- 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 State."

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 [1981]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 J. observed:

"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 [2002], 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 and power.

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

[1984] 1 ALL ER 30 at page 533 - Links on Shivakantjha - Links on Shivakantjha

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