Judicial Process: Social Legitimacy and Institutional Viability
by Hon'ble Mr Justice A.M. Ahmadi, Chief Justice of India
Cite as : (1996) 4 SCC (Jour) 1
I am glad to note that this workshop has chosen to confront an issue that is of vital contemporary significance. In recent times, allegations have been made to the effect that the judiciary in general - and the Supreme Court in particular - has, by entering into the domain of the executive, "taken over" the administration of the country. It is, therefore, necessary for academicians, lawyers and judges to re-examine the roles postulated by the Constitution for the three wings of the State in order to determine the veracity of this accusation. Such an analysis will reveal how and why the nature of the judicial process in India has undergone a metamorphosis; the reasons underlying the expansion of the scope of judicial review and the legitimacy of such a response; and the need for, and factual reality of, what has euphemistically been called "judicial legislation".
In order to appreciate the changes that have occurred in the nature of the judicial process in our country, it would be helpful if a brief reference is made to the experiences of the British and U.S. Judiciary in this regard.
The Position in Britain
In Britain, the governing rule for the nature of the judicial process, for a long time, was, as expressed by Sir Francis Bacon in the early Seventeenth century:
"Judges ought to remember that their office is ... to interpret law, and not to make law."
This judicial tradition, established by Jeremy Bentham, who had a deep distrust of judge-made law, stated that it is undemocratic for the non-elected judiciary to act as law-makers; this function should be the prerogative of the Queen's Ministers and the elected members in Parliament.
Being steeped in this tradition, English Judges developed an excessive liking for their constitutionally-imposed chains. In their eagerness to avoid the blasphemy of judicial legislation, they proceeded to bind themselves in heavier chains of their own making. This led to the adoption, by the judiciary, of the rule of literal interpretation of the "plain and unambiguous" language of statutes, disregarding the fact that, in real life, words rarely are plain and unambiguous. This led to a number of absurd and inequitable results.
However, since the early Sixties, a new generation of English Judges, spearheaded by the likes of Lord Reid, Lord Denning and Lord Wilberforce, with their doctrine of "purposive interpretation" breathed new life into English Administrative Law, reviving and extending ancient principles of natural justice and fairness, applying them to public authorities and to private bodies that exercise public power, and rejecting claims of unfettered administrative discretion.
In his famous lecture on the Judge as law-maker, Lord Reid, in 1972, observed:
"There was a time when it was thought almost indecent to suggest that judges make 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. Bad decisions are given when the judge muddles the password and the wrong door opens. But we do not believe in fairy tales any more."
This new role of English Judges was, predictably, met with fierce criticism and, inevitably, there were cases where the judiciary seemed to have over-extended itself. However, efforts were undertaken by the judiciary itself to restrain its actions. In the same lecture, Lord Reid observed that when judges act as law-makers, they should "have regard to common sense, legal principle and public policy in that order". They need
"to know how ordinary people ... think and live.... You must have mixed with all kinds of people and got to know them.... If we are to remain a democratic people those who try to be guided by public opinion must go to the grass roots."
However, in the absence of a written constitution and a Bill of Rights, the scope of the power of judicial review of English Courts remains limited.
The U.S. experience
The Supreme Court of the United States of America is the oldest constitutional court in the world, having first assembled on 1-2-1790. At a very early stage of its existence, in 1803, it bestowed upon itself the power of judicial review through the epoch-making decision delivered by it in the case of Marbury v. Madison1. In what is now considered a classic exposition of the law, Chief Justice Marshall held:
"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.... A law repugnant to the Constitution is void; ... Courts as well as other departments are bound by that instrument."
Judicial review has come to be defined as the power of a court to hold unconstitutional and hence unenforceable any law, official action based on a law, or any other action by a public official, that it deems to be in conflict with the basic law, that is, the Constitution. Several jurists, including former Chief Justice Warren Burger, believe that without the power of judicial review and a Bill of Rights, the United States Constitution could not have survived. It is the concept of judicial review, that has contributed, in a large measure, to the dynamic attitude of American Judges.
Since its inception, charges have been levelled at the U.S. Supreme Court, that its judges continuously indulge in judicial legislation. In his classic text - The Nature of the Judicial Process, Benjamin Cardozo, who later served on the Supreme Court, accepted the fact that judges do make law. However, he stated that:
"He (the judge) legislates only between gaps. He fills the open spaces in the law. How far he may go without travelling beyond the walls of the interstices cannot be staked out for him on a chart. He must learn it for himself as he gains the sense of fitness and proportion that comes with years of habitude in the performance of an art."
In practice, however, U.S. Judges do far more than legislate interstitially.
The U.S. Supreme Court has played a prominent role in shaping American society. At times it has not refrained from interpreting the provisions of the Constitution to lead governmental policy in a manner which was diametrically opposite to the majority public opinion of the time. In so upholding the Constitution, the Court has withstood the stiffest of oppositions. Two illustrations may be cited here. In the 1930's, President F.D. Roosevelt, who was one of the most popular U.S. President ever, initiated a legislative package called "The New Deal". The measure was people-oriented and had a socialist objective. The Supreme Court, by repeatedly holding in favour of the right to property, struck down several of these legislations. This led to an uproar, but the orders of the Court were enforced. President Roosevelt then resorted to the extreme measure of attempting to increase the strength of the Court to enable him to pack it with his nominees but, had to retreat when the Senate refused to endorse the measure. In the end, the retirement of several judges allowed President Roosevelt to appoint his nominees to the Court and finally implement his programme. Again, between 1953 and 1969, under the stewardship of Chief Justice Earl Warren, the Court pronounced a number of stirring decisions, which upheld the civil liberties of minorities and disadvantaged sections, and expanded their rights in an unparalleled manner. This included the decision in Brown v. Board of Education2 which attracted the ire of the white majority when it held that racial segregation in public education was unconstitutional.
An analysis will reveal that, in practice, the U.S. Supreme Court has oscillated between periods of judicial self-restraint and activism. However, in the recent past, the decisions of the U.S. Supreme Court have been characterised by the exercise of self-restraint. Under the leadership of Chief Justice Rehnquist, the Court has sought to impose limits on its wide jurisdiction and, in doing so, it has paid heed to Justice Frankfurter's wise counsel:
"It is not easy to stand aloof and allow want of wisdom to prevail, to disregard one's own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Court's giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observation of the judicial oath, for the Constitution has not authorised the justices to sit in judgment on the wisdom of what Congress and the executive branch do...."
In the language of the present generation of commentators of the U.S. judicial process, judicial self-restraint is a term of praise, and judicial activism, a term of criticism.
The Indian position
The initial years of the Supreme Court of India saw the adoption of an approach characterised by caution and circumspection. Being steeped in the British tradition of limited judicial review, the Court generally adopted a pro-legislature stance. This is evident from its rulings in cases such as A.K. Gopalan v. State of Madras3. However, the judges of the Apex Court did not take long to make their presence felt and began to actively pursue the function assigned to them by the Constitution, as perceived by them. This led to a series of decisions on the right to property where the Apex Court and Parliament were often at loggerheads. The nation was then witness to a series of events where a decision of the Supreme Court was followed by a legislation nullifying its effect, followed by another decision reaffirming the earlier position, and so on. The struggle between the two wings of government continued on other issues such as the power of amending the Constitution. During this era, the Legislature sought to bring forth people-oriented socialist measures which when in conflict with fundamental rights were frustrated on the upholding of the fundamental rights of individuals by the Supreme Court. At the time, an effort was made to project the Supreme Court as being concerned only with the interests of propertied classes and being insensitive to the needs of the masses.
Between 1950 and 1975, the Indian Supreme Court had held more than one hundred Union and State laws, in whole or in part, to be unconstitutional. When contrasted with the U.S. Supreme Court, which had, between 1790 and 1985, held 135 federal and 970 State laws, in whole or in part, to be unconstitutional, it would seem that the Apex Court of India had made liberal use of the power of judicial review*. The question being asked by the critics, however, was whether such use was towards constitutionally justifiable and socially desirable ends.
The imposition of the emergency in 1975 had a profound, enduring effect on almost every aspect of Indian life. The Apex Court too was affected and was on the receiving end of brickbats for having delivered a series of judgments which were perceived by many as being violative of the basic human rights of Indian citizens.
In the post-Emergency era, the Apex Court, sensitized by the perpetration of large-scale atrocities during the Emergency, donned an activist mantle. In a series of decisions, starting with Maneka Gandhi v. Union of India4, the Court widened the ambit of constitutional provisions to enforce the human rights of citizens and sought to bring the Indian law in conformity with the global trends in human-rights-jurisprudence. Simultaneously, it introduced processual innovations with a view to making itself more accessible to disadvantaged sections of society giving rise to the phenomenon of Social Action Litigation/Public Interest Litigation. During the Eighties and the first half of the Nineties, the Court has moved beyond being a mere legal institution; its decisions have tremendous social, political and economic ramifications. Time and again, it has sought to interpret constitutional provisions and the objectives sought to be achieved by it and directed the executive to comply with its orders.
After analysing the expanded powers of the Supreme Court and comparing it with other Constitutional Courts from across the globe, the noted academician, Professor Upendra Baxi, came to the conclusion that the Supreme Court of India is "the most powerful court in the world".
The new role of the Supreme Court has been criticised in some quarters as being violative of the doctrine of separation of powers; it is claimed that the Apex Court has, by formulating policy and issuing directions in respect of various aspects of the country's administration, transgressed into the domain of the executive and the legislature.
To appreciate the causes necessitating the adoption of such an approach by the Court, it would help to understand the reason why it resorted to the innovation of Public Interest Litigation. This was done because it was realized that, in both theory and practice, litigation in the realms of private law and public law is qualitatively different.
Of the many differences, the first is that for resolving a private law controversy, the Court ensures that a person who invokes its jurisdiction has sufficient interest in the subject-matter of litigation. All those who do not have an independent legal right to claim the remedy are excluded. On the other hand, in public law litigation, an illegal act or omission of a public authority, though directed towards a few individuals, has to be viewed as potentially applicable to a class of individuals, insofar as its consequences are concerned. The assumption is that potential litigants, in large numbers, have an almost similar stake in the outcome of the lawsuit pending before the court, though only the party actually engaged in it will be directly affected by the decision.
The second difference is that private law litigation is primarily concerned with determining specific questions of fact and law. Public law litigation, however, deals with much wider questions of policy, both substantive and remedial. The issues in the latter are drawn from a much larger social canvas.
A third distinction is that in private law litigation, the adversary system of justice works and the task of collection of facts may be left to the parties, with the judge adopting a passive role. In a proceeding involving questions of public policy affecting the interests of numerous persons, it may be necessary for the court to issue commissions to collect facts, ensure representation of potential litigants, and adopt a more active role to find a just result.
The old and mechanical notions of judicial process are properly applicable to the realm of private law litigation. However, they are entirely inappropriate for public law litigation, especially in a nation that has a written Constitution which seeks to attain socio-economic equality amongst its citizens. The demands of public law jurisprudence, therefore, necessitate the adoption of a different approach by the judiciary. In grappling with these complex issues, the Court looks to the provisions of the Constitution for guidance. Part IV of the Constitution, which contains the Directive Principles of State Policy, is of specific importance while dealing with public law litigation. Article 37 states that the principles enshrined in Part IV are fundamental in the governance of the country and the State is duty-bound to implement these principles. In practice, however, sufficient efforts have not been initiated to implement most of these principles, while some have been blatantly ignored. Article 45 is a case in point. This provision required the State to set up a system to provide compulsory education to all children below 14 years by 26-12-1960. Since more than thirty years after the prescribed time, this objective was far from being achieved, a Constitution Bench of the Supreme Court in Unnikrishnan v. State of A.P.5, was forced to elevate the status of this right to a fundamental right under Article 21 and the executive was directed to ensure compliance.
When derelictions of constitutional obligations and gross violations of human rights are brought to the notice of the Supreme Court, it cannot be expected to split hairs in an effort to maintain the "delicate balance" of power between the wings of Government; it must act and act in a positive manner that will provide relief, which is real and not illusory, to the parties who exercise their fundamental right in invoking its jurisdiction.
I am not for a moment suggesting that judges should disregard the boundary separating the legitimate development of the law by them from impermissible legislation. We must pay heed to Justice Cardozo's wise observation that the philosophy of common law has at its heart, the philosophy of pragmatism. Its truth is relative, not absolute. Judges must not throw to the winds the advantages of consistency and uniformity to do justice in the particular case. Cardozo, J. further states that justice, according to law means:
"The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, 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."
In the conscientious exercise of that discretion by judges, lies the guarantee of the proper governance of our country as a democratic nature of equal citizens whose rights and freedoms are effectively protected by the rule of law.
The Constitution has conferred a very wide jurisdiction on the Supreme Court of India. It shows that the Constitution-makers placed great confidence in the sagacity and wisdom of those who were to exercise such enormous power. When any court is invested with wide jurisdiction, it necessarily follows that the court must exercise that jurisdiction with utmost care and caution. When power is conferred on a constitutional functionary, it is always to be understood by the functionary as a duty; others may view it as power. When the functionary is a judicial officer, he must be extra careful, lest he may appear to be carried away by emotion or bias. Self-imposed discipline and judicial restraint should be his armament; otherwise there is the fear that he may not be viewed as impartial. It is difficult to draw the lakshman rekha but one can say, without fear of contradiction, that the power must be exercised with restraint and should not appear to be an immature impulse. In a democratic set up, when the Constitution confers wide powers and jurisdiction on any institution, the constitutional functionaries exercising those powers are in effect called upon to perform certain duties and functions and, therefore, they must carry out those obligations with great care and caution. The constraint and restraint of judicial office, demand a self-imposed discipline in the exercise of the power and jurisdiction conferred by the constitution. While it is true that the sweep of Articles 14 and 21 has been expanded manifold by judicial creativity, the lakshman rekha has become even more difficult to draw. In fact, no one can indicate the outer periphery of its sweep. The exercise of this jurisdiction cannot be like an unbridled horse running amuck. There can, therefore, be no doubt that the jurisdiction must be exercised responsibly, and with restraint and circumspection.
The judge's task is particularly difficult in the field of public interest litigation. That is because in a large number of such cases, the material is wanting, and whatever little material is placed, is unfiltered. The entire proceeding tends to become inquisitorial in character with the judge, or judges, playing a more active, participatory role. The role of the judiciary is extremely delicate in such cases because it must not appear to be playing to the gallery or playing a role which may be described as being partisan. Great care must be taken to ensure that while the judge or judges play a participatory role, they do not appear to be entering the arena or give the impression of bias to the opposite party. It must also be realised that the position of the opposite party in such cases is precarious, in that, it has to meet with allegations which are incomplete and often half-truths. In the absence of properly drawn up pleadings, it is always difficult to counter the charge levelled against the opposite party. Therefore, while in public interest litigations the opposite party is always at the receiving end, a fair chance to put forth his defence must be ensured to such a party, and the judge or judges hearing such cases, must not give the impression that they have pre-judged that issue. This is the caution which the judge or judges must exercise, otherwise the proceedings will lose direction and will move in a circular or wayward manner.
It is indeed true that, of late, many issues which can be described as socio-political or religio-political or eco-political, are brought to court. Some of them do have far-reaching consequences and affect the social fabric of the nation. Courts have, while trying to steer clear of areas falling within political thickets, not hesitated to exercise jurisdiction in appropriate cases.
True it is, that it is difficult to draw the line but one thing is certain - the court while passing any order in such cases, must not appear to be speaking for 'effect' only. Unless the court is sure that its order is capable of being enforced, both in letter and spirit, it should be slow in passing such orders; for if it does so, it will appear to be speaking for effect and publicity only. If it passes orders which may attract media attention but are incapable of execution, they will be ineffective, which in the long run will harm its reputation and image. Certain flashy orders which are against the establishment do make headlines and the media may blow them up, which at times, may draw instant applause but if they cannot be carried to their logical end, may cause embarrassment. In the past, the Supreme Court has had to face such embarrassment of its orders and directions not being implemented in a few cases. There are cases where the implementing authorities have pleaded their inability to enforce the Court's order, on account of various difficulties faced at the ground level. This may give rise to a perception amongst certain sections of the people that the Court is becoming a paper tiger, prone to emitting moralising roars, to which a deaf ear can be turned with impunity, by the enforcing authorities on account of their inherently unenforceable nature.
This grave matter needs to be addressed immediately by the judiciary. The most important quality of law in a free society is its power to command respect, acceptance and support from the community. This quality, which has been called 'the power of legitimacy', is attached to those commands of established organs of government, which are perceived as flowing from the lawful exercise of their functions. In engaging in constitutional adjudication, the Supreme Court thwarts powerful interests, arouses the deepest of political emotions, often runs against the executive, sets aside the will of the Legislature and also issues dictates to the two wings of Government. Not being armed by either the purse or the sword, the Court is uniquely dependent upon the power of legitimacy for the compliance of its orders. Therefore, to ensure the continuance of this legitimacy, the Court should issue directions only after assessing the ground realities, and analysing the prospects of their being successfully implemented. Only orders which are judicially manageable ought to be passed so that their execution is guaranteed. One factor which must nearly always be considered is the fiscal aspect - whether the enforcing authority has the material resources to spare to be able to carry the directions of the Court to their logical end.
The Supreme Court is regarded by the people of India as the greatest institutional watch-dog of people's fundamental rights and the most assertive organ that the nation possesses. This perception of the people has caused a spate of politico-legal issues to come to Court for adjudication. These mainly come through the pipeline of public interest litigation. Not all are genuine cases; many come to court with half-baked material or on unconfirmed reports of the press or media. Some are essentially to settle scores or to gain publicity. Such abuse of the process of the court has to be curbed with a heavy hand. Numerous letters are written to the Chief Justice of India and the author of each letter expects it to be converted into a public interest litigation. If it is not so converted, pressure is sought to be put through abusive reminders and phone calls. Many expect their letters to be acknowledged and if they are acknowledged they go about telling people they are on exchange-of-correspondence level with the Chief Justice. Some others, even though educated, file abusive petitions. The Registry of the Supreme Court is burdened with such avoidable work. But notwithstanding these abuses, there are some genuine public interest cases, brought to Court by informed citizens, which the Court unhesitatingly entertains and examines. These petitions can do a lot of good to the people and the society. The remedy by way of a public interest litigation is, therefore, a very valuable weapon and my appeal to all concerned is not to blunt this valuable weapon by abusing it. If you read the news reports, you will find that several critical articles have surfaced in the recent past in regard to the exercise of jurisdiction by courts in such or similar matters. While I would forcefully defend the need to retain such discretionary jurisdiction, it should be made clear that those who abuse the process are harming this extremely potent weapon which can, in the right type of cases be of great service to the society. It is understandable that because of the awareness brought about by the media as regards the role of the Supreme Court, more and more people tend to bring public causes to Court and hence the Court must be wary in the exercise of its jurisdiction. We all know that when invented, penicillin was considered a wonder drug - the queen of drugs but its indiscriminate use saw people dying of anaphylactic shock forcing the medical world to abandon it. Let not such a fate fall on the people - friendly jurisdiction exercised in public interest. Therefore, to uphold and maintain such jurisdiction, the Court must exercise it with restraint and circumspection, more so, in cases where it is sorely tempted to intervene to remedy grave defects, if it senses that any order issued by it may not be enforced.
The reason why some people believe that the wide jurisdiction exercised by the Court in matters of public interest is a transgression of the doctrine of separation of powers is because they still hold the old and mechanical view of the judicial process, believing that judges should only declare the law and not make it. According to Justice Michael Kirby, President of the New South Wales Court of Appeals, some of the fault for this misconception lies with the judiciary. He states that:
"The judges and the legal profession have .... been less than fully frank about the brilliant interaction which our system of law permits between the stable, unelected, continuing elements of government (in the Courts....) and the democratic, creative but sometimes timorous and often unreliable elements of the temporary changing scene of political government (represented in Parliament and in the Ministry). Out of the interaction between these branches of Government one hopes that a harmony will emerge. Ordinarily it does."
We must, therefore, undertake to inform the populace about the extremely delicate nature of the judicial function. This would necessitate creating awareness among politicians, public servants, and citizens and would require improvement of the techniques by which law, principle and policy are constantly reviewed and refreshed in the courts. It would also mean greater candour within the legal profession and amongst ourselves about what the judicial function involves.
To successfully refute the charge of undemocratic conduct, and to uphold the legitimacy of judicial review, the judiciary must strive to maintain the respect it commands amongst the masses for its independence and integrity. "Justice must not only be done, it must also be seen to be done" is more a truism than a legal adage. In a democracy, especially in one where the judiciary adopts an activist approach, the citizens have a right to examine the integrity of the judicial process.
We must also take firm measures to tackle the systemic disorders of the judiciary such as delay and expensiveness. In the last one year, the number of cases pending before the Apex Court has registered a sharp decline. The total disposal of both special leave applications and regular cases rose to 76,086 cases which is twice the number of cases disposed of during the said period, last year. The total pendency in the Supreme Court has now come down to about 37,000 cases only. This was achieved by applying scientific methods of case management in a planned, meticulous manner. If sincere efforts are made, there is no reason why the judiciary at all levels cannot reduce its pendency sharply.
Thank you for giving me this opportunity to say a few words by way of an inaugural address. I wish the workshop every success.
- 1 Cranch 137 (1803)
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- 347 US 483
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- AIR 1950 SC 27
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- (1978) 1 SCC 248
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- (1993) 1 SCC 645
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