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M.C. Bhandari Memorial Lecture Indian Judges as Law makers: Some Glimpses of the Past
by Mr. Justice M.N. Venkatachaliah, Chief Justice of India

Cite as : (1995) 1 SCC (Jour) 1

Great lives spread an aura and fragrance which outlive their mortal sojourn on earth. If one makes a closer study of what distinguishes these men and keeps them apart from the rest, two qualities stand out. The first is their concern for the good of others. The second is a constant striving for perfection and excellence with purity in personal and public life. Honour, dignity, friendship and compassion are the traits of such worthy men. They know intuitively that nothing worthwhile or enduring is ever achieved without character and that, in the ultimate analysis, all worldly possessions and achievements like authority, wealth and status are mere wayside stops in the exciting journey of exploration of the mortal dimensions of the human personality.

By all reckoning Shri Mahaveer Chand Bhandari was an outstanding person. After a Master's Degree in English and a Degree in Law from the University of Lucknow, he read in the chambers of his eminent father Shri B.C. Bhandari and soon picked up a large and lucrative practice. He was an eminent member of the Rajasthan Bar for over 40 years. His thorough knowledge of the first principles and case-law enabled him to make it to the top in a very short period. He was held in great affection and esteem by those who came into contact with him. A large number of his juniors are now eminent members of the Bar and the Bench. He was a well-known and popular law teacher. From the accounts I have of his personal charm, he was a man with great capacity for friendship and lived a pure and unostentatious life. He passed away ere his time. When his worthy son Shri Justice Dalveer Bhandari asked me to deliver a lecture in the Mahaveer Chand Bhandari Memorial Lecture series, I considered it a privilege to be associated with the programme. I am grateful to Justice Dalveer Bhandari for this privilege.

In the Tagore Law Lectures, Sir William Holdsworth spoke of "some makers of English Law". Later, in 1984 Prof. Bernard Schwartz delivered the Tagore Law Lectures on "some makers of the American Law". It is time that somebody wrote on "some makers of Indian Law" to show the great forensic excellence of the judiciary in India. A Professor (Kahn Freund) said of English judiciary:

"... For historical reasons connected with the growth of English Law, the judiciary in this country is invested with a prestige and an authority which are, I think, comparable to those of the Roman pontifices prior to the twelve tables. This has given to English Law a strong flavour of secularised theology in which each act of interpretation of sources becomes itself a source of Law."

This is also true of the judiciary law in India.

After the Indian High Courts Act, 1861 Sir Charles Wood, Secretary of State for India, in his Despatch dated 14-5-1862, which accompanied the Letters Patent for the High Court of Calcutta, said:

"The Crown by its Letters Patent has sanctioned the establishment of a tribunal as the Chief Justice in India, which in the trained learning of the Judges selected from the Bar and in the knowledge of the language, feelings and habits of that country possessed by other members of the Court, combines the most material elements of success."

The work of the Indian Judges has more than fulfilled this expectation.

I intend in this talk to refer to some eminent Judges of the pre-independence era, the creative role of the eminent Judges of the modern post-independent era which presents the most exciting stretch of the judicial history of the country, is not part of this brief talk. That, to a lawyer, is itself a fascinating subject of study.

When you assess contemporary events the proximity of point of time and closeness in matters of thought may require that the perceiver may have to shade his eyes from the glare of immediacy. As G.K. Chesterton observed in A Miscellany of Men :

"To judge about success or failure one must see things very simply; one must see them in masses, as the artist, half closing his eyes against details, sees light and shades. That is the only way in which a just judgment can be formed as to whether any departure or development ... has been a benefit upon the whole. Seen close, such great erections always abound in ingenious detail and impressive solidity; it is only by seeing them afar off that one can tell if the Tower leans."

There is an impression that judicial activism in common law tradition, in the sense it is now understood, has been a phenomenon of the second half of the century. But as Prof. Wade points out that they have only "rekindled old fires".

For instance speaking of judicial creativity, the doctrine of 'Lost Grant' was itself the result of judicial creativeness in common law. Bryant v. Foot1 sets out the judicial ingenuity and innovation involved in the fiction of the "Lost Grant" in the following words:

"The Judges set their ingenuity to work, by fictions and presumptions, to atone for the supineness of the legislature and to amend, so far as in them lay, the law, which I cannot but think they were bound to administer as they found it. They first laid down the somewhat starling rule that from the usage of a lifetime the presumption arose that a similar usage had existed from a remote antiquity. Next, as it could not but happen that in the case of many private rights, especially in that of easements which had a more recent origin, such a presumption was impossible, judicial astuteness to support possession and enjoyment, which the law ought to have invested with the character of rights, had recourse to the questionable theory of lost grants.

Juries were first told that from user, during living memory, or even during twenty years, they might presume a lost grant or deed; next they were recommended to make such presumption; and lastly, as the final consummation of judicial legislation, it was held that a jury should be told, not only that they might, but also that they were bound to presume the existence of such a lost grant, although neither Judge nor jury, nor anyone else, had the shadow of a belief that any such instrument had ever really existed."

The 20th century witnessed the phenomenal growth and ramification of Government as a Welfare State and the consequent explosion of the legal and administrative expediencies for implementing the new found social and economic aspirations of the State as a provider of social security; as regulator of the economy; as adjudicator of industrial disputes. The myriad social roles of the State created the need for resolving problems in administering this new area of State's role. Administrative law became vital to the proper adjudication and resolution of complex disputes, quite often involving specialised technical matters, between man and man and man and State. The problem was "to strike the right balance between efficient government on the one hand and the protection of the citizen against misgovernment on the other". This balance has been struck by "some of the more sensational judicial exploits". Prof. Wade in his Hamlyn Lectures on Constitutional Fundamentals observed:

"... 30 or 40 years ago judges questioned about administrative law were prone to say that their function was merely to give effect to the will of Parliament and that they were not concerned with policy. In reality they are up to their necks in policy, as they have been all through history, and nothing could illustrate this more vividly in our own time than the vicissitudes of administrative law. In the period of their backsliding they decline to apply the principles of natural justice, allowed ministers unfettered discretion where blank-cheque powers were given by statute, declined to control the patent legal errors of tribunals, permitted the free abuse of Crown privilege, and so forth. Then in the 1960s, when the public reaction against administrative injustice had become too strong to be ignored, the judges executed a series of U-turns which put the law back on course and responded to the public mood."

Prof. Wade further says:

"When Lord MacDermott gave his Hamlyn Lectures in 1957 he had to lament the fact that the principles of natural justice did not apply to administrative action. The House of Lords held that this was entirely wrong, one of the great judicial delusions of the post-war years. Ridge v. Baldwin2 reverberated round the British Commonwealth where many judges had been perplexed by the unwillingness of our courts, including the Privy Council, to require the observance of natural justice in administrative cases. A torrent of litigation was then generated in which the courts had not only to define the principle but also to work out the details, dealing with the right to know the opposing case, and whether there is a right to legal representation, cross-examination, and so forth. The law is still developing, but the important thing is that the courts once again accept, as they had always done except in their period of amnesia, that part of their duty was to require public authorities to respect certain basic rules of fairness in exercising power over the citizen."

We have echoes of this in the Binapani Dei3 and Kraipak4 cases.

When we refer to the great Indian Judges of the pre-independence days, great names such as Sir T. Muthusami Ayyar, Justice Mahadev Govind Ranade, Sir Subramania Iyer, Sir V. Bhashyam Iyenger, Sir Gooroodass Banerjee, The Right Hon. Syed Amir Ali, Justice Kashinath Trimbak Telang, Sir Romesh Chunder Mitter, Sir Asutosh Mukerjea, Sir Shadi Lal, only to mention a few, come to our mind.

I might recall here the beautiful tribute - perhaps the most beautiful ever paid by a lawyer to the Judge - by a British Barrister Mr Eardley Norton, to Sir T. Muthusami Ayyar:

"I have touched upon Muthusami display this more markedly than in his dress. He always walked into court bare-footed. He always sat without anything to cover his feet except the diaphanous fold of his white muslin cloth. Under his silk gown he donned, it is true, a black alpaca coat; but on his head shone all the glory of a goldlaced turban, accentuating the circular Smartha wafer which reposed between his eyebrows. No collar disfigured his neck. Round his ebony throat glistened the folds of a much-encircling white tie, which towards the close of the day, after the heat of a more than usually knotty legal argument by slow degrees worked one of its end upwards and behind one of his ears. Muthusami would meantime sit with one eye shut, his head askew, with the feathered tips of his quill pen between his lips, smiling, cogitating, watching, waiting for his spring, while as his brain closed upon, grasped and strangled some audacious proposition of law with regard to the position of Bhandus, the legal status of a sister's son, or the exact inheritable virtues of a Dwayamreshyayana, his naked toes would play with fierce energy below, clutching, unclutching themselves as though they were seeking for the antagonist's throat, an index and a reflex of the intellectual spasms through which their owner was passing higher up. I used to watch those convulsions, I remember, with anxious tread, awaiting the time for my execution."

Indeed, as Mr Eardley Norton said of him that he was "used as the break-horse of the Bench. Each new judicial colt was harnessed to him and he pulled the neophyte round dangerous corners, forced him to trot instead of gallop in the straight and never knew he was shaping all the while the lives of future knights."

Sir P.P. Hutchins said of Muthusami Ayyar:

"Of all my colleagues I preferred sitting with Muthusami.... I know that if I should seem inclined to lay down a doubtful proposition, or to dismiss as untenable an argument which may have a good foundation, I should be stopped by a hint or suggestion from Muthusami delivered so delicately that none else would have noticed it, but quite enough for one who recognised, as I did, both his gentle and unassuming disposition and the profound learning which lay behind it.

He was eminently a cautious and safe Judge, but his reported judgments show that on occasions he could lay down large and broad propositions in clear, illuminating language. Naturally his especial value to the Court lay in his familiar knowledge of Hindu law and customs; but he was thoroughly imbued with the principles of general jurisprudence."

In a Convocation Address Sir Muthusami Ayyar stressed the ideals of legal training in the following words:

"You should remember, if you desire to rise to professional eminence, that law is both a science and an art, and that your success, whether at the Bar or on the Bench, will depend on the clearness with which you understand the principles of the science, and on the readiness with which you will pass through a complicated mass of facts in the midst of animated and often eloquent addresses, taking in as it were by intuition each fact, referring it to its appropriate principle, and estimating its legal value within a given time. The study of law, as has been well said, is, in its higher sense, the study of the philosophy of social life. The art you have to practise is one of the noblest; its object is the protection of human interests in all the relations of life, and the methods by which rules of decision are deduced must satisfy at once the requirements of legal science and of substantial justice...."

It is not the ambition of this brief lecture to go into the excellence of all the great Judges of the past in all detail. I might only recall two more of them.

Sir Subramania Iyer was appointed Judge in January 1885 in succession to Sir T. Muthusami Ayyar. Sir Subramania Iyer acted as Chief Justice of Madras on three occasions - in 1889, 1903 and 1906. Lord Ampthill, a former Governor of Madras, said of him:

"I regarded him as the soul of honour, as a man who had absolutely no personal ends to serve, and who devoted his great abilities solely to the public good. It seemed to me that in his life and conduct he effected an ideal compromise between adherence to Indian ways and the requirements of European methods. Neither too conservative nor too progressive, he remains the perfect model of an Indian gentleman and is broad-minded enough to adapt himself gracefully to the political and social requirements of the British connection with India. His life is an example to all, for, the virtue of piety, modesty, industry, and patriotism are equally essential to all classes and conditions of men. I shall never forget his demeanour when His Majesty the King, at that time Prince of Wales, visited Madras, for it was a picture of that respectful dignity and dignified respect which are among the true characteristics and most forceful qualities of Indians."

So extraordinary was his capacity for precision in expression that he stated the principle of "possessory-title" - elaborated in great detail in the case of Nair Service Society Ltd. v. K.C. Alexander5 - just in one pithy sentence. In Mustapha Saheb v. Santha Pillai6 he said:

"... that a party ousted by a person who has no better right is, with reference to the person so ousting, entitled to recover by virtue of the possession he had held before the ouster even though that possession was without any title."

Sir Asutosh Mukerjea was a Judge par excellence. Sir P.S. Sivaswami Iyer said of him:

"In ability, erudition and strong common sense, he was easily the foremost among the Judges of the Indian High Courts. The days of English Judges who were great jurists and made marked contributions to the growth of law were probably gone forever in India. If we wish to appraise the merits of Sir Asutosh Mookerjea, he must be tried, as he himself would have wished, by the very highest standards. It would be doing him poor justice to institute a comparison between him and the rank and file of Judges of our rather overcrowded High Courts at the present day. Two great characteristics of Asutosh as a lawyer was his vast learning and his prodigious industry. He was not content to confine his search for principles to the usual repertories of Indian or English decision. His quest for principles took him far afield to the decision of the American Courts, not merely of the Supreme Court but also of the State Courts and to the decisions of the highest courts of the Colonies. The habit of turning for light to the American case-law and jurisprudence was first started in India by Sir S. Subrahmania Iyer. Sir Asutosh Mookerjea improved upon his example and revelled in the citation of American authorities - a practice beset with danger in the hands of less discriminating followers. It may of course be said that time spent by him in the collection of authorities left him too little time for the cultivation of quality. It may also be stated that no other Judge in India had so many varied interests making such enormous demands upon his time."

I may briefly turn to the high and the low water-marks and controversies of the subject of judicial law-making.

Fleming speaking on the judicial activism said:

"Social change since the last World War, driven by heightened expectations of social welfare, affluence and technological progress, has been putting the legal system under hitherto unparalleled pressure to accommodate itself to this changing vision.... Legal systems in all Western countries have responded to the challenge to a varying extent and at varying speed. In the United States, more than elsewhere, it has fallen almost exclusively to the courts, unaided by legislation, to determine the direction and pace of legal adjustment."7

Lord Reid said:

"There was a time when it was thought almost indecent to suggest that judges make the law. They only declare it. Those with a taste for fairy-tales seem to have thought that in some Aladdin's cave there is hidden the common law in all its splendour and that on a judge's appointment there descends on him knowledge of the magic words 'Open Sesame'.... But we do not believe in fairy-tales anymore".

Lord Reid in Myers v. Director of Public Prosecutions8, said:

"I have never taken a narrow view of the function of this House as an appellate tribunal. The common law is not a knigh terrant roaming at will in pursuit of his own ideal of beauty or goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiments, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by anology, disciplined by system and subordinated to the primordial necessity of order in the social life. Wide enough in all conscience is the field of discretion that remains."

Lord Devlin said:

"Judicial law-making power must not be interpreted as implying that judges have the power, let alone the right to make any type of law they wish, some types of legal regulations are inherently and completely outside their powers."

Lord Denning, the doyen of Judges as law-makers, classified Judges into "bold spirits" and "timorous souls". Forty years ago Lord Denning declared in Candler v. Crane, Christmas & Co.9 thus:

"This argument about the novelty of the action doesn't appeal to me. It has been put forward in all the great cases which have been milestones of progress in our law, and it has always, or nearly always, been rejected, if we read the great cases."

Of dissent on judicial creativity he said:

"... You will find that in each of them the judges were divided in opinion. On the one side there were the timorous souls who were fearful of allowing a new cause of action, on the other side there were the bold spirits who were ready to allow it if justice so required."

In Candler v. Crane, Christmas & Co.9 Denning was in a minority. But in a later case the House of Lords preferred his views to those of the majority.

Lord Ackner recounts an interview of Lord Devlin with the B.B.C.'s Robin Day on Lord Denning's judicial activism. The interview, says Lord Ackner, went somewhat on these lines:

Robin Day: You don't take the view that judges should make the law; that's for the legislator?

Lord Devlin: (emphatically) Yes.

Robin Day: But Lord Denning takes the opposite view. He thinks judges should, from time to time, make the law.

Lord Devlin: So I understand.

Robin Day: Yes, Lord Devlin. But you must have more to say than that since this is clearly a difference on a major point.

Lord Devlin: Well, Lord Denning is a very great judge.

Robin Day: Yes, Lord Devlin, but surely there is more you would wish to add?

Lord Devlin: (pause) Lord Denning is a specimen tree, you mustn't have a whole avenue of them.

But this is an era of waxing mood of judicial law-making. All this has the familiar ring of the judicial speculations in America two centuries ago where Justice Chase declared that "an Act of the legislature contrary to the great first principles of the social compact cannot be considered to be rightful exercise of the legislative authority ... the genius, the nature, and the spirit of our State Governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them...."10. Again in Hepburn v. Griswold11 it was held that the "letter and the spirit of the Constitution" imposed a limitation as the legislative power. It is a different matter that a century and a half later the Indian courts found themselves not at liberty to declare an Act void because in their opinion it was opposed to a "spirit supposed to pervade the Constitution but not expressed in words".

The raison d'etre for judicial law-making is said to be that "by its very nature the law is a laggard. It does not search out as do science and medicine. It merely reacts, post-facto, to social needs and demands and is never abreast of the needs of the times."

It is said that judiciary law must be within narrow and clearly defined limits. But the trouble is that those who make the law themselves claim the right to set those limits. Jaffe asks "By what warrant and in what sense, is the judiciary authorised to make law? What, if any, are the effective limits upon the exercise of judicial power? What problems flow from its being an ad hoc decisional process? Can the judiciary be trusted to move in the right direction?"

Jaffe also said the English Common Law had suffered a menopause; but Lord Edmund Davies made a vigorous protest. He said: "If there ever was a menopause in judicial law-making, all I can say is that it must have been of a truly remarkable kind. For not only it is over and done with, but conception has assuredly been resumed and is clearly proceeding at a brisk pace."

In Shaw case12 Lord Simonds recognised that there remained in the courts of law "a residual power to conserve, not only the safety and order, but also the moral welfare of the State." Those were stirring words. But, they stirred different people differently. They stirred Lord Reid into dissentience. They stirred a Hart-Devlin debate on law and morality. They stirred Professor Seaborne Davies into saying:

"Let us ask the very simple question: who, besides themselves, has conferred upon the Judges this title under which they claim to be custodians of our morals? Who has said that the Lords Judicial of this realm are also its Lords Spiritual or Lords Political? ... I object to this arbitrary doctrine, because it carries the most distinct possibility of an abuse at some moments of deep crisis which will violently weaken the respect for the Bench of a large section of the reasonable opinion of the nation."

There is an ancient saying that it is part of the good judge to extend his jurisdiction. One may not wonder whether judges have been "practicing this virtue to excess". It is not only executive power which is open to abuse. The judicial power, may also be abused by Judges. As Prof. Wade noted, that it was not so long ago that a Cabinet Minister in the House of Commons accused a High Court Judge of being "trigger happy".

There are those who view judicial activism with alarm. Lord Devlin cautioned against the great temptation to "cast the judiciary as an elite which will bypass the traffic laden ways of the democratic process. But it would only apparently be a bypass. In truth it would be a road that would never rejoin the highway but would lead inevitably, however long and winding the path, to the totalitarian State."

Critics say that there is too much leaning on the side of social reform ahead of social consensus and that there is an erratic subjectivity of judgments, an analytical laxness, an intellectual incoherence and of imagining too much history. Judicial Activism in America is criticised for its infidelity to the Constitution. Critics are suspicious of the wares of social wisdom in the judicial storehouse. They caution judges against the appealing attractions of the political policies disguised as constitutional principles and of being perpetual sensors of legislation. They say that legislative policy from the bench, once acquired, is addictive. Implicit in the judicial activitism, they say, is the denial that judges are bound by law.

The American New Right jurists want to turn this legal clock back. Bernard Schwartz calls Edwin Meese's "Jurisprudence of Original Intention" both undesirable and unworkable and that it turns back the constitutional clock by two centuries and fossilizes our public law. Schwartz seeks to answer them in the famous words of Judge Learned Hand: "These are false hopes, believe me, these are false hopes." But Schwartz admits that the "original intention", like Hamlet's father, is a ghost that refuses to remain in repose.

In the strong words of Robert Bork:

"In Law the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held view of justice, his political and moral imperative, is not embodied in the statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of Government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should.

The American people are tempted as well. Many of the results seem good and they are told that the choice is between a cold, impersonal logic, on the one hand, and, on the other, morality and compassion. This has always been the song of the tempters, and now it is heard incessantly from those who politicize the courts and the Constitution, as a necessity stage in the politicization of the culture at large.

The democratic integrity of law, however, depends entirely upon the degree to which its processes are legitimate. A judge who announces a decision must be able to demonstrate that he began from recognised legal principles and reasoned in an intellectually coherent and politically neutral way to his result. Those who would politicize the law, offer the public, and the judiciary, the temptation of results without regard to democratic legitimacy."

This debate involves profound issues of the nature and scope of judicial power. But, "we do not believe in fairy-tales any more". Judges do make law. The Judge cannot do it by virtue merely of the label that he has as a Judge. But it takes great erudition and scholarship to make law. The self perception of a court of last resort of its own role in law-making is profoundly important to a country. The American and the Indian Courts have greater similarity than each of the two has with the British system. Rosenberg wrote, rhyming with Danny Kay, "Anything legislatures can do, courts can do better?" It is the privilege the Court of last resort. Theobold Mathew of the Forensic Fables's fame once said:

"The duty of a judge of first instance is to be quick, courteous and wrong. That is not to say that the duty of the Court of Appeal is to be slow, rude and right, for that would be to usurp the functions of the House of Lords."

These comments on the limits of judicial law-making apart, we find that the areas of judicial activism and the development of law by judges of the past have greatly aided the development of the law in the right direction when such aid and direction were necessary. The creative contribution of the judges of the past to the development of the law deserves a more attentive and respectful retrospection.

  1. (1867) 2 QB 161 Return to Text
  2. 1964 AC 40 : (1963) 2 All ER 66 : (1963) 2 WLR 935 Return to Text
  3. State of Orissa v. Binapani Dei, AIR 1967 SC 1269 : (1967) 2 SCR 625 Return to Text
  4. A.K. Kraipak v. Union of India, (1969) 2 SCC 262 Return to Text
  5. AIR 1968 SC 1165 Return to Text
  6. ILR (1900) 23 Mad 179, 182 Return to Text
  7. John G. Fleming : The American Tort Process, p. 32 Return to Text
  8. 1965 AC 1001 Return to Text
  9. (1951) 2 KB 164 : (1951) 1 All ER 426 Return to Text
  10. Calder v. Bull, 3 US (3 Dall) 386 : 1 L Ed 648 (1798) Return to Text
  11. 75 US (8 Wall) 603 (1870) Return to Text
  12. Shaw v. DPP, 1962 AC 220 : (1961) 1 All ER 330 : (1961) 2 WLR 897 Return to Text
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