Judicial Activism or Judicial Hubris

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By

A. G. NOORANI[1]

Abstract

(Judicial Hubris has overtaken judicial activism…

In the United States and Britain the debate was conducted at varied levels; in the press, legislature; law journals and other. Recently, South Asia has also had a taste of judicial excess but the debate is marked by lack of erudition in judicial pronouncements, restraint in language and aspiration testifying to a profound ignorance of the role and limits of the judicial office. Our judges disdain to consider and reflect on the rich tradition in countries whose jurisprudence we have freely borrowed. Author)

To consider the judges as the ultimate arbiters of all constitutional questions would place us under the despotism of an oligarchy” – Thomas Jefferson Warned  (Archibald Cox; The Court and the Constitution; Houghton Mifflin; 1987; p. 123).

A lot happened since Jefferson spoke thus to make his warning seem unreal. Certainly, the distinguished juristArchibald Cox, the first Watergate Special Prosecutor, Solicitor-General of the United States and Professor Emeritus at Harvard University was not unduly alarmed by the rise of judicial activism; an assertion of the power of judicial review over executive and legislative acts. But even then (1987) there were signs that judicial hubris had overtaken judicial activism.

In the United States and Britain the debate was conducted at varied levels; in the press, legislature; law journals and other. Recently, South Asia has also had a taste of judicial excess but the debate is marked by lack of erudition in judicial pronouncements, restraint in language and aspiration testifying to a profound ignorance of the role and limits of the judicial office. Our judges disdain to consider and reflect on the rich tradition in countries whose jurisprudence we have freely borrowed.

There are two reasons for this. Men like Mohammed Ali Jinnah, Tej Bahadur Sapru and B. R. Ambedkar were steeped in British Constitutional law and constitutional history . The generations that followed them responded to each constitutional crisis and the issues it raised with ipse dixit ; subjective and uninformed. Rulings are cited divorced from the context. Hardly any of the lawyers who find their way to the Supreme Court Bench had won fame for learning in constitutional law. They were able civil or criminal lawyers, became judges of High Courts and were, in good time, put on the Supreme Court Bench; there, to pronounce on the intricacies of Constitutional law.

The last of the tribe of Constitutional lawyers, H. M. Seervai scathingly criticized the poor calibre of the higher judiciary in the Preface to the Second Volume of his massive work, Constitutional Law of India, N.M. Tripathi Private Limited, Bombay, 1993; Fourth Edition). He wrote that with “rare exceptions, the standard of judgments of the Supreme Court and the High Courts on questions involving constitutional law continued to fall rapidly. … The fall in the standard of judgments has gone hand in hand with the fall in the character and conduct of judges. … This fall in the conduct and character of judges is reflected in the falling standard of their judgments. It is submitted that apart from cases of bribery and corruption, of repaying debts of gratitude which judges owed to their seniors or friends at the Bar, and apart from settling old scores with some Counsel, whom the judges disliked at the Bar, another factor has emerged which has not been generally noticed. it is that in cases involving the Union or the State Governments on matters to which those Governments attach great importance, consciously or unconsciously, judges have allowed their judgments to be deflected by the thought that their chances of promotion in the High Courts and their chances of elevation to the Supreme court would be prejudiced if their judgments went against the Union or the State. … In our country the fall in the standards of public life and public service is so marked and is so well known, that the Supreme Court has taken judicial notice of that fall in these words : ‘But it has to be borne in mind that things are happening in public life which were never even anticipated before, and there are several glaring instances of abuse of power by men in authority and position. This is a phenomenon of which the courts are bound to take judicial notice’ : Shivajirao Nilangekar Patil v. Mahesh Madhav Gosavi AIR 1987 SC, 294.”

Seervai reverted to his criticism in the Third Volume of his work published posthumously : “most Supreme Court Judges live in a dream world of their own. There are rhetorical passages in a number of judgments as to the intellectual and more qualities which judges should possess and, by implication, most of them do possess. In my submission, it is necessary to point out that this picture of qualities and character possessed by most Judges as men of integrity and as incorruptible is not justified by matters on record.”

Citing the record he remarked : “In my submission the greatest enemy of a clear understanding of the provisions of sour Constitution is to be found in the frequent references in the judgments of our courts to the ‘philosophy’ of our Constitution and to the ‘values’ said to be embodied in our Constitution. ‘Philosophy’ means love of wisdom, but in that sense it is not relevant to the interpretation of the provisions of our Constitution. In a loose general sense, the ‘philosophy’ of our Constitution would have a meaning if Constitutions of free and democratic countries like ours, are compared with totalitarian regimes which prevail in countries like China. In a loose sense our Constitution embodies a ‘philosophy’ which can be described as a liberal democratic philosophy, meaning thereby that our Constitution affirms that the state exists to promote the welfare of its people and not that the people exists to promote the pre-determined commands of the State. But this general description does not help us in interpreting sour constitution.

“Turning to the ‘values’ of our Constitution, the word ‘values’ in plural means ‘one’s principles or standard, one’s judgment of what is valuable or important in life”. However, the interpretation of the provisions of our Constitution cannot fluctuate with the different ‘values’ in which different judges believe.” (pp. 2927 and 2944).

It is precisely such rhetoric that marks and mars judgements of the Supreme Court of India and Pakistan. Sir Maurice Gwyer, the first Chief Justice of the Federal Court of India, rightly observed that “a broad and liberal spirit should inspire those whose duty it is to interpret (the Constitution); but I do not imply by this that they are free to stretch or pervert the language of the enactment in the interests of any legal or constitutional theory, or even for the purposes of supplying omissions or of correcting supposed errors. A Federal Court swill not strengthen, but only derogate from, its position, if it seeks to do anything but declare the law; but it may rightly reflect that a Constitution of Government is a living and organic thing, which of all instruments has the greatest claim to be construed ut res magis valeat quam pereat. (It is better that it should live than that it should perish.)” [In re : the C.P. & Berar Act 1938 (1939) Federal Court Reports 18 at p. 37].

Despite their serious lapses, it would be unjust to ignore the positive role performed by the Supreme Court of India in upholding the rule of law, protecting the citizen against executive wrongs, protecting women’s rights and in devising creatively new remedies, such as the petition in the public interest. Nor least valuable is the contribution of the courts in the reform of Muslim law.

A recent and erudite work by a very distinguished Bangladeshi scholar documents that most ably. Dr. Alamgir M. Serajuddin, former Vice-Chancellor of the University of Chittagong’s work Muslim Family Law, Secular courts and Muslim Women of South Asia has an apt subtitle : A Study in Judicial Activism (Oxford University Press, Karachi, 2011. His forthcoming work Muslim Law : Text, Summary and Commentary should be well worth waiting for. The book covers developments sin Muslim Family Law since independence in all the three  countries – India, Pakistan and Bangladesh.

Time there was when in 1610 Lord Coke ruled that “in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the Common law will control it, and adjudge such an Act to be void” (Dr. Bonham’s Case; 1610 Co. Rep. at 118). This doctrine was discarded and courts accepted “the sovereignty of Parliament” (A.V. Dicey; Introduction to the Study of the Law of the Constitution;1885; Part I). In recent years English Courts have exercised the power of judicial review with aplomb.

Since, unlike Britain, the United States is governed by a written Constitution, it is the American experience and discourse which are more  relevant. Significantly the first assertion of the power of judicial review by an activist judge in 1803 began with an act of surpassing judicial statesmanship when Chief Justice John Marshall ruled in the classic case of Marbury vs. Madison [1 Cranch 137 (1803)].

Just before leaving office President John Adams and his Secretary of State executed the commission of one Marbury to be Justice of the Peace, but the Secretary forgot to deliver it. Ironically, the absent-minded Secretary was John Marshall, who was about to take office as Chief Justice of the United States and would write the opinion in the case resulting from his own negligence. The new President was Thomas Jefferson. He and his Secretary of State, James Madison, withheld the commission. Marbury then brought an original suit in the Supreme Court seeking a writ of mandamus requiring Madison to deliver the commission.

Marshall began by expounding the executive’s duty to abide by the law and the citizen’s right to invoke the judiciary’s help against illegal acts. The refusal to deliver Marbury’s commission was illegal and a writ of mandamus lay to enforce its delivery. Section 13 of the Judiciary Act of 1789, had empowered the Supreme Court to issue writs of mandamus in original suits, but it enlarged the jurisdiction conferred by Article III of the Constitution. Ergo, Section 13 was unconstitutional and a writ of mandamus prayed for in the suit could not be issued. Marshall affirmed and rejected power in the same breath.

In words that have been echoed in courts of several countries for two centuries, Marshall said : “It is emphatically the province and duty of the judicial department to say what the law is.” After ruling that the Act of the Congress giving the Court original jurisdiction was inconsistent with the constitutional provision limiting its jurisdiction to appellate cases, he continued : “The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts,  sis alterable when the legislature shall please to alter it. if the former part of the alternative be true, then a legislative act contrary to the Constitution is not law : if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.”

Professor Archibald Cox has well described the dilemma which Marshall faced : “To dismiss the case would apparently acquiesce in the Jeffersonian position. To issue the writ would invite President Jefferson and Secretary Madison to ignore it – a step they surely could and would have taken – while the country laughed at the Court’s pretensions. Either result would confirm the independence of the Executive and Legislative from Judicial Control”. Marshall resolved it deftly. He affirmed judicial power emphatically, but did not exercise it.

Even as late as 1958 a great justice like Judge Learned Hand asserted that there was “nothing in the United States Constitution that gave courts any authority to review the decisions of Congress.” Judicial review violated the principle of separation of powers. Judicial review of legislation turned the courts into a “third legislative chamber.” He added tartly : “For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not.” Not all the opponents of judicial review have used language as elegant. Some have been denunciatory.; “Impeach Earl Warren” they declaimed on thousands of billboards across the United States about a Chief Justice who is compared to Marshall.

After Marbury, the second landmark was McCulloch v. Maryland (1819). This involved the constitutionality of a federal law that established a national bank. Marshall held that the Constitution must be construed to “allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people.” But he delivered a wise reminder “We must never forget that it is a Constitution we are propounding [italics here in the original; 4 Wheat 316, HL. Ed. 579 (1819)].

It is unnecessary to trace the march of the case law. Suffice it to recall that one ruling triggered off the Civil War [Dred Scot vs Sandford 19 How. 393 (1857)]. A Negro slave was taken by his master to Louisiana where slavery was forbidden by act of Congress. Chief Justice Taney ruled that it violated the Constitutional guarantee that no person shall be deprived “of life, liberty or property without due process of law”. (14th Amendment). The ruling foreshadowed future controversies concerning the scope of judicial review.

The phrase was used by the Supreme Court to establish itself virtually as Third Chamber. “Due process” was interpreted to mean substantive due process. (Lochner vs. New York (19845. 45; 49 L.Ed. 937 (1905) ). It came to symbolize an era of conservative judicial activism. A  10 hour day for bakeries was held to be violative of the liberty of contract “between the employer and employee” – very much like the claim that the doors of the Ritz Hotel are open to the rich and the poor alike.

It drew from the legendary Justice Oliver Wendell Holmes a powerful dissent couched in elegant prose which retains its relevance to the present day discourse on judicial activism. “This case is decided  upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with the theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state Constitutions and state laws may regulate life in many ways which we as legislators might think as injudicious, or if you like as tyrannical as this, and which, equally with this, interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some swell-known writers, is interfered with by school laws, by the post-office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The fourteenth amendment does not enact  Mr. Herbert Spencer’s Social Statics. The other day we sustained the Massachusetts vaccination law. Jacobson v. Massachusetts, 197 U.S. 11. … United States and state statutes and decisions cutting down the liberty to contract by way of combination are familiar to this court. Northern Securities Co. v. United States, 193 U.S. 197. … Two years ago we upheld the prohibition of sales of stock on margins, or for future delivery, in the Constitution of California, Otis v. Parkar, 187 U.S. 606. … The decision sustaining an eight-hour law for miners is still recent. Holden v. Hardy, 169 U.S. 366. … Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.” (italics mine, throughout).

The relentless march of this brand of judicial activism provoked President Franklin D. Roosevelt to propound a plan for packing the Supreme Court. It was miscalled a “Recommendation to reorganize the Judicial Branch of the Federal Government” and was sent to the U.S. Congress on 5 February 1937. Roosevelt’s Attorney General Robert H. Jackson has described its background and aftermath ( The Struggle for Judicial Supremacy; Vintage Books; 1941). On 29 March 1937, the Court pronounced judgment in a tenor which marked a judicious retreat; aptly called a switch in time that saved nine (judges).

When one sees Judges of today holding forth on social and economic issues one is reminded of Jackson’s cautionary advice. “Justices generally are learned in the theories of the law – but they cannot know the conditions in every industry or the experiences in every social layer of our national life. No form of lawsuit has ye been devised suitable to inform them adequately, with judicial standards of proof, of the factors in our mass problems. To follow the effects of a minimum-wage policy, for example, through our business and social structure or to establish the effects of the Social Security Act on the general welfare by legal testimony and exhibits would produce a mass that would be incomprehensible and exhausting.

“The vice of the litigation process in broad constitutional questions is that since we cannot expand the lawsuit process to include an era, a people, and a continent, we simply cut down the problem to the scope of a lawsuit. The cases we have recited demonstrate how the broad and impersonal policy that moved Congress became subjected to the procedures of a very narrow, individual, and legalistic controversy.

“The deficiencies of this lawsuit method appear clearly when we look to the make-up of the information that it provides for the judges. Important constitutional decisions are sometimes rendered on a legal record consisting chiefly of two documents drawn by opposing lawyers. It may be an indictment and a demurrer, or it may be a bill of complaint and a motion to dismiss. These amount to little more than the conflicting and unsupported assertions of two attorneys. This really gives the Court little information apart from the situation of the party and the consequences to him of the act challenged. it personalizes the controversy.” (pp 298-299).

It was not a wholly sterile record. Judges delivered some wise words of advice of abiding relevance. It has provided a continuing debate on the principles underlying the Bill of Rights and the role of the Court as its sentinel. It has found itself attacked for being too activist at times and too passive at others. It has sought to educate the people not only about its own limitations but also about those of the Bill of Rights as well.

Justice Frankfurter’s judgment on behalf of the Court in Minersville school District v. Gobitis (310 U.S. 586, 1940) is a classic warning : “Judicial review, itself a limitation on popular government, is a fundamental part of our constitutional scheme. But to the legislature no less than to the courts is committed the guardianship of deeply cherished liberties. … Where all the effective means of inducing political changes are left free from interference, education in the abandonment of foolish legislation is itself a training in liberty. To fight out the wise use of legislative authority in the forum of public opinion and before legislative assemblies rather than to transfer such a contest to the judicial arena, serves to vindicate the self-confidence of a free people.”

Justice Stone mentioned another consideration in U.S. vs. Butler : “while unconstitutional  exercise of power by the executive and legislative branches of the Government is subject to judicial restraint, the only check of our own exercise of power is our sense of self-restraint (297 U.S. 1 at 78, 1936).”

Critics like Nathan Glazer concur. The very title of his able critiques “Towards an Imperial Judiciary?” (The Public Interest, No. 41, Fall 1975) and “Should Judges Administer Social Services?” (The Public Interest, No. 50, Winter 1978) proclaim the core of his thesis. The debate was conducted with a passion matched only by the erudition and felicity of style not always to be found in public controversies in South Asia.

Once Justice John Marshall Harlan in a dissent cautioned the Warren court : “The Constitution is not a panacea for every blot upon the public welfare; nor should this Court, ordained as a judicial body, be thought of as a general haven for reform movements. This Constitution is an instrument of government, fundamental to which is the premise that in a diffusion of governmental authority lies the greatest promise that this Nation will realize for all its citizens. This Court, limited in function in accordance with that premise does not serve its high purpose when it exceeds its authority even to satisfy justified impatience with the slow workings of the political process.” [Reynolds vs. Sims 377 U.S. 533 at 624 (1964)].

Chief justice Earl Warren, a Republican, presided over one of the most liberal Courts in American history. His successor Warner Burger retreated somewhat. It was left to Chief Justice William Rehnquist to lead the full retreat as Prof. Cass R. Sansteir documents in his essay, Fighting For the Supreme Court : How right-wing judges are transforming the constitution; (Harper’s Magazine; September 2005).

He lists the excesses. “In many areas, the new activists have enjoyed important victories. Consider the fact that the Rehnquist Court has overturned more than three dozen federal enactments since 1995, a record of aggression against the national legislature that is unequaled in the nation’s history. in terms of sheer numbers of invalidations of acts of Congress, the Rehnquist Court qualifies as the all-time champion. A few illustrations :

“The Rehnquist Court has thrown most affirmative-action programs into extremely serious doubt, suggesting that public employers will rarely be able to operate such programs and that affirmative action will be acceptable only in narrow circumstances…. has used the First Amendment to invalidate many forms of campaign-finance legislation, with Justices Scalia and Thomas suggesting that they would strike down almost all legislation limiting campaign contributions and expenditures;

“For the first time since the New Deal, the Rehnquist Court has struck down congressional enactments under the Commerce Clause. As a result of the Court’s invalidation of the Violence Against Women Act, a large number of federal laws have been thrown into constitutional doubt. Several environmental statutes, including the Endangered Species Act, are in trouble.

“Departing from its own precedents, has sharply limited congressional authority to enforce the Fourteenth Amendment. In the process, the Court has struck down key provisions of the Americans with Disabilities Act, the Religious Freedom Restoration Act, and the Vi8lence against Women Act – all of which received  overwhelming bipartisan support in Congress. … Has used the idea of state sovereign immunity to strike down a number of congressional enactments, including parts of the Age Discrimination in Employment Act and the Americans with Disabilities Act. For the first time in the nation’s history, it has ruled that Congress lacks the power to give citizens and taxpayers the right to sue to ensure enforcement of environment laws.”

The nadir – one hopes it was the nadir – was reached in  Bush vs. Gore (2000). Justice John Paul Steven’s moving dissent serves as a fitting epitaph for this sorry chapter in the U.S. Supreme Court’s history. “The (per curiam opinion) by the majority of this court can only lend credence to the most cynical appraisal of the work of judges throughout the land. it is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is pellucidly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

It was a Political Court at Work (Vide Richard A. Posner; The Supreme Court 2004 Term – Foreword : A Political Court; 119 Harvard Law Review 31 (2005).

In Britain, judicial review had a slow growth. The doctrine of parliamentary supremacy protected legislation from judicial review. But Judges carefully scrutinized delegated legislation, rules made under an Act of Parliament, to see whether they ere in excess of the rule-making power (Vide Prof. Dawn Oliver’s essay “Is the Ultra Vires Rule the Basics of Judicial Review? in Christopher Forsyth (editor) Judicial Review and the Constitution; Hart Publishing; Oxford; 2000; pp 3-27).

Since the Second World War administrative law was developed by the Courts to strike down executive orders on a variety of grounds; abuse of power; omission to hear the affected party; influence of extraneous considerations, etc.

Lord Denning, Master of the Rolls, became a legend in his own life time for his purposive approach to the law. As head of the Chancery Division he found himself pitted against the Lord Chancellor Lord Simonds, known for his “legal literalism”. Denning left his imprint on many a branch of the law (J.L. Jowell and J.P.W.B. McAusulam; Lord Denning : The Judge and the Man; Sweet & Maxwell; 1981). He was twice censured. Giving judgment in the Court of Appeal, Lord Denning had said : “We do not sit here to pull the language of parliament and ministers to pieces and make nonsense of it. That is an easy thing to do, and it is a thing to which lawyers are too often prone. We sit here to find out the intention of parliament and of ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.”

In the House of Lord Simonds disapproved  of Denning’s approach. He insisted that “it would not be right for this House to pass unnoticed the propositions which the learned Lord Justice lays down for the guidance of himself and, presumably, others”, adding, “it is sufficient to say that the general proposition that it is the duty of the court to find out the intention of parliament – and not only of parliament but of ministers also – cannot by any means be supported. The duty of the court is to interpret the words that the legislature has used; those words may be ambiguous, but, even if they are, the power and duty of the court to travel outside them on a voyage of discovery are strictly limited.”

Simonds rejected Denning’s policy of “filling in the gaps”; He said :  “It appears to me to be a naked usurpation of the legislative function under the thin disguise of interpretation. And it is the less justifiable when it is guesswork with what material the legislature would, if it had discovered the gap, have filled it in. if a gap is disclosed, the remedy lies in an amending act.” (Magor and St. Mellons RDC vs. Newport Corporation (1952) AC 189 at p. 191).

Nearly three decades later Denning was censured by a Judge who was his junior and a known judicial activist. (As Kenneth Diplock, Q.C. he had appeared for Government of Pakistan in the Tamizuddin case concerning the dissolution of the Constituent Assembly.) Diplock said apropos a Denning judgment  “It endangers continued public confidence in the political impartiality of the judiciary, which is essential to the continuance of the rule of law, if judges, under the guise of interpretation, provide their own preferred amendments to statutes which experience of their operation has shown to have had consequences that members of the court before whom the matter comes consider to be injurious to the public interest. The frequency with which controversial legislation is amended by Parliament itself … indicates that legislation, after it has come into operation, may fail to have the beneficial effects which Parliament expected or may produce injurious results that Parliament did not anticipate. But, except by private or hybrid Bills, Parliament does not legislate for individual cases. Public Acts of Parliament are general in their application; they govern all cases falling within categories of which the definitions are to be found in the wording of the statute. … For a judge (who is always dealing with an individual case) to pose himself the question : ‘Can Parliament really have intended that the acts that were done in this particular case should have the benefit of the immunity’ is to risk straying beyond his constitutional role as interpreter of the enacted law and assuming a power to decide at his own discretion whether or not to apply the general law to a particular case. The legitimate questions for a judge in his role as interpreter of the enacted law are : ‘How has Parliament, by the words that it has used in the statute to express its intentions, defined the category of acts  that are entitled to community? Do the acts done in this particular case fall within that description?” (Duport Steels Ltd. vs. Sirs (1980) IWLR 142).

Enactment of the Human Rights Act in 1998 fortified the trend of judicial activism. Joshua Rosenberg’s excellent study of that trend bears an apt title Trial of Strength : The Battle between Ministers and Judges over who makes the Law ; (Richard Cohen Books, London, 1997). He records :  “It is essential to grasp how much judicial review has developed since the early 1960s. Before then, judges were doing little to control the executive : a minister’s word was effectively law. As recently as 1959, Professor Stanley de Smith – one of the first academics to study the subject – could say : ‘One characteristic of judicial review in English administrative law that strikes foreign observers is that it is so seldom invoked.’ As Professor Sir William Wade said : ‘During and after the Second World War a deep gloom settled on administrative law, which reduced it to the lowest ebb at which it had stood for centuries. The courts and the legal profession seemed to have forgotten the achievements of their predecessors and they showed little stomach for continuing their centuries-old work of imposing law upon government  … [Administrative law] relapsed into an important condition, marked by neglect of principles and literal verbal interpretation of the blank-cheque powers which parliament showered on ministers.’

“Sir William Wade was Professor of English Law at Oxford University from 1961 to 1976 and at Cambridge University from 1978 to 1982. His assessment was endorsed by the Master of the Rolls, Lord Woolf, and by Jeffrey Jowell, Professor of Public Law in the University of London. They wrote : ‘In the 1950s, judicial self-restraint appeared to have won a decisive victory over judicial activism … In a number of leading decisions over the years judges voluntarily curbed their own power to review administrative action.’ “

The reasons for activism are many. One reason is that the electorate chose to give one party some eighteen years of uninterrupted political power. “Despite what were presumed to be their natural conservative inclinations, it seems that many judges felt it was up to them to redress the political balance. Speaking as shadow Lord Chancellor, Lord Irvine of Lairg rcognised that the consequences of the ‘democratic deficit’, the want of parliamentary control over the executive in recent years, have been, to an important degree, mitigated by the rigours of judicial review. Mr. Justice Sedley wrote with commendable frankness that ‘modern public law has carried forward a culture of judicial assertiveness to compensate for, and in places repair, dysfunctions in the democratic process.” (pp. 82-84).

Rosenberg is a Solicitor and law correspondent. Robert Stevens is a practicing barrister as well as academic. His book The English Judges : Their Role in the Changing Constitution (Hart Publishing, Oxford 2005) should be read by every judge in South Asia. Discussing the changes in the outlook of judges he wrote :  “The political landscape and constitutional development have facilitated such changes. There has been what may well be seen as a revolution in the self-perception of the judiciary, although without the benefit which the American Constitution enjoys of a sophisticated literature on judicial restraint and judicial activism, analyzing the inherent conflict between judicial powers and the democratic model – the poverty of such literature in South Asia needs no elaboration – AGN).  While certainly the judges began modestly aggrandizing their positions and styles in the 1960s and 1970s, the change became more obvious when consensus politics began to evaporate after 1979. The judges took on greater prominence after the collapse of serious opposition in the early 1980s. The more presidential style of Mrs. Thatcher and the declining importance of Parliament and other institutions were factors in making judges, as protectors of the Constitution, more important. While the House of Commons regained some initiatives under John Major’s ill-fated administration, the massive Labour landslides in 1997 and 2001 meant that Tony Blair was able to emulate Mrs. Thatcher’s presidential style. The judges could be needed again as a counter-weight to the elected dictatorship, for as Lord Bingham, the senior Law Lord, has put it : ‘the courts tend to be most assertive, active and creative when political organs of the state are least effective.” (p. 147).

Judges do not dwell in an ivory tower. “No matter whether the Constitution follows the flag or not, the Supreme Court follows the iliction returns” (It is iliction AGN) remarked Finley Peter Dunne, the gifted American humonist in his classic “Mr. Dooley’s Opinions : The Supreme Court’s Decisions”. Superior Courts adopt a more restrained approach whenever a strong leader is in power. As Stevens writes “history is littered with examples of judicial hubris ending in judicial tears” (p. 149).

In India judicial activism picked up sped after the Supreme Court’s abject deference to Indira Gandhi’s Government during the emergency in the habeas corpus case. (A.D.M. Jabalpur vs. Shivkant Shukla AIR 1976 S.C. 1207).

Jawaharlal Nehru looked askance at the early stirrings in the judiciary which prompted Chief Justice Patanjali Sastri to explain :  “We think it right to point out what is sometimes overlooked, that our Constitution contains express provisions for judicial review of legislation as to its conformity with the Constitution, unlike in America where the Supreme Court has assumed extensive powers of reviewing legislative acts under cover of the widely interpreted ‘due process’ clause in the Fifth and Fourteenth Amendments. If, then, the Courts in this country face up to much important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader’s spirit, but in discharge of a duty plainly laid upon them by the Constitution. This is especially true as regards the ‘fundamental rights’, as to which this Court has been assigned the role of a sentinel on the qui vive. While the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute. We have ventured on these obvious remarks because it appears to have been suggested in some quarters that the Courts in the new set up are out to seek clashes with the Legislatures in the country.” (State of Madras vs. V. G. Row 1952 AIR S.C. 399). it was a case of a ban on an organization which was struck down.

In the late sixties the Supreme Court crossed its limits in a series of cases. In I.C. Golak Nath vs. State of Punjab (1967) 2 SCR 762 by a narrow majority (6 – 5) the Court held that even a constitutional amendment is subject to the fundamental rights and can be quashed if any of the rights are violated.

M. C. Setalvad, India’s first and best ever Attorney-General, opined in his memoirs “The true reason which impelled not only the Chief Justice but the other five Judges to take a view which the citizen finds it difficult to understand, is, I think, to be found in a passage in Justice Hidayatullah’s judgment. ‘I am apprehensive that the erosion of the right to property may be practiced against other Fundamental Rights. If a halt is to be called, we must declare the right of Parliament to abridge or take away Fundamental Rights. Small inroads lead to larger inroads and become as habitual as before our freedom was won. The history of freedom is not only how freedom is achieved, but how it is preserved. I am of opinion that an attempt to abridge or take away Fundamental Rights even through an amendment of the Constitution can be declared void. This Court has the power and jurisdiction to make the declaration.’

“The majority decision clearly appears to be a political decision, not based on the true interpretation of the Constitution, but on the apprehension that Parliament, left free to exercise its powers, would, in course of time, do away with the citizen’s fundamental rights, including his freedom.”

He accurately predicted in 1970 “It may well be that Chief Justice Subba Rao and his majority colleagues, in trying to preserve unabridged the rights in Part III for all time by a political judgment, have paved the way for political moves which may result in packing the Supreme Court, so as to alter its complexion.”   That came to pass in 1973. In 1970 the Court struck down as invalid a law to nationalize banks (R.C. Cooper vs. Union of India AIR 1970 S.C. 1318). It was a mater of prestige for Indira Gandhi who had enacted the law, after splitting the Congress, to burnish her image as a radical. This was followed swiftly by the Court also striking down her decision to deprive the former rulers of Indian States of their privy purses (Madhav Rao Scindia vs. Union of India AIR 1971 S.C. 530).

Indira Gandhi immediately decided to go to the polls and won a landslide victory in 1971. A series of constitutional amendments was enacted to nullify those three rulings. Their validity was tested in Keshavananda Bharati vs. State of Kerala (AIR 1973 S.C. 1461) before a Bench of 13 Judges. Golak Nath was unanimously overruled. But by a majority of (7 – 6) the Court ruled that the power of constitutional amendment, in article 368 “does not enable Parliament to alter the basic structure or framework of the Constitution”. The power to amend is not a power to abrogate or destroy.

This was judicial creativity at its best. Its worth was proved in 1975 when the Court struck down a law which in effect invalidated the judgment of the Allahabad High Court which declaring Indira Gandhi’s election to be void. The constitutional amendment barred judicial review (Indira Nehru Gandhi vs. Raj Narain  1975 (Supp.) SCC 1). By 2011 it is safe to say “the basic structure” doctrine has become unassailable having been followed in a series of cases.

It was the brainchild of a German jurist of great learning, Prof Dieter Conrad of Heidelberg, an authority on Indian and Pakistani constitutional law. In a lecture delivered at the Indian Law Institute, New Delhi on 2 April 1996 he documented its spread to Pakistan and Bangladesh (Basic Structure of the Constitution and Constitutional Principles; Law & Justice Vol. 3 (Nos. 1-4) 1996). While the Supreme Court of Pakistan has not adopted the doctrine  explicitly its obiter dicta came close to adoption.

Keshavananda’s case was decided on 24 April 1973. The very next day when the Chief Justice retired, the office was filled by superseding three of the most senior judges. The Court’s morale was weakened. Its ruling in 1976 in the habeas corpus case (5 – 1) was a self-inflicted wound. It ruled that the citizen was not entitled to the writ during the emergency.

After Indira Gandhi’s electoral defeat in 1977 the Court bestirred itself. It opened the door to public interest litigation which was a great service. In the eighties the Court began giving directions on governance of prisons and mental homes. (Sheela Barse vs. State of Maharashtra (1953) 2 SCC 96).

In the nineties came the ruling on judicial appointments by the Supreme Court of India which the Supreme Court of Pakistan emulated; in both cases, unconstitutionally (Vide the writer’s article Judicial Appointment on Judicial Incest; Criterion; April/June 2011 Vol. 6, No. 2 pp. 70-96).

More, it created a bar to prosecution of judges in K. Veeraswami vs. Union of India (1991) 3 S.C.C. 655 based on its own ipse dixit. He was Chief Justice of the Madras High court and was charged with corruption. By a majority of 3-2 the Court ruled. Justice B. C. Ray, who was one of the members of the majority in the Veeraswami case, said : “In order to adequately protect a Judge from frivolous prosecution and unnecessary harassment the President will consult the Chief Justice of India who will consider all the materials placed before him and tender his advice to the President for giving sanction to launch prosecution or for filing an FIR against the Judge concerned after being satisfied in the matter. The President shall act in accordance with advice given by the Chief Justice of India. If the Chief Justice is of the opinion that it is not a fit case for grant of sanction for prosecution of the Judge concerned, the President shall not accord sanction to prosecute the Judge. This will save the Judge concerned from unnecessary harassment as well as from frivolous prosecution against him as suggested by my learned brother Shetty, J. [Justice K. Jagannatha Shetty, also on that bench], in his judgment” (p. 683).

The concurring Judges Shetty and Venkatachaliah JJ. acknowledge that “we know of no law providing protection (sic.) for Judges from criminal prosecution” (page 706). They proceed to provide it by a conscious, deliberate assertion of power that simply does not vest in them. They justify this in a passage as erroneous intellectually as it is harmful in its consequences – as we know by now – and menacing to democratic government according to the rule of law :  “We must never forget that this court is not a court of limited jurisdiction of only dispute settling. Almost from the beginning, this Court has been a law maker, albeit, in [Oliver Wendell] Holmes’s expression, ‘interstitial’ lawmaker. Indeed, the Court’s role today is much more. It is expanding beyond dispute settling and interstitial lawmaking. It is a problem solver in the nebulous areas.”

That is not a nebulous area at all. It is governed by law. It is another matter that, possessed with fears, the Judges consider the law to be inadequate. In this, they stand out for their uniqueness in the entire wide world. Nor is the Supreme Court a “problem solver” or “lawmaker” except according to recognized judicial norms.

The misquotation of Holmes is appalling. This is what he said in Southern Pacific Co. vs. Jensen 244 U.S. 205 at 221 (1917) which Justice B. N. Cardozo quoted in his brilliant lectures work The Nature of the Judicial Process (Yale University Press, 1921). “Certainly, we must apply those rules when they are not plainly unreasonable and inconvenient to all cases which arise; and we are not at liberty to reject them and to abandon all analogy to them in those din which they have not yet been judicially applied, because we think that the rules are not as convenient and reasonable as we ourselves could have devised. This does not mean that there are not gaps, yet unfilled, within which judgment moves untrammeled. Mr. Justice Holmes has summed it up in one of his flashing epigrams : ‘I recognize without hesitation that judges must and do legislate, but they do so only interstitially; they are confined from molar to molecular motions. A common-law judge could not say, I think the doctrine of consideration a bit of historical nonsense and shall not enforce it in my court.’ This conception of the legislative power of a judge as operating between spaces is akin to the theory of ‘gaps in the law’ familiar to foreign jurists.” (p. 69).

Judicial activism as practiced today is far removed from judicial creativity. Judges have been flouting the text of the Constitution. Witness the judicial appointment  cases in Pakistan and India. In India the Supreme Court went so far as to order a State Legislative Assembly as how to conduct its proceedings.

One of the most highly respected Speakers of the Lok Sabha ever, Somnath Chatterjee, protested in the Lok Sabha on 10 March 2005. It is quoted in extenso because it reflects the gravity of the judicial outrage. “As the Speaker of the House of the People and as the Chairman of the Conference of Presiding officers of Legislative Bodies in India, I owe a duty to the nation to give my response to the order made by the Hon’ble Supreme Court yesterday in Jharkhand (State) matter. I had the benefit of discussing this important matter with the Leaders of various parties in both the Houses this evening, when the preponderant majority of the leaders expressed their grave concern for the developments.

“With all respect to the Hon’ble Supreme Court and without at all going into the political merits of the issue, to my mind, the order of the Hon’ble Supreme Court has created disturbing situation. Separation of powers of the different Constitutional Organs is a basic feature of our Constitution, giving sustenance to Parliamentary Democracy. The Judiciary

is supreme in its own sphere and as such the conduct of the Judges is not permitted to be discussed in any Legislature. But bona fide views can always be expressed on any order or judgment of even the Hon’ble Supreme Court. So far as the Legislatures are concerned, Articles 122 and 212 of the Constitution are two of the most important provisions, which symbolizes the supremacy of the Legislatures within their own sphere. The articles provide that no Officer of Member of Parliament, who is vested with the power of regulating the procedure or conduct of the business in the House or in the matter of maintenance of order in the House, shall be subject to the jurisdiction of any Court in respect of the exercise by him of those powers.

“Today, unfortunately, because of the Interim Order of the Hon’ble Supreme Court, the contours of the area of supremacy of the different organs, specially of the Legislature, (apart from that of the Executive Authority under article 361, which provides for complete immunity to the president and the Governor from being answerable to any Court in the matter of discharge of their duties) have got blurred which, if not pondered over and corrective steps taken, will totally upset the fine Constitutional balance and the democratic functioning of the State as a whole. The Legislatures should seriously consider the consequences of, what may be termed as, encroachment upon their authority and jurisdiction. It is necessary that the Legislatures’ supremacy as enshrined in the Constitution should be clearly asserted. This is a matter which should be looked into transcending all political formations and topical developments. As such, I appeal to all to consider the important issue with all seriousness and concern, so that the Constitutional balance can be and is restored. in my opinion, as has been suggested by many Hon’ble Leaders, to resolve all questions, the Respected President may be requested to seek the Opinion of the Hon’ble Supreme Court under Article 143 of the Constitution.”  (Lok Sabha Paper).

In 2011 the Government of India was driven to filing two applications in the Supreme Court to recall and/or modify its orders because they had trespassed on executive power and on matters of policy, made statements unwarranted by the record and upset the separation of powers under the Constitution : One concerned the Court’s order to the Government of India to set up a Special Investigating Team to probe into black money, including many stashed in banks abroad.

The other concerned the appointment of nearly 6,000 Special Police Officers by the State Government of Chattisgarh to fight Maosist militants. The SPOs were hand picked by the BJP State Government. The Court had ordered them to be disbanded. None condemned a similar experiment in Kashmir where in 1995-96 the Ikhwanul-Muslimeen, comprising renegade militants, were set up under the army’s protection to fight their erstwhile colleagues.

As the sagacious Cardozo observed  “In countless litigations, the law is so clear that Judges have no discretion. They have the right to legislate within gaps, but often there are no gaps. We shall have a false view of the landscape if we look at the waste spaces only, and refuse to see the acres already sown and fruitful. I think the difficulty has its origin in the failure to distinguish between right and power, between the command embodied in a judgment and the jural principle to which the obedience of the judge is due. Judges have, of course, the power, though not the right, to ignore the mandate of a statute, and render judgment in despite of it. They have the power, though not the right, to travel beyond the walls of interstices, the bounds set to judicial innovation by precedent and custom. None the less, by the abuse of power, they violate the law. If they violate it willfully, i.e., with guilty and evil mind, they commit a legal wrong, and may be removed or punished”. (p. 129).

Judge Learned Hand was one of the greatest American judges. He, sadly, was never appointed on the Supreme Court Bench. A lecture he delivered in 1942 on  “The Contribution of an Independent Judiciary to Civilisation” retains its relevance still. Legislation whether on matters of social, political or economic does leave “gaps”. He warned  “If an independent judiciary seeks to fill them from its own bosom, in the end it will cease to be independent. And its independence will be well lost, for that bosom is not ample enough for the hopes and fears of all sorts and conditions of me, nor will its answers be theirs; it must be content to stand aside from these fateful battles. There are two ways in which the judges may forfeit their independence, if they do not abstain. If they are intransigent but honest, they will be curbed; but a worse fate will befall them if they learn to train their sails to the prevailing winds. A society whose judges have taught it to expect complaisance will exact complaisance; and complaisance under the pretense of interpretation is rottenness. If judges are to kill this thing they love, let them do it, not like cowards with a kiss, but like brave men with a sword.

“And so, to sum up, I believe that for by far the greater part of their work it is a condition upon the success of our system that the judges should be independent; and I do not believe that their independence should be impaired because  of their constitutional function. But the price of this immunity, I insist, is that they should not have the last word in those basic conflicts of ‘right and wrong – between whose endless jar justice resides.’ You may ask what then will become of the fundamental principles of equity and fair play which our constitutions enshrine; and whether I seriously believe that unsupported they will serve merely as counsels of moderation. I do not think that anyone can say that will be left of those principles; I do not know whether they will serve only as counsels; but this much I think I do know – that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish. What is the spirit of moderation? It is the temper which does not press a partisan advantage to its bitter end, which can understand and will respect the other side….” (Irving Dilliard (Ed.). The Spirit of Liberty : Papers and Addresses of Learned Hand; Vintage Books, 1959; 125).


A.G Noorani is an eminent Indian Scholar, legal expert and columnist.