so much aquestion of separation of powers as of feasibility. Thejudiciary is just not equipped to govern the country, and itwill do more harm to itself than good if it chooses toattempt more than it should. In any case, orders whichcannot be enforced become orders passed only for effect.

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Jawaharlal Nehru’s warning 50 years ago that “weshould not allow the Supreme Court to become a ThirdChamber” has gone unheeded.

Distinguished jurist Nani Palkhivala warned: “If todaythe governing of the country can be shifted from thegovernment to the Supreme Court, it may also be shiftedfrom the elected representatives to nominated individuals.The people may accept the decision of the army, otherdictator, as they are accepting the decisions of the SupremeCourt without asking whether they are in the realm of thegovernance of the country.”

A scathing criticism of judiciary comes from Justice V.R.Krishna Iyer who points out, “It is widely known that chiefjustices even of the Supreme Court have abetted orarranged hearing of bail petitions of VIPs on holidays andafter nightfall, A seniormost judge of Supreme Court, wholater became the chief justice later did hear criminal matterson an abnormal day or at an abnormal hour making aspecial exception for the accused tycoons for the sake ofthe extension of age of retirement, for perquisites whichare not extended to other civil servants and so on. Judgeshave been passing resolutions and getting as a classshowing anxiety to secure executive favours – not becomingconduct for those who have to sit in judgment over theirbenefactors. Misconduct of judges has often goneunpunished because the law of judicial accountability isstill in its infancy.”

Judge, Dallin H. Oaks, “Because most restraints on theexercise of judicial power are self-imposed by the courts,the other branches of government and the people arerelatively powerless to prevent the courts from using theConstitution to impose their personal policy choices uponelected lawmakers and the sovereign people.” The learnedjudge went on to say, “The belief that judges do not restrainthemselves from imposing their personal legislative policychoices through the medium of constitutional adjudication



is a major cause of popular dissatisfaction with the courts”.Judiciary is an integral part of our democracy. It must

subject itself to democratic discipline and social auditensuring delivery of justice to the people. “Judges mustsuffer criticism and complaints. They cannot be condemnedor go uninvestigated and, if true, unpunished. Judicialimperialism, impertinence and absurd or irresponsiblebehaviourism are a menace to the justice process and must,if the turpitude is truly proved, suffer sentence” (JusticeV.R. Krishna Iyer)

There is no safeguard available against a judge whomisuses his powers. There is no restraint that can protectthe victim. Who will guard the guard?

vdjck esjs djsa dRy dk nkok fdl ijAoks gh dkfry oks gh 'kkfgn oks gh eqafliQ BgjsAA(To whom should I approach for justice while the

murderer himself is not only the witness but also the judge.)Chief Justice Burger has noted: “A sense of confidence

in the courts is essential to maintain the fabric of orderedliberty for a free people and three things could destroythat confidence and do incalculable damage to society: thatpeople come to believe that inefficiency and delay willdrain even a just judgment of its value; that people whohave long been exploited in the smaller transactions ofdaily life come to believe that courts cannot vindicate theirlegal rights from fraud and over-reaching; that people cometo believe the law – in the large sense – cannot fulfil itsprimary function to protect them and their families in theirhomes, at their work, and on the public streets.”

In a democracy courts belong to the citizens not to thejudges or the lawyers.

“The criminal law is supposed to be the most potentinstrument of social defence. In the present circumstances,when most of the guilty are let loose, the victims or theirrelatives or friends try to settle their own scores. Theirmethods obviously are illegal. The reasons why such a

149

situation has arisen may be the pendency of cases or thelesser number of judges or simple callousness of the judicialofficers. This is a very unhappy state of affairs.” (JusticeH.R. Khanna)

Criticism of judges and demands for accountability areworldwide “but still the judges must be praised for theircourage in interceding on behalf of the weak, impotent,voiceless groups.”

The judges have started speaking outside theirjudgment detrimental to other pillars of democracy.

Permitting the CBI’s request for remand after ShameetMukherjee had refused to give his voice sample for aforensic test. Additional sessions judge Prem Kumarobserved, “It is a case of judicial scandal and the fallingstandards of judicial behaviour. ......... For a judge to deviatefrom such standards of honesty is to betray the trustreposed in him.”6

The Supreme Court observed in an appeal against theorder of Allahabad High Court bench comprising JusticeB.N. Katju and Justice Bajpai in the dowry murder case,State of Uttar Pradesh v. Ramesh Prasad Misra. “The learnedjudges of the High Court betrayed their duty of final courtof fact, to subject the evidence to close and critical scrutiny.They either have no knowledge of the elementary principlesof criminal law or adopted a casual approach towards aserious crime. In either case, miscarriage of Justice is theinevitable result at their hands in criminal cases.” TheSupreme Court should have also ordered review of all thejudgements in criminal law cases delivered by Justices B.N.Katju & Bajpai as many citizens might have suffered lossof life or liberty like Urmila who was strangulated to deathand burnt from head to ankle by her advocate husband.(Justice B.N. Katju & Bajpai).

Judges are accountable to public through the media ofparliament. They can be impeached. The committee ofjudges which inquired into Justice Ramaswamy episode



held him guilty. But the parliament let him off the hookbecause of so many extraneous considerations. There isneed to simplify the impeachment procedure.

Judges, it appears, are accountable to their conscienceonly. Let us hope our judges are prompt, fair, efficient,economical and dedicated to the cause of delivering justiceto the people while upholding the Constitution. This willbe possible only when right type of people are appointedas judges. A system is good or bad according to the personswho manage it. Right type of persons with their impartialand honest actions will ensure good health to the otherwisedecaying system. The system will drift towards correctnessbecause of their actions based on probity.

Notes and References :1. Judicial Accountability and Performance Indicators – paper by the

honourable J.J. Spigelman AC Chief Justice of New South Wales1701 Conference: the 300th Anniversary of the Act of SettlementVancouver, British Columbia, Canada, 10 May 2001.

2. Opening courtrooms to cameras is another important means ofmaking the judicial process accessible and accountable to thepublic. For a discussion of the value of cameras in courtrooms seeZaman, Frances Kahn, “Public access. The ultimate guardian offairness in our justice system,” 79 Judicature, January-February1996, fn 57, p. 915.

3. Bar Association of India Lecture 1997 – Judicial Activism by Hon.Justice Michael Kirby AC CMG.

4. Democracy of Judicial Remedies by V.R. Krishna Iyer, Hindu, 7 Jan.,2003.

5. Judicial Accountability and Performance Indicators – paper by thehonourable J.J. Spigelman AC Chief Justice of New South Wales1701 Conference: the 300th Anniversary of the Act of SettlementVancouver, British Columbia, Canada, 10 May 2001.

6. Shameet in CBI net for five days, courtesy SC, Times of India, 11thMay, 2003.

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Chapter 9

Judicial Reforms andJudicial Commission

The judicial system has been the most popularinstitution in the country. It receives a high measure oftrust from public and other state institutions. However,the need to reform the system has been acknowledged bya large number of people. The system has been criticisedas slow, inefficient and corrupt.

Reform-oriented action to achieve specific objective suchas greater transparency, openness, speedy dispensation ofjustice, a mechanism to prevent abuse of power andmeasures to upgrade the skills of those working judicialsystems are the crying needs of the day.

Legislative reforms to overcome the shortcomings ofthe existing system must be undertaken immediately. Theloopholes are being exploited by those involved in corruptpractices. Legislative enactments laying down clear-cutrules will result in improving administrative legal relationsand culminate in efficient and transparent administrationof justice. The changes should be implemented in aconsistent manner eliminating the subversive phenomenonof corruption.

The current system for criminal prosecution is slow,cumbersome, and inefficient. With globalisation new typesof crime affecting the condition of market economy arebeing seen. Law should be suitably enacted to meet therequirements for countering corruption and emerging newtypes of crimes. Criminalisation of new forms of crime suchas cyber crime, unlawful monopolies, profiting throughexploitation of consumers must be undertaken immediately.

We will require formally good law: rules that are


general, clear, specific, applicable, stable and so on. This isthe familiar theme that clear, predictable law promotesorder and stability in society.

Justice is treating the like cases alike. This sort of justicecannot be achieved unless there is an operative system ofgeneral rules impartially applied.

Rules are subverted by processes that enlarge judicialdiscretion at the expense of rule-governed decision-making.Such a situation leads to curtailing of democracy.

If there are no clear cut rules for judges to apply, itindicates that the system is defective and must beimproved. This is the primary duty that befallsgovernments and legislatures.

Judicial proceedings – both civil and criminal are slow.There are ample opportunity for parties to intentionallydrag out the process in bad faith. Changing proceduralregulations is not enough. Legislative changes must bebrought about ensuring economy, discipline andexpeditious exercise of the rights of the parties involved.Enactments should also be made providing for serioussanctions against lawyers who abuse judicial process toprolong or delay court proceedings.

The judicial system must be efficient, free frombureaucratisation and corruption. Let there be a nationaldebate on judicial reforms.

There is an imperative need for modernisation of themethods of the operations of the courts, prosecution officesand the investigating agencies. There should be speed andreliability in processing cases. There should be easy accessfor citizens to the information they need.

Programmes for basic training and continued educationfor judicial officers must be undertaken. Lack of experienceand skills lead to negative results in the operation of thejudicial system, which may erroneously be attributed tocorrupt practices.

Appointments must be made on the basis of merit and

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competence.Corruption in general, and the crime of bribery in

particular, are difficult to prove. Practical means must beevolved to prevent corruption. This can be done by linkingthe conduct of corrupt judges to their conspicuous financialgains.

The judicial system must be free of corrupt andincompetent judges, investigating officers and dishonestlawyers.

The Constitution provides for a mechanism to reviewand renovate law and legal procedures. A standing LawCommission has been set up in India. It has submittedmore than 200 reports. It appears that the initiative inreforming the legal system is diffident.

Experience has shown that the system of investigationof 18th century will fail in 21st century. Statutes like thePolice Act of 1861, the Criminal Procedure Court and theEvidence Act require fundamental and drastic changes.

A lot needs to be done in the case of lower judiciary.Bulk of the people deal with lower judiciary rather thanwith the higher judiciary. The issues of lower judiciaryhave not been sorted out.

The legal system has been used only in a self-servingmanner. It is used or advance the cause of those peoplewho can pay well and those who have the capacity to hirethe best legal brains. This shows a serious lack ofcommitment on the part of those who are working in thelegal profession.

There is a backlog of about three million cases beforevarious High Courts in the country. It is the primary job ofthe courts that normal litigation gets proper attention. Thereare instances of undertrials being imprisoned for 40 yearswithout being chargesheeted or tried. Therefore there is acrying need for the judiciary to set its own house in order.It should overcome its shortcomings and deliver efficient,economical and expeditious justice to people.

Judicial Reforms and Judicial Commission


Mounting arrears are the root cause of adjournments.With more than 50 cases listed for the day, there is a naturaltendency to adjourn at the slightest pretext.

There is a need to devise a new disciplinary procedureto tackle judicial corruption at the highest level as theRamaswamy episode underlined that impeachment ishardly an effective deterrent.

National Judicial CommissionThe Idea of a National Judicial Commission has been

mooted to deal with appointment of High Court andSupreme Court judges and other connected matters. Theproposal to setup a judicial commission was mooted bythe then attorney journal of India, Soli J. Sorabjee, duringthe time of V.P. Singh government. The National JudicialCommission will appoint as well as discipline the judges.

For several years, the first judge’s case, S.P. Gupta v.Union of India, held the field for judicial appointments tothe High Court and the Supreme Court.

That case laid clearly that the Union of India is boundby the recommendation of the Chief Justice of India insuch appointments unless it gives cogent reasons for notfollowing the recommendation. Lawyers or their barassociations which galvanise into action on these issues donot know till today as to whether any Chief Justice of Indiademanded the “cogent reasons” from the respective PrimeMinisters in power in cases where the ruling governmentof that time did not abide by his recommendation.

The proposed commission would remain arecommending body. Because, notwithstanding all thedrawbacks, a judge cannot be removed withoutimpeachment.

Article 124 of the Constitution simply requires that therehas to be a Chief Justice of India that the President appointshim by a warrant and that he does so after “consultationwith such of the judges of the Supreme Court and the High

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Courts in the States as the President may deem necessaryfor the purpose.”

A draft bill prepared by the Committee on JudicialAccountability (CJA) provides for a five-member NationalJudicial Commission (NJC) consisting of retired judges orsenior advocates who would be independent of thegovernment and the high judiciary. The chairman wouldbe appointed by the full collegium of Supreme Court, andthe government. The Leader of the Opposition in the LokSabha, the collegium of the Chief Justices of the HighCourts and the Bar Council of India each will nominateone member. The NJC would have investigative powers aswell, and its powers would be binding on the government,according to the draft. However, it remains to be seenwhether such an NJC will ensure accountability, impeccableconduct and transparency in the higher judiciary.

It is said that war is too important an issue to be left tothe generals alone. Likewise the judicial system must notbe made a monopoly of legal experts only. The proposedJudicial Commission must have representatives from legalprofession, professors, social reformers and administratorsto select really the cream to administer justice to people.Every controversy involving the judiciary must not be settledwithin it otherwise the judiciary will remain lopsided.

Both the government and the Constitution Review wantto do away with the collegium system of appointment inwhich the executive has hardly any say. The ParliamentaryCommittee headed by Pranab Mukherjee said : “Membersof the collegium are prone to field candidates of theirchoice... The give and take in the collegiate consultationhas the potential of undermining merit.”

Former Supreme Court Chief Justices A.S. Anand, S.P.Bharucha and J.S. Verma and former judge and member ofNHRC K.T. Thomas are opposed to the setting up ofNational Judicial Commission. There contention is that whowould know better about the merit of lawyer than a judge



himself? The Former Chief Justice of India, Dr. A.S. Anandregards the setting up of the commission as “sharing thejudicial cake”. A noted constitutional lawyer R.K. Jainfavours the setting up of judicial commission and regardsthat the executive should have a say in the selection ofjudges. Whatever setup is evolved, it must be ensured thatabsolute transparency is maintained in the selection ofjudges.

The proposed Commission must be autonomous andindependent of the control from judiciary executive andlegislative. It should be required to submit its report directlyto the parliament. The Commission will also evolve a codeof conduct for the judges.

The Committee on Judicial Accountability (COJA)consisting of Supreme Court Judges V.R. Krishna Iyer,Kuldip Singh, K. Jayachandra Reddy and P.B. Sawant,Former Law Ministers Ram Jethmalani and Shanti Bhushan,Former Chief Justice Delhi Rajinder Sachar, noted lawyersKamini Jaiswal and Prashant Bhushan, recommended thejudicial commission to consist of five members: Leader ofthe Opposition, a nominee of the Union Cabinet, a memberof the Bar Council of India and two judges each from theapex court and a High Court.

The Constitution Review Commission suggested theinclusion of the Law Minister in the National JudicialCommission and also a representative from Opposition.

The commission will consist of members of the judiciaryand eminent citizens and also a member of the executive.The judges will continue to have a voice but not the solevoice. Everywhere the power to appoint judges is eitherwith the executive or at best in consultation with the topjudicial level. It has seldom been to the exclusion of theexecutive.

In the 1993 judgment the Supreme Court interpretedthe requirement to consult as a mandate to the concurrenceof the Chief Justice.

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Participating in the Rajya Sabha debate on appointmentof judges, R.K. Anand, argued for a revision back to thepre-1990 situation, when the executive was the soleauthority to appoint judges.

Shri R.K. Anand describing the current environment ofcourts says, “uncle judges”, judges’ lawyer-son sharingaccommodation with them, judges’ collegium whichappoints judges picking up names known to them, and aformer Supreme Court chief justice’s lawyer-son beingengaged by “top lawyers” for “getting relief”.1

There has been no debate among members of thejudicial fraternity or the Bar Association on the proprietyof judges accepting posts such as those of governors,ministers, membership of state or central legislatures andother posts carrying attractive salaries and perks.Allurement of such posts may lead to compromising thejustice. There may be pressures on judges from within thejudicial hierarchy itself.

The issue relating to the number of advocates to beelevated to the Bench in relation to the career judicialofficers should also be resolved.

On May 9, 2003 the Supreme Court in its judgementdenied access to the public to an in-house inquiry reportinvolving Karnataka High Court judges. The allegationspertained to the alleged sexual escapade on the part ofsome judges of the Karnataka High Court. The SupremeCourt justified the action on the ground that the ChiefJustice of India (CJI) has ordered an in-house inquiry intothat scandal on “moral or ethical (grounds) and not inexercise of powers under any law.” Dismissing a publicinterest writ the Supreme Court observed, “exercise of suchpower of the Chief Justice of India based on moral authoritycannot be made subject matter of a writ petition to disclosea report made to him.” This judgement of the SupremeCourt is at variance of the Supreme Court judgement of1995 in the case of Justice A.M. Bhattacharjee, who resigned



as chief justice of the Bombay High Court over the issue oflarge royalty he received from a publisher. Invoking itsinherent powers under Article 142 of the Constitution, theapex court itself prescribed the in-house procedure ofinquiry to enable the judiciary to exercise self-regulation.

The in house inquiry report cannot be subjected topublic scrutiny. A vigilant citizenry can play an effectiverole in enforcing judicial accountability.

A judge of Delhi High Court had to resign and wasarrested by CBI on charges of corruption and sex scandal.

There was complicity of High Court judges in thePunjab Public Service Commission’s job-for-cash scandal.

In Rajasthan proceedings were initiated against a HighCourt judge on allegations of demanding sexualgratification.

The Supreme Court passed strictures against a MadhyaPradesh High Court judge who was exhibiting, “totaldisregard of the norms governing writ jurisdiction” bystaying the recovery of Rs. 2.88 crore excise amount due tothe state from a liquor firm for the year 1995. ..... Odiumof unlawfully depriving the state/the people of the monieslawfully due to it or them would lie upon the court.Particularly in the case of excise contracts, generallyspeaking it is well nigh impossible to recover any arrearsafter the event,” observed the Supreme Court benchcomprising Justice B.P. Jeevan Reddy and Justice S.C. Sen.2

In September 1996, the third additional metropolitansessions judge in Hyderabad, was arrested by the anti-corruption bureau for accepting bribe from the accused ina murder case. He was later suspended by the Chief Justiceof Andhra Pradesh High Court.

The rot of corruption and misconduct is spreading fastin the lower and higher judiciary. On 11th May, 2003 theCBI arrested two members of the subordinate judiciary ina corruption case in Punjab. One of the judicial officermanaged to escape like a criminal.

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Again in May, 2003, two members of the subordinatejudiciary were placed under suspension on charges ofaccepting illegal gratification in a case.

If the monopoly of the judiciary is coming to an end inmatters of appointment it is because of judiciary’s ownerrors of omission and commission. The need for theNational Judicial Commission under the circumstances isof paramount importance. “The existing system ofappointments by the judicial collegium has not workedwell at all. It has often been dilatory, arbitrary and taintedby favouritism. Political lobbying has been replaced bypersonal affiliation. ...... It is wrong to confine thedisciplinary jurisdiction to judges, they will only helpthemselves. That has been the unfortunate record of thejudiciary.”3

Rajeev Dhawan, Senior Advocate of the Supreme Courthas pointed out, “There is a need for a larger collegium toalso include the Leader of the Opposition and three publicmembers nominated by the President from a list drawn upby the Prime Minister; Chief Justice and Leader of theOpposition. Such a nine member collegium (three judges,two ministers, leader of the opposition, and three publicpersons) is far better than the proposed ‘closet’ collegium.”4

Justice Venkatachaliah, who was heading theConstitution Review Commission, emphasised thatdisciplinary powers over judges should be exercised onlyby fellow judges as the independence of the judiciarywould otherwise be in peril. The proposed bill makes thecommission broad based and provides that the law ministerand the eminent citizen nominated by the Prime Minister/President will participate in the disciplinary proceedings.Such a setup will give more credence and credibility to thesystem and there should be no objection. Justice V.K.Krishna Iyer has supported this proposal.

The proposed Commission will do away with theSupreme Court judgements of 1993 and 1998 commonly



called the second and third judges cases. According to thejudgments the judiciary had assumed the primacy inappointment of judges. The Commission will draw up acode of ethics for judges and also restore to executive someauthority in matters of appointment. The Commission willinquire into violation of the code and decide about penaltiesfor the deviant judges. The judicial work can be withdrawnfrom the judge and he can also be transferred to anothercourt. If the misconduct is serious enough, the judicialcommission can ask the government to initiateimpeachment proceedings in the Parliament.

Prof. Saifuddin Soz, while debating in the Parliament,called for selection of judges on “merit and competenceand devising a system of accountability leaving no roomfor corruption.”

Kapil Sibal, a senior advocate and M.P., wanted thegovernment to restore the process of judges appointmentthat existed before 1993 to ensure transparency andaccountability.

The Commission would act as a check on the judicialsystem. The move has also been supported by the AttorneyGeneral Soli J. Sorabjee and the Bar Council of India inview of the growing incidence of alleged involvement ofjudges in various scandals. The National JudicialCommission will deal with such “deviant judges” as the“process of impeachment gets politicised.” Commentingon the arrest of former Delhi High Court Judge in DDAscam Sorabjee remarked, “it was depressing for everyone.”Chairman Bar Council of India D.V. Subba Rao said thereis need of “urgent corrective measures” to deal with“deviant judges. Judicial accountability is the need of thehour. ........ Some corrective mechanism has to be put inplace as impeachment is illusory and judiciary’s in-housemechanism has also failed to serve the purpose.”

It is proposed to involve the National JudicialCommission in the appointment of High Court judges.

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Incidentally the Constitution Review Commission (CRC)has not proposed any change in the procedure forappointment of High Court judges. The appointingauthority of the National Judicial Commission has beenconfined only to Supreme Court judges. But centralisationof appointment of High Court judges will ensure uniformstandards of merit and competence. The participative modeof appointment where recommendations are initiated bythe Chief Justices of High Court and Chief Ministers of theStates cannot be free from political considerations.

No system is better than those who operate it, has beenrightly pointed out by the Chief Justice of Australia, SirHarry Gibbs: “Judicial commissions, advisory committeesand procedures for consultation will be useless unless thereexists among the politicians of all parties (and, I may add,among the judicial and legal fraternity), a realisation thatthe interest of the community requires that neither politicalnor personal patronage nor a desire to placate any sectionof society should play any part in making judicialappointments.”

The present system of impeachment is unsatisfactory.The Commission will have a graded hierarchy of powerssuch as warning, suspension, transfer, removal, dismissaland recommending impeachment. The body must not bedominated only by judges. This body must be autonomous,free of government control. It should be manned by personsof high integrity who will always call a spade – a spade.The recent happenings in the judiciary do indicate thatpolicing is needed to discipline the judges. Action againsta corrupt judge will build up the morale of judiciary andwill be in line with the maintenance of independence ofjudiciary. The very fact that there is corruption in judiciaryillustrates demoralisation. Lack of action by the judicialhierarchy is responsible for such a situation. Judicialappointments must be free from favouritism, caste gamesand politics.



Notes and References :1. Times of India, 19th May, 2003.2. SC Strictures against MP HC Judge, The Indian Express, 4 December,

1996.3. The Sunday Express 18th May, 2003, Justice V.R. Krishna Iyer.4. “The Rot in the Judiciary”, May 11, 2003, Hindustan Times (Rajeev

Dhawan).

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Chapter 10

Limitations

Article 141 of the Constitution says, “The law declaredby the Supreme Court is binding on all Courts in India.”Considerable misunderstanding prevails over this Article,as if by it the Supreme Court is given the power to makesubstantive law of the land and its declarations are bindingon everybody and they must be unquestioned.1 The Articleonly means that the declarations of the Supreme Court arebinding on courts subordinate to it as a matter of judicialprecedent until they are reversed by the supreme courtitself. The court’s declarations cannot change theConstitution. As Charles Warren, the eminent historian ofthe Supreme Court of USA has said, “However the SupremeCourt may interpret the Constitution, it is still theConstitution which is law and not the decision of thecourt.”2 Justice Frankfurter, in whom one finds the mostarticulate realisation of the judiciary’s limitations in aconstitutional democracy, says in the same strain, “Theultimate touchstone of constitutionality is the Constitutionitself and not what we have said about it.”3

Under no Constitution can the power of courts go farto save the people from their own failure. There are toomany dangers. The judiciary may sooner or later have topropound a policy of judicial non-intervention in definedareas. The Constitution did not make the judiciary asubstitute for the failure of the other branches ofgovernment and that judicial power has its limitations.

Appointments of judges, unless carefully screened bythe collective wisdom of a panel with versatile experience,may result in distorted selections, and the appointees –may turn out to be bad choices. Leaving this process to thechief justices or the first ministers is no assurance that these


secret processes will eliminate favouritism, politicalpollution and other unprintable adulterations.Considerations for appointment must be intellectual andprofessional integrity rather than political commitment.Commenting on the Supreme Court appointments, seniorSupreme Court advocate Ram Jethmalani said, “Theappointments seem to have been made on the basis ofregion and caste and everything except merit. The courtsare exceptionally powerful and they should use theirpowers responsibly”. Castisation/Communalisation ofjudiciary will completely destroy the institution of Courtsand they will cease to deliver justice. (Indian Express, 7Sept. ’96).

Winston Churchill, decades back, told the House ofCommons that judges are required to conform to standardsof “life and conduct far severe and restricted than that ofordinary people.”

The most heard criticism is that the courts are takingover the function of the administration and involvingthemselves in policy determination, an arena best left tothe executive. They are not justified in taking over theadministration in the guise of correcting governmental erroror excesses.4

Judicial control of discretionary powers is nothing shortof the judge sitting in the place of administrative authorityand considering what he would have decided had thesefacts been before him. Judges cannot assume such a rolebecause all the background materials and the totality ofthe situation in which the order was made were beyondtheir reach.

It will be bad discretion to act deliberately in a biasedmanner to favour, oblige and influence on “extraneousconsiderations”. The Supreme Court verdict indiscretionary allotment of Petrol Pumps etc observed, “itis high time that the public servants should be heldpersonally responsible for their mala fide acts in discharge

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of their functions as public servants”. If a public servantabuses his office either by an act of omission or commissionwhich consequently causes “injury” to an individual orloss to public property, an action may be maintained againsthim. No public servant can say “you may set aside anorder on the ground of mala fide but you cannot held mepersonally liable”. Similarly, the judges added, no publicservant can arrogate to himself the power to act in a mannerwhich is arbitrary, mala fide or violative of theConstitutional provisions or the principle of fairness”.(Justices Kuldip Singh & Faizan Uddin).

The Supreme Court laid down the law in the RamanShetty case. “It must, therefore, be taken to be the law thatwhere the government is dealing with the public, whetherby way of giving jobs or entering into contracts or grantingother forms of largesse, it cannot act arbitrarily, at its sweetwill and, like a private individual, deal with any person asit pleases, but its action must be in conformity withstandards or norms which is not arbitrary, irrational orirrelevant. The power or the discretion of the governmentin the matter of largesse, including award of jobs andcontracts, quotas and licenses etc., must be confined andstructured by rational, relevant and non-discretionarystandard or norm and if the government departs from thenorm in any particular case or cases, the action of thegovernment would be liable to be struck down.”

The court also upheld in the Lucknow DevelopmentAuthority case, “misfeasance in public offices as part ofthe law of tort. This meant that public servants may beliable to damages for malicious, deliberate or injuriouswrong-doing.”

In their eagerness to control the subjective satisfactionof the administrative authority, the judges themselvesattached undue importance to their own subjectivesatisfaction. Serious doubts on the desirability of judicialactivism arise when there is an absence of special reasons

Limitations


or circumstances justifying such activism. The mostdramatic demonstration of unwarranted judicial activism,by converting the “relevance” test to the test of adequacy,can be seen in the decision of the Supreme Court in BariumChemicals Ltd. v. Company Law Board5 and the two caseswhich followed, viz., Rohtas Industries Ltd. v. S.D. Agarwal6

and Rampur Distillery and Chemical Co. Ltd. v. Union of India7

These cases have been hailed as providing “a new direction,a new vista, in the matter of checks on the exercise of powerby the executive.”8

The discretion conferred to order an investigation isadministrative and not judicial since its exercise one wayor the other does not affect the rights of a company nordoes it lead to any serious consequences as, for instance,hampering the business of the company.9

It is not disputed that a court cannot go into the questionof the aptness or sufficiency of the grounds upon whichthe subjective satisfaction of an authority is based.10

An uncritical acceptance of Courts’ declarations willproject judiciary as the “Supreme Law.” It will make theConstitution irrelevant. Justice Jackson of the US SupremeCourt said “We are not final because we are infallible, butwe are infallible because we are final.”11 Constitutionaldemocracy implies that the ultimate interpreter of ourfundamental law is not an autonomous judiciary but theinteractive understanding of the people, theirrepresentatives and the judges together.12 Judicial powerand judicial pronouncements should therefore be subjectedto the same active, but respectful, scrutiny for theirlegitimacy as the actions of the political branches aresubjected to.

Lord Denning cautions that the jurisdiction of judges ismore restrictive than creative. He says, “So far as creativework is concerned so far as active policy is concerned, therethe judges have no hand. They cannot direct governmentto spend money on this or that. They cannot do anything

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to help the poor or unemployed. They cannot providehousing for the homeless. All social reform must be left toothers. So must all political reform.”13

The courts can exert some pressure and influence theuse of power, but it is beyond them to supervise theexecutive functions, improve the channels of administrationor initiate a particular ameliorative and legislative ills liesin implementation of the policies and decisions taken. Thevested, powerful interests will seldom permitimplementation of policies which hit them adversely. Theymay even use the courts as was the case with BoforsLitigation where proceedings in India were delayed becauseof PIL writs. The executive is condemned for alladministrative lapses and non-implementation. The courtsare engaged in arousing hopes and aspirations of peopleto cure all their ills but in the bargain they are exposingthemselves to public wrath and criticism. The presenteuphoria will die down soon as the courts can not maintainimplementation as their watch word for an indefiniteperiod. The Supreme Court undertook monitoring progressof investigation in “Hawala Case”. Sh. Anil Dewan, amicuscuriae in the case, brought the “continued inaction of theCBI where powerful politicians are involved” to the noticeof the court. The court expressed “dissatisfaction” over theprogress. Whom can the court blame in this situation?

It was enough for a court to draw the attention of theexecutive to a public need and indicate a feasible course ofaction. It was beyond the judicial function to oversee theimplementation of judicial directions.

“Judicial review of administrative action or inactionwhere there is an obligation for action should be withcaution and not in haste.”14

C.J. Mukharji clearly took the view that monitoringregulating or overseeing the specific tasks pertaining topublic welfare were not the tasks of the courts.

It was enough for a court to draw the attention of the

Limitations


executive to a public need and indicate a feasible course ofaction. It was beyond the judicial function to oversee theimplementation of judicial directions.

Citizens of India are not to be governed by the Judgesor judiciary. It the governance is illegal or violative of therights and obligations, other questions may arise butwhether… it has to be a policy decision by the governmentor the authority direction can be given or is expected fromthe courts unless while implementing such policies, thereis violation or infringement of any of the constitutional orstatutory provisions.” To put at rest any further ambiguity,the court added: “The courts cannot express their opinionas to whether at a particular situation prevailing in thecountry any such national policy should have been adoptedor not.”

A judicial veto based on the subjective view of thejudges15 will debar a constitutional change for all times.Judges, thus, will dictate changes to be made in theConstitution. The invalidation of Constitutional amendmentthrough judicial veto will amount to exercising theConstituent power by Court itself. This power has not beengranted to the courts under the Scheme of Constitution.

Moreover, the judiciary is the least competent tofunction as a legislative or the administrative agency.Courts lack the facilities to gather details or to makeprobing enquiries.

The massive clout of transnational corporations posesa threat to national sovereignty. The issues of environmentaldegradation, genetic engineering, international terrorismand the communications revolution can be effectively dealtwith only by a highly competent and an alert government.

The procedure for police investigation is spelt out inSection 157 of the Criminal Procedure Code. The areamagistrate is to be kept informed of the police investigationof cognizable offences so as to direct the police as to howto conduct the investigation of the case. The role of

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magistrate commences once the police files charge sheetfor trial of the case or files a final report. There is no specificprovision empowering the courts to order investigationsthrough a particular agency. Monitoring of investigation isthe executive prerogative.

The decision of Privy Council in Khawaja NazirAhmad16 is invariably cited in support of the view that“the power of investigation, so far as it vests exclusivelyin the police or investigating agency, is not to be interferedwith by the courts.” The Privy Council, however, didqualify its statement by adding that “No doubt if nocognizable offence is disclosed, and still more, if no offenceof any kind is disclosed, the police would have no authorityto undertake an investigation.” However, if it can beestablished beyond doubt that the investigation is malafideand amounts to pure harassment and abuse of statutorypower, the court is not barred from interfering.

Judiciary must put the fear of God in the executive butshould not turn God. The Supreme Court monitored theprogress of CBI investigation in Hawala case. The Directorof the organisation was given three months extension onsuperannuation by the pleasure of the President”? In otherwords, who will determine the future rewards of the CBIofficials, or will they form a part of select group under thedirect supervision of Supreme Court, which is impossible?

Courts also have no means for effectively supervisingand implementing the aftermath of their orders, schemesand mandates. Courts have also no method to reverse theirorders if they are found unworkable or requiringmodification.

“The point is that the courts will draw from a body ofexperience not germane to the problem they will face. Giventheir limited means of informing themselves and theepisodic nature of their efforts to do so, they will onlydimly perceive the situations on which they impose theirorder. Even if they do perceive, they will necessarily come

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too late with a pound of ‘remedy’ where a smaller measureof prevention was needed. Their rules, tailored to the lastbit of trouble, will never catch up with the next anddifferent dispute. They will allow or forbid and be wrongin either event, because continuous, pragmatic and flexibleregulation alone can help. They will on most occasionsnaturally shy away from basing their judgments on whatthey are accustomed to. As regards ‘political factors’incompatible with their disinterestedness, although theymay form the only sensible context of questions before themand they will thus find themselves resting judgements ontrivia or irrelevances. All this will not only, by its sheervolume divert the energies of the courts from their propersphere but will also tend to bring the judicial process intodisrepute by exposing it as inadequate to the task withwhich it should never have been entrusted.”17

The judgement in Pradeep Jain v. U.P. was pronouncedon 22nd June 1984 and the court stated that it was to bebrought into force from 1984 academic year. It did not giveany indication how the All-India open merit seats were tobe filled in; whether by the respective state governmentsor universities or by the Medical Council of India. Thecourt assumed that the problem was simply solved by itsimplementation. Three years later the court had to admit“This court had not then assessed what magnitude the taskimplementation of the scheme would involve.”18

Bar Associations played a major role in getting the“transfer policy” implemented in respect of those judgeswhose kith and kin were practising in the same High Court.The transfer policy in vogue is 1/3rd of the judges shouldbe from outside the state. Several judges who weretransferred under this policy from their parental HighCourts to other states, have represented against theirtransfer on grounds of health, social obligation and otherhardships. The transferred judges want reversal of thepolicy or the policy should be made rotational so that every

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High Court Judge serves outside his state and comes backafter serving there for sometime. The Bar Associations areopposed to such a move and argue that the policy of having1/3rd of the judges from outside the state is in keepingwith the spirit of the Constitution. Such a policy was alsorecommended by the State Reorganisation Commission topromote national integration.

The policy was upheld judicially in the Judges Case.The judicial pronouncement in this case vested the powersof transfer of High Court Judges in the executive. Theexecutive ruthlessly misused the policy in punishing honestand fearless judges. As a consequence in Judges Case II(1993) the nine judge bench of the Supreme Court heldthat transfer of a judge was not excluded from “judicialreview”. This verdict re-established the power of judiciaryconcerning appointment and transfer of a High CourtJudge. No High Court Judge can be shifted without theconsent of the Chief Justice of India. Despite judiciary beingthe final authority with regard to appointment and transferof a High Court Judge, massive cleansing up operationshave not been undertaken.

The transfer policy of High Court Judges is underreview. Transfer has been regarded as a “self-disciplinary”measure adopted by the judiciary. (Sh. Dipankar Gupta,Former Solicitor General) whereas P.P. Rao, SeniorAdvocate, Supreme Court, suggested that to maintain thejudiciary’s image in the long run, “judges undercontroversy should be prevailed upon to quit.” Shri Fali S.Nariman, Senior Advocate of the Supreme Court regardstransfer as a “relief and an antidote to casteism, secularismand favouritism.” He has suggested the establishment of aJudiciary Appointment Commission to decide upon theappointment of judges. Transparency in the judicial systemis the need of the day. While delivering the keynote addressretired Supreme Court judge, V.R. Krishna Iyer, at theFourth Convention on judicial accountability, said, “The

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judiciary should be transparent. When there is secrecy inany system it leads to apprehension of wrongdoings, whichis what is happening now. I cannot understand why thejudiciary should be shrounded in secrecy, especially aboutappointments and transfer of judges”.

Justice S.S. Sodi, retired Chief Justice of Allahabad HighCourt, pointed out that there was no criteria for makingappointments or ordering transfer of judges. Arbitrarytransfers and appointments will damage judiciary.

In Waman Rao v. Union of India, the court held in 1981that the amendment of Article 31-B of the Constitution in1951 was prospectively invalid from 24th February 1973 togive immunity to fundamental rights and wasconstitutional. Speaking of a similar exercise of prospectiveinvalidity in the Golak Nath case, Bachavat J. in his dissentsaid “To say that they (the laws) were valid in the past andwill be invalid in the future is to amend the Constitution.Such a naked power to amend the Constitution is not givento judges.”19

There is also concern among “traditionalists” aboutjudicial “despotism” whereby judges bring into play theirown value choices or philosophies different from thosedeclared by the political process and in doing so activistjudges are accountable to none except their own conscienceand to the logic of their own decision.20

Judges are not philosophers or legislators. At best theyare legal scholars. Judicial review of the reasonableness offundamental changes in the Constitution with totalirreversibility of the decision means the testing of the wholesocial process by a single outlook of men of law.

This poses serious problems, of course. After more thana decade and a half of judicial interventions in diverseareas, from bonded labour, mentally ill prisoner, the concernof the present Court is that it should pass workable andenforceable orders, so that the judiciary as an institutionretains its credibility and respect.

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Democratic processes after some period of time can cureconstitutional illnesses without judicial surgical operations.Too great reliance on judges to remedy the ills demonstratedby the repeal of 44th and 62nd amendments denies thepeople the power to correct themselves by democraticmeans.

The Indian Supreme Court has so far declined to adopta theory of avoiding political questions as the US SupremeCourt has done. The factors, for avoiding adjudication insuch matters are stated to be: “the lack of requisiteinformation and the difficulty of obtaining it, the necessityfor uniformity of decision and to defer to the widerresponsibilities of the political departments, and the lackof adequate standards to resolve a dispute. But present inall, politics is the most important factor, a ‘prudential’attitude about the exercise of judicial review whichemphasizes the courts should be wary of deciding on themerits any issue in which claims of principle as to theissue and of expediency as to the power and prestige ofcourts are in sharp conflict. The political question doctrineis thus a way of avoiding a principled decision damagingto the court or an expedient decision damaging to theprinciple.21

Sooner or later, the Indian judiciary may have to evolvefor itself a theory of avoiding political questions if it is notto be embroiled in political questions day after day.

The return of the Postal Bill by the President toParliament in 1990 reflects the power of the public opinionin bringing the desired changes by the political branchesof government. Educated electorate will achieve whatjudicial decisions cannot.

Critics of Judicial activism point out that severalrepresentative channels – a free press, public protest etc.have been used effectively in the past to spike controversialpieces of legislation. They stress, rightly, that public opinionshould be allowed to have full play in the making and

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unmaking of legislation and policies without relyingexcessively on judicial checks. Their plea is, quite simply,that supreme Court should exercise judicial restraint evenas it continues to expand the frontiers of individualfreedoms.

On the apex court’s order to the Prime Minister to sortout the Cauvery tangle, former Irrigation SecretaryRamaswamy Iyer says, “One wishes that the Supreme Courthas passed an order that would have strengthened thehands of the Tribunal and reaffirmed the supremacy of theConstitution and the rule of law.” Mr. Iyer asks, “have thelearned judges perhaps been influenced by recent criticismsof excessive judicial activism. They have referred to the‘mass hysteria created in the two States’. This is disturbing.Should the Supreme Court fight shy of giving a legal orconstitutional ruling because of the fear that it’s may notbe obeyed or that there may be popular agitation againstit leading to violence?”

“The frequent and impulsive judicialising of social andpolitical problems also endangers the stability and prestigeof the judiciary. By involving the courts in such matters,judges are compelled to make policy decisions which asunrepresentative bodies they are not fit to make. Inevitably,the inarticulate prejudices of the judge get elevated to legalprinciples. In the long run this is bound to damage theimage of independence and detachment of the judiciary. Ifthe judiciary is to be a policy-making body can it escapethe charge of doing so without political accountability?Justice Sawant, in another context has said: “The absoluteand unlimited power of the judiciary particularly at thehighest level without public accountability may endangerdemocracy itself.”22

The contrast of this sacrosanct judicial power in Indiais provided by the interview which Chief Justice WarrenBurger of the US Supreme Court had with Bill Moyers onthe eve of the former’s retirement in 1986. He said:

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“Congress can review us and change us when we decidea Constitutional issue, right or wrong; i.e. until we changeit, or, the people change it. Don’t forget that. The peoplemade it, and the people can change it. The people couldabolish the Supreme Court entirely.” “How” asked BillMoyers. The answer: “By a Constitutional amendment.”23

A more modest view of judicial power prevailed inIndia prior to the “basic structure” evolution. In 1962,Justice Hidayatullah said of claims for indispensablenecessity, for judicial determination: The proposition thatevery determination affecting liberty, rights or propertymust always be made by judicial tribunal and none elsedoes find support from the cases….”24

Though in the area of human rights jurisprudence thejudiciary has, to some extent, made a significantcontribution by enlarging its constituency and giving wayto social action litigation, but the mutual trust betweenParliament, Executive and the Judiciary is still lacking. Theresultant effect of this diminishing faith has led to thefalling standards of the judiciary because of the role ofpolitics in the appointment of judges of the High Courtand the Supreme Court. Today, the best legal brains of thecountry are reluctant to accept judgeship. Had Pt. Nehrubeen alive today, perhaps, he would have been the mostfrustrated man by looking at the overall performance ofthe institution of judiciary vis-à-vis its relationship withthe other two organs of the State, viz., Parliament and theExecutive.

Judicial activism operates under several constraintsbased upon the basic architecture of common law courtand on a number of features of the contemporary Indianlegal milieu – narrow recruitment of judges, small enclavesof social activism, intellectual tradition of legal positivism,lack of public accountability of legal profession, enormousoverflow of legislation, colonial structure of bureaucraticorganisation and many others.

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Law and courts, are not to be closed shops for thosewho are ignited by real public interest. Judicial activismand public interest litigation will not automatically bringabout the desired effects. Imperfect or ambiguouscommunication/transmission of judicial signals bringsmalleability and accentuates uncertainties of theliberational potentials.

CJ Marshall said: “This vital power may be abused butthe Constitution was not intended to furnish the correctivefor every abuse of power which may be committed bygovernments. The interest, wisdom and justice of therepresentative body and its relations with its constituentsfurnish the only security… against unwise legislationgenerally

The courts can be activated only if the executive isremiss in fulfilling its constitutional obligations to the pooror the disadvantaged. The courts can act as critics andmonitors of the government but it is beyond them to exertthe administration or indulge in continuing surveillanceof public bodies. The courts will respond only if therealready exists and ameliorative legislation for the welfareof the poor and the exploited. It is beyond them to forcethe government to initiate a particular legislation. Thepublic mind may be greatly shocked by events but thecourts cannot easily be activated and will be reluctant toorder the setting up of a parallel investigation unless theyare fully satisfied that the statutory agency is notfunctioning properly. The medium of Public InterestLitigation cannot be used for political gains or for enquiringinto the role of politicians. Nor can it be used to settleprivate disputes.

It is, however, beyond the judicial function to enter intothe questions of policy or force the executive to make goodall the basic human needs as a matter of enforceable rights.

It is primarily within the domain of the legislature andthe executive to decide the priority as well as determine

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the urgency.25

It was the legislature which knew the needs of thepeople and under the Constitution it was they who wereauthorised and entitled to “fix priorities for expenditure tosatisfy basic needs of the people, upon the judgement andrecommendation of the executive.”

As Lord Bacon said, the function of the court is “jusdicere, not jus dare” – to interpret and apply the law, andnot to make the law. It may be added that courts are notfor implementing the law in the way in which the SupremeCourt is doing. There is a difference between implementinga law and executing an order. The court interprets the lawand applies it to a given case and passes an appropriateorder in accordance with the law.

The court has an obligation to ensure implementationof the order or decree. But that must also be done inaccordance with the prescribed methods. A whole chapterunder Order 21 of the Civil Procedure Code is devoted toexecution of orders and courts cannot devise their ownmethod of executing decrees or orders.

In Hindi Hitrakshak Samiti v. Union of India, it was held,“Citizens of India are not to be governed by the Judges ofjudiciary. If the governance is illegal or violative of therights and obligations, other questions may arise butwhether… it has to be a policy decision by the governmentor the authority and thereafter enforcement of that policy,the court should not be, and we hope would not be anappropriate forum for decision.”

Since the JR comes closer to the notion of judicialadmonition of the governmental action or inaction, thereneed not be a close congruence between the judicialinitiatives and governmental response.

“The question of Zamindari abolition and land reformswas deliberately excluded from the jurisdiction of courts.How did it come under their jurisdiction? Here the (Patna)High Court comes in. The (Patna) High Court brings in

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Article 14 of all Articles to apply, it to a question of landreforms. Article 14 says”: “The State shall not deny to anyperson equality before the law or equal protection of thelaws” is such that it looks with an even eye on theMillionaire and the beggar. It is all very well to talk aboutthe equality of the law for the millionaire and the beggarbut the millionaire has not much incentive to steal a loafof bread, while the starving beggar has perhaps, and thisbusiness of the equality of the law will make the existinginequalities more rigid. “That is a dangerous thing and itis dangerous in a changing society and it is completelyopposed to the whole structure and method of thisConstitution and what is laid down in the directivePrinciples.”26

Judiciary should not legislate and avoid becoming aThird Chamber. Activist stance of courts destroys thebalance of powers enshrined in the Constitution.

Interpretation itself is an act of creation, and the oathof office which binds the judges to the Constitution opensthe possibility of an activist attitude. Excessive judicialrestraint may well result in judicial catalepsy. The positivisttheory of law which places emphasis on law “as it is” andnot on law “as it ought to be” has to be rejected if onewishes to use law as an instrument of change and reform.

A judiciary cannot run the administration. At somepoint the administration will have to come back to its role.Administration will one day have to become honest andsincere on its own without prodding from the judiciary.

Judicial review has done the Indian political systemimmense good. But intellectual humility demands that thepossibility of errant behaviour or unsound judgment onthe part of a judge also be taken into consideration.

Notes and References :1. CJ Subba Rao in Golak Nath v. Govt. of Punjab, AIR 1967 SC 1963-

1669 and CJ Sabyasachi, Mukherjee in Delhi Transport Corpn. v.DTC Mazdoor Congress, AIR 1991 SC 101-151, 1991 Supp. 1 SCC

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600-683 and Krishna Iyer J. in Gujarat Steel Tubes v. Mazdoor Sabha,AIR 1980 SC 1896-1923, (1980) 2 SCC 593-635 – “the law laid downby the Supreme Court being the law of the land…”

2. The Supreme Court in United States History III, pp. 470-471. Seeawareness of this by Justice Iyer in Samsher Singh v. State of Punjab,AIR 1974 SC 2192-2229.

3. Graves v. N.Y. ex-rel. O’Keefe 306 US 466-491 (1939), 83 L.Ed. 927-939.

4. Clark D. Cunningham, “Public Interest Litigation in the IndianSupreme Court: A Study in the light of the American Experience”,Journal of the Indian Law Institute Vol. 29, 1987.

5. AIR 1976 SC 295.6. AIR 1969 SC 707.7. AIR 1970 SC 1789.8. S.N. Jain “New Trends in Judicial Control of Admn. Discretion” 11 JILI

544 (1969)9. Supra Note 22 at 302.10. Supra Note 22 at 302.11. Brown v. Allen, 344, US 443-540 (1944).12. The Supreme Court and Constitutional Democracy by John Agresto,

Prentice Hall of India, p. 10.13. Judges and Judicial Power, Essays in Honour of Justice V.R. Krishna

Iyer. Preface by Lord Denning, p. 4.14. Justice Mukharji in Umed Ram v. State of H.P.15. The Indian Constitution does not expressly make any part of

Constitution unamendable. C/m. Article V of the US Constitutionin relation to the equal suffrage of States in the Senate or Art.79(3) of the Basic Law of the West German Constitution.

16. King Emperor v. Khwaja Nazir Ahmad, AIR PC 18, 22.17. Legislative Purpose & the Judicial Process: The Lincoln Mills Case by

Alexander Bickel and Harry Wellington, Harvard Law Review, Vol.71 (November 1957). pp. 1-39.

18. Dr. Dinish Kumar v. Motilal Nehru College (1987) 4 SCC 122.19. AIR 1967 SC 1643, 1728.20. Judge V.D. Tulzapurkar, “Judiciary: Attacks and Survival”, AIR

Journal 9-15 1983 cited in Journal of the Indian Law Institute 1986,Parmanand Singh, “Judicial Socialism and Promises of Liberation” atp. 339-340.

21. See Constitution of US, Congressional Edition by Corwin 1982 p.708. The view that the doctrine of avoiding political question isdead in US after Baker v. Carr, 369 U.S. 186 (1962), 7 L. Ed. 2nd 663is not correct. “Because this doctrine has been held to be inapplicable tocertain carefully delineated situation, it is no reason for federal courts toassume its demise” Giligan v. Morgan (1974) 413 USI-II, 37 L.Ed. 2nd407-416.

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22. Judicial Independence, Theory & Reality, p. 69 (lecture delivered in1988).

23. I am obliged for this to Mr. F.S. Nariman’s article on “JudicialReview of Constitutional Amendments.” The Indian Advocate No.XXIII (1991) p. 1.

24. Joseph Kuruvilla v. RBI AIR 1962 SC 1371-1387.25. The Providence Bank v. Billings, 29 US 514 (1830).26. State of H.P. v. Umed Ram.27. CAD, Vol. IX, p. 1192.

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Chapter 11

Conclusion

Civil servants are fond of a legislative device, calledthe “ouster clause” debarring the jurisdiction of law courtsover certain specified areas. Decisions reached byadministrative authorities were placed outside thejurisdiction of courts – not subject to any appeal or reviewin any court. The power of the state was beyond judicialcontrol. Such a situation was violative of the rule of law. InRas Behari Lal v. King Emperor, in 1933, Lord Atkin observedthat, “finality is a good thing but justice is a better”. In1957, Justice Denning said, “If tribunals were to be a libertyto exceed their jurisdiction without any check by the courts,the rule of law will be at an end”.

The Supreme Court of India has considerablystrengthened the foundations of the rule of law by itsseveral judgements and orders to the executive and thelegislature. The court exercised the power of mandamusover areas which were hitherto beyond judicial control.

The powers of courts extend from garbage togovernment. However, by virtue of the fact that the presentsituation is a corrective measure, the phenomenon ofjudicial activism in its aggressive role will have to betemporary one. Fears of judicial tyranny are really quiteunfounded because judges themselves are aware of the factthat non-elected judiciary is neither meant nor equippedto act as a policy-making body. Judges, by virtue of theiroffice, are supposed to live lives that do not allow them tocontinuously maintain links with the ground realities insociety.

It is the executive and, to an equal extent, the legislaturewhich must accept the responsibility for putting a stop tocorruption. Without even suggesting any disrespect to the


judicial system, the point must be made that promotingprobity in public life is mainly the task of the two otherwings of the democratic system. While judicial pressuremust serve as a constant warning to the executive and thelegislature alike, the remedy should lie essentially incorrection by the executive. Even in respect of thelegislature, parliamentary surveillance must serve as somekind of a Damocles’ sword. What should prod the executiveinto a course of probity? It is the fear of either Parliamentor the judicial system passing strictures.

Judicial activism was always a flawed and an inherentlyanti-democratic doctrine. It is based on the assumption thatit is possible for a handful of enlightened individuals to bethe ultimate judge of what constitutes the common good.Arguably, the elected representatives of the people are notalways models of rectitude. But democracy, althoughfraught with imperfections, is also injected with theprinciple of accountability – at least every five years.

Prof. Jeffre Jowell of England said that a democracy ofreal vitality will be constantly engaged in the search forproper balances. They must see to it that the electedrepresentatives fulfill the legitimate expectations of thepeople and do not hold their hostage to fortune. “Thereare limits to judicial review and these must be enshrinedin the overall context of justifiability,” he said.

The judiciary and the legislature must put the fear ofGod in the executive but should not behave like theAlmighty God. This is important. After all, a nation is tobe managed by the executive and the other two wingsshould only keep the pressure on it and not take uponthemselves the role of the executive. The nation must beessentially executive-led. There should be no compromiseon that. The executive must also have a self-correctingmechanism and must need correction from either thelegislature or the judiciary only occasionally.

The framers of the Constitution have aptly envisaged

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an independent judiciary, free from any influence orpressure being brought upon it either by the executive orthe legislature. In constitutional language, “a committedjudiciary” is committed to the Constitution and functioningwithin the domain allocated to it. But then the framers ofthe Constitution have not assigned any role whatsoever tosee if the executive has acted “Justly” or constitutionally.The judiciary cannot sit in judgement under the scheme ofthe Constitution over the manner of functioning of theexecutive. In a parliamentary form of government, theexecutive is accountable to Parliament, and constitutionallyand “justly” or morally to the people. The executive iscommitted, under the scheme of the Constitution, toParliament and the people and not to the judiciary.

If judiciary has the power to determine whether theexecutive used its powers rightly or exceeded its role, itmay not only lead to distortion of the Constitution butalso paralyse the functioning of the executive who maylook to the judiciary and avoid taking decisions for fear ofstrictures. The demoralisation of the executive will thus becomplete.

Judge H.R. Khanna cautions: “The special responsibilityof the courts to ensure that one wing of the State does notintrude upon the field of the other makes it essential forjudges to avoid any over-activist role and to ensure thatthey do not trespass upon the spheres earmarked for theother wings of the State.”

The remedy to the various issues thrown up lies increating a system of checks within the executive. There isno imbalance in the powers of the executive, the legislatureand the judiciary. There are situations in which people waitfor some action from the executive but when nothingemerges they move the court.

The implications of such actions in a democracy areprofound as they effectively alter the power structure ofthe State.

Conclusion


It is in personal liberty cases since 1977 that the Indianjudiciary, led by the Supreme Court, has truly justified itsactivism and the court has redeemed its apparent recordof indifference to personal liberties during the emergencyperiod. One wishes that the court would sustain with equalactivism the original impetus it gave to the protection ofminorities and their rights to establish and administereducational institutional between 1950 and 1970.

“The irreplaceable value of the power (of judicialreview) articulated by the CJ Marshall (in Marbury v.Madison) lies in the protection it has accorded theConstitutional rights and liberties of individual citizensand minority groups against oppression or discriminatorygovernment action. It is this role not some amorphousgeneral supervision of the government that has maintainedpublic esteem for the federal courts and has permitted thepeaceful existence of counter-majoritarian implications ofjudicial review and the democratic principles on which ourfederal government in the final analysis rests.1

Judicial activism establishes the cause of justice andtruth in a society where justice and truth are being forcedto fly like white scared dove chased by hunters believingin “might is right”. But for the initiative of the “judiciary,no action could ever be contemplated against the powerful,corrupt politicians and bureaucrats in Italy. Happenings inIndia, in Hawala case, under the supervision of SupremeCourt, subjecting all those persons who regardedthemselves above law are welcome. Indian courts haveexercised judicial control over government in an excellentmanner. But there is no mechanism to protect the executiveand the legislature from judicial excesses. It will be properto have a double check on the activities of all the threeorgans of government. While the executive and thelegislature are subject to judicial scrutiny, there is noinstitution to restrain the judiciary. Creation of aninstitution of judicial ombudsman will take care of all the

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ills being attributed to the judiciary currently.One of the sound principles of administration is to have

a double check to every administrative action. It will notonly impart efficiency but also put fear of God amongconcerned administrators – whether of justice or other. Thesecond check should be from outside the system otherwisetruth will remain obscure. The reports or findings at thelower echelons will be dittoed at the highest echelon undera single departmental hegemony. More than the judicialombudsman, we should have a committee of prominentcitizens who have excelled themselves in various fieldslike social service, academics, law, administration etc. Thiscommittee, under the chairmanship of ombudsman, shouldscrutinise complaints against judges and take further legalaction directly. Each member of the committee should haveone vote and no member, including the ombudsman shouldhave veto power. The ombudsman and the members of thecommittee should not be government appointees, as undersuch an arrangement their loyalty may lie with thegovernment. The concerned representative bodies fromaforementioned groups should elect the persons withtransparent integrity to the committee. Such anarrangement will not only take care of the cumbersomeprocedure laid down for impeachment but also ensure thatno extraneous considerations are played up whileproceeding against a dishonest judge.

The most cherished situation is when honourable judgesthemselves resort to self-cleansing mechanism and declarethe dishonest brethren on bench as such. The initiative ofIAS association in UP is laudable and worthy of emulationwhere the Association has taken a decision recently toidentify and name publicly three most corrupt officers fromamongst their ranks.

Our objective should be to reform our institutions andrid them of all infirmities. Institutions for governanceshould be reformed and restored back to their strength –

Conclusion


political executive, bureaucracy, judiciary, Indianfederalism. This is possible only when each one of usmanning these institutions does not permit his or herdownfall and performs his/her duties fearlessly, impartiallyand conscientiously.

Notes and References :1. US v. Richardson, 418 US 166-191 (1974), 4 L. ed. 2nd 678-696-697.

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References

Books1. Chief Justice Shri P.N. Bhagwati, “Judicial Activism and

Public Interest Litigation” 1985, pg. 13 (Publisher JagrutBharat, Dharwat).

2. Upendra Baxi, “Taking Suffering Seriously ... SocialAction Litigation in the Supreme Court of India” 1979/1980 Delhi Law Review pg. 93.

3. Parmanand Singh, “Public Interest Litigation”, AnnualSurvey of Indian Law 1988, pg. 123.

4. Kesavananda Bharti v. State of Kerala, 1973 – SCC 225at 947 Paragraph 1947.

5. See Bandhua Mukti Morcha v. Union of India (1984) 3SCC 161; and Annual Survey of Indian Law 1987 Vol.XXIII at pg. 143.

6. Clark D. Conningham, “Public Interest Litigation in theIndian Supreme Court: A Study in the light of theAmerican Experience” Journal of the Indian LawInstitution Vol. 29, 1987 (the quote by Avram Chayesappeared in the Harvard Law Review 1975-1976 pg.128).

7. See comments by Justice Pathak in Bandhua MuktiMorcha supra note 31 at 224-234.

8. Judge V.D. Tulzapurkar, “Judiciary: Attacks andSurvival”, A.I.R. Journal 9-15, 1983 cited in Journal ofthe Indian Law Institute 1986, Parmanand Singh,“Judicial Socialism and Promises of Liberation” at pg339 and 340.

9. See Parmanand Singh, “Thinking about the limits ofJudicial Vindication of Public Interest” pg. 25 (1985) 3SCC (Jour) 1.

10. Jamie Cassels, “Judicial Activism and Public InterestLitigation in India Attempting the Impossible?” TheAmerican Journal of Comparative Law, Vol. 37 p. 507.


11. The Judgment of Pathak J. Bandhua Mukti Morcha v.Union of India (1984) 3 SCC 161 at 229.

12. Shri Krishna Agrawala, “Public Interest Litigation inIndia”, p. 45, Indian Law Institute, cited also in supranote 78 p. 517.

13. Agrawala, S.K., Public Interest Litigation in India – ACritique (1985).

14. Anderson Norman, Liberty Law and Justice, (1978).15. Basu, Durga Dass, Introduction to the Constitution of

India (1991).16. Baxi, Upendra, Towards Sociology of Indian Change

(1990).17. Iyer, V.R. Krishna, Our Courts on Trial (1987).18. V.R. Krishna, Equal Justice and Process, Tirth and Myth

(1986).19. Iyer, V.R. Krishna, Indian Social Justice in Crisis (1983).20. Iyer, V.R. Krishna, Law Society & Collective

Consciousness (1982).21. Iyer, V.R. Krishna, Social Justice, Sunset or Dawn (1987).22. Jaswal, Nishtha, Role of Supreme Court with regard to

the right to life and Personal Liberty (1990).23. Khanna, H.R., Constitution and the liberties (1978).24. Khanna, H.R., Issues before the Nation (1988).25. Malhotra, Vinay Kumar, Welfare State & Supreme Court

in India (1986).26. Massey, I.P. Nehruvian Constitutional Vision (1991).27. Mathew, K.K., Democracy, Equality and Freedom (1978).28. Mishra, Shashi, P, Fundamental Rights and the Supreme

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Documents

JUDICIAL ACTIVISM ACCOUNTABILITY · 2014-01-04 · the theme of Public Interest Litigation (PIL) which can be said to comprehend judicial activism or give rise to it. Even during