SATYAM BRUYAT -

Justice Katju
Thursday, 24 October 2013

Separation of Powers, Judicial Review and Judicial

Activism
- by Justice Markandey Katju

The Separation of Powers principle[1], propounded by the

French political thinker Montesquieu, has been elaborately discussed in
my judgment in Divisional Manager, Aravali Golf Course v. Chander
Haas (2008) 1 SCC 683 (vide paragraphs (17 to 40). Judicial activism is
basically a deviation from this principle. Judicial activism is based on
the theory of Jurisprudence called Sociological Jurisprudence, which
arms the judiciary with wide legislative and executive powers.

Judicial review of statutes is discussed elaborately in my

judgment Government of Andhra Pradesh v. P. Laxmi Devi (2008), vide
paragraph 31 to 94.

We may therefore come directly to the subject of judicial

activism, where many difficulties have arisen.
Introduction

The common ancestor of both the U.S. and Indian judiciary is

the British judiciary. Hence both the countries are indebted to the
British legal system for many of their principles and institutions.

In England, since Parliament was supreme and there was no

written Constitution, the traditional approach of the British Judges was
only to apply the law made by Parliament to the facts of a particular
case, and thereby reach to a decision based on that law. Law is the
command of the sovereign said Austin, and since inEngland the
sovereign was Parliament, law was what was made by Parliament, not
the Judges. Thus, the British Judges were subservient to Parliament,
and were not expected to be activist. The separation of powers theory
of the French writer Montesquieu said that law making was the job of
the legislature, and taking administrative and policy decisions was the
job of the executive. Judges were expected to be like a referee in a
football match, who was only to see that the rules were followed, but
was not to himself take part in the match nor advise the players how to
play. The literal rule of interpretation was followed with particular
emphasis inEngland, since to depart from it would amount to thwarting
the will of Parliament, which was supreme in Englands unwritten
Constitution.

This approach was in accordance with the positivist school of

jurisprudence propounded by the British jurists Bentham and Austin,
who placed the centre of gravity of the legal system on statutory law,
that is, law made by the legislature.

In contrast, sociological jurisprudence, which originated in

Continental Europe in the late 19th century (see Bodenheimers
Jurisprudence) was developed in U.S.A. by Roscoe Pound, the realist
school, etc. and sought to shift the centre of gravity in the legal system
from statute to judge made law (see Legal Theory by W. Friedman
and American Jurisprudence by James Herget) .

We are not going into the various theories of sociological

jurisprudence, and we need only comment that these theories would
certainly have had an impact on many of the judges of the U.S.
Supreme Court.
 The traditional understanding of the judicial process is that while
the legislature makes laws and the executive implements them, the
judiciarys function is only to interpret and apply the law to the facts of
a particular case.

As an organic document, a written Constitution chiefly performs

two main tasks- firstly, it sets up the organs of governance,
and secondly, having set up these institutions, it provides a recourse
against the abuse of power by these organs.

India and the United States of America are both no exceptions to

this rule. There are certain fundamental similarities in the legal set-up
of both countries. As former colonies of Great Britain, they both
inherited a common law system, and (at varying times) a deep distrust
of any organ of government not having requisite checks and balances.
As a result, the written Constitutions of both countries, though differing
greatly in length (the Indian Constitution is the longest one in the
world, whereas the American Constitution is one of the shortest) --
contain a number of similarities. Both have a set of Constitutional
Rights based on the Natural Rights model of John Locke that assume
primacy -- the Bill of Rights in the American Constitution, and the
fundamental rights in Part III of the Indian Constitution. Both
Constitutions are also federal, though, to understand the Indian
concept of federalism, it may be noted thatIndias Constitution has
been described as being `quasi-federal having a strong unitary bias.
Furthermore, both Constitutions guarantee equality, freedom of speech
and religion, and life and liberty through their respective chapters on
inalienable rights.

It is important to note that both societies are also fundamentally

similar. India and the United States of America have immense diversity
of every kind -- climate, land, language and people. In India there are
so many castes, religions, languages, ethnic groups, etc In countries of
such diversity, Constitutional texts create an immense binding force by
their guarantees of equality, secularism and federalism. However, in
doing so, the judiciary is frequently called upon to play a pro-active
role in cases of disputes, or contested interpretation of rights. In such a
situation, it is tempting for the judiciary in the garb of the sole
interpreter of these rights, to play a larger role in the governance of a
country than is strictly required by the law. In this paper, it is proposed
to examine how the judiciary of both India and the United States, have
looked at this power, and what pitfalls may emerge when judicial
activism becomes judicial adventurism.

JUDICIAL ACTIVISM AS A PHILOSOPHY:

The expression `judicial activism is often used in contrast to

another expression `judicial restraint.

As an ideology of the judicial process, judicial activism implies

the use of the court as an apparatus for intervention over the
decisions of policymakers through precedent in case law. [2] In doing
so, the Court often creates law and seeks to play a greater part in the
governance of a country through allowing their personal views about
public policy[3] to aid them in their decisions. The role of judges in
such cases goes beyond the traditional interpretative role that has
been assigned to them, and shifts to a model by which judges seek to
make law, encroaching on the Separation of Powers doctrine, which
forms the bedrock of the Indian and United Statesconstitutional
system. When a Court strikes down a law in an activist manner, it
places primacy upon its interpretation of a constitutional text,
sidelining the opinion of the legislature or executive.

Not surprisingly, judicial activism has been extremely

controversial from its very beginning. Opinions are divided as to
whether an unelected body should exercise such power, and whether
in doing so has the right to supersede an elected legislature. The
extent to which the use of the term itself provokes such dislike from its
detractors can be seen by the immediate branding of an opinion one
dislikes as an example of judicial activism. [4] Its supporters, on the
contrary, argue that being an unelected body may give the Court
greater wherewithal in making decisions with regard to the enunciation
of individual rights which the legislature for some reason may be
unable or unwilling to do.

This may be explained by a case of the Irish Supreme

Court, McGee v. The Attorney General and Revenue Commissioner[5], a
case in which the validity of an archaic Irish law against the sale and
import of contraceptives in a strongly Catholic country was challenged.

The facts of the case were that an Irish lady Mrs. Mary McGee,
had four children, and her doctors advised her that it was dangerous to
have another pregnancy. She imported contraceptive jelly from
England, but when that landed on the Irish coast it was seized by the
Irish Customs Authorities in view of the Irish law against the import and
sale of contraceptives.

The problem was that no Irish politician dared to bring a bill to

repeal the outdated and archaic law against the import and sale of
contraceptives out of fear that if he did so the Catholic Church would
use its enormous influence to destroy the political career of that
politician.

Before the modern era almost every woman had 15 to 20 children

because there were no contraceptives then. Of course most of these
children died at childbirth or at a tender age because medical science
was not advanced at that time.
 In modern times most women prefer to have one or two children.
That is because on each child a lot of time and money has to be
invested. Hence the right of a woman to have sex without having
pregnancy is a basic norm, without which modern society cannot
function.

If a norm is required by a society for its smooth functioning at a

particular stage of its historical development, and society cannot
function without that norm, then that norm is bound to emerge in some
way or the other.

Normally legal norms emerge out of the legislative process. But if

the legislature is paralyzed, or if for some reason it is unable to create
that legal norm, then that norm will emerge out of the judicial process
(by judicial legislation) or some other process, but emerge it will
because society cannot function without it.

In Mary McGees case the Irish Supreme Court struck down s. 17

of the Act, which outlawed the sale and import of contraceptives, as
being violative of Article 40.3 of the Irish Constitution which said that
the State is bound to protect the personal rights of the citizen, in
particular his life, person, good name and property. There was no
mention of any right to privacy in Article 40.3, but by judicial
interpretation it was accepted as an unenumerated right included in
personal rights. The same was done by the U.S. Supreme Court in
Griswold v. Connecticut (1965), and in India vide X vs. Hospital Z,
(1998) 8 S.C. 296 (para 28)

Other examples of judicial activism are the decisions by the U.S.

Supreme Court in Brown v. Board of Education[6], Miranda v.
Arizona, and Roe v. Wade[7] (modified in Planned Parenthood
Association v. Casey, 1992), and of the Indian Supreme Court inManeka
Gandhis case (AIR 1978 SC 593) as well as its decisions relating to
Article 21 of the Indian Constitution, etc. We shall discuss some of
them below.
THE AMERICAN EXPERIENCE WITH JUDICIAL REVIEW:

The power of judicial review is not specifically mentioned in the

US Constitution, but in the celebrated case of Marbury v. Madison,
[8] the US Supreme Court struck down part of the Judiciary Act, 1789,
holding that it violated the US Constitution. Thus the Court assumed
that it had this power, since a Constitution is the highest law of the
land, and prevails over ordinary statutes. The Court, however,
continued to be very sparing in the use of this power throughout most
of the 19thcentury, only using it in the Dred Scott decision in 1857. In
1811, the Supreme Court of Pennsylvania said: an Act of the
legislature is not to be declared void unless the violation of the
Constitution is so manifest as to leave no room for
reasonable doubt."[9]In fact, Prof. James Bradley Thayer of Harvard
University, one of the great proponents of judicial restraint in an article
published in 1893 in the Harvard Law Review, argued for courts not to
be hasty in striking down legislation, for an activist court (though the
phrase was not then invented) would dwarf the political capacity of
people (referring to the legislature) and deaden their sense of moral
responsibility.[10] Hence, he suggested that the judiciary should
exercise restraint and ordinarily defer to the will of the legislature, and
only strike down laws in a situation where by no means could these be
harmonized with the Constitution, and his philosophy of judicial
restraint was broadly followed by Justice Holmes, Brandeis, and
Frankfurter. (It has also been followed by the Indian Supreme Court
in Government of Andhra Pradesh vs. P. Laxmi Devi 2008(4) SCC 720.

This approach has also been followed by Chief Justice John

Roberts of the U.S. Supreme Court in the Healthcare case decided in
2012 (National Federation of Independent Business vs. Kathleen
Sebelius, Secretary of Health) who upheld most of the Affordable Care
Act on the basis of the taxing power in Congress. Although the Act was
really to provide healthcare, it imposed a tax on those companies
which did not provide health insurance for its employees. The learned
Chief Justice in that decision followed the settled principle that if two
views are possible, the one in favour of upholding the Constitutional
validity of the statute should be adopted by the Court.
The problem, however, remained about interpretation of the
Constitution. The Bill of Rights in the U.S. Constitution contain rights
like freedom of speech, liberty, freedom of religion, equality, etc. which
can have different meanings. Many problems arose while interpreting
these rights. For instance, apart from the rights specifically mentioned
in the Bill of Rights are there any unenumerated rights e.g. the right to
privacy which Courts can recognize? What meaning should be given to
freedom of speech and vague expressions like `due process in the
14th Amendment? Does the word `liberty include liberty of contract?
Should the commerce clause in Article 1 Section 8 be given a strict or
expansive interpretation?
A word can have several meanings. As Justice Holmes of the U.S.
Supreme Court observed in Towne vs. Eisner 245 U.S. 418 (1918): A
word is not a crystal, transparent and unchanged; it is the skin of a
living thought, and may vary greatly in colour and content according to
the circumstance and time in which it is used.

JUDICIAL ACTIVISM OF THE U.S. SUPREME COURT

There have been broadly two periods of judicial activism by the
US Supreme Court, the first being the laissez faire activism from the
end of the 19th Century upto 1937, and the second being the era of the
Warren Court, that is from 1953 to 1969 when Earl Warren was the
Chief Justice.

THE LOCHNER ERA: LAISSEZ-FAIRE ACTIVISM:

The early years of the 20th century saw a spate of legislation in
U.S.A. to protect workers from the dreadful conditions that were then
prevailing. These included Acts fixing maximum hours of work for
workmen in factories, minimum wages, and other welfare measures.
The US Supreme Court, however, regarded this interference with
freedom of contract as unconstitutional. It interpreted the word
liberty in the 5thand 14th Amendments as including liberty of contract,
and thereby formulated, in the last decade of the 19 th century, a theory
of economic due process according to which it was essential that all
measures restricting liberty of contract be just, fair and reasonable,
that is, in accordance with the due process clause in the
14th Amendment. Under this theory it repeatedly struck down labour
legislation and economic regulatory rules.
A seminal case in this regard was that of Lochner v. New
York[11], where the law in challenge was the Bakeshop Act, 1899,
which imposed a maximum limit of 60 working hours a week for bakery
workers. Lochner, the owner of the bakery, filed a suit in the Supreme
Court arguing that his right to liberty of contract under the
14thamendment to the Constitution was violated by this law. While the
Supreme Court had, eight years earlier, accepted such a legislation
with regard to miners,[12] this time the Court was not as
accommodating. Justice Peckham, speaking for the majority, relied on
the case of Allgeyer v. Louisiana[13] to hold that liberty would also
imply economic liberty, namely, the freedom to enter into all
contracts which may be proper, necessary and essential for a person
to live, work and earn his livelihood.[14] In doing so, he held that
bakers were not wards of the state, and so had the right to enter into
any forms of contracts with their employers. Hence, an interference in
this regard would be considered to be an unreasonable exercise of
state power. Further in his judgment, he sought to affect a distinction
between Lochner and Holden by stating that, in contrast to a miner,
the job of a baker was not unhealthier than any other reasonable job.
Hence, there could be no real or substantial relation between the
legislation and its object- to protect the health of bakers.
 The dissenting opinions (of which there were two, one authored
by Harlan, J. and the other by Holmes, J.) were strongly against this
explanation, though admittedly for different reasons. While Harlan, J.
argued that the legislation should be saved as it was enacted to
protect the physical well-being of those who worked in these
establishments, and adduced medical evidence to prove it, Holmes, J.
had a more theoretical argument against the decision. He criticized it
on the grounds that the Constitution was not made for a particular
economic theory ( the laissez faire theory) and could not be used to
strike down legislation that judges would find not to their liking. The
legislatures wisdom could not be questioned merely because the Court
subscribed to a different view, or because it thought the legislation
unwise. The scornful dissent of Holmes to the majority view was
contained in the famous line the Fourteenth Amendment does not
enact Mr. Herbert Spencers Social Statics.

The importance of this case, though it was not the first one in this
regard, can be seen from the fact that the general tenor of decisions
for the next thirty-odd years followed it, leading to the entire era to be
referred to as the Lochner era of the US Court. During this period, the
U.S. Supreme Court has been described as being judicially activist but
politically conservative[15]. The Courts desire to promote laissez-faire
capitalism, and its understanding of economic and contractual freedom
being the sole forms of such promotion, meant that it ignored the
inherent inequality between employers and workers.

In these decisions the Court held that the word `liberty in the
14th Amendment included liberty of contract, and was not restricted to
personal liberty (see in contrast Article 21 of the Indian Constitution in
which the word personal has been used before the word liberty).
The Court held that both employer and the prospective employee are
free to enter into any kind of contract. This view overlooks the fact
that the liberty of the worker is illusory. He is in a disadvantageous
position as compared to the employer, and if he does not accept the
terms of employment offered to him, however onerous, his alternative
may only be to starve.

It is interesting that the Court, in its zeal to promote freedom of

contract, resolutely declined to worry about the ways these contracts
could be used to create a situation which increasingly resembled
servitude. The case of Hammer v.Dagenhart[16] is an illustrative
example, where the Court struck down a legislation that banned
interstate commerce of items that were produced by children. The
logic behind this, according to the Court was that the good itself was
not immoral (in contrast to earlier Acts that had been upheld which
pertained to lotteries) and that the manufacture of these goods (in this
case, cotton) did not come within the ambit of inter-state commerce.
Interestingly, Holmes, J. dissented strongly, though his dissent was not
to become law until 1941.[17]

A similar decision was handed down in 1923, in the case

of Adkins v. Childrens Hospital[18] where the power of the Congress to
pass a law fixing a minimum wage was the subject of dispute. This law
had come about as a result of Congresss powers to maintain the
health and safety of the citizens of the country. In deciding this case,
the Court referred to the Lochner precedent to strike down this law,
holding that there existed a difference between minimum-wage laws
and hours fixing maximum working hours, and that minimum wage
laws imposed an artificial restriction on the rights of the employer.
Disingenuously, the Court argued that the imposition of a minimum-
wage law would imply a corresponding need to fix a maximum-wage
law as well. In doing so, however, the Court seemed to ignore social
realities. The paternalistic attitude that had marked the Muller era (see
Muller vs. Oregon 1908) seemed to have disappeared, with the Court
itself saying that the revolutionary changes that had marked the
fifteen years between the two cases, including the extension of adult
suffrage to women, meant that such special measures could not be
justified.

By the 1930s, however, it was obvious that the Court had over-
extended its reach. The advent of the Great Depression (after the Wall
Street Slump in 1929) meant that the laissez-faire doctrine that had
guided the Court through much of the preceding 40 years could no
longer command the same reverence it had earlier. The breaking point,
however, came as a result of President Franklin Roosevelts
exasperation with what he considered to be the Supreme Courts
insistence on striking down legislation that was essential to the New
Deal.[19] The President then sought to change the composition of the
Court, proposing appointment of an extra judge for each judge over 70
years old. This attempt to pack the Supreme Court through the
introduction of the Judicial Reforms Procedures Bill, 1937, lapsed, as
the Court deferred to legislative intent. The first case that is widely
considered to mark the ebbing of the tide of activist judgments was
the case of West Coast Hotels v. Parrish[20], where Justice Owen
Roberts is widely perceived to have[21] switched sides, upholding the
constitutionality of a minimum wage statute for women, thereby going
against previous precedent.[22] This switch in time which saved nine
marked the end of the first phase of judicial activism, and largely put
an end to the economic due process theory of the Court, and
thereafter the Court switched from Laissez Faire to Keynesian
economics.

The Lochner Era, while being against the working class and
against economic regulation, was, however, also characterized by
judicial activism in the field of individual liberties, largely through
Justice Holmes theory of `clear and present danger in Schenck v. U.S,
249 U.S. 47(1919). This was subsequently diluted and practically
overturned in Dennis v. U.S., 341 U.S. 494(1951), but there was some
degree of return to the Holmesian doctrine later.
 JUDICIAL ACTIVISM IN THE US: THE SECOND PHASE

The US Supreme Courts next activist phase began after Justice

Earl Warren became its Chief Justice in 1953. However, there was a
world of difference between the sort of activism that had happened in
the first phase, and the sort that happened in this one. Wisely, the
Court decided not to bring back the idea of substantive due process for
economic rights, and focused on the civil rights of its citizens. The
Warren Court is supposed to be the high point of judicial activism in the
United States, and most perceptions of its merits and demerits are
based on the decisions made by this Court [23].

Warren, J., who had been elevated to the bench after three terms
as the Governor of California, came committed to social justice
ideologies. He himself stated that justice for all was not a function only
of the Supreme Court, but could only be achieved once all branches of
the legal system worked together in harmony. In his quest for harmony,
he did not shy away from extremely divisive institutional problems in
the American system, and providing moral leadership to a country in a
state of flux. Its critics, however, have argued that the judiciary had
decided to virtually legislate from the bench[24], and had, in doing so,
ignored judicial precedent. In fact, Black, J. in his dissent in Roe v.
Wade, went so far as to say that he felt that the Court was not
interpreting the Constitution according to what it said, but rather on
the basis of whatthe judges wanted it to say.[25]

The first major case, and perhaps the most famous one, in this
era is the seminal case of Brown v. Board of Education, Topeka.
[26] This sought to overturn racial segregation, a policy which had been
in place since the reconstruction period in the United States in the
1870s[27], and which had been judicially upheld in, inter alia, the 1896
case of Plessey v. Ferguson, where the Court said that separate
facilities were legal, as long as essentially the same service were
provided. Separate but equal was really a devious doctrine to put
blacks down in society. Brown, which saw through this deviousness,
dealt with segregated schools in Topeka, Kansas, which were legal up
to the middle school level in the state. The question, hence, arose with
regard to the 14th Amendment of the Constitution of the United States,
which had guaranteed to black people all the rights that Americans
had possessed as citizens, specifically the right to equal protection of
the law. This Constitutional provision had been read literally in all ways
to severely limit the scope of its operation. In many ways, though,
Supreme Court decisions had shown increasing discomfort with the
way these prohibitions were formulated, holding that all legal
restrictions which curtail the majority right of a single racial group are
immediately suspect.[28] In two other cases decided in 1950, the
Supreme Court had also looked at what equality would mean, including
both tangibles and intangibles within its ambit, while at the same time
stating that a separation of students from his colleagues (as the
University of Oklahoma had effected) would mean that the facilities
were separate, though not equal.

This does not detract from the impact of the decision. At a stroke,
the Court refused to accept the separate but equal doctrine when
applied to racially-segregated schools, and instantly held that
segregation, by its very nature imposed inequality, especially when:
it has the sanction of the law, for the policy of separating the races is
usually interpreted as denoting the inferiority of the negro group. A
sense of inferiority affects the motivation of a child to learn.
Segregation with the sanction of law, therefore, has a tendency to
retard the educational and mental development of negro children and
to deprive them of some of the benefits they would receive in a
racial[ly] integrated school system[29]
To further justify this, the Court said in interpreting the importance of
the 14thAmendment, one could not turn the clock back to when it
was adopted, or when the Plessey case was decided, but rather that
the rights guaranteed in it, especially with regard to education, must
be considered with regard to its contemporary value.
In order to implement this decision, however, the Court decided
another case with the same defendants, colloquially called Brown II.
[30] In this decision, the Court held that it was essential that Brown I be
implemented by the local school boards under the supervision of the
Federal District Courts, and that this be done with all deliberate
speed. In subsequently explaining this decision, Warren, J. explained
why he had not been in favour of immediate racial segregation by
implying that the logistics would take a long time to be worked out,
even, possibly, by 1968.[31]

The impact of this decision was massive, and polarized society.

On the one hand, organizations like the NAACP were vociferous in their
support, while the racial organizations in Southern states organized
massive resistances. In some cases, the political leaders of these
states were at the forefront of such movements. For instance, in
Alabama, the Governor himself stood at the door of an auditorium as
late as 1963 to prevent black students from entering the auditorium in
an educational institute. However, the value of such a precedent in
terms of guaranteeing civil rights has never been seriously doubted.
Many commentators still feel that the United States falls short of
fulfilling the promises made in Brown; that racial segregation and
profiling still exists, but most agree that the rationale of the decision
was right, though whether the judiciary was the preferred forum for
such adjudication is still questioned. However, given that state laws
had shown little modification since the 1870s, the intervention of the
judiciary assumed importance. In subsequent decisions, the Warren
Court refused to allow the closure of public schools
in PrinceEdward County, Virginia, stating that grounds of race and
opposition to desegregation would not be sufficient to allow such
closures.[32]
 Another important set of cases pertained to questions of Criminal
Due Process. These rights are rights guaranteed by the 4 th, 5th and
6th Amendments to the Bill of Rights. While certain faltering steps had
been taken in this regard even before the Warren Court[33], the
immense judicial activism that was done by the Court in these years
modified the understanding of Criminal Due Process. In doing so, the
United States Supreme Court ruled unanimously that the Constitutional
guarantee of the Sixth Amendment included that state courts are
required to provide counsel in criminal cases for those who cannot
afford an attorney[34]. In a subsequent case, the Court looked at the
necessity for counsel at an earlier stage, and held that all suspects had
a right to attorneys during police interrogation. [35] In doing so, the
Court dismissed the arguments that these would be antithetical to
convictions by saying that no system of criminal justice can, or should
survive if it comes to depend for its continued effectiveness on the
citizens abdication through unawareness of their Constitutional
rights.[36]

Along with this, the right against self-incrimination embodied in

the U.S. Constitution was also extended to state court proceedings as
well[37], thereby overturning earlier precedents.[38]

However, the most important case of that era was that

of Miranda v. State ofArizona[39] which completely altered the
understanding of the right against self-incrimination that the Fifth
Amendment to the United States Constitution had provided. The
Supreme Court, moving away from the earlier belief that all that was
necessary at the time of arrest was a bona fide belief in the guilt of a
person, created what are known as the Miranda rights, partly a
summary of the earlier decisions of the Court. These rights stated:
The person in custody must, prior to interrogation, be clearly informed
that he has the right to remain silent, and that anything he says will be
used against him in court; he must be clearly informed that he has the
right to consult with a lawyer and to have the lawyer with him during
interrogation, and that, if he is indigent, a lawyer will be appointed to
represent him.[40]

Not surprisingly, Justice Warrens approach, another example of

judicial legislation, aroused great controversy, not only in the political
sphere but also with his own colleagues. The earlier unanimity
of Gideon v. Wainwright (1963) had faded, and Clark, Harlan and
White, JJ, wrote separate opinions, where both Harlan and White, JJ.
argued that the extension of these rights was constitutionally improper
and judicially impermissible. White, J., in fact went further in his rebuke
to the majority decision, and disclaimed any responsibility for the
impact of the decision upon the contemporaneous criminal system.
[41] It is believed to be the impact of this decision that led President
Nixon, elected two years later, to announce his decision to appoint
strict constructionists to the United States Supreme Court.[42]

In the context of Judicial Activism, it is also important to

mention two celebrated cases, even though only one was decided by
the Warren Court, to look at the reactions it has received from popular
opinion. These refer to cases dealing with matters like contraception
and abortion. The question of the right to privacy which came up in
theWarren Courts celebrated decision of Griswold v. State
of Connecticut[43], is significant. This case held that the right to use
contraceptives was a right that could not be prohibited by law, as it
came within the ambit of the right to privacy. While the right to privacy
is not specifically mentioned in the Constitution, the Court created a
penumbra right, holding that while they did not sit as a super-
legislature to determine the wisdom, need, and propriety of laws that
touch economic problems, business affairs, or social conditions,
however, a law prohibiting the use and sale of contraceptives would
operate directly on an intimate relation of husband and wife. Similarly,
the Burger Court, in the case of Roe v. Wade took a controversial stand
where it extended the right to privacy argument to a case of
abortion, even though in such a case it balanced the competing right of
the life of the child and the mothers health in formulating what later
became known as the trimester test. In Planned Parenthood
Association v. Casey, 1992 the Court abandoned the trimester test and
adopted the viability and undue burden tests, which is still the law
relating to abortion in U.S.A. (the decisions of the U.S. Supreme Court
relating to abortion will not apply in India, because in India we have the
Medical Termination of Pregnancy Act, 1971).

If the Griswold decision had been controversial,

the Roe decision kicked up a storm of controversy, not only on the
matter at hand but also on how the Court had chosen to decide cases.
Commentators decried the decision by alleging that the Court was
acting as a legislator, and that the judiciary should defer to the
legislative, democratic (see Robert Borks `The Tempting of
America). Those in favour, however, justified the decision by claiming
that there were valid grounds, within Constitutional texts, to justify
such a decision.[44] Dissenting judges (White, J. and Rehnquist, J.)
decided to write a separate opinion, where White, J. attacked a
decision which, though he felt may be right, lacked constitutional
warrant:

The Court simply fashions and announces a new constitutional right

for pregnant mothers and, with scarcely any reason or authority for its
action, invests that right with sufficient substance to override most
existing state abortion statutes. The upshot is that the people and the
legislatures of the 50 States are constitutionally disentitled to weigh
the relative importance of the continued existence and development of
the fetus, on the one hand, against a spectrum of possible impacts on
the mother, on the other hand. As an exercise of raw judicial power,
the Court perhaps has authority to do what it does today; but, in my
view, its judgment is an improvident and extravagant exercise of the
power of judicial review that the Constitution extends to this Court

PRESENT-DAY JUDICIAL ACTIVISM IN THE UNITED STATES:

In recent years, however, the U.S. Supreme Court has become
much less activist as compared to the heyday of activism in the
Warren era. The Rhenguist Court was quite conservative, while the
present court is often deeply divided (see the Healthcare Act decision
of 2012 by a 5-4 majority referred to earlier) Some of the few instances
where the Courts decisions have been criticized on the grounds of
activism includeLawrence v. State of Texas[45] where the Supreme
Court struck down a Texas statute that considered same-sex sexual
activity to be a crime. This decision has been recognized as advancing
an explicitly equality based and relationally situated theory of
substantive liberty.[46] A recent judicial decision that has dealt with
limits that have been imposed on private spending in electoral
campaigns[47] has also been considered to be an activist decision,
which overturned the 2002 Bipartisan Campaign Finance Act, thereby
allowing corporations and unions to make electioneering
communications within 30 days of a primary or sixty days of a state
election. In doing so, the Court held that these laws would invariably
translate into censorship, and that such censorship was antithetical to
the continued functioning of a democracy. Kennedy, J., held that the
imposition of such limits would lead to a curtailment of the right to free
speech under the First Amendment of the Constitution. The bench,
however, was sharply divided, with the majority only being 5:4.
Stevens, J., who dissenting, argued that the overturn of these laws
would lead to compromising the integrity of the American political
scenario, and concluded by saying:
At bottom, the Court's opinion is thus a rejection of the common
sense of the American people, who have recognized a need to prevent
corporations from undermining self government since the founding,
and who have fought against the distinctive corrupting potential of
corporate electioneering since the days of Theodore Roosevelt. [48]

Judicial Activism: The India Scenario

The Indian Constitution, promulgated in 1950, largely borrowed

its principles from Western models parliamentary democracy and an
independent judiciary fromEngland, the Fundamental Rights from the
Bill of Rights, and federalism from the federal structure in the U.S.
Constitution, and the Directive Principles from the Irish Constitution.
These modern principles and institutions were borrowed from the West
and then imposed from above on a semi-feudal, semi-backward society
in India.

In Western countries such as England, the modern democratic

principles and institutions were a product of historical struggles from
the 16th to 19th Centuries in those countries.

In India, on the other hand, these modern principles and

institutions were not a product of our own struggles. They were
imported from the West and then transplanted from above on a
relatively backward, feudal society, the aim being that they will pull
India forward into the modern age.

The Indian judiciary, being a wing of the State, has thus played
a more activist role than its U.S. counterpart in seeking to transform
Indian society into a modern one, by enforcing the modern principles
and ideas in the Constitution through Court verdicts.

In the early period of its creation the Indian Supreme Court was
largely conservative and not activist. In that period, which can broadly
be said to be upto the time Justice Gajendragadkar became Chief
Justice of India in 1964, the Indian Supreme Court followed the
traditional British approach of Judges being passive and not activist.
There were very few law creating judgments in that period.

Justice Gajendragadkar, who became Chief Justice in 1964, was

known to be very pro-labour. Much of the Labour Law which he
developed was judge made law e.g. that if a worker in an industry was
sought to be dismissed for a misconduct there must be an enquiry held
in which he must be given an opportunity to defend himself.

In 1967 the Supreme Court in Golakh Nath v. State of Punjab,

AIR 1967 SC 1643 held that the fundamental rights in Part III of the
Indian Constitution could not be amended, even though there was no
such restriction in Article 368 which only required a resolution of two
third majorities in both Houses of Parliament. Subsequently,
in Keshavanand Bharti v. State of Kerala, AIR 1973 SC 1461 a 13 Judge
Bench of the Supreme Court overruled the Golakh Nath decision but
held that the basic structure of the Constitution could not be
amended. As to what precisely is meant by `basic structure is still not
clear, though some later verdicts have tried to explain it. The point to
note, however, is that Article 368 nowhere mentions that the basic
structure could not be amended. The decision has therefore practically
amended Article 368.

A large number of decisions of the Indian Supreme Court where it

has played an activist role relate to Article 21 of the Indian
Constitution, and hence we are dealing with it separately.

ARTICLE 21 AND JUDICIAL ACTIVISM

Article 21 states: No person shall be deprived of his life or
personal liberty except according to procedure established by law.

In this connection it may be mentioned that when the Indian

Constitution was being framed the Constitutional Adviser Mr. B.N. Rau
went to America and met Justice Frankfurter, the celebrated Judge of
the U.S. Supreme Court, to seek his advice. Justice Frankfurter advised
that the Indian Constitution should not have a due process clause as
that had created a lot of difficulties in America. Hence following his
advice, and following the language used in the Japanese Constitution,
only procedural due process was adopted in the Indian Constitution,
and not substantive due process. Also, before the word `liberty the
word `personal was added to clarify that liberty did not include liberty
of contract.

In A.K. Gopalan v. State of Madras, AIR 1950 SC 27 the Indian

Supreme Court rejected the argument that to deprive a person of his
life or liberty not only the procedure prescribed by law for doing so
must be followed but also that such procedure must be fair, reasonable
and just. To hold otherwise would be to introduce the due process
clause in Article 21 which had been deliberately omitted when the
Indian Constitution was being framed.

However, subsequently in Maneka Gandhi v. Union of India, AIR

1978 SC 597 this requirement of substantive due process was
introduced into Article 21 by judicial interpretation. Thus, the due
process clause, which was consciously and deliberately avoided by the
Constitution makers, was introduced by judicial activism of the Indian
Supreme Court.

Another great arena of judicial activism was begun by the Indian

Supreme Court when it interpreted the word `life in Article 21 to mean
not mere survival but a life of dignity as a human being.

Thus the Supreme Court in Francis Coralie vs. Union Territory of

Delhi[49] held that the right to live is not restricted to mere animal
existence. It means something more than just physical survival. The
Court held that:
 the right to life includes the right to live with human dignity and all
that goes along with it, namely, the bare necessaries of life such as
adequate nutrition, clothing and shelter and facilities for reading,
writing and expressing one-self in diverse forms, freely moving about
and mixing and comingling with fellow human beings.

The right to privacy which is a new right was read into Article 21
in R. Rajagopal Vs. State of Tamil Nadu.[50] The Court held that a
citizen has a right to safeguard the privacy of his own, his family,
marriage, procreation, motherhood, child bearing and education,
among other matters.

The Supreme Court also ruled that the right to life guaranteed
under Article 21 includes the right to livelihood as well. [51] The right to
food as a part of right to life was also recognised in Kapila Hingorani
Vs. Union of India[52] whereby it was clearly stated that it is the duty of
the State to provide adequate means of livelihood in the situations
where people are unable to afford food. The Court has also held that
the right to safe drinking water is one of the Fundamental Rights that
flow from the right to life. [53] Right to a fair trial,[54] right to health
and medical care,[55] protection of tanks, ponds, forests etc which give
a quality life,[56] right to Family Pension,[57] right to legal aid and
counsel,[58] right against sexual harassment,[59] right to medical
assistance in case of accidents,[60] right against solitary confinement,
[61] right against handcuffing and bar fetters, [62] right to speedy trial,
[63] right against police atrocities, torture and custodial violence,
[64] right to legal aid[65] and be defended by an efficient lawyer of his
choice,[66] right to interview and visitors according to the Prison Rules,
[67] right to minimum wages[68] etc. have been ruled to be included in
the expression of right to life in Article 21. Recently the Supreme
Court has directed providing a second home for Asiatic Lions vide
Centre for Environmental Law V. Union of India (writ petition 337/1995
decided on 15.4.2013) on the ground that protecting the environment
is part of Article 21. The right to sleep was held to be part of Article 21
vide In re Ramlila Maidan (2012) S.C.I.1. In Ajay Bansal vs Union of
India , Writ Petition 18351/2013 vide order dated 20.6.2013 the
Supreme Court directed that helicopters be provided for stranded
persons in Uttarakhand.

Thus we see that a plethora of rights have been held to be

emanating from Article 21 because of the judicial activism shown by
the Supreme Court of India. However there can be grave reservations
about some of these orders. One wonders whether there will be any
limit to the number of such rights created by court orders.

Other Expansions
Judicial interpretation also expanded the definition of State
under Article 12 of the Constitution whereby even
corporations[69] instrumentalities of the State, etc were brought
within the scope of State helping in the expanded enforcement of
fundamental rights.

Article 14 of the Constitution, which originally was understood

to only mean non-discrimination by the States, was later interpreted in
Royappas case case (1974) and Maneka Gandhis case ( 1978) to also
mean non arbitrariness .

Right to freedom of expression provided by Article 19 of the

Constitution is one of the widely construed rights. Thus, the right also
brings within its ambit the freedom of press and publication in the print
media[70] and the right to participate in the public communicative
systems.[71]

The importance of this right in democracy gained importance

when the judiciary struck down the Ordinance that amended the
Representation of People Act, 1950 that allowed the candidates non-
disclosure of assets stating that in the context of exercise of voting
rights in democracy, the right to know the assets, liabilities and past
criminal records cannot be restricted by the right to privacy of the
candidates.[72]
Furthermore, though Directive principles only talk about socio-
economic rights which are not enforceable, creative interpretation by
reading them into the Fundamental Rights (which are enforceable)
formed a major step in developing these new rights and above all
advocating the rights of the unrepresented masses became much
easier. In the case of Unni Krishnan Vs. State of A. P. [73] it was held
that the right to education is a Fundamental Right under Article 21 as it
directly flows from right to life. Thus the Court interpreted Article 21
in the light of Article 45 wherein the State is obligated to provide
education to its citizens upto 14 years of age. [74] Similarly in M. C.
Mehta Vs Union of India[75] the Supreme Court relying on Article 48-
A[76] gave directions to the Central and the State Governments and
various local bodies and Boards under the various statutes to take
appropriate steps for prevention and control of pollution of water.
In Vishakha Vs. State of Rajasthan, [77] the judiciary expressly
laid down the law regarding sexual harassment at the work place.
In Sakshi Vs. Union of India,[78] the provisions of in camera
proceedings were made applicable in cases of rape victims keeping in
view their needs in the absence of specific legislative provisions.
Another instance where the judiciary was needed to come to the
rescue of the its people was the case of Lata Singh Vs. State Of U.P. &
Another,[79](authored by the writer) where the Supreme Court taking
note of the deep rooted caste system of the country came down hard
on the relatives of a newly married couple who resorted to violence
and harassment as a way of showing their anger on the boy and girl
marring outside their caste or religion. Appropriately exercising judicial
activism the Court held:-
This is a free and democratic country, and once a person becomes a
major he or she can marry whosoever he/she likes. [] We, therefore,
direct that the administration/police authorities throughout the country
will see to it that if any boy or girl who is a major undergoes inter-caste
or inter-religious marriage with a woman or man who is a major, the
couple are not harassed by any one nor subjected to threats or acts of
violence, and anyone who gives such threats or harasses or commits
acts of violence either himself or at his instigation, is taken to task by
instituting criminal proceedings by the police against such persons and
further stern action is taken against such persons as provided by law.

In a subsequent decision, Bhagwan Dass Vs. State (NCT) of

Delhi, 2011(5) Scale 498, again authored by the writer, the Supreme
Court mandated death sentence for `honour killing i.e. killing of young
men and women who married outside their caste or religion, or in their
same village, thereby `dishonouring the parents or their caste.

The most recent case on judicial activism was the case of Aruna
Ramchandra Shanbaug Vs. Union of India and Others.[80] Aruna
Shanbaug, a nurse in 1973, while working at a Hospital at Mumbai, was
sexually assaulted and has been in a permanent vegetative state since
the assault. In 2011, after she had been in this status for 37 years,
the Supreme Court of India heard the petition to the plea for
euthanasia filed by a social activist claiming to be Arunas friend. The
Court turned down the petition, but in its landmark judgment (authored
by the writer) it allowed passive euthanasia i.e. withdrawal of life
support to a person in permanently vegetative state, subject to
approval by the High Court.
Judicial Over Activism
Of late the Indian judiciary appears to have become overactive,
and is often accused of judicial overreach. This accusation was usually
leveled by politicians or others outside the judicial system, until in
2008 it was leveled by Justice A.K. Mathur and the writer (as Judges of
the Supreme Court) in Divisional Manager, Aravalli Golf Course v.
Chander Haas.

The Indian Supreme Court surely came a long way since Anwar
Ali Sarkar Vs. State of West Bengal, [81] and A.K. Gopalan Vs. State of
Madras where the judiciary refused to indulge in making judicial policy
and instead exercised judicial restraint keeping in mind the Doctrine of
Separation of Powers. However, the pendulum later swung to the
opposite direction. Thus, in Maneka Gandhi vs. Union of India AIR
1978 SC 593 the 7 Judge Bench of the Indian Supreme Court, while
overruling the 5 Judge Bench decision in A.K. Gopalans case
introduced the due process clause in the Indian Constitution by a
judicial pronouncement. In S. P. Gupta Vs. Union of India,[82] it was
held that:
He [the judge] has to inject flesh and blood in the dry skeleton
provided by the legislature and by a process of dynamic interpretation,
invest it with a meaning which will harmonize the law with the
prevailing concepts and values and make it an effective, instrument
for delivery of justice.
Similarly, in the case of Supreme Court Advocates on Record Vs.
Union of India,[83] it was held that:
It belongs to the Judiciary to ascertain the meaning of the
constitutional provisions and the laws enacted by the Legislature.

This was the advent of an over active judiciary which assumed

upon itself the need to adjudicate even where it was not perceived to
be warranted. Although Article 50[84] of the Indian Constitution
expressly provides for Separation of Powers between the different
organs of the State, but time and again, the Indian Supreme Court has
taken on itself the task of filling in the gaps created by the Legislature
and the Executive to do justice.
 While doing so, the judiciary has been often criticized for
overstepping its limits. In the case of Vineet Narain Vs. Union of India,
[85] the Supreme Court had invented a new writ called
continuing mandamus where it wanted to monitor the investigating
agencies which were guilty of inaction to proceed against persons
holding high offices in the executive who had committed offences.
Furthermore, the Court created by its judicial order a body called the
Central Vigilance Commission, which was not contemplated by the
statute (the Delhi Special Police Establishment Act, 1946), for
supervising the functioning of a statutory body, the Central Bureau of
Investigation. The Court also laid down a number of guidelines for the
appointments of chiefs of investigating agencies like Central Bureau of
Investigation, Central Vigilance Commission and the Enforcement
Directorate; apart from the Chiefs of the State Police. These guidelines,
apart from being in relation to appointment, were also with regard to
their status, transfer and tenure, etc. The question arises whether this
was legitimate exercise of judicial power.

In the case of Indian Council for Enviro-Legal Action Vs. Union of

India,[86] the Court passed various orders especially directed towards
the States requiring them to submit management plans to control
pollution to both, the Central Government as well as the Court. Here,
the Court held that it was only discharging its judicial functions in
ensuring that it remedies the errors of the executive.

In the case of M. C. Mehta vs. Union of India,[87] where a writ was

filed with regard to the vehicular pollution in Delhi, the Supreme Court
had passed directions for the phasing out of diesel buses and for the
conversion to CNG. When these directions were not complied with due
to shortage in supply of CNG, the Court held that orders and directions
of the Court could not be nullified or modified by State or Central
governments. This was a case where, despite several directions being
given by the Supreme Court, the government did not act speedily in
responding to the Order.

The Court has prescribed norms regarding the running of the

prisons and mental intuitions,[88] instructed the Government to
implement labor laws at construction sites,[89] recognised admissions
in medical colleges throughout India laying down examination
schedules,[90] prescribing hawking zones in metropolitan cities,
[91] laid down the guidelines for the retail outlets for essential
commodities such as LPG,[92] resolving disputes between public
undertakings of Central Government,[93] directed the authorities like
C.B.I to conduct and complete investigation expeditiously in cases of
national importance,[94] directed the noxious factories to restart on
the technical reports on safety measures, [95] prescribed the poverty
limits for the low income urban housing[96] or set up an expert panel
headed by a retired Supreme Court to study the vehicular pollution
level[97] etc. In these decisions the court did legislate, but in the
process was criticized for having infringed upon the executive domain.

With due respect to these and other decisions it has to be said

that many judges often forget that the judiciary cannot solve all
problems in the country. Suppose the Court passes an order that from
tomorrow poverty in India, or unemployment, or malnutrition etc. are
abolished. Will these orders mean anything? Can they really be
implemented? India is a poor country with limited financial resources.
Moreover, many such orders e.g. for interlinking rivers vide In re
Networking of Rivers (2012) 4 S.C.C. 51 raise great technical and
administrative problems, and are really in the domain of the legislature
or executive.
Judicial Legislation
The traditional theory of positive jurisprudence laid down that
law making is the task, of the legislature, not the Judge. The Judges
task was only to adjudicate disputes between the parties on the basis
of the law made by the legislature, though where the law was not clear
(or its plain meaning led to some absurdity) the judge could interpret
it, but he must not make law.
When I asked the Chief Justice of the Canadian Supreme Court
Mrs. Beverley McLaughlin (this was when I was on the bench of the
Indian Supreme Court) her view about judicial legislation she described
it as an Oxymoron. However in fact it is an extremely complex issue
which cannot be dismissed so summarily.

Positivist jurisprudence proceeded on the assumption that the

legal order was gapless and that by proper logical inferences a correct
decision could always be derived from the existing body of law.
According to the analytical school of Austin, which is still strongly
entrenched in England, Parliament, and not judges make law [98]. From
the principle of parliamentary supremacy flows the corollary that the
judges cannot make law, for if they do it would be infringing the
supremacy of Parliament. Similarly, in France, Montesquieu [99]
proclaimed that the judge is subordinate to the law and is bound by
law.
However, it can be demonstrated that even in England this
view was really a fiction[100]. For instance, the entire British Common
Law was in fact judge made law (though most of it was made before
Parliament became supreme). The British judges from time to time
gave law making decisions of historical importance. For example,
Rylands v. Fletcher (1866), created the law of strict liability which is
coming more and more into prominence in recent times (see my
judgment in Union of India vs. Prabhakaran Vijay Kumar,2008 ).
Similarly Donoghue v. Stevenson, 1942 AC 562, created the law of
liability for negligence, which has had a powerful impact all over the
modern world.[101] A large number of other law making decisions by
British Courts can be quoted.
 Judicial legislation is to some extent unavoidable in the modern
era for two reasons: (1) Since modern society is dynamic, the
legislature cannot possibly conceive of, and cater to, all the
developments which may take place in the future. Hence there will be
gaps in the statutory law which have to be filled in by judges (2) The
Legislature may often be unwilling or incapable of making a modern
law which is of pressing need, and then this job has sometimes to be
done by the court.
The Indian Supreme Court in Sarojini Ramaswami v. Union of
India, AIR 1992 SC 2219, (Paragraph 2), observed:
"It used to be disputed that judges make law. Today, it is no
longer a matter of doubt that a substantial volume of the law
governing the lives of citizens and regulating the functions of the State
flows from the decisions of the superior courts. There was a time
observed Lord Reid, when it was thought almost indecent to suggest
that judges make law they only declare it.But we do not believe
in fairy tales any more.
Keshavanand Bhartis case, AIR 1973 SC 1461, Maneka
Gandhis case AIR 1978 SC 597, cases in which new dimensions have
been given to Articles 14 and 21 of the Indian Constitution are all law-
making judgments. Similarly, Marbury v. Madison, 1803 (5 US 137),
Brown v. Board of Education, 1954 (347 US 383), Miranda, Griswold,
etc are law-making decisions of the U.S. Supreme Court.
The view that the legal system is gapless was challenged by
the German jurist Heck[102] and the French jurist Geny[103] who
demonstrated that the positive legal order was necessarily
fragmentary and full of lacunae. They noted that there is always a
certain sphere of discretion where the judiciary could create law within
these gaps. According to Geny, this discretion should not be exercised
arbitrarily but had to be based on objective principles. According to
Geny the method of doing this was to recognize the interests involved
evaluate their relative force, weigh them on the scales of justice so as
to assure the preponderance of the most important ones according to a
social criterion, and finally to establish the most desirable balance. To
produce a just equilibrium of interests, Geny says, the judge must
carefully scrutinize the prevailing moral sentiments and inquire into the
social and economic conditions.
In Germany the free law movement pioneered by
Fuchs[104] and Kantorowicz[105] required the judges to create law in
accordance with justice and equity whenever the positive law was
unclear or ambiguous. According to them, the judge should decide the
case according to the dominant conceptions of justice, or if such were
absent, according to subjective legal conscience.
In the U.S.A. Roscoe Pound, who is the most outstanding figure
in sociological jurisprudence in America, propounded his
instrumentalist approach, which would allow the judge a greater
flexibility. In his book Jurisprudence Pound states that the engineer is
judged by what he does. His work is judged by its adequacy to the
purpose for which it is done, and not by its conformity to some ideal
form of a traditional plan. We are beginning, in contrast with the last
century, to think of jurist and judge and law-maker in the same way.
Law is, above all, social engineering.
Pound does not deny that the dispensing of justice in keeping
with the established norms has certain advantages, such as
predictability and stability in the legal system. However, according to
him, it is also possible to sometimes dispense justice without law,
which according to Pound, has its advantages such as greater
adaptability to the social dynamic, etc.
In line with Ehrlich, Geny, Kantorowicz, Sinzheimer and other
European jurists, Pound regards the normative material as the least
important part of the legal order. The purpose of law, according to
Pound, is to reconcile and harmonise the conflicting and overlapping
demands and interests of the society, and he has laid down his table
of interests for this purpose. Pound believes that his concept of law,
and especially his notion of the possibility of justice without law, is
more capable than any other of resolving a problem which he regards
as basic and which he formulates as follows:
Law must be stable and yet it cannot stand still.
In this way Pound seeks to bring law into harmony with the
dynamism of social life.
The French jurist Cruet in his book The Life of Law and the
Importance of its Acts observes: Every legislative act brings the law
to a halt. This is explained by the lagging of the legal order behind
the dynamic forward movement of society. As Burdeau says, legislation
was an excellent thing so long as its chief function was of consolidation
of established relationship. But when major changes kept occurring in
modern society legislation was found inadequate.
Justice Cardozo of the U.S. Supreme Court in his book Growth
of Law tried to reconcile the contradiction between a stable legal order
and the social dynamic by propounding his principle of growth as a
means of arriving at a compromise between stability and change.
According to Cardozo, sooner or later if the demands of social utility
are sufficiently urgent and if the functioning of an existing rule is
sufficiently productive of hardship or inconvenience, utility will tend to
triumph. This is also the view of Pound who in his book Interpretation
of Legal History says:

The social interest in the general security has led men to seek
some fixed basis for an absolute ordering of human action whereby a
firm and stable social order might be assured. But continual changes in
the circumstances of social life demand continual new adjustments to
the pressure of other social interests as well as to new modes of
engendering security. Thus, the legal order must be flexible as well as
stable. It must be overhauled continually and refitted continually to the
changes in the actual life which it is to govern. If we seek principles, we
must seek principles of change no less than principles of stability.
According to Pound and Cardozo, it is often a court hearing that
first brings to the forefront those new factors, trends, and conditions
which necessitate changes in the law, and they can be most helpful in
forestalling possible tensions between a stable legal order and changes
in society.
The realist school took the matter to extremes in America.
According to Gray,[106] one of the founding fathers of the realist
school, all law is judge made law. Gray regards statute, custom, etc., as
merely the material which the judge uses in making law. This is
regarded by some as a development of the thesis of Justice Holmes,
who observed that law is nothing more than the prediction of how the
court will act. According to the realist school, law is made by the judge
in his professional capacity and it is in constant flux. Frank, another
leader of the realist school of America, regards statute as probable
law while the judge made law is actual law.
The realist school went to extremes and it was subsequently
rejected in the U.S.A., but judicial law-making is still often accepted in
America. Thus Prof. Friendmann of Columbia University in his article
Limits of Judicial Law Making (29 MLR No.6 1996) writes:
The Blackstonian doctrine as the declaratory function of the
courts, holding that the duty of the court is not to pronounce a new law
but to maintain and expound the old one, has long been little more
than a ghost. From Holmes and Geny to Pound and Cardozo,
contemporary jurists have increasingly recognised and articulated the
law-making functions of the courts.It is therefore time to turn from
the stale controversy over whether judges make law to the much more
complex and controversial question of the limits of judicial law-
making.
It appears that while earlier judges used to make a law while
pretending not to, this no longer is the practice now. The Austinian
view that the judges do not make law was based on the principle of
parliamentary supremacy in England, and hence the judges in England
had to maintain the fiction that they were not legislating otherwise
there would be violation of parliamentary supremacy. However, now
even the judges in countries following the common law system openly
proclaim that judges do make law.
Thus, Justice Holmes of the U.S. Supreme Court stated I
recognize without hesitation that judges do legislate, but they do so
only interstitially, they are confined from molar to molecular
dimensions. (See The Mind and Faith of Justice Holmes).

A similar view was taken by Lord Denning in England. In

Seaford Court Estates v. Asher,[107] he observed:

It would certainly save the judges trouble if Acts of Parliament

were drafted with divine prescience and perfect clarity. In the absence
of it, when a defect appears a judge cannot simply fold his hands and
blame the draftsman. A judge must not alter the material of which it
(the law) is woven, but he can and should iron out the creases.
This view was no doubt overruled by the House of Lords in
Magor and St. Mellons District Council v. Newport Corporation,
[108] which declared it a naked usurpation of the legislative function,
but the Indian Supreme Court has preferred the view of Lord Denning
to that of the House of Lords (See Directorate of Enforcement v.
Deepak Mahajan,[109] State of Karnataka v. Hansa
Corporation[110] and Bangalore Water Supply and Sewerage Board v.
Rajappa.[111] )

In his book The Nature of the judicial process Mr. Justice

Cardozo of the U.S. Supreme Court said He (the judge) legislates only
between gaps. He fills the open spaces in the law.
Since it is now accepted by almost all jurists in the countries
following the Common Law System that judges do legislate we can
proceed further with the enquiry regarding the manner of this judicial
legislation, the circumstances in which it can be done, and its limits.
 Bodenheimer in his Jurisprudence states There may be times
or historical contingencies where bold and unconventional action on
the part of a judge becomes wholesome and beneficial for society.
There may be situations where stagnation or decay can be overcome
only by a judicial decision-maker who, being convinced that the
preponderant values of the community are wholly obsolete or
unreasonable, is willing to take risk and is determined to chart a new
course into the future. Progress often depends on the courageous,
decisive and anti-traditional action of great men. And although we
should insist that the major tasks of law reform should be reserved to
the action of men or bodies entrusted with the business if we did not,
at times, concede to the judiciary the right to lead the moral sentiment
of society and inaugurate, in a judicial decision, a new conception of
justice in accordance with the highest knowledge and truest insight
perceptible to the human mind.

Limits of Judicial Legislation

1. Where there is a clear casus omissus i.e. gap in the statute the
court can fill it in. This was done by the Indian Supreme Court in D.
Velusamy v. D. Patchummal (2010). In that case the Protection of
Women from Domestic Violence Act, 2005 was considered. Section 2 (f)
of that Act defines domestic relationship. That definition uses the
expression relationship in the nature of marriage but does not explain
what it means. Hence the court had to fill in the gap in the law.
2. But what if there is no law, and hence there is no question of
filling in the gap? In Vishaka vs. State of Rajasthan, AIR 1997 S.C. 3011
there was no law for protection of women from sexual harassment at
work places, and hence no gap in an existing law. Yet the Supreme
Court laid down guidelines in this connection, and said that this will be
the law until Parliament makes a law on the subject. Here the court
practically acted as an interim Parliament. Is this a valid approach?
 In University of Kerala vs. Councils of Principals of Colleges (2010)
1S.C.C. 353 a 2 Judge bench of the Supreme Court of which I was a
member referred to a Constitution Bench the question whether this
approach is valid, but the Constitution Bench is yet to be constituted.
In the University of Kerala case (supra) the facts were that in
many educational institutions in the country the students union had
been captured by anti-social elements who created a lot of trouble for
the institution. Hence the court constituted a committee headed by Mr.
Lyngoh (former Chief Election Commissioner) to make
recommendations for ameliorating the situation. The committee made
its recommendations, and court by an interview order directed these to
be enforced in all educational institutions.
The matter came up before a bench of which I was a member. I
was of the view that the courts order amounted to judicial legislation
and was invalid. The court could have directed the concerned authority
to consider these recommendations, but could not have directed that
they be implemented.
In in re Networking of Rivers (2012) 4 S.C.C. 51 the Supreme
Court directed interlinking of the rivers of India. Such an order raises a
host of problems, e.g. finance, planning, land acquisition, civil
construction, environmental issues, etc. Should such an order have
been passed? Is it implementable? I have grave reservations about
this.

In L.K. Pandey v. Union of India, AIR 1986 S.C. 272 detailed

guidelines have been issued by the Supreme Court for inter country
adoption, though there is no legislation on the subject.
In Kumari Mathuri Patil v. Addl. Commissioner, (1994) 6 S.C.C.
241, in order to check issuance of false and fabricated scheduled caste
certificates, the Supreme Court issued a set of 15 guidelines about how
such certificates should be issued, which authority can issue them, etc.
It also created a vigilance cell headed by a senior police officer to
check the malpractice. In Dayasram v. Suhi Balham (2012) 1 S.C.C. 333
the Supreme Court doubted the correctness of this judgment, and
referred the matter to a larger bench, but the larger bench upheld the
directives, saying that they were meant to fill in a legal vacuum.

3. Can the court itself perform functions which have been given to
a statutory authority? In several decisions the Supreme Court held
that it cannot. Thus in Supreme Court Bar Association vs. Union of
India, AIR 1998 S.C. 1895, a Constitution Bench of the Court held that
under the Advocates Act, 1961 only the Bar Council can debar a
lawyer, and hence it reversed the earlier decision of a 3 Judge bench
debarring a lawyer.
In M.C. Mehta vs. Union of India (1997) 8 S.C.C. 770 the
Supreme Court directed that the maximum speed limit of heavy
vehicles in Delhi can be 40 km.p.h But fixing speed limits is the task of
the State Government or its nominee vide Section 112 Motor Vehicles
Act, 1988. Was the direction therefore valid?
In G. Veerappa Pillai vs Raman and Raman, AIR 1952 S.C. 192
the High Court had in a decision directed the Regional Transport
Authority (R.T.A) to issue a bus permit to the petitioner. On appeal, the
Supreme Court set order this order, holding that under the Motor
Vehicles Act only the R.T.A. could issue the permit, and the High Court
by its order in effect granted the permit itself (see also State of U.P. vs.
Jeet S. Bisht, 2007 vide paragraphs 45 and 46 of judgment of M. Katju,
J.).
4. Can the Court ignore a statutory or Constitutional provision,
and substitute it by its own order. It is evident that this cannot validly
be done, but in fact it was done by the Supreme Court in the second
Judges case (Supreme Court Advocate o Record Association v. Union of
India) in which the court in effect ignored the provisions of Article 124
for appointing Judges to the Supreme Court, and substituted its own
procedure (The Collegium System).
5. Can the Court direct the legislature to make a law or amend an
Act of the legislature? In a catena of decisions, some of which have
been referred to in Divisional Manager, Aravali Golf Course v. Chander
Haas (supra) the Supreme Court held that the court has no such power.
Yet in Vineet Narain v. Union of India AIR 1998 S.C. 889 the Supreme
Court directed amendment to the Delhi Special Establishment Act
1946 (under which the C.B.I. is constituted) by setting up a Central
Vigilance Commission to which the C.B.I. will be accountable for its
efficient functioning.

Trends in Judicial Restraint

There is broad (though not absolute) separation of powers in the
Indian Constitution vide Divisional Manager, Aravali Golf Course vs.
Chander Haas, 2008. The Constitution of India did not provide for the
judiciary to be a super legislature or a substitute for the failure of the
other two organs. Thus, the need arises for the judiciary to lay down its
own limitations.
Some people say that the judiciary can enter into the domain of
the executive or legislature because these organs are not functioning
properly. But then it can also be said that the judiciary, too, is not
functioning properly, there is great delay in deciding cases, corruption
in a section of the judiciary, etc. Should then the legislature or
executive take over the judiciarys function?
One of the examples of judicial restraint is the case of State of
Rajasthan Vs. Union of India,[112] in which the court rejected the
petition on the ground that it involved a political question and
therefore the court would not go into the matter. In S.R. Bommai
Vs. Union of India.[113] the judges said that there are certain situations
where the political element dominates and no judicial review is
possible. The exercise of power under Art.356 was a political question
and therefore the judiciary should not interfere. Ahmadi J. said that it
was difficult to evolve judicially manageable norms to scrutinize the
political decisions and if the courts do it then it would be entering the
political thicket and questioning the political wisdom, which the court
must avoid.[114]
 In Almitra H. Patel Vs. Union of India,[115] where the issue was
whether directions should be issued to the Municipal Corporation
regarding how to make Delhi clean, the Court held that it was not for
the Supreme Court to direct them as to how to carry out their most
basic functions and resolve their difficulties, and that the Court could
only direct the authorities to carry out their duties in accordance with
what has been assigned to them by law. Also, in Union
of India Vs. Kishan K. Sharma,[116] when the High Court issued a
Mandamus to the Government to pay a particular scale to its officers,
the Supreme Court laying down the boundaries of judicial activism in
general held that such Mandamus would not be permissible as fixation
of salaries was an administrative decision. Similarly, creation of a post
is an administrative or legislative functions, and cannot be done by the
court vide Divisional Manager, Aravali Golf Course (supra)

PUBLIC INTEREST LITIGATION IN INDIA

The traditional legal principle was that only a person, whose own
right has been infringed, can file a petition in Court. In other words,
the petitioner must show his `standing or locus standi.

In S.P. Guptas case (AIR 1982 SC 149), however, the Indian

Supreme Court gave up this principle, and thereafter there has been a
flood of cases in the High Courts and Supreme Court (called P.I.L.).
There could be some justification for some of these as they are filed by
public spirited persons or organizations on behalf of poor and weaker
sections of Indian society who could not bear the lawyers fees and
Court expenses. Thus, in State of Uttaranchal v. Balwant Singh, AIR
2010 S.C. 2550 the Supreme Court observed: This Court realized that
a large section of society because of extreme poverty, ignorance,
discrimination and illiteracy had been denied justice from time
immemorial. Predominantly, to provide access to justice to poor,
deprived vulnerable, discriminated and marginalized sections of
society, this court has initiated encouraged and propelled public
interest litigation. This litigation is the upshot and product of this
Courts deep and intense urge to fulfil its bounden duty and
constitutional obligation.
However, in the landmark decision in Common Cause Vs. Union
of India,[117](authored by the writer) the Apex Court observed that PIL
in the present times are being entertained by many courts routinely in
large numbers in matters which are mostly frivolous or motivated by
extraneous considerations. PIL has these days largely become
Publicity Interest Litigation, Private Interest Litigation or Politics
Interest Litigation or the latest trend Paise Income Litigation. Much
of P.I.L. is really blackmail. Often one businessman gets a P.I.L. filed
against a rival businessman to harm him.
In Divisional Manager, Aravalli Golf Club Vs. Chandrahass,
[118] the Supreme Court again declared that though judicial activism is
sometimes a useful appendage to democracy, it should be resorted to
only in exceptional circumstances when the situation forcefully
demands it in the interest of the nation or the poorer and weaker
sections of society. Ordinarily the judiciary should exercise self-
restraint.
Where the judiciary unwarrantedly tries to perform executive and
legislative functions in the name of judicial activism, the delicate
balance in the Constitution is disturbed and this invite reactions from
politicians and other quarters. Therefore it is extremely important for
the judiciary to exercise restraint and it should not ordinarily try to
perform the functions of the Executive or the Legislature. The Court in
theAravalli Golf Club case pointed out some instances where the Court
had strayed into the Legislative or Executive domain or in matters of
policy. In Common Cause the Court observed:-
Public Interest Litigation, which was initially created as a useful
judicial tool to help the poor and weaker sections of society who could
not afford to come to Court has in course of time, largely developed
into an uncontrollable Frankenstein and a nuisance which is
threatening to choke the dockets of the superior court obstructing the
hearing of the genuine and regular cases which have been waiting to
be taken up for years together.
Justice A.S. Anand former Chief Justice of India, in a public lecture
cautioned that with a view to see that judicial activism does not
become judicial adventurism, judges need to be circumspect and
self- disciplined in the discharge of their judicial functions. The worst
result of judicial activism is unpredictability. Unless judges exercise
self-restraint, each judge can become a law unto himself and issue
directions according to his personal fancies, which will create chaos.
[119] Reservations have been expressed in many quarters about some
very recent decisions of the Supreme Court.
JUDICIAL ACTIVISM BY JUDICIAL INTERPRETATION
In Britain since there was no written Constitution, and since
Parliament was supreme, the literal rule of interpretation was normally
followed in interpreting statutes. This principle said that Courts should
not twist the language of a statutory provision, and should not add or
delete words from it, because to do so would be to thwart the will of
Parliament which was supreme.
In countries with written Constitutions like U.S.A. and India on
the other hand, it is the Constitution and not the legislature which is
supreme, and since the Constitution means what the Judges say it
means, this by itself makes the judiciaries in these countries more
powerful and activist than in England.
In the garb of interpretation Judges often make law (though
they never openly say so), e.g. the creation of a right to privacy in
Griswold.
There are some vague provisions like the `due process clause
in the U.S. Constitution which can be interpreted in different ways.
Similarly, the rights in Article 19(1) of the Indian Constitution e.g.
freedom of speech, freedom to assemble peacefully, freedom of
movement etc. are all subject to reasonable restrictions vide clauses
(2) to (6) of Article 19. But what is reasonable? This is for the Courts
to decide, and what is reasonable to one Judge may not be so to
another.
Similarly, there are words which may appear to be clear, e.g.
`liberty but were interpreted by the U.S. Supreme Court at one time to
include liberty of contract. The word `life in Article 21 of the Indian
Supreme Court has been interpreted to mean a life of dignity, and this
has been held to include a plethora of rights.
The commerce clause in the U.S. Constitution, which states (in
Article Section 8) that Congress can regulate interstate commerce, has
been given a very expanded meaning by the U.S. Supreme Court so as
to give Congress very wide powers to regulate the economy, even
where strictly speaking there was no evident interstate trade or
commerce.
The commerce clause in Article 1 Section states Congress shall
have power to regulate commerce among the several states.
Now two things may be noticed in the commerce clause (1) It
mentions commerce (i.e. trade) and not manufacture (2) It gives power
to Congress to regulate interstate commerce, and not intra state
commerce. Thus, as originally conceived, the commerce clause had a
narrow scope, because in 1789 when the U.S. Constitution was made
U.S.A. was broadly an agricultural country, and an agricultural society
does not need many powers for its Central Government.
However, when U.S.A. become a highly industrial country, a
strong Central Legislature and Executive were required. Hence the
scope of the commerce clause was greatly expanded by judicial
interpretation. The most important decision of the U.S. Supreme Court
in this connection was Wickard vs. Filburn, 317 U.S. 111 (1942), and we
may consider it in some detail.
To stabilize the price of wheat in the national market, Congress
enacted the Agricultural Adjustment Act, 1938. This Act limited the
area that farmers could devote to wheat production, so as to control
the amount of wheat produced in the country. The purpose of this was
to drive up the wheat price which had crashed during the Great
Depression, ruining many farmers.
Filbury was a small farmer in Ohio who was permitted in 1941 to
plant wheat on 11 acres of his land, but he planted it on 23 acres, thus
admittedly producing more wheat than the amount permitted. His
defence was that the wheat produced was for his own consumption on
his own land. Since the wheat never entered commerce at all (because
it was self consumed and not sold), much less interstate commerce, he
argued that it was not a proper subject of federal regulation under the
Commerce Clause.
The U.S. Supreme Court rejected this argument, holding that if
Filburn and not used the wheat grown by him he would have had to
buy it from the open market. This effect on interstate commerce may
not be substantial from the action of Filburn alone, but through the
cumulative actions of thousands of similar farmers its effect could
became substantial. Hence Congress could regulate such activity, even
though it was intra state and non commercial.
The court rejected the argument that production, manufacture
and mining could not be regulated under the commerce clause
because the activity was local and their effect on interstate commerce
was only indirect.
This decision, therefore, included manufacture or agricultural
production within the meaning of commerce, and it permitted
regulation not only of interstate commerce but also intra state
commerce. Thus by judicial interpretation the court deviated
completely from the plain language of the commerce clause. The ratio
of the decision, that even if one produces on ones land for self
consumption it affects interstate commerce, appears to be very
farfetched. But considering the fact that in the industrial age Congress
had to be given extensive power for regulating the economy, the
decision is unexceptional. It has been followed in Gonzales vs. Reich,
2005.
 In U.S. vs. Wrightwood Dairy Co 315 U.S. 110 (1942), the question
to be decided was whether the Agricultural Marketing Agreement Act,
which permitted the Secretary, Agriculture to fix the minimum price of
milk, also governed intra state milk sales. The Court held that the price
of intra state milk in competition with interstate milk adversely affects
the price structure and regulation of the latter.
In U.S. vs. Darby Lumber Co. 312 U.S. 100 (1941) the Court held
that Congress had power under the Commerce Clause to regulate
employment conditions. This decision overturned the decision in
Hammer vs. Dagenhart 247 US 251 (1918).
Thus we see that the Commerce Clause, which on a plain and
literal reading seems to grant very narrow power to Congress to
regulate the U.S. economy, by judicial interpretation (often by very
strained reasoning) has given very extensive powers.
It may be pointed out here that the legislative powers of
Congress are those given in Article 1 Section 8 of the U.S. Constitution,
and all other powers not mentioned therein are with the States vide
Tenth Amendment. Hence residuary powers in the U.S. Constitution are
with the States, unlike in the Indian Constitution where Article 248
gives residuary powers to Parliament. Hence, if the U.S. Supreme Court
had not given an expansive interpretation to the Commerce Clause,
Congress would have little power to regulate the economy.

Apart from the above, it must be kept in mind that a

Constitution is designed as an enduring document intended to serve a
long era. It is not designed to meet the needs of the day when it is
enacted, but also the needs of an unforeseen future with greatly
altered circumstances. Hence it has to receive a liberal interpretation
so as to include within its ambit future developments in various fields
of human activity, rather than restricting its language to the state of
affairs existing at the time of its enactment. In the interpretation of a
Constitution it must be remembered that words used in it are but a
framework of concepts, and concepts may change more than words
themselves. Hence constitutional issues cannot be resolved by mere
abstract consideration of the words used without keeping in mind the
line of their growth and the new conditions which have come into
existence.
Also, it must be kept in mind that a Constitution only outlines
general principles rather than going into details. As observed by the
Indian Supreme Court in Peoples Union for Civil Liberties v. Union of
India (2003) 4 SCC 399 (453):
Fundamental Rights (in the Constitution) have no fixed content; most
of them are empty vessels into which each generation must pour its
content in the light of its experiences.

The preponderant legal opinion all over the world is against the
original intent theory. Thus Justice Michael Kirby of the Australian
High Court has observed: We are not bound to the imaginings of the
men who in the last decade of a past century wrote the Constitution. It
is a governmental charter of todays Australians, vide Abebe
Vs.Commonwealth (1999) ALJR 584 (624). Mr. Justice John Roberts, the
newly appointed Chief Justice of the U.S. Supreme Court, during his
confirmation hearings, is reported to have said (The New York Times,
September 26, 2005): I think the framers, when they used broad
language like liberty, like due process, like unreasonable with
respect to search and seizures, were crafting a document that they
intended to apply in a meaningful way down the ages, .and to apply
to evolving societal conditions. As observed by Justice Brennan : We
current justices read the Constitution in the only way we can: as the
Twentieth Century Americans. A Constitution is a living document,
said Chief Justice Marshall intended to endure for ages to come vide
McCulloch vs.Maryland (1819).
It follows that Courts have more freedom in interpretation of a
Constitution than in interpretation of ordinary statutes, and the literal
rule, which is applied in interpreting criminal and tax statutes, has no
strict application in interpreting the Constitution.
Activism of U.S. Supreme Court
As already mentioned earlier in this note, there were two main
periods of activism in the history of the U.S. Supreme Court, the first
being from the end of the 19th Century to the year 1937 when the
decision in West Coast Hotels v. Parrish was delivered. This was the
era of economic due process. The second period was the period of
the Warren Court from 1953 to 1969.

The interesting point to note is that while economic due

process vanished from the scene after 1937, the liberalism of the
Warren Court and the important decisions like Brown v. Board of
Education, Griswold v. Connecticut and Miranda v. Arizona still broadly
hold the field today, and indeed in some ways were advanced e.g. in
Roe v. Wade, 1973 (modified in Casey).

There was an important reason for this. The U.S. Constitution is

a short document (as contrasted to the Indian Constitution). It sought
to incorporate the ideals of the Founding Fathers who wanted to set up
a republican, democratic government, but also wanted to protect the
people against this government lest it turn oppressive. Practical
concerns motivated this fear. The Founding Fathers had lived through
bitter years when they had seen governments, both the royal
government inEngland as well as their own state governments (headed
by British Governors) trample on the human rights which they and
their ancestors had fought so hard to secure. Hence they were
determined that there should be no uncontrolled power in America.
As Jefferson said an elective despotism was not the government we
fought for (see Charles Warrens Congress, the Constitution and the
Supreme Court). It is for this reason that the Bill of Rights was
inserted in the original draft of the Constitution.

The problem, however, was that many of the expressions in the

U.S. Constitution, particularly the Bill of Rights, required elucidation.
The Founding Fathers wisely spoke in general language and left to
succeeding generations the task of applying that language to the
constantly changing environment in America. Similarly, those who
framed the civil war amendments used what have been described as
majestic generalities in the Fourteenth Amendment. The Framers of
the Constitution gave latitude to later interpreters to make the
language applicable to cases which the Framers might not have
foreseen.

For instance, the expression due process in the Fifth and

Fourteenth Amendments is vague (just as the expression `reasonable
restrictions in Article 19 of the Indian Constitution is vague). Also
some words like liberty, equality etc. may appear clear, but they are
often interpreted differently. For instance, are liberty or free speech
enshrined in the Constitution absolute (as Justice Hugo Black perceived
it), or can restrictions be placed on them? Most Judges disagree with
the extreme view of Black, and believe that there are no absolute
rights in the Constitution. But what kind of restrictions can be placed
on them, and in what situations, and to what degree? Opinions may,
and do, differ here.

In this connection it may be noted that the rights mentioned in

Article 19 (1) of the Indian Constitution e.g. freedom of speech and
expression, freedom to assemble peaceably, freedom to form
associations, freedom of movement throughout India, freedom to
practice any profession etc. are all subjection to reasonable restrictions
in the interests of the sovereignty and integrity of India, security of the
State, public order, decency, morality etc. vide Articles 19 (2) to (6).
The Bill of Rights in the U.S. Constitution, however, does not
specifically say that the rights mentioned therein are subject to
reasonable restrictions. However, by judicial interpretation the result is
the same i.e. these rights are not absolute, but subject to certain
restrictions e.g. the law of defamation, obscenity, security and the
need to maintain public order. Freedom of speech does not permit
shouting fire in a crowded theatre causing a stampede, as Justice
Holmes pointed out.

It was here that the role of the U.S. Supreme Court was crucial.
The Warren Court sought to inject flesh and blood into the Bill of Rights
and make them truly meaningful. For instance, while the American
Declaration of Independence, 1776 declared that all men are created
equal and this was made explicit by the Fourteenth Amendment, a
section of American society still regarded black men as not equals to
whites, and this mentality continued even after the Civil War of 1861-
65 reaching its culmination in Plessy Vs. Ferguson, 1896 which
effectively validated segregation in American society, like the
apartheid in South Africa.

By the end of World War II a situation had been reached where

the black man had become fed up of being treated as inferior.
American society would have been torn apart but for Brown, and this
decision showed the wisdom of the U.S. Supreme Court at its best, for
it fulfilled the ideals of the Founding Fathers.

There were many attempts at overruling Miranda, Roe, etc. but

these decisions had in course of time, so much become a part of
American culture that all these attempts failed. (see The Nine by
Jeffrey Toobin)

In other fields also the U.S. Supreme Court has displayed great
statesmanship. With the growth of industrialization there was need of
a strong Central Legislature and Executive, and hence the Court
interpreted the Constitutional provisions liberally (and not literally) to
give them these powers. For instance, when Congress established a
bank a challenge was made that this was unconstitutional as Article 1
Section 8 of the U.S. Constitution which mentions the powers of
Congress does not mention bank or incorporation. The Court held in
McCulloch v. Maryland, 1819 that the power to set up a bank emanated
from the great powers to levy and collect taxes, to regulate commerce,
etc. Thus the technique (of regarding as unenumerated rights as
emanating from specified rights) used in Griswold had its forbear in
McCulloch. The penumbra or emanation theory of Justice Douglas in
Griswold really dates back to Marshal.

The commerce clause in the U.S. Constitution was developed

and expanded by judicial interpretation, making it one of the most
important grants of authority. As Justice Stone said The commerce
clause and the wise interpretation of it, perhaps more than any other
contributing element, have united to bind the several states into a
nation. Largely through the use of the commerce power the national
government regulates almost every conceivable aspect of American
life.

The interesting point is that if the commerce clause is given a

literal interpretation it will have a very narrow scope. Article 1 Section
8 states that Congress shall have power..to regulate commerce
with foreign nations and among the several states.

However, in National Labour Relations Board Vs. Jones and

Laughlin Steel Corporation, 301 U.S. 1, the U.S. Supreme Court upheld
the National Labour Relations Act, 1935 by which workers were granted
the right to collective bargaining, on the ground that if there is
industrial strife it will affect interstate commerce. Ever since a wide,
and not literal, meaning has been given by the U.S. Supreme Court to
the commerce clause. (Some relevant case law has already been
discussed above).

The interpretation of this provision by the U.S. Supreme Court

was so expansive that is impossible to believe that the Court followed
the original intent of the Constitution makers. Bork, Scalia, and other
original intent advocates are thus in a conflicting situation. While
they talk of original intent, they have never criticized the expansion of
the commerce clause by the U.S. Supreme Court. The correct view
seems to be that of Richard Posner in his book Law, Pragmatism and
Democracy in which Posner sought to demonstrate that great U.S.
Judges often resorted to the pragmatic, rather than the formalistic or
abstract approach in interpreting the Constitution. The original intent
approach will make the U.S. Constitution totally unworkable, since
theAmerica of 1791 (when the Constitution was adopted) is very
different from theAmerica of 2011.
Activism of the Indian Supreme Court
The Indian Supreme Court has been much more activist than the
U.S. Supreme Court. One important reason for this is due to the
different historical situations prevailing in the two countries.
The United States is an industrialized country, in fact the most
advanced in the world. On the other hand, India is still in a transition
period, between feudal agricultural society to a modern industrial one.
This transition period is always a very painful one, as a study of the
European history from the 16th to 19th centuries discloses, full of
turbulence and intellectual ferment.
Since the Indian Constitution is modern while Indian society is
still backward, one of the important roles of the Indian judiciary is to
help India get over its transition period faster and with less pain.
The fact that the Indian higher judiciary is not elected and has
a secure (though not life) tenure is in fact its strength. The politicians
in India have usually to rely on caste or religious vote banks to get
elected, and caste and religion are really feudal forces. Hence the
Indian politicians often cannot take strong steps against feudal
practices, while the judiciary, which does not depend on these vote
banks, can do so.
A good example of this is the judgment in Bhagwan Das vs.
State (NCT) of Delhi, 2011 authored by the writer.
 In parts of India (and Pakistan) there is a phenomenon called
honour killing. This means that if a girl falls in love with a boy of a
different caste or religion, or belonging to the same village, both are
killed by the family members or their caste organizations (as they are
said to have dishonoured their family, caste or religion). Many
political leaders do not interfere with these honour killings as they are
dependent on the votes supplied by these caste (or religious)
organizations, and the police and administrative officials (who surely
know of what is happening through their intelligence agencies) do not
interfere out of fear of the wrath of their political masters.

On the other hand, the Indian Judges do not have to face

elections, and hence have no need to please these feudal caste
organizations. Accordingly, in the above decision the Indian Supreme
Court held that in cases of honour killing there must be a mandatory
death sentence for the perpetrators of such crimes, and the police and
administrative officials who did not prevent them must be immediately
suspended. This decision raised a hue and cry among the caste
organizations, but has been widely acclaimed by the enlightened
section of Indian society.

The U.S. Supreme Court did not have to play a role in

transforming a feudal society into a modern one. The U.S. was already
a modern society, and the U.S. Supreme Court had only to perform
two basic functions. (1) To help complete the unfinished tasks set by
the American Founding Fathers of creating a truly democratic society
with liberty and equality. Brown is a good example how
the U.S. Supreme Court boldly performed this task by doing away with
the injustices to the black man. Miranda was another. (2) To resolve
some of the major problems in a modern society. Griswold and Roe
were important decisions in this connection. Great Judges like Justices
Holmes, Brandeis, Frankfurter, Black, Douglas, Brennan, and Sandra
Day OConnor played an important role in this connection by their
vision and intellect.

Cases in the U.S. Supreme Court are decided by all 9 Judges

sitting together, and there are no division benches as in the Indian
Supreme Court. Since U.S. Supreme Court Judges have a life tenure
(unlike Indian Supreme Court Judges who retire at 65), and since most
Judges in the higher Courts broadly have a stable judicial philosophy
(e.g. Justices Scalia and Clarence Thomas will almost always be strict
constructionists and believers in the original intent theory), it follows
that the approach of the U.S. Supreme Court (that is, its majority) is
broadly stable and consistent for long periods of time. Thus, economic
due process lasted for a whole third of the 20 th century, while the
liberalism of the Warren Court lasted throughout his tenure as Chief
Justice. In the Burger and Rehnquist Courts an intermediate philosophy
prevailed, while about the present U.S. Supreme Court it is too early to
say how it will be regarded by history. Its decisions are often by a 5-4
majority, which shows the deep divide among the present Judges, e.g.
in the Affordable Healthcare case.

The Indian Supreme Court, while conservative in the initial

years, had later a burst of judicial activism through the social
philosophies of Justice Gajendragadkar, Krishna Iyer, P.N. Bhagwati,
etc. who in the garb of interpretation of Articles 14, 19 and 21 of the
Indian Constitution created a host of legal norms by judicial
verdicts.

It may be noted that Part III of the Indian Constitution

enumerates certain Fundamental Rights which are enforceable e.g.
freedom of speech, liberty, equality, freedom of religion, etc. On the
other hand Part IV called the Directive Principles of State Policy contain
certain socio-economic ideals e.g. right to work, to education, to a
living wage, to health etc. which though unenforceable are ideals
which the State is directed to strive for. Though Article 37 states that
these Directive Principles are unenforceable, the Indian Supreme Court
has enforced many of them often by reading them into certain
Fundamental Rights e.g. in Unnikrishans case the right to education
was read into Article 21.

This has on the one hand been acclaimed by a section of Indian

society as the judiciarys enlightened response to the social and
economic situation prevailing in India, on the other hand it has its
dangers. When Judges start thinking they can solve all the problems in
society and start performing legislative and executive functions
(because the legislature and executive have in their perception failed
in their duties), all kinds of problems are bound to arise. Judges can no
doubt intervene in some extreme cases, but otherwise they neither
have the expertise nor resources to solve major problems in society.
Also, such encroachment by the judiciary into the domain of the
legislature or executive will almost invariably have a strong reaction
from politicians and others. The politicians will then step in and try to
curb the functioning, or even the independence, of the judiciary (as
President Franklin Roosevelt sought to do when the conservative Court
kept invalidating his New Deal legislation).

Thus in Divisional Manager, Aravali Golf Course vs. Chander Haas

(2008) 1SCC 683 (a judgment authored by the writer) it was observed:

Judges must know their limits and not try to run the government.
They must have modesty and humility, and not behave like emperors.
There is broad separation of powers under the Constitution, and each
organ of the State the legislature, the executive and the judiciary
must have respect for each other and must not encroach into each
others domains.

The judgment quoted Justice Frankfurters dissenting opinion

in Trop Vs.. Dulles, 356 U.S. 86 where it was said :
All power is, in Madisons phrase, of an encroaching nature. Judicial
power is not immune against this human weakness. It also must be on
guard against encroaching beyond its proper bounds, and not the less
so since the only restraint upon it is self-restraint.

In the Indian Supreme Court most Judges sit in 2 Judge

benches, but the verdict of that 2 Judge bench is regarded as the
judgment of the Supreme Court (unless overruled by a larger bench).
Since Judges have their own judicial philosophies this often results in
the Supreme Court speaking in differing voices, which often leads to
inconsistency.

Reservations have been expressed in many quarters about

several verdicts of the Indian Supreme Court as it is perceived by some
that they have grossly violated the principle of separation of powers.
Criticism has in particular been made against the decisions in the
Judges Cases (Supreme Court Advocates on Record Association Vs.
Union of India AIR 1994 SC 268 and In Re Presidential Reference, AIR
1999 SC 1) on the ground that these decisions have practically
substituted Article 124(2) of the Constitution by introducing a
Collegium system nowhere envisaged by the Constitution. (See article
of Lord Cooke entitled Where Angels Fear to Tread in the book
Supreme but not Infallible).
In the opinion of the writer many of these decisions may
require reconsideration.
Conclusion about Judicial Activism
My own view is that while judicial activism may be a good thing
on certain special occasions, there should not be too frequent use of it.
Where to draw the line is, of course, sometimes a difficult question to
answer.
In Divisional Manager vs. Aravali Golf Course a bench of which I
was a member advocated judicial restraint by court.
 However, in certain cases I (along with a brother/sister Judge)
resorted to activism. Some examples are (1) In Budhadev Karmaskar
vs. State of West Bengal, Crime Appeal 135/2010 a bench of which I
was the senior member directed the government to try to rehabilitate
sex workers. In India there are hundreds of thousands of them. These
women enter the flesh trade not because they enjoy it but because of
abject poverty. Hence we directed the Central and State Governments
to prepare schemes for giving some technical training to these sex
workers so that they can earn their bread not by selling their bodies
but by some technical skills, and we formed a committee headed by a
senior Supreme Court lawyer for overseeing this. This case is still being
heard from time to time even after my retirement in 2011 by another
bench.

(2) In Aruna Shanbang vs. Union of India we declared passive

euthanasia valid, but subject to some restrictions. We did this because
often when a person goes into come and is on life support in hospital
the relatives cannot go on paying for the hospital expenses, although
the doctors have declared that the patient will not come out of the
coma.
(3) In M.K. Balakrishnan v. Union of India we directed formation of a
Water Committee to do scientific research for finding out ways of
solving the grave and widespread water shortage problem in India.
These orders were passed because of pressing needs.
However, pressing need should not be a ground for ignoring the
statutory or constitutional provisions, and hence I have grave
reservations about several decisions e.g. the Supreme Court Advocates
on Record case, 1994 (The Second Judges case).
The law should have some stability and predictability. The burst
of judicial activism by some Indian judgments in recent decades is
often mind boggling, and is a negation of this requirement. The time
has come when a vigorous debate should be held by jurists on this
subject.
 ***************

[1] Separation of Power has been held by the Supreme Court to be a basic feature
of the Constitution vide State of West Bengal v. Committee for Protection
Democratic Rights, AIR 2010 SC 1476
[2] Nicholas Katers, Judicial Activism and Restraint: The role of the Supreme
Court. Available online
at http://www.associatedcontent.com/article/21725/judicial_activism_and_rest
raint_the.html.
[3] JUDICIAL ACTIVISM, Blacks Law Dictionary,
[4] See, e.g., Frank B. Cross & Stefanie Lindquist, The Decisional Significance of
the Chief Justice, 154 U. Penn. L. Rev. 1665, 1701 (2006). Also, see, Caprice
Roberts, In Search of Judicial Activism: Dangers in Quantifying the
Qualitative, 74 Tenn. L. Rev. 567 at 571.
[5] 1973 IE SC 2
[6] 347 U.S. 483 (1954),
[7] 410 U.S. 113 (1973).
[8] 5 U.S. (1 Cranch 137) (1803).
[9] Id.
[10] James Bradley Thayer, The Origin and Scope of the American Doctrine of
Constitutional Law, Harv. Law Review (1893).
[11] 198 U.S. 45 (1905).
[12] Holden v. Hardy, 169 U.S. 366 (1898).
[13] 165 U.S. 578 (1897),
[14] Id. At 589.
[15] Mathew J. Lindsay, In Search of Laissez-Faire Constitutionalism, Harv. L. R.
123. (5).
[16] 247 U.S. 251 (1918).
[17] In the case of United States v. Darby Lumber Corporation, 312 U.S. 100
(1941).
[18] 261 U.S. 525 (1923).
[19] See, for instance, United States v. Butler, 297 US 1 (1936) which dealt with the
Agricultural Adjustment Act, and Carter v. Carter Coal Company, 298 U.S. 238
(1936) which struck down legislation which sought to regulate the coal
manufacturing industry in the US.
[20] 300 U.S. 379 (1937).
[21] The exact nature of such switch, and the reasons for doing so, still remain
clouded in suspicion. There exists some evidence to prove that the bill was sought
to be passed in the senate after Roberts, J. had decided to change his stance from
the laissez-faire doctrine that had hitherto prevailed.
[22] A fact that was noticed by, and commented upon by other judges, notably
Sutherland, J., whose minority judgment contained a strong, albeit veiled, rebuke
to Roberts, J.
[23] See Earl Warren and Living Constitution
[24] See, for instance, the dissent of Justice Black in Griswold v. Connecticut,
381 U.S. 479, 527 (1965),
[25] 388 U.S. 218 (1967), at 249, 250.
[26] 247 U.S. 483 (1954).
[27] See judicial decisions that said that the due process guarantee contained
within the 14th amendment did not specifically contain the protections of the Bill
of Rights in the U.S. Constitution vis--vis state
action. Hurtado v. California, 110 U.S. 516, (1884).
[28] See Korematsu v. United States 323 U.S. 214. (1944).
[29] Supra n. 30.
[30] (349 U.S. 294) 1955.
[31] Supra n. 26, p. 20.
[32] Griffin v. County School Board, Prince Edward County,
[33] See, for instance, the case of Burron v. Baltimore, 7 Pet. 243 (1833) which
said that the due process clause provided very little protection to persons tried in
state Courts, being modified by the case of Murrays Lessee v. Hoboken Land and
Improvement Co., where it was definitively stated that all branches of the
Federal Government were bound by the clause.
[34] See Gideon v. Wainwright, 372 U.S. 335 (1963)
[35] Escobedo v. Illinois, 378 U.S. 478 (1964).
[36] Id.
[37] See the case of Malloy v. Hogan, 378 U.S. 1 (1964).
[38] Twining v. New Jersey, Adamson v. California.
[39] 384 U.S. 436 (1966).
[40] Id.
[41] Supra n. 45, at 475,
[42] See Ronald Dworkin, A Special Supplement: The Jurisprudence of Richard
Nixon, Available online
at http://www.nybooks.com/articles/archives/1972/may/04/a-special-
supplement-the-jurisprudence-of-richard-/.
[43] 381 U.S. 479.
[44] For an account of the whole debate, see J.M. Balkin, What Roe v. Wade
Should Have Said, New York University Press, New York. 2005.
[45] Supra n. 5.
[46] For a larger understanding of the matter, see Laurence
Tribe, Lawrence v. Texas: The Right that Dare Not Speak Its Name, 117 Harv. L.
Rev. 1893 (2004).
[47] Citizens United v. Federal Election Commission 558 U.S. 08-205 (2010)
[48] http://www.law.cornell.edu/supct/html/08-205.ZX.html.
[49] AIR 1978 SC 597
[50] (1994) 6 SCC 632
[51] Oliga Tellis Vs. Bombay Municipal Corporation; AIR 1986 SC 180
[52] (2003) 6 SCC 1
[53] A. P. Pollution Control Boards Vs. Prof. MV Nayudu; AIR 1999 SC 822
[54] Police Commissioner, Delhi Vs. Registrar, Delhi High Court, AIR 1999 SC 95
[55] Consumer Education and Research Vs. Union of India, AIR 1995 SC 922
[56] Hich Lal Tiwari Vs. Kamla Devi and Others, (2001) 6 SCC 496
[57] S. K. Mastan Bee Vs. GM South Central Railway, (2003) 1 SCC 184
[58] M. H. Hoskot Vs. State of Maharashtra, AIR 1978 SC 1548
[59] Vishakha Vs. State of Rajasthan, 1997 (6) SCC 241
[60] P. Katara Vs. Union of India, (1998) 4 SCC 286
[61] Sunil Batra Vs. Delhi Admi. (1978) 4 SCC 498
[62] Charles Shobhraj Vs. Delhi Admi. (1978) 4 SCC 104
[63] Hussainara Khatoon Vs. Home Secretary, (1980) 1 SCC 81
[64] Sheela Barse Vs. State of Maharashtra, (1983) 2 SCC 96 and D. K. Basu Vs.
State of West Bengal, (1997) 1 SCC 4116
[65] Khatri Vs. State of Bihar, AIR 1981 SC 928
[66] State of M.P. Vs. Shobharam, AIR 1966 SC 2193
[67] Prabha Dutt Vs. Union of India, AIR 1986 SC 6
[68] State of Gujarat Vs. Honble High Court of Gujarat, (1998) 7 SCC 392
[69] Ramana Vs. International Airport Authority., (1979) 3 SCC 479
[70] Romesh Thapar Vs. State of Madras, AIR 1950 SC 124
[71] Indian Express Newspaper (Bombay) Vs. Union of India, AIR 1986 SC 515
[72] Peoples Union for Civil Liberties Vs. Union of India, (2003) 4 SCC 399
[73] (1993) 1 SCC 645
[74] Article 45: The State shall endeavour to provide, within a period of ten years
from the commencement of this Constitution, for free and compulsory education
for all children until they complete the age of fourteen years.
[75] (1988) 1 SCC 471
[76] Article 48-A: The State shall endeavour to protect and improve the
environment and to safeguard the forests and wild life of the country.
[77] Supra footnote 15.
[78] (2004) 5 SCC 518
[79] 2006 (5) SCC 475
[80] JT 2011 (3) SC 300
[81] AIR 1952 SC 75
[82] AIR 1982 SC 149
[83] (1993) 4 SCC 441
[84] Article 50: The State shall take steps to separate the judiciary from the
executive in the public services of the State.
[85] 1998 Cri. L. J. 1208
[86] (1996) 5 SCC 281
[87] (2001) 3 SCC 763
[88] Sheela Barse Vs. State of Maharashtra, (1983) 2 SCC 96
[89] Labors on Sala Hydro Electricity Project Vs. State of J & K, (1984) 3 SCC 538
[90] Pradeep Kumar Jain Vs. State of .P., AIR 1984 SC 1420
[91] Bombay Hawkers Union Vs. B.M.C., (1985) 3 SCC 528
[92] Center for PIL Vs. Union of India, 1995 Sppl. (3) SCC 382
[93] ONGC Vs. Collector of Central Excise, 1995 Sppl. (3) SCC 541 (This decision
has since been reversed)
[94] Supra footnote 51.
[95] M. C. Mehta v. Union of India, (1986) 2 SCC 176
[96] Shantisar Builders Vs. L. Narayan, (1990) 1 SCC 520
[97] M. C. Mehta v. Union of India, (1991) 2 SCC 353

[98] See Duport Steels Ltd. v. Sirs, (1980) WLR 142.

[99] See Montesquieus The Spirit of Laws
[100] Griffith, in his The Politics of the Judiciary has
shown that the values which
the judges esteem are implemented in their judgments.
[101] Until 1932 the tort of negligence did not exist in English Law. In the modern
era of mass production by huge cartels and business firms, and mass
consumerism, this position had to change, but this change was not brought about
by Parliament but by the decision of House of Lords in Donoghue v. Stevenson.
Thus the judiciary proved to be more sensitive to social pressure then the
legislature
[102] See Hecks The Jurisprudence of Interests.
[103] See Genys Methode dinterpretationet sources en droit prive positif
[104] See Fuchs Juristischer Kulturkampf
[105] See Kantorowicz Der Kumpf um die Rechtswissenschaft.
[106] See Grays Nature and Sources of the Law.
[107] (1949) 2 KB 181
[108] (1951) 2 All ER 839
[109] 1994 (23) ALR 31 SC (Summ).
[110] AIR 1981 SC 463
[111] AIR 1978 SC 949
[112] AIR 1977 SC 1361
[113] (1994) 3 SCC 1
 [114] Judicial Activism v. Judicial Self-Restraint
at http://legalsutra.org/933/judicial-activism-v-judicial-self-restraint/ as last on
10 July, 2011
[115] (2000) 2 SCC 679
[116] (2004) 5 SCC 518
[117] AIR 2008 SCW 3164
[118] AIR 2008 SCW 406
[119] Rathore, K.S. Role Of Judicial Activism Towards Protection And
Promotion Of Constitutional Rights
at http://airwebworld.com/articles/index.php?article=1062 as last visited on
July 10, 2011
Posted by Justice Markandey Katju at Thursday, October 24, 2013 1 Comment
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