Shivakantjha.org - Treaty Making Power: The Context
The Myth of Judicial Activism - A Noble lie about PIL
By Shiva Kant Jha
In the Introduction to the Judicial Role in Globalised Economy
(2005) I was driven to observe:
"Adam Smith thought that the 'invisible hand' of Reason conditioned
the realm of humans by an enlightened self-interest. The shibboleth turned over
years into a virtual divine commandment. The metaphor of 'invisible hand' caught
on the mind of people so much that it itself turned into a deity said to have
an immanent presence. But the reality of life is that the 'invisible hand' has
all along been conspicuous by its absence. It is clear from the trends and tendencies
of our day that Market is planting its kiss on all the institutions spawned
by the political realm. It has enchanted the executive to become market-friendly.
Its persuaders have not left outside their spell even Judiciary. Richard Posner
speaks of the Constitution as an Economic document, and proposals have been
made to refashion constitutional law to make it a comprehensive protection of
free markets, whether through new interpretation or new amendment, such as a
balanced-budget amendment. We are bidden to take into account the impact of
legal institutions and rules on markets, and to undertake an economic analysis
of law. Even the role of the State is defined in terms of our deference to the
market. The Chicago University and the Yale Law School are the centres for the
study of law and economics wherein economics dominates legal discourse. Homo
juridicus is becoming homo economicus. Public policy of the State
is manipulated to come to terms with the ideas of the mainstream neoclassical
economics. The triumphal march of the Market, taking all institutions for granted
as its minions, has generated forces which are taking us fast towards the Sponsored
This state of affairs is the product of a studied strategy of
the Metternichs and the compradors of the neo-colonialism whose sugar-coated
sinister manoeuverings is peerless in history. In the middle years of the century
(the 19 th century) it had been widely held that colonies were burdens and that
materials and markets were most effectively acquired through trade. The process,
through craft and stealth, grew, whilst we played the Game of Chess unmindful
of the dangerous portent, into the present structure of deception under which
the political realm is wholly subjugated to the economic realm. This new Leviathan
under whose cleft we are caught is the Rule of Market (Pax Mercatus). The Executive
government has unwittingly made itself a servile instrument of this new Leviathan.
Parliament, where the whole nation is deemed present, has lost its verve and
mission, is decaying fast in its self-assumed glamour resting largely on the
laurels of the past. Our Constitution has been defaced and defiled in numerous
overt and covert ways. Time has come when ruthless capitalism is begetting exploitative
and extractive system but is deceitfully advertising the figments of delight
to delude the common. It swears non-stop in the name of Democracy. But in this
whole game of cussed greed two institutions posed inconvenient problems: one
was the Permanent Civil Service, and the other is the Superior Judiciary. The
first bastion has already fallen; as the contrived circumstances have turned
the civil servants into the abject silhouettes pullulating the corridors of
the Administration opaque in effect. The only bastion which must fall on favour
of the corporate imperium is the Superior Judiciary. This syndrome is
manifest as much in our country as in the UK. In the USA, the Superior Judiciary
has always worked for Business in the MBA style. After the World War
II, the USA has emerged a country for business run on the business style, where
everything is a trading ware, vice and virtue alike.
This much advertised wrath at the so-called Judicial Activism
is just a part of the strategy to make this last Bastille of Democracy fall.
This is an item on an agenda crafted in ways which goes unnoticed. Centuries
back, when the humans had neither witnessed this rogue financial system, nor
had tryst with times when snares delight till we are sucked in the Continent
of Circe, there was a wise man in the West called Plato. In his celebrated Republic
Bk. 3.414, he wrote : "I wonder if we could contrive .....some magnificent
myth* that would in itself carry conviction in our whole community." [ *Some
have translated it as 'the noble lie' ]. The long and short of my research
has led me to believe that the whole claptrap and hullabaloo is
just the dues ex machina to make even the Superior Judiciary turn
Market friendly. Assuming that there is some grain of truth in
this clamour against the Judicial Overeach, the way it is being cast in the
Press or through the Cyberspace by the hordes of ill-informed politicians
brings to mind what William Blake had said in a different context :
A truth that's told with bad intent
Beats all the lies you can invent.
We hear the shrill chorus of many, the lawyers and laities alike,
the wrathful complaints about what they call 'Judicial Activism' which when
done with greater zest turns still more sour to become what they call 'Judicial
Adventurism' . I have seen Judiciary at work mostly as an on-looker from
the fence (as if I were a Barbarik bidden by Lord Krishna to observe
and assess what goes on in the forensic Mahabharat ).
An onlooker may not be a valiant Knight-errant, but he is better
placed to see things as they are. The whole controversy as to Judicial Activism
seems to me a sinister 'buckwas' by those who want even this institution,
bidden by our Constitution to uphold the Constitution, to abdicate the role
which we designed for it under our Constitution, and become a facilitator for
those who are the de facto rulers in our State fast being trapped to
become a Sponsored State.
What is this 'activism'? The Shorter Oxford English Dictionary
explains it as "a policy of vigorous action, esp. in politics". This word
is in use from the early 20 th century. Doesn't our Constitution require "vigorous
action" from Judiciary too? Can the 'timorous souls' uphold this Constitution
in these locust-eaten years? Should the Hon'ble Judges betray their oath and
turn criminals before the Bar of History? Didn't Chief Justice Marshall of the
U.S. Supreme Court say, in those best days of that institution, in Marbury
v. Madison [2 L Ed 60 (1803)] :
"From these, and many other selections which might be made, it
is apparent, that the framers of the constitution contemplated that instrument
as a rule for the government of the courts, as well as of the legislature. Why
otherwise does it direct the judges to take an oath to support it? This oath
certainly applies in an especial manner, to their conduct in their official
character. How immoral to impose on them, if they were to be used as the instrument,
and the knowing instruments, for violating what they swear to support!"... Why
does a judge swear to discharge his duties agreeably to the constitution of
the United States, if that constitution forms no rule for his government? If
such were the real state of things, this is worse than solemn mockery. To prescribe,
or to take oath, becomes equally a crime."
The view that the Judicial Activism, if not tamed, would provoke
the Political wing of our polity to take steps to clip the wings of Judiciary
is foolish. Such apprehensions is baseless to anyone who knows the genius of
this country and its history. To me the strategy is merely to threaten our Judiciary
with frowning vocables to compel/impel it to toe the line of the Executive government.
When the USA decided to drop atom bombs on Japan, it commissioned certain experts
to study the psychology of the people. Our Judiciary has no reason to feel cowered.
If it, perish the thought, happens, the whole structure of public power would
cease to have their raison de tre, and would become illegal warranting
the 'We, the People' to take such steps as considered prudent. This may even
include their wish to assemble in a Convention to redeem the pledge under the
Constitution which we had given to ourselves when the rampant greed had not
brought political morality so low as it is now.
In fact the expression PIL is a mere description of an inherent
judicial function of the Superior Judiciary. The Superior Judiciary has an innate
and inherent common law jurisdiction to examine the legality of the actions
of every organ of the State. The Courts have vast powers, drawing on its common
law jurisdiction, to provide a remedy in every situation where law or Constitution
is breached. For doing so, no statutory authority is necessary: the court is
simply performing its ordinary functions in order to uphold the rule of law.
This duty is discharged through prerogative remedies granted under Art 32 or
Art. 226 of the Constitution. Bernard Schwartz & H W R Wade have explained
their purpose very felicitously [ Legal Control of Government , pp. 216-217
"The important aspect of the prerogative remedies is that they
belong exclusively to public law (with the exception of habeas corpus), their
primary object being to make the machinery of government work properly rather
than to enforce private rights. This introduces a valuable "public interest"
element. An application for certiorari is, as the title case indicates, a proceeding
by the Queen to call some public authority to account for exceeding or abusing
its power. Similarly in a suit for mandamus the Queen is calling for the proper
discharge of some public duty. Although private persons are of course the real
plaintiffs, the public character of the proceedings is more than a mere form."
This deserves to be noted that the province and reach of judicial
duties were explained by Lord Diplock in National Federation of Self-Employed
and Small Businesses Ltd 2 All ER 93HL] wherein certain arbitrary
actions of the Executive government in the Revenue field had been challenged.
Lord Diplock said:
"It would, in my view, be a grave lacuna in our system of public
law if a pressure group, like the federation, or even a single public-spirited
taxpayer, were prevented by out-dated technical rules of locus standi from bringing
the matter to the attention of the Court to vindicate the rule of law and get
the unlawful conduct stopped...."
The observation was approved in S.P. Gupta & Ors
v President of India & Ors (AIR 1982 SC 149), where Justice Bhagwati
"We would, therefore, hold that any member of the public having
sufficient interest can maintain an action for judicial redress for public injury
arising from breach of public duty or from violation of some provision of the
Constitution or the law and seek enforcement of such public duty and observance
of such constitutional or legal provision. This is absolutely essential for
maintaining the rule of law, furthering the cause of justice and accelerating
the pace of realization of the constitutional objective."
This dictum is the foundation for the whole trajectory of PIL
in our country. What is wrong with it? It is just the conventional role of the
Judiciary. Lord Diplock in Black-Clawson Ltd [ (1975) 591 at
638 had aptly observed:
"In construing it the court must give effect to the words
of the statute as would be reasonably understood to mean by those whose conduct
it regulates.....Parliament, under our Constitution, is sovereign only in respect
of what it expresses by words used in the legislation it has passed."
So, as the interpreter of the law and the Constitution, and
as the upholder of the Rule of Law it its constitutional duty of the
Superior Judiciary to see:
(a) that all the organs, being the creatures subservient to the
Constitution, must work within the frontiers of its public powers, and must
carry out their duties as prescribed;
(b) that all public duties must be performed in tune with the
constitutional jurisprudence, and all public powers are to be used for public
purpose, and more so when they are coupled with implied or express public duty;
(c) that as there can never be an Alsatia (the precinct providing
sanctuary for criminals and crooks) in any of the organs of the State, howsoever
exalted, be it the Executive or Legislature, all the organs must uphold
the Constitution so that none makes bonfire of law whatever and wherever be
the theatre of operation, be they within the confines of our domestic jurisdiction
or at the international plane.
The High Court in England exercises the power of the King/Queen,
the Superior Courts under our Constitution exercises the sovereign power of
"We, the people". Our Constitution cannot be upheld by the lily-livered and
timorous souls. Scarecrows had once threatened the Weimer Constitution, and
none defended it before it succumbed to Hitler. Let not the pressurizers and
persuaders and the covert operators or even well meaning ignoramuses have the
last laugh in our constitutional democracy. What is stated in so many words
in the German Constitution is implied under our Constitution.
I fail to understand how the Supreme Court was doing anything
other than discharging its conventional constitutional duty when it decided
the recent cases with strong political notes, but raising at heart the question
of constitutional propriety and the Rule of Law. The Legislature is a creature
of the Constitution and is bidden to remain under constitutional discipline.
The fossils of the British jurisprudence often resuscitated through the interstices
of legislative privilege must bend or break because all powers of the legislature
or the executive are 'subject to the Constitution' of which the Judiciary is
the sole interpreter and the supreme enforcer. The Superior Courts are
the upholders of the Constitution as under it the sovereignty of the State is
meticulously distributed amongst the three prime organs. But under our Constitution
it is the Superior Courts who have the duty to examine the legality of all acts
done by the wielders of public power, be they the legislature or the executive.
The principle, that whosoever decides anything, must decide without malice and
reasonably, governs all decision-making. Why shouldn't the judiciary see how
our tiny-tots are treated even at the nursery schools? Has Art 21 been
excluded therefrom? Doesn't the protection of Art. 21 (and many others) overarch
from the foetus to the grave? Why shouldn't the court interfere to protect human
rights for whom the Constitution exists, and without which our democracy would
be a farce? Why shouldn't the courts protect our environment because its degradation
will surely deprive the humans of the essential quality of life which Art. 21
contemplates for us all.
Not much be made of the theory of separation of powers. Tocqueville
formatted the doctrine in his political tract to plead for Liberty by claiming
to have deduced from the British constitution. But there was nothing of that
sort in the British constitution. But the doctrine influenced the framers of
the U.S. Constitution who adopt the rigid doctrine of the separation of powers.
Our Constitution adopts this theory without its frigidness: our approach is
pragmatic and functional. It is often considered even one of the basic features
of our Constitution. But nothing turns on this point. A PIL in no way goes counter
to it. In every PIL the Superior Court merely discharges its constitutional
duty to examine the acts of the wielders of public power on the counts of legality
and constitutional conformity.
But I am led by the recent decisions of our Supreme Court
to think that there is an evident tendency to abdicate judicial creativity.
There is often recrudescence of an anachronistic view as to the role of judiciary.
The role perception is the most crucial factor in a judicial decision-making.
In Azadi Bachao , the Supreme Court went to say:
"The maxim " Juices est. jus dicer, non dare" pithily
expounds the duty of the Court. It is to decide what the law is, and apply it;
not to make it".
This is the orthodox Blackstonean view that judges do not make
law, but only declare what has always been law. This begets, to quote Bernard
Schwartz ( Some Makers of Americal Law p. 103): "The dominant jurisprudence
then was analytic, with the judges marching to pitiless conclusions under
the prod of a remorseless logic which was supposed to leave them no alternative."
And Lord Mansfield, stated the function of the King's Court, as far back in
1774, in these words :
"Whatever is contra bonos mores et decorum, the principles
of our law prohibit, and the King's court, as the general censor and
guardian of the public manners, is bound to restrain and punish."
And Lord Scarman in Furniss v Dawson:
"Difficult though the task may be for judges, it is one which
is beyond the power of the blunt, instrument of legislation. Whatever a statute
may provide, it has to be interpreted and applied by the courts: and ultimately
it will prove to be in this area of judge-made law that our elusive journey's
end will be found."
"On the one hand," says Geny, "we are to interrogate reason and
conscience, to discover in our inmost nature, the very basis of justice; on
the other, we are to address ourselves to social phenomena, to ascertain
the laws of their harmony and the principles of order which they exact."
The role perception of the Supreme Court in Azadi Bachao is anachronistic.
This is a goodbye to the view which Chief Justice Muekherji, in Delhi Transport
Corporation case, "the Court must do away with the childish fictions that
law is not made by the Judiciary" [ (1991) Supp. (1) SCC 600 para 134].
What happened in Azadi Bachao ? A bilateral treaty between
India and Mauritius was allowed by our Supreme Court to be accessed by the operators
from the third-States who masqueraded as the Mauritian citizens to loot our
resources, and to carry home their booty. Even till this date the loot continues
causing wrongful loss to us, and wrongful gains to them who include the money-launderers,
fraudsters, tricksters, dirty money acquirers, terrorists and criminals. But
how this happened? It happened because the Supreme Court would not look into
the collusion and fraud that those operators practiced paying consideration
to the Government of Mauritius by way of fees for creating such paper-companies
filed in the hip-pockets of the finance managers, rich in talent but deficient
in ethics. The Division Bench went to the extent as to inflict the pejoratives
of 'hiccup' and 'temporary turbulence' on a Constitution Bench decision as it
stood in the way. All this was justified by quoting chapter and verse from a
book of the interested party dug in course of private research. Why should such
thing happen? Has the Pax Mercatus had its toll? And the climax of all
this is that the Supreme Court cannot remedy it by relying on the anachronistic
notion of the Finality of Judicial order. No remedy under Article 32 is available.
In Azadi Bachao the Supreme Court made a cri de Coeur to the Executive
and Parliament. But none listened to it. Why should the Executive listen
to it when it itself has facilitated this fraud on our Constitution for obvious
reasons. Why should Parliament listen to the judicial cry? Who hears? We wish
our Superior courts to assert in the name of 'We, the People', not to cringe
to register a mere cri de Coeur, not to abandon its creativity pro
bono publico . It is said that Arjuna had two principles to govern his actions:
never to cringe, and never to abdicate duty. Our Superior Court should be an
Arjun, and can ill afford to forget Gandhari's words " yatoh dharmah tatoh
jayah" inscribed at its emblem having majestic presence in the Court .
The above mentioned case is respectfully mentioned in public
interest as an illustration only. The scope of this article does not permit
casting net wide.
Our Superior Courts have to show judicial creativity with verve
and commitment to the constitutional values. Activism must reveal itself in
responding to the legal problems thrown up by the realities of this economic
globalization. Now it has become the greatest constitutional duty of this Hon'ble
Court to see that our human rights granted to us under the Articles 14, 19,
21, and 25 are not lost on any specious pleading, for any reason whatever. There
was a time when our Supreme Court was highly appreciative of the ideas on the
Judicial Activism dear to Chief Justice Warren of the US Supreme Court. Our
Supreme Court had adopted judicial approach, which characterized the decisions
of the Warren court. "The work of the U.S. Supreme Court period when Earl
Warren sat in the Supreme Court's central chair turned out to be 'the most innovative
and explosive era in American constitutional law" since the days of Chief Justice
Marshall. Bernard Schwartz says:"The popular conception of Warren's judicial
career has, indeed, been one of a virtual metamorphosis -with the political
grub suddenly transformed into the judicial lepidopteron". Even then the high
judicial creativity of Warren was opposed by some Judges most notable being
Justice Frankfurter. The Warren-Frankfurter difference in this respect ultimately
came down to a fundamental disagreement on the proper role of the judge in the
American system. Frankfurter remained true to the Holmes approach, insisting
that self-restraint was the proper posture of a non-representative judiciary,
regardless of the nature of the asserted interests in particular cases. When
a law allegedly infringed upon the personal rights guaranteed by the Bill of
Rights, Warren refused to defer to the legislative judgment that the law was
necessary. Warren rejected the Frankfurter philosophy of judicial restraint
because he had come to feel that it thwarted effective performance of the Court's
constitutional role. Judicial abnegation, in the Chief Justice's view meant
all too often judicial abdication of the duty to enforce constitutional guarantees.
"I believe," Warren declared in an interview on his retirement, "that this Court
or any court should exercise the functions of the office to the limit of its
responsibilities."' It is interesting to note that Warren's adherence to this
activist approach coincided with his visit to India in the summer of 1956. "He
returned with a broadened perspective, aware that the judicial protection of
human rights was supported by a constituency that stretched far beyond American
boundaries. The global image of the United States was directly related to the
Supreme Court's role in enforcing constitutional guarantees against government
infringement". In the USA after the Warren era, there is an evident onset of
conservatism, and a clear depletion of the activist fervour. In our country
too the last decade of the last century evidenced a turning in the judicial
trends, and a change in judicial sensibility. Conventionalism and conservatism
became conspicuous. These early years of this century mark a phase in which
judicial innovation and activism are reluctantly resorted to, but there is a
shrill outcry by those who would wreck law and the Constitution for pelf
Our Judiciary must now respond creatively to the zeitgeist
of this globalised world under throes of a clear mismatch
between the Executive Government of our country, and the players in the foggy
and misty sphere of the global economic architecture. The subordination of the
political realm to the economic realm is too staggering a reality to go unnoticed.
The correct judicial perspective in the context of the present-day realities
is thus stated by Judge Manfred Lachs of the International Court of Justice
[ In the North Sea Continental Shelf Case ICJ 1969, 3 at 222] :
"Whenever law is confronted with facts of nature or technology,
its solution must rely on criteria derived from them. For law is intended
to resolve problems posed by such facts and it is herein that the link
between law and the realities of life is manifest. It is not legal theory which
provides answers to such problems; all it does is to select and adapt the one
which best serves its purposes, and integrate it within the
framework of law."
It is just the administration of justice to be responsive and
dynamic to see that complete justice is done. Every great Judge has acted this
way. Prof. Schmitthoff has perceptively examined the judicial approach
of Lord Denning in these insightful words [ Manitoba Law Journal, Vol-VI,
(1979) pp. 1-19].
"His approach is technological. He thinks of the result before
he considers the legal reasoning on which it has to be founded. If the result
to which established legal doctrine leads is obviously unfair or out of touch
with what ordinary people would expect to be the law, he will examine
first principles in order to ascertain whether they really compel an unjust
solution and often this method will enable him to arrive at an answer which
is more adequate to modern needs."
Persons much abler than me want our Supreme Court to lay down
clear guidelines pertaining to PIL. I wonder what better precise guidelines
there can be on the point than what is crisply stated by Lord Diplock
quoted by our Supreme Court with approval in S.P. Gupta Case and already
referred in this article. We bring through a PIL a matter "to the attention
of the Court to vindicate the
rule of law and get the unlawful conduct
stopped....". We get from the news papers that our Supreme Court would
consider formulating such guidelines. We also get from the press that our Chief
Justice said that the three-Judges Bench is not bound by the views of a Division
Bench of the 2-Judges. This view is obviously correct. What is to be seen with
interest is what other Division Benches of 2-Judges do, or what the High Courts
do in the matter. The fog must be cleared.
Jones v. Randall (1774), Lofft 383, 98 E.R. 706
 1 ALL ER 30 at page 533