I.

The Activism Versus Restraint Debate Today In the sagacious words of

Chief Justice Hidayatullah:
“The first principle to observe is that the wisdom of the law must be accepted.
A little incursion into law-making interstitially, as Holmes put it, may be
permissible. For other cases the attention of Parliament and/or Government
can be drawn to the flaw.”1
The traditional role of the Judge has been envisaged as that of an
impartial arbiter who hears the forensic debate before him and renders
judgment without ever stepping into the arena of debate. Lately,
however, it has become fashionable for Judges to jump into the fray and
actively participate in the debate by supporting one side or the other
and this process masquerades under the felicitous name “judicial
activism”.2 In the name of judicial activism, modern day Judges in India
have abandoned the traditional role of a neutral referee and have
increasingly resorted to tipping the scales of justice in the name of
“distributive justice”. The legitimacy of such actions needs critical
appraisement at the hands of the legal fraternity, even at the risk of
unpopularity by swimming against the tide.
The term “judicial activism” came into currency sometime in the twentieth
century to describe the act of judicial legislation i.e. Judges making positive
law. Although, the underlying debate on judicial activism has been around
since the days of Blackstone and Bentham,3 the credit belongs to a non-lawyer
Arthur Schlesinger Jr., for popularising the term “judicial activism”. His 1947
article in Fortune4 started the modern debate. It brought into focus the
dichotomy observed in the judicial process: unelected
Judges versus democratically elected legislatures; result-oriented
judging versus principled decision-making; observance versus side-stepping of
precedents; law versus politics and so on.5 On the basis of their judicial
philosophies, Schlesinger characterised some Judges of the US Supreme Court
as “judicial activists”, some as “champions of self-restraint” and others as
comprising the middle group.6 Scholars of law, practitioners as well as the
general public have debated, often fractiously, the correctness or otherwise of
this kind of judicial activity, some advocating John Austin’s deference to
restraint and others Justice Benjamin Cardozo’s views which tended towards
activism.7
In India, although the activism versus restraint debate existed even in the pre-
Constitution period, it did not vigorously take-off till the 1970s when the
Supreme Court of India itself became very activist. However, the underlying
philosophical issue of the relationship between means and ends has been long
debated in Indian philosophy. In recent times, it was Mahatma Gandhi who
advocated that the means used for achieving a particular result must also be
as acceptable as the result itself.8 As we shall see, the saga of judicial decision-
making by the highest court in India indicates that judicial activism or the
mere pursuit of ends without regard to the means, has become the dominant
approach in judicial thinking.
With this background, it becomes necessary for the Judge to ask, like Hamlet,
whether it is nobler in the mind to remain impervious to the dominant
discourse around, or to trim the sails of his thinking to the winds blowing
around. This is a question of great moment, which must haunt any
conscientious Judge. Tradition and good sense demand that, irrespective of
the political debate around, the Judge maintains a neutral stance in his
decision-making, being guided only by accepted legal principles and the
dictates of his conscience. The Judge being human, the social ambience in
which he operates is likely to affect his judgment, but the extent to which he
disallows this to happen determines his mettle. This is the theme that I
propose to explore in this lecture.

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

A. The relationship between “proper” judicial review and “improper” judicial

activism

(i) Improper exercise of the power of judicial review

The judicial branch is invested with the power of being the final arbiter of
constitutional disputes under many democratic Constitutions. India, which
has modelled its Constitution, to some extent, on the US Constitution, falls in
this category.9 One of the fundamental features of such a constitutional set-up
is the judicial power to invalidate legislation on the ground of infringement of
the constitutional parameters such as legislative incompetence, violation of
guaranteed fundamental rights, inconsistency with an express provision or
basic feature of the Constitution, etc. The power of judicial review is an
exception to the principle of separation of powers, which demarcates distinct
areas for the different constitutional organs to exercise their powers. The
power of judicial review postulates that, in the event of a dispute as to
whether the legislature or the executive has overstepped its constitutional
bounds, the judiciary shall decide the dispute by application of well-
established constitutional doctrines and principles of interpretation. Although
the doctrine of separation of powers is not watertight or immutable, judicial
interpretation must not reduce it to a nullity. Indeed, in some areas, our
Constitution-framers have created evident and unambiguous barriers against
judicial intervention in legislative or executive domains,10 but even these
have been breached by the courts eager to assert their authority.
Indeed, nothing can be headier than the power to invalidate another
constitutional organ’s action. Such great power must of necessity bring in its
wake great responsibility. The problem with judicial activism is its proclivity
for excessive and legally improper use of this very great power to invalidate
arguably lawful and proper legislative or executive actions. In fact, history
abounds with instances where overactive Judges have jettisoned well-
established principles to produce incongruous results, which they honestly
thought were necessary, even if democratically elected legislatures or
executive thought otherwise. I now propose to examine some of these
instances in the US, India and the UK.

During the period of the Great Depression in the 1930s in the US, the US
Supreme Court invalidated a series of legislative measures taken by the
Government under the so-called “New Deal” program.11 These legislations
were intended to directly address the problems arising from the Great
Depression by generating employment, obligating minimum wages, safe
working conditions and other social welfare measures. However, these
legislations were struck down by a majority of the Judges on the premise that
they interfered with the doctrine of freedom of contract and were, therefore,
contrary to the then current philosophy of laissez faire.12 The activism of the
Judges in striking down such obviously valid legislation contributed to the
elongation of the Great Depression leading to unavoidable loss of life and
misery for millions of people. This judicial attitude led the US President
Franklin Roosevelt to threaten to “pack” the Supreme Court with Judges who
would show restraint and accept the legislative wisdom of the “New
Deal”.13 With this threat hanging over their heads and with the death or
retirement of the activist Judges, the US Supreme Court eventually restrained
its activism, leading to the famous quip about the “switch in time that saved
nine”14—the nine Justices!
Judicial activism has still a darker history as seen in the infamous case of Dred
Scott v. Sandford15 where the US Supreme Court virtually supported slavery
by denying the power of the Federal Government to abolish this practice. The
preposterous reasoning put forward by the Judges, ignoring clear provisions
of law, was that black people were not citizens and could not, therefore, claim
constitutional protections. Moreover, since slaves were chattels of the slave-
owners, freeing them from slavery meant forfeiture of the slave-owner’s
property without compensation—something, which in the thinking of those
activist Judges was unfair and unreasonable.16 As we shall see later as well,
this sort of result-oriented jurisprudence requires embarrassing legal
gymnastics from Judges.

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

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

“Judicial activism”, in my view, has both a positive and a negative aspect. It

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

Similarly disingenuous was the judgment of the House of Lords

in Liversidge v. Anderson,23 by which the British Government was given
virtually unlimited powers to detain persons, even on entirely dubious
grounds, during wartime. But, inevitably, there will be conscientious Judges
who will not fall prey to such dubious arguments. Thus, Lord Atkin who was
the sole dissenter (like Justice H.R. Khanna in Habeas Corpus case19), went on
to deplore the majority Judges who according to him:
“When face to face with claims involving the liberty of the subject, show
themselves more executive-minded than the executive.”24
This abdication of the judicial role led one Judge to later comment that from
being lions under the throne, the judgment of the House of Lords had
“reduced us to mice squeaking under a chair in the Home Office”. Thus, we
have seen that judicial activism, especially the explosive admixture of law and
politics, whether exceeding or abdicating the judicial function, has a
thoroughly disreputable history in many parts of the world including India.

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

Activist Judges have often ignored or side-stepped binding legal precedents to

arrive at preconceived results, which conform to their conception of justice.
However honest and bona fide this exercise, its legal legitimacy is open to
question, as I shall presently examine.
E.P. Royappa v. State of T.N.25 is a classic example of this kind of activism in
the interpretation of Article 14 of the Constitution, which, as a matter of fact,
simply deals with “equality before the law or the equal protection of the laws”
and nothing more. The classic formulation of the “Doctrine of reasonable
classification” in Anwar Ali Sarkar,26 reformulated in Ram Krishna
Dalmia27 and in Special Courts Bill, 1978, In re 28 held the field and became
formally recognised as the touchstone for testing legislative and executive
violations of Article 14. However, all of a sudden, in E.P. Royappa25 the
Supreme Court through the concept of “substantive due process”, which had
been specifically rejected by the Constituent Assembly,29 equated the concept
of “arbitrariness” with “inequality”. The Court observed:
“Now, what is the content and reach of this great equalising principle? … We
cannot countenance any attempt to truncate its all-embracing scope and
meaning, for to do so would be to violate its activist magnitude. Equality is a
dynamic concept with many aspects and dimensions and it cannot be ‘cribbed,
cabined and confined’ within traditional and doctrinaire limits. From a
positivistic point of view, equality is antithetic to arbitrariness. In fact equality
and arbitrariness are sworn enemies…. Where an act is arbitrary, it is implicit
in it that it is unequal both according to political logic and constitutional law
and is therefore violative of Article 14….“30
From Royappa25 it was a merry ride through Maneka Gandhi,31 R.D.
Shetty,32 Ajay Hasia,33 and a host of other cases where the Supreme Court
freely struck down actions of the other coordinate branches of the
Government on the basis that it was not “reasonable” or was “arbitrary”, a
standard of judicial review, neither contemplated by the framers of the
Constitution nor by the plain text of Article 14.
Indeed, there are numerous other problems with this “New Doctrine” as some
have pejoratively dubbed it.34 A noted critic is Mr H.M. Seervai who in his
monumental book Constitutional Law of India has found several faults with the
“New Doctrine”.35
At the outset, Mr Seervai argues that the New Doctrine hangs in the air,
because it is propounded without reference to the terms in which the
guaranteed right to “the equal protection of the laws” is conferred. Indeed, by
obfuscating its true meaning, the “New Doctrine” gives Judges the
untrammelled power to strike down legislative and executive action at will
with a bald observation that they are not “reasonable”. In fact, I would submit
that the standard of “reasonability” is no standard at all because what is
“reasonable” or “unreasonable” is in the eye of the beholder without reference
to any objective examination. It is not the duty of the court to decide whether
a certain statute was “reasonable” or not because that is in the policy realm of
India’s democratically elected representatives. The court’s only duty is to
examine whether the legislature had the authority to promulgate the statute
and examine whether the statute violated one of the Constitution’s textually
enumerated fundamental rights.

Secondly, the “New Doctrine” involves the logical fallacy of the undistributed
middle or the fallacy of simple conversion.36 The “New Doctrine” purports to
treat “arbitrariness” and “inequality” as the same thing. In fact, not all
arbitrary actions can be termed unequal simply because some arbitrary
actions are both arbitrary and unequal. If, for example, all red-haired students
are expelled from a school without reason, that action is both arbitrary and
unequal vis-…-vis non-red-haired students. If, however, all students
irrespective of hair colour are expelled, it is simply arbitrary but not
unequal.37 Hence, while “arbitrariness” and “inequality” are conceptually
different, this fact is ignored by the activist mindset.
Thirdly, the “New Doctrine” fails to distinguish between the violation of
equality by a law and its violation by executive action. Finally, the “New
Doctrine”, as Mr Seervai argues, fails to analyse certain concepts like
“arbitrary”, “law”, “executive action” or “discretionary power” and fails to
recognise the necessary implication of numerous Supreme Court decisions on
classification that were arguably binding precedents and certainly settled law.

C. Judicial legislation and separation of powers

(i) “Substantive due process” and Article 21

The Supreme Court, early in its history, in a series of judgments beginning

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

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

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

(ii) Judicial legislation and international law

Judicial activism has even extended to wholesale importation of principles of

international law, which are controversial even internationally. For example,
principles like “precautionary principle” and “polluter pays” have been made a
part of domestic environmental law by the judicial dicta in Vellore Citizens’
Welfare Forum v. Union of India43:
“15. Even otherwise once these principles are accepted as part of the
customary international law there would be no difficulty in accepting them as
part of the domestic law. It is  (sic) almost an accepted proposition of law that
the rules of customary international law which are not contrary to the
municipal law shall be deemed to have been incorporated in the domestic law
and shall be followed by the courts of law.”44
In fact, these principles have been the subject of much critical debate and
there is no unanimity amongst scholars as to their exact content. Even the
concept of “sustainable development”, which the Supreme Court heavily relied
upon, is an extremely nebulous concept, a fact even conceded to in the
judgment itself!45 If that is the case, then I wonder what purpose was served
by making it the fulcrum of a judgment which would obviously bind all
subordinate courts in India who would then inevitably fumble when
considering what was “sustainable development” or how it should influence
their judgments. Let me make it clear that I am not against “sustainable
development” as a legislative or executive policy. In fact, I am personally for it;
but I am against the courts dabbling in concepts that are beyond proper legal
definition.
Further, acceptance of international norms and laws is an exclusively
executive function since it is closely associated with questions of national
sovereignty. Moreover, even if these particular international environmental
law principles are trite for incorporation into domestic law, the Supreme
Court’s judgment provides for automatic incorporation of all customary
international legal principles, whatever their content or validity, into domestic
law. This is clearly a judicial overkill.
Similarly, in M.V. Elisabeth v. Harwan Investment and Trading (P) Ltd.46 the
Court felt that where statutes are silent “it is the duty of the court to devise
procedure by drawing analogy from other systems of law and
practice”47 Drawing upon this rather debatable “duty”, the Court read into the
Merchant Shipping Act, 1958, something that was not even provided for by
the said Act, but provided for in international conventions and according to
the Court was a part of customary international maritime law. This was
despite a catena of Indian precedents to the contrary. Guidance from other
jurisdictions is always welcome, but not the wholesale incorporation of
foreign principles without concern for the actual state of domestic law and the
consequences of such incorporation.48

D. Activism, “political questions” and the problem of justiciability

“Political questions” which were meant to be out-of-bounds for the courts

have often been thrown into the laps of Judges. Instead of throwing them back,
the courts have, with great enthusiasm, essayed into adjudication of such
questions, often with unsatisfactory results. We need to explore first the
reasons for excluding the adjudication of “political questions” by the courts.

The “political questions’ exclusion” doctrine is best stated

in Baker v. Carr,49 where the US Supreme Court held that certain questions
were non-justiciable in a court of law when there was:
“… a textually demonstrable constitutional commitment of the issue to a
coordinate political department; or a lack of judicially discoverable and
manageable standards for resolving it;”50
The recent Jharkhand Assembly dispute would probably fall under the first
category because there is a constitutional provision, Article 212,51 entrusting
the adjudication of such issues to a coordinate constitutional branch, namely,
the legislature, which ideally should have been left free to deal with the
question, the courts keeping aloof.
Ayodhya Reference case,52 where the President requested the Supreme Court
to answer politically sensitive questions like: whether there existed a temple
at Ayodhya before the construction of the Babri Mosque,53 fall in the second
category, where the matter cannot be resolved by reference to “judicially
manageable standards”. It would have in fact required the Judges to opine on a
point of archaeology rather than law, and thereby step on to a political
minefield. The Supreme Court was perfectly correct in refusing to answer the
reference. In fact, such questions have arisen merely on account of the failure
of the executive or the legislature to resolve their own political problems and
are attempts to pass the buck to the judiciary.54 The Supreme Court should
stoutly refuse the temptation to crown itself with political thorns.
Yet, despite the dangers of entering the political Eddystone Rocks,55 the
philosophy of judicial activism has propelled Judges to sail into uncharted
waters. Judges now seem to want to engage themselves with boundless
enthusiasm in complex socio-economic issues raising myriads of facts, and
ideological issues, that cannot be adjudicated by “judicially manageable
standards”.
In Sarla Mudgal56 the Supreme Court made wide-ranging observations on the
need to bring in a uniform civil code and directed the State to explain the steps
it had taken towards the enactment of the same.57 The question of a uniform
civil code is undoubtedly an issue fraught with complex political fault lines
involving minority rights, personal laws, women’s rights and so on, and the
Supreme Court’s observations not unexpectedly erupted into a major political
issue. In a later case, the Supreme Court was forced to back down by
explaining away its controversial observations in Sarla Mudgal56 as having
been “incidentally made”.58 In other cases, Judges have sought to incorporate
ideologically grounded concepts such as “Hindutva”59 and “Socialism”60 into
their judgment with no credit whatsoever.
Judicial activism has also extended to the use of authorities with political
overtones for deciding cases—a wholly improper approach. For instance,
in Shah Bano,61 while the final order granting maintenance to a divorced
Muslim woman is probably correct, the Supreme Court’s approach of relying
on unfamiliar non-legal sources (such as the Holy Qur’an itself)62 and making
sweeping generalisations, instead of narrow legal reasoning,63 made the
Court the target of unseemly political controversies.
It appears that the Supreme Court has slowly begun to realise the futility of
entering upon policy issues, especially economic policy, and this culminated in
the following observations in BALCO Disinvestment case64:
“47. Process of disinvestment is a policy decision involving complex economic
factors. The courts have consistently refrained from interfering with economic
decisions as it has been recognised that economic expediencies lack
adjudicative disposition and unless the economic decision, based on economic
expediencies, is demonstrated to be so violative of constitutional or legal
limits on power or so abhorrent to reason, that the courts would decline to
interfere. In matters relating to economic issues, the Government has, while
taking a decision, right to ‘trial and error’ as long as both trial and error are
bona fide and within limits of authority.”65
This attitude, presently only extending to the economic sphere, should govern
all policy-related disputes that are brought to the courts. Indeed, the answers
to many socio-economic and political problems lie with Parliament and in a
polling booth and not in a courtroom.

E. Enforceability of activist judgments

Arun Shourie’s book Courts and Their Judgments66 is a useful chronicle of the
difficulties that arise when the courts attempt to do what the executive is
constitutionally required to do. The concept of “continuing mandamus” is an
admission of the fact that controversial socio-economic issues need constant
monitoring over intricate details to be sustained over a considerable period of
time. Frequent resort to such orders, which the courts have neither the time
nor institutional mechanism to enforce to their ultimate conclusion,
eventually erodes the credibility of the judicial institution. Despite the acclaim
showered on Bandhua Mukti Morcha67 orders, as pointed out in Courts and
Their Judgments, the results came to nought.68
The courts possess neither the power of the sword, nor the purse; they only
have to rely upon the goodwill and respect of the two coordinate
constitutional branches as that of the general public, for the enforcement of
their orders.69 This argument should, however, not be misunderstood as
recommending the pursuit of public popularity, or suggesting that Judges be
moved by the hysterias of the day, for even Adolf Hitler was popular in his
time. It only means that Judges should be conscious of the limitations of the
judicial function and the consequent need to remain within the judicial
sphere. Indeed, the only power to enforce activist judgments is the power to
punish executive or legislative functionaries for contempt of court, which gets
stunted with overuse. Moreover, it is not possible for the Court to keep on
exercising this contempt power to implement minute details of its orders, the
consequences of some of which may not even be fully realised before their
implementation.
E. Erosion of the principle of stare decisis

During the 1980s, there was a tendency to deviate from settled principles of
law in the name of “innovative principles”; the objective being to render
“social justice”. On the other hand, Professor Roscoe Pound has stated “Law
must be stable, yet it cannot stand still.”70 Similarly, Justice Aharon Barak
says, “Stability without change is degeneration. Change without stability is
anarchy.”71 These wise observations imply that changes in law brought about
by judicial interpretation must, more often than not, be evolutionary and not
be revolutionary or dramatic.72 As dramatically changed interpretations are
error-prone and based only on expediency, it would be wiser to take one step
at a time than a quantum leap, particularly into unknown regions.73 There
may, however, be situations that call for dramatic or sudden changes in law,
but exceptions must be few and far between and not easily resorted to,
as stare decisis is yet one of the fundamentals of our legal system.
Judicial activists do not easily accept stare decisis as a fundamental principle
and in the 1980s the Supreme Court gave the lead to the process of
dismantling stare decisis. The judgment in D.S. Nakara74 is a classic example
of this approach. In D.S. Nakara74, the Court observed:
“Socio-economic justice stems from the concept of social morality coupled
with abhorrence for economic exploitation. And the advancing society
converts in course of time moral or ethical code into enforceable legal
formulations. Overemphasis on precedent furnishes an insurmountable road-
block to the onward march towards promised millennium. An overdose of
precedents is the bane of our system which is slowly getting stagnant,
stratified and atrophied.”75
If the observations of the Court are right, then at any given time the Judge may
do what he thinks in conformity with his conception of “social justice” by
throwing to the winds established principles of law and binding judgments.
Moreover, dramatic changes in law create immeasurable difficulties for the
High Courts and the subordinate courts for they are left to flounder in a sea of
conflicting precedents. They also create chaos and instability for citizens who
have moulded their legal relationships based on the extant law but now find
that the goal post has been moved in the middle of the game! Further, when
the highest court in the land itself shows scant respect for precedents, it may
well encourage the High Courts and the subordinate courts to follow suit,
leading to judicial indiscipline and anarchy, which bodes ill for any legal
system.

III. Undesirable Consequences Ensuing from Judicial Activism

A. Delay, backlog and abuse of public interest litigation

The judicial system, which is currently unable to handle ordinary litigation, as

it faces a huge backlog of undecided cases, has to now contend with non-
traditional types of litigation in the form of public interest litigation (PILs)
that are attempts to use Judges as “social engineers”. Abrogating the principle
of locus standi in the name of ushering in social justice and the upliftment of
the downtrodden sections of society, the courts opened their doors so wide
that they find it difficult to control the influx today. The US Chief Justice John
Roberts, writing about the US Supreme Court, which only hears a small
fraction of the cases the Supreme Court of India hears, had this to say about
the problem:
“So long as the Court views itself as being ultimately responsible for governing
all aspects of our society, it will, understandably, be overworked.”76
Unmindful of the sobering dicta that Judges have neither the power of sword
nor of the purse, the courts have taken upon themselves the duty of
monitoring several actions, which fall exclusively within the purview of the
executive domain. Often one may not find fault with the final results achieved,
but one doubts whether the reasoning by which those results were arrived at
is legally supportable.
Articles 32, 136 and 142 of the Constitution invest extraordinary powers in
the Supreme Court. Correspondingly, Article 226 invests the High Courts with
the all-powerful writ jurisdiction. By abandoning the principle of locus standi,
Judges have now become roaming knights-errant on white chargers tilting at
windmills of injustice to defend the honour of the Dame of
justice.77 Extraordinary powers must be reserved for extraordinary
occasions. Its frequent use detracts from its efficacy and produces an
incongruous effect. As is said in a well-known subhashita:
“”vfrifjp;knoKk lUrrxeuknuknjks HkofrA

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

(“Overfamiliarity breeds contempt and overvisitation results in inhospitality,

just as the Bhil woman in the Malaya mountain burns sandalwood for fuel.”)

There are a substantial number of bogus litigations, which sneak in as public

interest litigation and can simply be collusive, profiteering, or speculative. In
my view, the Supreme Court should not be using Justice Felix Frankfurter’s
words, an “… umpire to debates concerning harmless, empty shadows”.78 In
fact, the ‘P’ in ‘PIL’ often represents “profit”, “publicity” or “persecution” as
more and more manipulative litigants use the court’s shoulder to fire at
rivals.79 Frequent use of public interest litigation for dubious purposes, may
have a chilling effect on entrepreneurs, who would become wary of venturing
into business with the threat of liberally granted injunction order obtained by
their business rivals.
B. Expediency and judicial error
The legislative and the executive wings of the body politic, which possess the
core competence and specialisation in dealing with complex socio-economic
problems, are getting progressively marginalised. The judicial organ of the
State, the least equipped to deal with socio-politico-economic issues, has
occupied the centre stage, and has got bogged down in more and more of such
cases. Sheer expediency or the urge for immediate justice in an abstract sense
is hardly a justification for taking on problems with myriad fine details that
the court is ill-equipped to handle.

Fine-tuning of administrative details is beyond the capacity of the courts, but

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

C. The credibility of the institution

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

In my view, while activist judgments may bring immediate and transitory

succour, if, in the long run, the judgments do not strike at the root of the
problem, what follows is loss of credibility and respect for the institution
among the other constitutional branches and the general public.80 As Justice
Felix Frankfurter said in Baker v. Carr:81
“There is nothing judicially more unseemly nor more self-defeating than for
this Court to make in terrorem pronouncements, to indulge in merely empty
rhetoric, sounding a word of promise to the ear, sure to be disappointing to
the hope.”82
Indeed, Justice Frankfurter could well have been talking about the bonded
labourers and the Supreme Court of India after Bandhua Mukti Morcha67
orders.
D. Diversion of institutional resources
Instead of playing the role that has been constitutionally assigned to it and
utilising its resources towards such role, the assumption of a non-traditional,
activist role by the Supreme Court has led to the diversion of its attention and
resources. As in cases of “continuing mandamus”, where it has to exercise
continuous monitoring and supervision over executive authorities, judicial
activism strains the institutional resources of the Court. It also diverts the
time, talent and energy of Judges into channels that they are neither required
to navigate, nor equipped to, for lack of competence, skill or resources.

E. Personality driven rather than institutionalised adjudication

Judicial activism creates labels for Judges such as “pro-labour”, “anti-labour”,
“pro-tenant”, “anti-tenant”, “progressive”, “conservative” and so on.83 This is
so because the scope and the extent of judicial activism ultimately depends on
the personal predilections of the individual Judge and his/her own conception
of what “social justice” ought to be. In effect, the result becomes personality-
oriented rather than oriented towards “justice according to law”, which is the
duty of a Judge. Personality-driven adjudication provides avenues for “forum
shopping” by lawyers and litigants. Instead of “justice according to law”, the
courts would administer justice according to the propensities of the Judge,
harking back to the days of justice at the Chancellor’s foot in England.
IV. Arguments against Judicial Restraint
A. “Judicial restraint is a ‘rightist’ ideology”
One of the criticisms of judicial restraint is that it is “pro-government”, “pro-
rich” and “anti-social justice” and hence a “rightist” ideology. It is a
misconception to think that judicial activism arises from “left” or “right”
oriented philosophies, two terms with hazy meanings at best. Judicial activism
is nothing but jumping the fence. The fact that it is done from the “right” or
“left” is hardly of significance because to an activist Judge what he considers to
be the correct philosophy matters, “leftist” or “rightist” being sheer
coincidence. In fact, as we have seen earlier, the “New Deal” cases, the Habeas
Corpus judgment, the “Hindutva” judgments and the pro-slavery judgment are
instances of activist Judges with a so-called “rightist” ideology.
More often than not, the individual philosophy of the Judge becomes tailored
to the dominant discourse. A Judge is enjoined by the Constitution to often
perform a counter-majoritarian role to prevent unjustified executive or
legislative incursions into the textually enumerated fundamental rights of
citizens, or to prevent abuse of representative democracy. By entering into the
political thicket, as evidenced in the Habeas Corpus case, judicial activism can
wholly erode judicial independence and run contrary to the Judge’s
constitutional duty to decide cases “without fear or favour”.
B. “Judicial restraint is an activist philosophy in itself”
There can be no difficulty in accepting judicial restraint or legal centrism as a
judicial philosophy in itself. But this philosophy is very different from judicial
activism that I have spoken against. Despite the high-sounding words, “judicial
restraint” only means that the Judge shall stick by the law and decide legal
controversies strictly in accordance with established principles of law without
foraging the constitutionally forbidden territories reserved for another
branch of the government. In my view, that precisely is the role a Judge is
called upon to play by reason of the oath that he undertakes. A Judge is not
free to render justice as he thinks, but is required to render “justice according
to law”. As Times of India in an editorial has aptly commented:
“Judges are meant to act as humble interpreters of law, not pose as emperors
who adjudicate on a whim. We need faceless, impassive Judges,
compassionate but disciplined legislators and an executive that acknowledges
the supremacy of the legislature and independence of the judiciary. Sadly,
technical Judges are not easy to come by in India. Some arrange marriages
between rapists and their victims. Others turn into committed municipal
authorities. Courts are meant to be more serious than Bollywood makes them
out to be.”84
Conceded that in a few cases “justice according to law” may produce less-than-
perfect results, but more often than not, “justice according to law” produces
an outcome that is in line with crystallised public opinion. Indeed, if “justice
according to law” was so abhorrent, then we would have seen a revolution in
India and a scrapping of the Constitution. The fact that this has not happened
is positive proof that “justice according to law” and “justice without fear or
favour” is the correct approach.

C. “Judicial restraint would have meant no Kesavananda Bharati85″

There may occur occasions in judicial history, when Judges must make
dramatic, sudden and even revolutionary changes to law, by marginalising the
“justice according to law” principle. Exceptional situations may call for drastic
steps, but that can happen only exceptionally. In fact, in fifty-odd years of our
Constitution, I can only think of one such situation. This was when the
executive and legislature in collusion sought to use the Constitution to destroy
the Constitution itself. Therefore, in my view, the “Basic Structure Doctrine”
evolved by the Supreme Court in Kesavananda Bharati85 is, if at all an
exercise of judicial legislation, a justifiable one, because without it there would
have been no Constitution and no independent judiciary worth the name.
After all, as the maxim goes,  necessitas non habet legem.86 That is a different
kettle of fish from the activism of the 1980s and 1990s where judicial
legislation was resorted to at the drop of a hat to address every socio-
economic problem of the day, however unfortunate, but nevertheless lacking
the imperative urgency facing Kesavananda Bharati85 court. The Queensberry
Rules87 are to be strictly observed except when your own life is at stake!
V. Conclusion
Fortunately, the fervour for judicial activism, which engulfed the courts during
the third and fourth decades seems to be ebbing with the progressive
realisation that it is preferable to tread the “highways” of justice instead of
resorting to the “bye-lanes” of activism in the hope of expeditiously reaching
the goal of justice. As I have pointed out, deviation from the well-trodden path
frequently leads to wholly unjust outcomes. The wholesome admonition of
the Garuda Purana in this respect is worth bearing in mind:
“;ks /kzqokf.k ifjR;T;k/kzqoa ifj”ksorsA

/kzqokf.k rL; u’;UR;/kzqoa u”Veso pAA”

(“He who forsakes that which is stable in favour of something unstable, suffers
doubly; he loses that which is stable, and, of course, loses that which is
unstable.”)88
I began with Chief Justice Hidayatullah and would like to conclude by referring
to his quip on judicial activism and restraint:

“There are many ways of skinning a cat. You can do it quietly or you can do it
ostentatiously.”89
In my view, it is preferable to do the judicial skinning quietly and
unostentatiously and in accordance with positive law.

* Adapted from a speech delivered at the Sesqui Centenary Celebrations of the

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