Thursday, 24 October 2013

Separation of Powers, Judicial Review and Judicial Activism

- by Justice Markandey Katju

            The Separation of Powers principle[1], propounded by the French political thinker Montesquieu, has been elaborately discussed in my judgment in  Divisional Manager, Aravali Golf Course v. Chander Haas (2008) 1 SCC 683 (vide paragraphs (17 to 40). Judicial activism is basically a deviation from this principle. Judicial activism is based on the theory of Jurisprudence called Sociological Jurisprudence, which arms the judiciary with wide legislative and executive powers.

            Judicial review of statutes is discussed elaborately in my judgment Government of Andhra Pradesh v. P. Laxmi Devi (2008), vide paragraph 31 to 94.

            We may therefore come directly to the subject of judicial activism, where many difficulties have arisen. 
Introduction

            The common ancestor of both the U.S. and Indian judiciary is the British judiciary.  Hence both the countries are indebted to the British legal system for many of their principles and institutions. 

            In England, since Parliament was supreme and there was no written Constitution, the traditional approach of the British Judges was only to apply the law made by Parliament to the facts of a particular case, and thereby reach to a decision based on that law.  “Law is the command of the sovereign” said Austin, and since in England the sovereign was Parliament, law was what was made by Parliament, not the Judges.  Thus, the British Judges were subservient to Parliament, and were not expected to be activist.  The separation of powers theory of the French writer  Montesquieu said that law making was the job of the legislature, and taking administrative and policy decisions was the job of the executive.  Judges were expected to be like a referee in a football match, who was only to see that the rules were followed, but was not to himself take part in the match nor advise the players how to play.  The literal rule of interpretation was followed with particular emphasis in England, since to depart from it would amount to thwarting the will of Parliament, which was supreme in England’s unwritten Constitution.

            This approach was in accordance with the positivist school of jurisprudence propounded by the British jurists Bentham and Austin, who placed the centre of gravity of the legal system on statutory law, that is, law made by the legislature.
           
            In contrast, sociological jurisprudence, which originated in Continental Europe  in the late 19th century (see Bodenheimer’s ‘Jurisprudence’)   was developed in U.S.A. by Roscoe Pound, the realist school, etc. and sought to shift the centre of gravity in the legal system from statute to judge made law (see “Legal Theory’ by W. Friedman and “American Jurisprudence’ by James Herget)  .

            We are not going into the various theories of sociological jurisprudence, and we need only comment that these theories would certainly have had an impact on many of the judges of the U.S. Supreme Court.

The traditional understanding of the judicial process is that while the legislature makes laws and the executive implements them, the judiciary’s function is only to interpret and apply the law to the facts of a particular case. 

As an organic document, a written Constitution chiefly performs two  main tasks- firstly, it sets up the organs of governance, and secondly, having set up these institutions, it provides a recourse against the abuse of power by these organs.

India and the United States of America are both no exceptions to this rule. There are certain fundamental similarities in the legal set-up of both countries. As former colonies of Great Britain, they both inherited a common law system, and (at varying times) a deep distrust of any organ of government not having requisite checks and balances. As a result, the written Constitutions of both countries, though differing greatly in length (the Indian Constitution is the longest one in the world, whereas the American Constitution is one of the shortest) -- contain a number of similarities. Both have a set of Constitutional Rights based on the Natural Rights model of John Locke that assume primacy -- the Bill of Rights in the American Constitution, and the fundamental rights in Part III of the Indian Constitution.  Both Constitutions are also federal, though, to understand the Indian concept of federalism, it may be noted that India’s Constitution has been described as being `quasi-federal’ having a “strong unitary bias”. Furthermore, both Constitutions guarantee equality, freedom of speech and religion, and life and liberty through their respective chapters on inalienable rights.

It is important to note that both societies are also fundamentally similar. India and the United States of America have immense diversity of every kind -- climate, land, language and people. In India there are so many castes, religions, languages, ethnic groups, etc In countries of such diversity, Constitutional texts create an immense binding force by their guarantees of equality, secularism and federalism.  However, in doing so, the judiciary is frequently called upon to play a pro-active role in cases of disputes, or contested interpretation of rights. In such a situation, it is tempting for the judiciary in the garb of the sole interpreter of these rights, to play a larger role in the governance of a country than is strictly required by the law. In this paper, it is proposed to examine how the judiciary of both India and the United States, have looked at this power, and what pitfalls may emerge when ‘judicial activism’ becomes ‘judicial adventurism’.

JUDICIAL ACTIVISM AS A PHILOSOPHY:

The expression `judicial activism’ is often used in contrast to another expression `judicial restraint’.

As an ideology of the judicial process, ‘judicial activism’ implies the “use of the court as an apparatus for intervention over the decisions of policymakers through precedent in case law.”[2] In doing so, the Court often creates law and seeks to play a greater part in the governance of a country through “allowing their personal views about public policy”[3] to aid them in their decisions.  The role of judges in such cases goes beyond the traditional “interpretative” role that has been assigned to them, and shifts to a model by which judges seek to make law, encroaching on the Separation of Powers doctrine, which forms the bedrock of the Indian and United States constitutional system.  When a Court strikes down a law in an “activist” manner, it places primacy upon its interpretation of a constitutional text, sidelining the opinion of the legislature or executive.

Not surprisingly, judicial activism has been extremely controversial from its very beginning. Opinions are divided as to whether an unelected body should exercise such power, and whether in doing so has the right to supersede an elected legislature. The extent to which the use of the term itself provokes such dislike from its detractors can be seen by the immediate branding of an opinion one dislikes as an example of judicial activism.[4] Its supporters, on the contrary, argue that being an unelected body may give the Court greater wherewithal in making decisions with regard to the enunciation of individual rights which the legislature for some reason may be unable or unwilling to do.  

This may be explained by a case of the Irish Supreme Court, McGee v. The Attorney General and Revenue Commissioner[5], a case in which the validity of an archaic Irish law against the sale and import of contraceptives in a strongly Catholic country was challenged.

The facts of the case were that an Irish lady Mrs. Mary McGee, had four children, and her doctors advised her that it was dangerous to have another pregnancy.  She imported contraceptive jelly from England, but when that landed on the Irish coast it was seized by the Irish Customs Authorities in view of the Irish law against the import and sale of contraceptives.

The problem was that no Irish politician dared to bring a bill to repeal the outdated and archaic law against the import and sale of contraceptives out of fear that if he did so the Catholic Church would use its enormous influence to destroy the political career of that politician.

Before the modern era almost every woman had 15 to 20 children because there were no contraceptives then.  Of course most of these children died at childbirth or at a tender age because medical science was not advanced at that time.

In modern times most women prefer to have one or two children.  That is because on each child a lot of time and money has to be invested.  Hence the right of a woman to have sex without having pregnancy is a basic norm, without which modern society cannot function.

If a norm is required by a society for its smooth functioning at a particular stage of its historical development, and society cannot function without that norm, then that norm is bound to emerge in some way or the other.

Normally legal norms emerge out of the legislative process.  But if the legislature is paralyzed, or if for some reason it is unable to create that legal norm, then that norm will emerge out of the judicial process (by judicial legislation) or some other process, but emerge it will because society cannot function without it.

 In Mary McGee’s case the Irish Supreme Court struck down s. 17 of the Act, which outlawed the sale and import of contraceptives, as being violative of Article 40.3 of the Irish Constitution which said that the State is bound to protect “the personal rights of the citizen”, in particular his “life, person, good name and property”.  There was no mention of any right to privacy in Article 40.3, but by judicial interpretation it was accepted as an unenumerated right included in “personal rights”. The same was done by the U.S. Supreme Court in Griswold v. Connecticut (1965), and in India vide X vs. Hospital Z, (1998) 8 S.C. 296 (para 28)

Other examples of judicial activism are the decisions by the U.S. Supreme Court in Brown v. Board of Education[6], Miranda v. Arizona, and Roe v. Wade[7] (modified in Planned Parenthood Association v. Casey, 1992), and of the Indian Supreme Court in Maneka Gandhi’s case (AIR 1978 SC 593) as well as its decisions relating to Article 21 of the Indian Constitution, etc.  We shall discuss some of them below.
THE AMERICAN EXPERIENCE WITH JUDICIAL REVIEW:

The power of judicial review is not specifically mentioned in the US Constitution, but in the celebrated case of Marbury v. Madison,[8] the US Supreme Court struck down part of the Judiciary Act, 1789, holding that it violated the US Constitution. Thus the Court assumed that it had this power, since a Constitution is the highest law of the land, and prevails over ordinary statutes. The Court, however, continued to be very sparing in the use of this power throughout most of the 19th century, only using it in the Dred Scott decision in 1857.  In 1811, the Supreme Court of Pennsylvania said: “…an Act of the legislature is not to be declared void unless the violation of the Constitution is so manifest as to leave no room for reasonable doubt."[9] In fact, Prof. James Bradley Thayer of Harvard University, one of the great proponents of judicial restraint in an article published in 1893 in the Harvard Law Review, argued for courts not to be hasty in striking down legislation, for an activist court (though the phrase was not then invented) would “dwarf the political capacity of people (referring to the legislature) and deaden their sense of moral responsibility”.[10]  Hence, he suggested that the judiciary should exercise restraint and ordinarily defer to the will of the legislature, and only strike down laws in a situation where by no means could these be harmonized with the Constitution, and his philosophy of judicial restraint was broadly followed by Justice Holmes, Brandeis, and Frankfurter. (It has also been followed by the Indian Supreme Court in Government of Andhra Pradesh  vs.  P. Laxmi Devi 2008(4) SCC 720.

This approach has also been followed by Chief Justice John Roberts of the U.S. Supreme Court in the Healthcare case decided in 2012 (National Federation of Independent Business vs. Kathleen Sebelius, Secretary of Health) who upheld most of the Affordable Care Act on the basis of the taxing power in Congress. Although the Act was really to provide healthcare, it imposed a tax on those companies which did not provide health insurance for its employees. The learned Chief Justice in that decision followed the settled principle that if two views are possible, the one in favour of upholding the Constitutional validity of the statute should be adopted by the Court.  
The problem, however, remained about interpretation of the Constitution.  The Bill of Rights in the U.S. Constitution contain rights like freedom of speech, liberty, freedom of religion, equality, etc. which can have different meanings.  Many problems arose while interpreting these rights.  For instance, apart from the rights specifically mentioned in the Bill of Rights are there any unenumerated rights e.g. the right to privacy which Courts can recognize?  What meaning should be given to ‘freedom of speech’ and vague expressions like `due process’ in the 14th Amendment?  Does the word `liberty’ include liberty of contract?  Should the ‘commerce clause’ in Article 1 Section 8 be given a strict or expansive interpretation?
A word can have several meanings. As Justice Holmes of the U.S. Supreme Court observed in Towne vs. Eisner 245 U.S. 418 (1918): “A word is not a crystal, transparent and unchanged; it is the skin of a living thought, and may vary greatly in colour and content according to the circumstance and time in which it is used.” 

JUDICIAL ACTIVISM OF THE U.S. SUPREME COURT
There have been broadly two periods of judicial activism by the US Supreme Court, the first being the laissez faire activism from the end of the 19th Century upto 1937, and the second being the era of the Warren Court, that is from 1953 to 1969 when Earl Warren was the Chief Justice.

THE ‘LOCHNER ERA’: LAISSEZ-FAIRE ACTIVISM:
The early years of the 20th century saw a spate of legislation in U.S.A. to protect workers from the dreadful conditions that were then prevailing. These included Acts fixing maximum hours of work for workmen in factories, minimum wages, and other welfare measures. The US Supreme Court, however, regarded this “interference with freedom of contract” as unconstitutional.  It interpreted the word ‘liberty’ in the 5th and 14th Amendments as including liberty of contract, and thereby formulated, in the last decade of the 19th century, a theory of “economic due process” according to which it was essential that all measures restricting liberty of contract be just, fair and reasonable, that is, in accordance with the due process clause in the 14th Amendment.  Under this theory it repeatedly struck down labour legislation and economic regulatory rules.
A seminal case in this regard was that of Lochner v. New York[11], where the law in challenge was the Bakeshop Act, 1899, which imposed a maximum limit of 60 working hours a week for bakery workers. Lochner, the owner of the bakery, filed a suit in the Supreme Court arguing that his right to liberty of contract under the 14th amendment to the Constitution was violated by this law. While the Supreme Court had, eight years earlier, accepted such a legislation with regard to miners,[12] this time the Court was not as accommodating. Justice Peckham, speaking for the majority, relied on the case of Allgeyer v. Louisiana[13] to hold that liberty would also imply economic liberty, namely, the freedom to “…enter into all contracts which may be proper, necessary and essential” for a person to live, work and earn his livelihood.[14] In doing so, he held that bakers were not wards of the state, and so had the right to enter into any forms of contracts with their employers.  Hence, an interference in this regard would be considered to be an unreasonable exercise of state power. Further in his judgment, he sought to affect a distinction between Lochner and Holden by stating that, in contrast to a miner, the job of a baker was not unhealthier than any other reasonable job. Hence, there could be no “real or substantial” relation between the legislation and its object- to protect the health of bakers.
The dissenting opinions (of which there were two, one authored by Harlan, J. and the other by Holmes, J.) were strongly against this explanation, though admittedly for different reasons. While Harlan, J. argued that the legislation should be saved as it was enacted to protect the physical well-being of those who worked in these establishments, and adduced medical evidence to prove it, Holmes, J. had a more theoretical argument against the decision. He criticized it on the grounds that the Constitution was not made for a particular economic theory ( the laissez faire theory) and could not be used to strike down legislation that judges would find not to their liking.  The legislature’s wisdom could not be questioned merely because the Court subscribed to a different view, or because it thought the legislation unwise. The scornful dissent of Holmes to the majority view was contained in the famous line “the Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.”

The importance of this case, though it was not the first one in this regard, can be seen from the fact that the general tenor of decisions for the next thirty-odd years followed it, leading to the entire era to be referred to as the “Lochner era” of the US Court. During this period, the U.S. Supreme Court has been described as being “judicially activist but politically conservative”[15]. The Court’s desire to promote laissez-faire capitalism, and its understanding of economic and contractual freedom being the sole forms of such promotion, meant that it ignored the inherent inequality between employers and workers.

            In these decisions the Court held that the word `liberty’ in the 14th Amendment included liberty of contract, and was not restricted to personal liberty (see in contrast Article 21 of the Indian Constitution in which the word ‘personal’ has been used before the word ‘liberty’).  The Court held that both employer and the prospective employee are free to enter into any kind of contract.  This view overlooks the fact that the liberty of the worker is illusory.  He is in a disadvantageous position as compared to the employer, and if he does not accept the terms of employment offered to him, however onerous, his alternative may only be to starve.
  
            It is interesting that the Court, in its zeal to promote freedom of contract, resolutely declined to worry about the ways these contracts could be used to create a situation which increasingly resembled servitude. The case of Hammer v. Dagenhart[16] is an illustrative example, where the Court struck down a legislation that banned interstate commerce of items that were produced by children. The logic behind this, according to the Court was that the “good” itself was not immoral (in contrast to earlier Acts that had been upheld which pertained to lotteries) and that the manufacture of these goods (in this case, cotton) did not come within the ambit of inter-state commerce. Interestingly, Holmes, J. dissented strongly, though his dissent was not to become law until 1941.[17]

A similar decision was handed down in 1923, in the case of Adkins v. Children’s Hospital[18] where the power of the Congress to pass a law fixing a minimum wage was the subject of dispute. This law had come about as a result of Congress’s powers to maintain the health and safety of the citizens of the country. In deciding this case, the Court referred to the Lochner precedent to strike down this law, holding that there existed a difference between minimum-wage laws and hours fixing maximum working hours, and that minimum wage laws imposed an artificial restriction on the rights of the employer. Disingenuously, the Court argued that the imposition of a minimum-wage law would imply a corresponding need to fix a maximum-wage law as well. In doing so, however, the Court seemed to ignore social realities. The paternalistic attitude that had marked the Muller era (see Muller vs. Oregon 1908) seemed to have disappeared, with the Court itself saying that the “revolutionary changes” that had marked the fifteen years between the two cases, including the extension of adult suffrage to women, meant that such special measures could not be justified.

By the 1930s, however, it was obvious that the Court had over-extended its reach. The advent of the Great Depression (after the Wall Street Slump in 1929) meant that the laissez-faire doctrine that had guided the Court through much of the preceding 40 years could no longer command the same reverence it had earlier. The breaking point, however, came as a result of President Franklin Roosevelt’s exasperation with what he considered to be the Supreme Court’s insistence on striking down legislation that was essential to the New Deal.[19] The President then sought to change the composition of the Court, proposing appointment of an extra judge for each judge over 70 ½ years old. This attempt to “pack” the Supreme Court through the introduction of the Judicial Reforms Procedures Bill, 1937, lapsed, as the Court deferred to legislative intent. The first case that is widely considered to mark the ebbing of the tide of “activist” judgments was the case of West Coast Hotels  v. Parrish[20], where Justice Owen Roberts is widely perceived to have[21] “switched” sides, upholding the constitutionality of a minimum wage statute for women, thereby going against previous precedent.[22] This “switch in time which saved nine” marked the end of the first phase of judicial activism, and largely put an end to the ‘economic due process’ theory of the Court, and thereafter the Court switched from Laissez Faire to Keynesian economics.

The Lochner Era, while being against the working class and against economic regulation, was, however, also characterized by judicial activism in the field of individual liberties, largely through Justice Holmes theory of `clear and present danger’ in Schenck v. U.S, 249 U.S. 47(1919).  This was subsequently diluted and practically overturned in Dennis v. U.S., 341 U.S. 494(1951), but there was some degree of return to the Holmesian doctrine later.

JUDICIAL ACTIVISM IN THE US: THE SECOND PHASE

The US Supreme Court’s next activist phase began after Justice Earl Warren became its Chief Justice in 1953. However, there was a world of difference between the sort of activism that had happened in the first phase, and the sort that happened in this one. Wisely, the Court decided not to bring back the idea of substantive due process for economic rights, and focused on the civil rights of its citizens. The Warren Court is supposed to be the high point of judicial activism in the United States, and most perceptions of its merits and demerits are based on the decisions made by this Court[23].

Warren, J., who had been elevated to the bench after three terms as the Governor of California, came committed to social justice ideologies. He himself stated that justice for all was not a function only of the Supreme Court, but could only be achieved once all branches of the legal system worked together in harmony. In his quest for harmony, he did not shy away from extremely divisive institutional problems in the American system, and providing moral leadership to a country in a state of flux. Its critics, however, have argued that the judiciary had decided to virtually legislate from the bench[24], and had, in doing so, ignored judicial precedent. In fact, Black, J. in his dissent in Roe v. Wade, went so far as to say that he felt that the Court was not interpreting the Constitution according to what it said, but rather on the basis of what the judges wanted it to say.[25]

The first major case, and perhaps the most famous one, in this era is the seminal case of Brown v. Board of Education, Topeka.[26] This sought to overturn racial segregation, a policy which had been in place since the reconstruction period in the United States in the 1870s[27], and which had been judicially upheld in, inter alia, the 1896 case of Plessey  v. Ferguson, where the Court said that separate facilities were legal, as long as essentially the same service were provided.  Separate but equal was really a devious doctrine to put blacks down in society.   Brown, which saw through this deviousness, dealt with segregated schools in Topeka, Kansas, which were legal up to the middle school level in the state. The question, hence, arose with regard to the 14th Amendment of the Constitution of the United States, which had guaranteed to black people all the rights that Americans had possessed as citizens, specifically the right to equal protection of the law. This Constitutional provision had been read literally in all ways to severely limit the scope of its operation. In many ways, though, Supreme Court decisions had shown increasing discomfort with the way these prohibitions were formulated, holding that “all legal restrictions which curtail the majority right of a single racial group are immediately suspect”.[28] In two other cases decided in 1950, the Supreme Court had also looked at what equality would mean, including both tangibles and intangibles within its ambit, while at the same time stating that a separation of students from his colleagues (as the University of Oklahoma had effected) would mean that the facilities were separate, though not equal.

This does not detract from the impact of the decision. At a stroke, the Court refused to accept the “separate but equal” doctrine when applied to racially-segregated schools, and instantly held that segregation, by its very nature imposed inequality, especially when:
 “it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to retard the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system”[29]
To further justify this, the Court said in interpreting the importance of the 14th Amendment, one could not “turn the clock back” to when it was adopted, or when the Plessey case was decided, but rather that the rights guaranteed in it, especially with regard to education, must be considered with regard to its contemporary value. 
In order to implement this decision, however, the Court decided another case with the same defendants, colloquially called Brown II.[30] In this decision, the Court held that it was essential that Brown I be implemented by the local school boards under the supervision of the Federal District Courts, and that this be done “with all deliberate speed”. In subsequently explaining this decision, Warren, J. explained why he had not been in favour of immediate racial segregation by implying that the logistics would take a long time to be worked out, “even, possibly, by 1968”.[31]

            The impact of this decision was massive, and polarized society. On the one hand, organizations like the NAACP were vociferous in their support, while the racial organizations in Southern states organized massive resistances. In some cases, the political leaders of these states were at the forefront of such movements. For instance, in Alabama, the Governor himself stood at the door of an auditorium as late as 1963 to prevent black students from entering the auditorium in an educational institute. However, the value of such a precedent in terms of guaranteeing civil rights has never been seriously doubted. Many commentators still feel that the United States falls short of fulfilling the promises made in Brown; that racial segregation and profiling still exists, but most agree that the rationale of the decision was right, though whether the judiciary was the preferred forum for such adjudication is still questioned. However, given that state laws had shown little modification since the 1870s, the intervention of the judiciary assumed importance. In subsequent decisions, the Warren Court refused to allow the closure of public schools in Prince Edward County, Virginia, stating that grounds of race and opposition to desegregation would not be sufficient to allow such closures.[32]

Another important set of cases pertained to questions of Criminal Due Process. These rights are rights guaranteed by the 4th, 5th and 6th Amendments to the Bill of Rights.  While certain faltering steps had been taken in this regard even before the Warren Court[33], the immense judicial activism that was done by the Court in these years modified the understanding of Criminal Due Process. In doing so, the United States Supreme Court ruled unanimously that the Constitutional guarantee of the Sixth Amendment included that state courts are required to provide counsel in criminal cases for those who cannot afford an attorney[34]. In a subsequent case, the Court looked at the necessity for counsel at an earlier stage, and held that all suspects had a right to attorneys during police interrogation.[35] In doing so, the Court dismissed the arguments that these would be antithetical to convictions by saying that “no system of criminal justice can, or should survive if it comes to depend for its continued effectiveness on the citizens’ abdication through unawareness of their Constitutional rights”.[36]
           
            Along with this, the right against self-incrimination embodied in the U.S. Constitution was also extended to state court proceedings as well[37], thereby overturning earlier precedents.[38]

            However, the most important case of that era was that of Miranda v. State of Arizona[39] which completely altered the understanding of the right against self-incrimination that the Fifth Amendment to the United States Constitution had provided. The Supreme Court, moving away from the earlier belief that all that was necessary at the time of arrest was a bona fide belief in the guilt of a person, created what are known as the Miranda rights, partly a summary of the earlier decisions of the Court. These rights stated:
The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.[40]

            Not surprisingly, Justice Warren’s approach, another example of “judicial legislation”, aroused great controversy, not only in the political sphere but also with his own colleagues. The earlier unanimity of Gideon v. Wainwright (1963) had faded, and Clark, Harlan and White, JJ, wrote separate opinions, where both Harlan and White, JJ. argued that the extension of these rights was constitutionally improper and judicially impermissible. White, J., in fact went further in his rebuke to the majority decision, and disclaimed any responsibility for the impact of the decision upon the contemporaneous criminal system.[41] It is believed to be the impact of this decision that led President Nixon, elected two years later, to announce his decision to appoint ‘strict constructionists’ to the United States Supreme Court.[42]
           
            In the context of Judicial Activism, it is also important to mention two celebrated cases, even though only one was decided by the Warren Court, to look at the reactions it has received from popular opinion. These refer to cases dealing with matters like contraception and abortion. The question of the ‘right to privacy’ which came up in the Warren Court’s celebrated decision of Griswold v. State of Connecticut[43], is significant. This case held that the right to use contraceptives was a right that could not be prohibited by law, as it came within the ambit of the right to privacy. While the right to privacy is not specifically mentioned in the Constitution, the Court created a “penumbra right”, holding that while they did not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions, however, a law prohibiting the use and sale of contraceptives would operate directly on an intimate relation of husband and wife.  Similarly, the Burger Court, in the case of Roe v. Wade took a controversial stand where it extended the ‘right to privacy’ argument to a  case of abortion, even though in such a case it balanced the competing right of the life of the child and the mother’s health in formulating what later became known as the trimester test.  In Planned Parenthood Association v. Casey, 1992 the Court abandoned the trimester test and adopted the viability and undue burden tests,  which is still the law relating to abortion in U.S.A. (the decisions of the U.S. Supreme Court relating to abortion will not apply in India, because in India we have the Medical Termination of Pregnancy Act, 1971).

            If the Griswold decision had been controversial, the Roe decision kicked up a storm of controversy, not only on the matter at hand but also on how the Court had chosen to decide cases. Commentators decried the decision by alleging that the Court was acting as a legislator, and that the judiciary should defer to the legislative, “democratic” (see Robert Bork’s `The Tempting of America’).  Those in favour, however, justified the decision by claiming that there were valid grounds, within Constitutional texts, to justify such a decision.[44] Dissenting judges (White, J. and Rehnquist, J.) decided to write a separate opinion, where White, J.  attacked a decision which, though he felt “may be” right, lacked “constitutional warrant”:

” The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court”

PRESENT-DAY JUDICIAL ACTIVISM IN THE UNITED STATES:
            In recent years, however, the U.S. Supreme Court has become much less “activist” as compared to the heyday of activism in the Warren era. The Rhenguist Court was quite conservative, while the present court is often deeply divided (see the Healthcare Act decision of 2012 by a 5-4 majority referred to earlier) Some of the few instances where the Courts’ decisions have been criticized on the grounds of ‘activism’ include Lawrence v. State of Texas[45] where the Supreme Court struck down a Texas statute that considered same-sex sexual activity to be a crime. This decision has been recognized as advancing ´an explicitly equality based and relationally situated theory of substantive liberty”.[46] A recent judicial decision that has dealt with limits that have been imposed on private spending in electoral campaigns[47] has also been considered to be an ‘activist’ decision, which overturned the 2002 Bipartisan Campaign Finance Act, thereby allowing corporations and unions to make “electioneering communications” within 30 days of a primary or sixty days of a state election. In doing so, the Court held that these laws would invariably translate into censorship, and that such censorship was antithetical to the continued functioning of a democracy. Kennedy, J., held that the imposition of such limits would lead to a curtailment of the right to free speech under the First Amendment of the Constitution. The bench, however, was sharply divided, with the majority only being 5:4. Stevens, J., who dissenting, argued that the overturn of these laws would lead to compromising the integrity of the American political scenario, and concluded by saying:
”At bottom, the Court's opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt.”[48]

Judicial Activism: The India Scenario

            The Indian Constitution, promulgated in 1950, largely borrowed its principles from Western models – parliamentary democracy and an independent judiciary from England, the Fundamental Rights from the Bill of Rights, and federalism from the federal structure in the U.S. Constitution, and the Directive Principles from the Irish Constitution.  These modern principles and institutions were borrowed from the West and then imposed from above on a semi-feudal, semi-backward society in India.

            In Western countries such as England, the modern democratic principles and institutions were a product of historical struggles from the 16th to 19th Centuries in those countries.

            In India, on the other hand, these modern principles and institutions were not a product of our own struggles.  They were imported from the West and then transplanted from above on a relatively backward, feudal society, the aim being that they will pull India forward into the modern age.

            The Indian judiciary, being a wing of the State, has thus played a more activist role than its U.S. counterpart in seeking to transform Indian society into a modern one, by enforcing the modern principles and ideas in the Constitution through Court verdicts.

            In the early period of its creation the Indian Supreme Court was largely conservative and not activist.  In that period, which can broadly be said to be upto the time Justice Gajendragadkar became Chief Justice of India in 1964, the Indian Supreme Court followed the traditional British approach of Judges being passive and not activist.  There were very few law creating judgments in that period.

            Justice Gajendragadkar, who became Chief Justice in 1964, was known to be very pro-labour.  Much of the Labour Law which he developed was judge made law e.g. that if a worker in an industry was sought to be dismissed for a misconduct there must be an enquiry held in which he must be given an opportunity to defend himself.

            In 1967 the Supreme Court in Golakh Nath v. State of Punjab, AIR 1967 SC 1643  held that the fundamental rights in Part III of the Indian Constitution could not be amended, even though there was no such restriction in Article 368 which only required a resolution of two third majorities in both Houses of Parliament.  Subsequently, in Keshavanand Bharti v. State of Kerala, AIR 1973 SC 1461 a 13 Judge Bench of the Supreme Court overruled the Golakh Nath decision but held that the basic structure of the Constitution could not be amended.  As to what precisely is meant by `basic structure’ is still not clear, though some later verdicts have tried to explain it. The point to note, however, is that Article 368 nowhere mentions that the basic structure could not be amended. The decision has therefore practically amended Article 368.

A large number of decisions of the Indian Supreme Court where it has played an activist role relate to Article 21 of the Indian Constitution, and hence we are dealing with it separately.

ARTICLE 21 AND JUDICIAL ACTIVISM
Article 21 states: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” 

In this connection it may be mentioned that when the Indian Constitution was being framed the Constitutional Adviser Mr. B.N. Rau went to America and met Justice Frankfurter, the celebrated Judge of the U.S. Supreme Court, to seek his advice.  Justice Frankfurter advised that the Indian Constitution should not have a due process clause as that had created a lot of difficulties in America.  Hence following his advice, and following the language used in the Japanese Constitution, only procedural due process was adopted in the Indian Constitution, and not substantive due process.  Also, before the word `liberty’ the word `personal’ was added to clarify that liberty did not include liberty of contract.

In A.K. Gopalan v. State of Madras, AIR 1950 SC  27 the Indian Supreme Court rejected the argument that to deprive a person of his life or liberty not only the procedure prescribed by law for doing so must be followed but also that such procedure must be fair, reasonable and just.  To hold otherwise would be to introduce the due process clause in Article 21 which had been deliberately omitted when the Indian Constitution was being framed.

However, subsequently in Maneka Gandhi v. Union of India, AIR 1978 SC 597     this requirement of substantive due process was introduced into Article 21 by judicial interpretation.  Thus, the due process clause, which was consciously and deliberately avoided by the Constitution makers, was introduced by judicial activism of the Indian Supreme Court.

Another great arena of judicial activism was begun by the Indian Supreme Court when it interpreted the word `life’ in Article 21 to mean not mere survival but a life of dignity as a human being.

Thus the Supreme Court in Francis Coralie vs. Union Territory of Delhi[49] held that the right to live is not restricted to mere animal existence. It means something more than just physical survival. The Court held that:

“… the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing one-self in diverse forms, freely moving about and mixing and comingling with fellow human beings.”

The ‘right to privacy’ which is a new right was read into Article 21 in R. Rajagopal Vs. State of Tamil Nadu.[50] The Court held that a citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education, among other matters.

The Supreme Court also ruled that the right to life guaranteed under Article 21 includes the right to livelihood as well.[51] The right to food as a part of right to life was also recognised in Kapila Hingorani Vs. Union of India[52] whereby it was clearly stated that it is the duty of the State to provide adequate means of livelihood in the situations where people are unable to afford food. The Court has also held that the right to safe drinking water is one of the Fundamental Rights that flow from the right to life.[53] Right to a fair trial,[54] right to health and medical care,[55] protection of tanks, ponds, forests etc which give a quality life,[56] right to Family Pension,[57] right to legal aid and counsel,[58] right against sexual harassment,[59] right to medical assistance in case of accidents,[60] right against solitary confinement,[61] right against handcuffing and bar fetters,[62] right to speedy trial,[63] right against police atrocities, torture and custodial violence,[64] right to legal aid[65] and be defended by an efficient lawyer of his choice,[66] right to interview and visitors according to the Prison Rules,[67] right to minimum wages[68] etc. have been ruled to be included in the expression of ‘right to life’ in Article 21. Recently the Supreme Court has directed providing a second home for Asiatic Lions vide Centre for Environmental Law V. Union of India (writ petition 337/1995 decided on 15.4.2013) on the ground that protecting the environment is part of Article 21. The right to sleep was held to be part of Article 21 vide In re Ramlila Maidan (2012) S.C.I.1. In Ajay Bansal vs Union of India , Writ Petition 18351/2013 vide order dated 20.6.2013 the Supreme Court directed that helicopters be provided for stranded persons in Uttarakhand.

 Thus we see that a plethora of rights have been held to be emanating from Article 21 because of the judicial activism shown by the Supreme Court of India. However there can be grave reservations about some of these orders. One wonders whether there will be any limit to the number of such rights created by court orders.

Other Expansions
Judicial interpretation also expanded the definition of ‘State’ under Article 12 of the Constitution whereby even corporations[69]  ‘instrumentalities of the State’, etc  were brought within the scope of ‘State’ helping in the expanded enforcement of fundamental rights.

            Article 14 of the Constitution, which originally was understood to only mean non-discrimination by the States, was later interpreted in Royappa’s case case (1974) and Maneka Gandhi’s case ( 1978) to also mean non arbitrariness .

Right to freedom of expression provided by Article 19 of the Constitution is one of the widely construed rights. Thus, the right also brings within its ambit the freedom of press and publication in the print media[70] and the right to participate in the public communicative systems.[71]

The importance of this right in democracy gained importance when the judiciary struck down the Ordinance that amended the Representation of People Act, 1950 that allowed the candidates non-disclosure of assets stating that in the context of exercise of voting rights in democracy, the right to know the assets, liabilities and past criminal records cannot be restricted by the right to privacy of the candidates.[72]
Furthermore, though Directive principles only talk about socio-economic rights which are not enforceable, creative interpretation by reading them into the Fundamental Rights (which are enforceable) formed a major step in developing these new rights and above all advocating the rights of the unrepresented masses became much easier. In the case of Unni Krishnan Vs. State of A. P.[73] it was held that the right to education is a Fundamental Right under Article 21 as it ‘directly flows’ from right to life. Thus the Court interpreted Article 21 in the light of Article 45 wherein the State is obligated to provide education to its citizens upto 14 years of age.[74] Similarly in M. C. Mehta Vs Union of India[75] the Supreme Court relying on Article 48-A[76] gave directions to the Central and the State Governments and various local bodies and Boards under the various statutes to take appropriate steps for prevention and control of pollution of water.
In Vishakha Vs. State of Rajasthan,[77] the judiciary expressly laid down the law regarding sexual harassment at the work place. In Sakshi Vs. Union of India,[78] the provisions of in camera proceedings were made applicable in cases of rape victims keeping in view their needs in the absence of specific legislative provisions.
Another instance where the judiciary was needed to come to the rescue of the its people was the case of Lata Singh Vs. State Of U.P. & Another,[79](authored by the writer) where the Supreme Court taking note of the deep rooted caste system of the country came down hard on the relatives of a newly married couple who resorted to violence and harassment as a way of showing their anger on the boy and girl marring outside their caste or religion. Appropriately exercising judicial activism the Court held:-
“This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. […] We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and anyone who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law.”

            In a subsequent decision, Bhagwan Dass Vs. State (NCT) of Delhi, 2011(5) Scale 498, again authored by the writer, the Supreme Court mandated death sentence for `honour killing’ i.e. killing of young men and women who married outside their caste or religion, or in their same village, thereby `dishonouring’ the parents or their caste.

The most recent case on judicial activism was the case of Aruna Ramchandra Shanbaug Vs. Union of India and Others.[80] Aruna Shanbaug, a nurse in 1973, while working at a Hospital at Mumbai, was sexually assaulted and has been in a permanent vegetative state since the assault. In 2011, after she had been in this status for 37 years, the Supreme Court of India heard the petition to the plea for euthanasia filed by a social activist claiming to be Aruna’s friend. The Court turned down the petition, but in its landmark judgment (authored by the writer) it allowed passive euthanasia i.e. withdrawal of life support to a person in permanently vegetative state, subject to approval by the High Court.
Judicial Over Activism
            Of late the Indian judiciary appears to have become overactive, and is often accused of judicial overreach.  This accusation was usually leveled by politicians or others outside the judicial system, until in 2008 it was leveled by Justice A.K. Mathur and the writer (as Judges of the Supreme Court) in Divisional Manager, Aravalli Golf Course v. Chander Haas.

The Indian Supreme Court surely came a long way since Anwar Ali Sarkar Vs. State of West Bengal,[81] and A.K. Gopalan Vs. State of Madras where the judiciary refused to indulge in making judicial policy and instead exercised judicial restraint keeping in mind the Doctrine of Separation of Powers. However, the pendulum later swung to the opposite direction.   Thus, in Maneka Gandhi vs. Union of India AIR 1978 SC 593 the 7 Judge Bench of the Indian Supreme Court, while overruling the 5 Judge Bench decision in A.K. Gopalan’s case introduced the due process clause in the Indian Constitution by a judicial pronouncement.  In S. P. Gupta Vs. Union of India,[82] it was held that:
“He [the judge] has to inject flesh and blood in the dry skeleton provided by the legislature and by a process of dynamic interpretation, invest it with a meaning which will harmonize the law with the prevailing concepts and values and make it an effective, instrument for delivery of justice.”
Similarly, in the case of Supreme Court Advocates on Record Vs. Union of India,[83] it was held that:
“It belongs to the Judiciary to ascertain the meaning of the constitutional provisions and the laws enacted by the Legislature.”

This was the advent of an over active judiciary which assumed upon itself the need to adjudicate even where it was not perceived to be warranted. Although Article 50[84] of the Indian Constitution expressly provides for Separation of Powers between the different organs of the State, but time and again, the Indian Supreme Court has taken on itself the task of filling in the gaps created by the Legislature and the Executive to do ‘justice’.

While doing so, the judiciary has been often criticized for overstepping its limits. In the case of Vineet Narain Vs. Union of India,[85] the Supreme Court had invented a new writ called “continuing mandamus” where it wanted to monitor the investigating agencies which were guilty of inaction to proceed against persons holding high offices in the executive who had committed offences. Furthermore, the Court created by its judicial order a body called the Central Vigilance Commission, which was not contemplated by the statute (the Delhi Special Police Establishment Act, 1946), for supervising the functioning of a statutory body, the Central Bureau of Investigation. The Court also laid down a number of guidelines for the appointments of chiefs of investigating agencies like Central Bureau of Investigation, Central Vigilance Commission and the Enforcement Directorate; apart from the Chiefs of the State Police. These guidelines, apart from being in relation to appointment, were also with regard to their status, transfer and tenure, etc. The question arises whether this was legitimate exercise of judicial power.

In the case of Indian Council for Enviro-Legal Action VsUnion of India,[86] the Court passed various orders especially directed towards the States requiring them to submit management plans to control pollution to both, the Central Government as well as the Court. Here, the Court held that it was only discharging its judicial functions in ensuring that it remedies the errors of the executive.

In the case of M. C. Mehta vs. Union of India,[87] where a writ was filed with regard to the vehicular pollution in Delhi, the Supreme Court had passed directions for the phasing out of diesel buses and for the conversion to CNG. When these directions were not complied with due to shortage in supply of CNG, the Court held that orders and directions of the Court could not be nullified or modified by State or Central governments. This was a case where, despite several directions being given by the Supreme Court, the government did not act speedily in responding to the Order.

The Court has prescribed norms regarding the running of the prisons and mental intuitions,[88] instructed the Government to implement labor laws at construction sites,[89] recognised admissions in medical colleges throughout India laying down examination schedules,[90] prescribing hawking zones in metropolitan cities,[91] laid down the guidelines for the retail outlets for essential commodities such as LPG,[92] resolving disputes between public undertakings of Central Government,[93] directed the authorities like C.B.I to conduct and complete investigation expeditiously in cases of national importance,[94] directed the noxious factories to restart on the technical reports on safety measures,[95] prescribed the poverty limits for the low income urban housing[96] or set up an expert panel headed by a retired Supreme Court to study the vehicular pollution level[97] etc.  In these decisions the court did legislate, but in the process was criticized for having infringed upon the executive domain.

With due respect to these and other decisions it has to be said that many judges often forget that the judiciary cannot solve all problems in the country. Suppose the Court passes an order that from tomorrow poverty in India, or unemployment, or malnutrition etc. are abolished. Will these orders mean anything? Can they really  be implemented? India is a poor country with limited financial resources. Moreover, many such orders e.g. for interlinking rivers vide In re Networking of Rivers (2012) 4 S.C.C. 51 raise great technical and administrative problems, and are really in the domain of the legislature or executive.
Judicial Legislation
            The traditional theory of positive jurisprudence laid down that law making is the task, of the legislature, not the Judge. The Judges’ task was only to adjudicate disputes between the parties on the basis of the law made by the legislature, though where the law was not clear (or its plain meaning led to some absurdity) the judge could interpret it, but he must not make law.
            When I asked the Chief Justice of the Canadian Supreme Court Mrs. Beverley McLaughlin (this was when I was on the bench of the Indian Supreme Court) her view about judicial legislation she described it as an ‘Oxymoron’. However in fact it is an extremely complex issue which cannot be dismissed so summarily.

            Positivist jurisprudence proceeded on the assumption that the legal order was ‘gapless’ and that by proper logical inferences a correct decision could always be derived from the existing body of law. According to the analytical school of Austin, which is still strongly entrenched in England, Parliament, and not judges make law[98] . From the principle of parliamentary supremacy flows the corollary that the judges cannot make law, for if they do it would be infringing the supremacy of Parliament. Similarly, in France, Montesquieu[99]  proclaimed that the judge is subordinate to the law and is bound by law.
            However, it can be demonstrated that even in England this view was really a fiction[100].   For instance, the entire British Common Law was in fact judge made law (though most of it was made before Parliament became supreme). The British judges from time to time gave law making decisions of historical importance. For example, Rylands v. Fletcher (1866), created the law of strict liability which is coming more and more into prominence in recent times (see my judgment in Union of India vs. Prabhakaran Vijay Kumar,2008 ). Similarly Donoghue v. Stevenson, 1942 AC 562, created the law of liability for negligence, which has had a powerful impact all over the modern world.[101] A large number of other law making decisions by British Courts can be quoted.

            Judicial legislation is to some extent unavoidable in the modern era for two reasons: (1) Since modern society is dynamic, the legislature cannot possibly conceive  of, and cater to, all the developments which may take place in the future. Hence there will be gaps in the statutory law which have to be filled in by judges (2) The Legislature may often be unwilling or incapable of making a modern law which is of pressing need, and then this job has sometimes to be done by the court.
            The Indian Supreme Court in Sarojini Ramaswami v. Union of India, AIR 1992 SC 2219, (Paragraph 2), observed:
            "It used to be disputed that judges make law. Today, it is no longer a matter of doubt that a substantial volume of the law governing the lives of citizens and regulating the functions of the State flows from the decisions of the superior courts. ‘There was a time’ observed Lord Reid, ‘when it was thought almost indecent to suggest that judges make law – they only declare it……….But we do not believe in fairy tales any more’.”
            Keshavanand Bharti’s case, AIR 1973 SC 1461, Maneka Gandhi’s case AIR 1978 SC 597, cases in which new dimensions have been given to Articles 14 and 21 of the Indian Constitution are all law-making judgments. Similarly, Marbury v. Madison, 1803 (5 US 137), Brown v. Board of Education, 1954 (347 US 383),  Miranda, Griswold, etc are law-making decisions of the U.S. Supreme Court.
            The view that the legal system is gapless was challenged by the German jurist Heck[102] and the French jurist Geny[103] who demonstrated that the positive legal order was necessarily fragmentary and full of lacunae. They noted that there is always a certain sphere of discretion where the judiciary could create law within these gaps. According to Geny, this discretion should not be exercised arbitrarily but had to be based on objective principles. According to Geny the method of doing this was “to recognize the interests involved evaluate their relative force, weigh them on the scales of justice so as to assure the preponderance of the most important ones according to a social criterion, and finally to establish the most desirable balance”. To produce a just equilibrium of interests, Geny says, the judge must carefully scrutinize the prevailing moral sentiments and inquire into the social and economic conditions.
            In Germany the free law movement pioneered by Fuchs[104] and Kantorowicz[105] required the judges to create law in accordance with justice and equity whenever the positive law was unclear or ambiguous. According to them, the judge should decide the case according to the dominant conceptions of justice, or if such were absent, according to subjective legal conscience.
            In the U.S.A. Roscoe Pound, who is the most outstanding figure in sociological jurisprudence in America, propounded his “instrumentalist” approach, which would allow the judge a greater flexibility. In his book ‘Jurisprudence’ Pound states that the engineer is judged by what he does. His work is judged by its adequacy to the purpose for which it is done, and not by its conformity to some ideal form of a traditional plan. We are beginning, in contrast with the last century, to think of jurist and judge and law-maker in the same way. Law is, above all, “social engineering”.
            Pound does not deny that the dispensing of justice in keeping with the established norms has certain advantages, such as predictability and stability in the legal system. However, according to him, it is also possible to sometimes dispense “justice without law”, which according to Pound, has its advantages such as greater adaptability to the social dynamic, etc.
            In line with Ehrlich, Geny, Kantorowicz, Sinzheimer and other European jurists, Pound regards the normative material as the least important part of the legal order. The purpose of law, according to Pound, is to reconcile and harmonise the conflicting and overlapping demands and interests of the society, and he has laid down his “table of interests” for this purpose. Pound believes that his concept of law, and especially his notion of the possibility of “justice without law”, is more capable than any other of resolving a problem which he regards as basic and which he formulates as follows:
            “Law must be stable and yet it cannot stand still”.
            In this way Pound seeks to bring law into harmony with the dynamism of social life.
            The French jurist Cruet in his book ‘The Life of Law and the Importance of its Acts’ observes: “Every legislative act brings the law to a halt.” This is explained by the ‘lagging’ of the legal order behind the dynamic forward movement of society. As Burdeau says, legislation was an excellent thing so long as its chief function was of consolidation of established relationship. But when major changes kept occurring in modern society legislation was found inadequate.
            Justice Cardozo of the U.S. Supreme Court in his book ‘Growth of Law’ tried to reconcile the contradiction between a stable legal order and the social dynamic by propounding his “principle of growth” as a means of arriving at a compromise between “stability” and “change”. According to Cardozo, “sooner or later if the demands of social utility are sufficiently urgent and if the functioning of an existing rule is sufficiently productive of hardship or inconvenience, utility will tend to triumph”. This is also the view of Pound who in his book ‘Interpretation of Legal History’ says:

            “The social interest in the general security has led men to seek some fixed basis for an absolute ordering of human action whereby a firm and stable social order might be assured. But continual changes in the circumstances of social life demand continual new adjustments to the pressure of other social interests as well as to new modes of engendering security. Thus, the legal order must be flexible as well as stable. It must be overhauled continually and refitted continually to the changes in the actual life which it is to govern. If we seek principles, we must seek principles of change no less than principles of stability”.
            According to Pound and Cardozo, it is often a court hearing that first brings to the forefront those new factors, trends, and conditions which necessitate changes in the law, and they can be most helpful in forestalling possible tensions between a stable legal order and changes in society.
            The realist school took the matter to extremes in America. According to Gray,[106] one of the founding fathers of the realist school, all law is judge made law. Gray regards statute, custom, etc., as merely the material which the judge uses in making law. This is regarded by some as a development of the thesis of Justice Holmes, who observed that law is nothing more than the prediction of how the court will act. According to the realist school, law is made by the judge in his professional capacity and it is in constant flux. Frank, another leader of the realist school of America, regards statute as ‘probable law’ while the judge made law is ‘actual law’.
            The realist school went to extremes and it was subsequently rejected in the U.S.A., but judicial law-making is still often accepted in America. Thus Prof. Friendmann of Columbia University in his article ‘Limits of Judicial Law Making’ (29 MLR No.6 1996) writes:
            “The Blackstonian doctrine as the ‘declaratory’ function of the courts, holding that the duty of the court is not to pronounce a new law but to maintain and expound the old one, has long been little more than a ghost. From Holmes and Geny to Pound and Cardozo, contemporary jurists have increasingly recognised and articulated the law-making functions of the courts…….It is therefore time to turn from the stale controversy over whether judges make law to the much more complex and controversial question of the limits of judicial law-making.”
            It appears that while earlier judges used to make a law while pretending not to, this no longer is the practice now. The Austinian view that the judges do not make law was based on the principle of parliamentary supremacy in England, and hence the judges in England had to maintain the fiction that they were not legislating otherwise there would be violation of parliamentary supremacy. However, now even the judges in countries following the common law system openly proclaim that judges do make law.
            Thus, Justice Holmes of the U.S. Supreme Court stated “I recognize without hesitation that judges do legislate, but they do so only interstitially, they are confined from molar to molecular dimensions”. (See ‘The Mind and Faith of Justice Holmes’).

            A similar view was taken by Lord Denning in England. In Seaford Court Estates v. Asher,[107] he observed:

            “It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. A judge must not alter the material of which it (the law) is woven, but he can and should iron out the creases”.
            This view was no doubt overruled by the House of Lords in Magor and St. Mellons District Council v. Newport Corporation,[108] which declared it a ‘naked usurpation of the legislative function’, but the Indian Supreme Court has preferred the view of Lord Denning to that of the House of Lords (See Directorate of Enforcement v. Deepak Mahajan,[109]  State of Karnataka v. Hansa Corporation[110] and Bangalore Water Supply and Sewerage Board v. Rajappa.[111] )

            In his book ‘The Nature of the judicial process’ Mr. Justice Cardozo of the U.S. Supreme Court said “He (the judge) legislates only between gaps. He fills the open spaces in the law”.
            Since it is now accepted by almost all jurists in the countries following the Common Law System that judges do legislate we can proceed further with the enquiry regarding the manner of this judicial legislation, the circumstances in which it can be done, and its limits.

            Bodenheimer in his ‘Jurisprudence’ states “There may be times or historical contingencies where bold and unconventional action on the part of a judge becomes wholesome and beneficial for society. There may be situations where stagnation or decay can be overcome only by a judicial decision-maker who, being convinced that the preponderant values of the community are wholly obsolete or unreasonable, is willing to take risk and is determined to chart a new course into the future. Progress often depends on the courageous, decisive and anti-traditional action of great men. And although we should insist that the major tasks of law reform should be reserved to the action of men or bodies entrusted with the business if we did not, at times, concede to the judiciary the right to lead the moral sentiment of society and inaugurate,   in a judicial decision, a new conception of justice in accordance with the highest knowledge and truest insight perceptible to the human mind.”  

Limits of Judicial Legislation
1.                  Where there is a clear casus omissus i.e. gap in the statute the court can fill it in.  This was done by the Indian Supreme Court in D. Velusamy v. D. Patchummal (2010). In that case the Protection of Women from Domestic Violence Act, 2005 was considered. Section 2 (f) of that Act defines ‘domestic relationship. That definition uses the expression ‘relationship in the nature of marriage’ but does not explain what it means. Hence the court had to fill in the gap in the law. 
2.                  But what if there is no law, and hence there is no question of filling in the gap? In Vishaka vs. State of Rajasthan, AIR 1997 S.C. 3011 there was no law for protection of women from sexual harassment at work places, and hence no gap in an existing law. Yet the Supreme Court laid down guidelines in this connection, and said that this will be the law until Parliament makes a law on the subject. Here the court practically acted as an interim Parliament. Is this a valid approach?

In University of Kerala vs. Councils of Principals of Colleges (2010) 1S.C.C. 353 a 2 Judge bench of the Supreme Court of which I was a member referred to a Constitution Bench the question whether this approach is valid, but the Constitution Bench is yet to be constituted.
In the University of Kerala case (supra) the facts were that in many educational institutions in the country the students union had been captured by anti-social elements who created a lot of trouble for the institution. Hence the court constituted a committee headed by Mr. Lyngoh (former Chief Election Commissioner) to make recommendations for ameliorating the situation. The committee made its recommendations, and court by an interview order directed these to be enforced in all educational institutions.
The matter came up before a bench of which I was a member. I was of the view that the court’s order amounted to judicial legislation and was invalid. The court could have directed the concerned authority to consider these recommendations, but could not have directed that they be implemented.
In in re Networking of Rivers (2012) 4 S.C.C. 51 the Supreme Court directed interlinking of the rivers of India. Such an order raises a host of problems, e.g. finance, planning, land acquisition, civil construction, environmental issues, etc. Should such an order have been passed? Is it implementable? I have grave reservations about this.

In L.K. Pandey v. Union of India, AIR 1986 S.C. 272 detailed guidelines have been issued by the Supreme Court for inter country adoption, though there is no legislation on the subject. 
In Kumari Mathuri Patil v. Addl. Commissioner, (1994) 6 S.C.C. 241, in order to check issuance of false and fabricated scheduled caste certificates, the Supreme Court issued a set of 15 guidelines about how such certificates should be issued, which authority can issue them, etc. It also created a vigilance cell headed by a senior police officer to check the malpractice. In Dayasram v. Suhi Balham (2012) 1 S.C.C. 333 the Supreme Court doubted the correctness of this judgment, and referred the matter to a larger bench, but the larger bench upheld the directives, saying that they were meant to fill in a legal vacuum.

3.         Can the court itself perform functions which have been given to a statutory authority?    In several decisions the Supreme Court held that it cannot. Thus in Supreme Court Bar Association vs. Union of India, AIR 1998 S.C. 1895, a Constitution Bench of the Court held that under the Advocates Act, 1961 only the Bar Council can debar a lawyer, and hence it reversed the earlier decision of a 3 Judge bench debarring a lawyer.
            In M.C. Mehta vs. Union of India (1997) 8 S.C.C. 770 the Supreme Court directed that the maximum speed limit of heavy vehicles in Delhi can be 40 km.p.h But fixing speed limits is the task of the State Government or its nominee vide Section 112 Motor Vehicles Act, 1988. Was the direction therefore valid?
            In G. Veerappa Pillai vs Raman and Raman, AIR 1952 S.C. 192 the  High Court had in a decision directed the Regional Transport Authority (R.T.A) to issue a bus permit to the petitioner. On appeal, the Supreme Court set order this order, holding that under the Motor Vehicles Act only the R.T.A. could issue the permit, and the High Court by its order in effect granted the permit itself (see also State of U.P. vs. Jeet S. Bisht, 2007 vide paragraphs 45 and 46 of judgment of M. Katju, J.).
4.         Can the Court ignore a statutory or Constitutional provision, and substitute it by its own order.   It is evident  that this cannot validly be done, but in fact it was done by the Supreme Court in the second Judges case (Supreme Court Advocate o Record Association v. Union of India) in which the court in effect ignored the provisions of Article 124 for appointing Judges to the Supreme Court, and substituted its own procedure (The Collegium System).
5.         Can the Court direct the legislature to make a law or amend an Act of the legislature? In a  catena of decisions, some of which have been referred to in Divisional Manager, Aravali Golf Course  v. Chander Haas (supra) the Supreme Court held that the court has no such power. Yet in Vineet Narain v. Union of India AIR 1998 S.C. 889 the Supreme Court directed amendment to the Delhi Special Establishment Act 1946  (under which the C.B.I. is constituted) by setting up a Central Vigilance Commission to which the C.B.I. will be accountable for its efficient functioning.

  Trends in Judicial Restraint
There is broad (though not absolute) separation of powers in the Indian Constitution vide Divisional Manager, Aravali Golf Course vs. Chander Haas, 2008.  The Constitution of India did not provide for the judiciary to be a super legislature or a substitute for the failure of the other two organs. Thus, the need arises for the judiciary to lay down its own limitations.
Some people say that the judiciary can enter into the domain of the executive or legislature because these organs are not functioning properly. But then it can also be said that the judiciary, too, is not functioning properly, there is great delay in deciding cases, corruption in a section of the judiciary, etc. Should then the legislature or executive take over the judiciary’s function?
 One of the examples of judicial restraint is the case of State of Rajasthan Vs. Union of India,[112] in which the court rejected the petition on the ground that it involved a political question and therefore the court would not go into the matter. In S.R. Bommai Vs. Union of India.[113] the judges said that there are certain situations where the political element dominates and no judicial review is possible. The exercise of power under Art.356 was a political question and therefore the judiciary should not interfere.  Ahmadi J. said that it was difficult to evolve judicially manageable norms to scrutinize the political decisions and if the courts do it then it would be entering the political thicket and questioning the political wisdom, which the court must avoid.[114]
In Almitra H. Patel Vs. Union of India,[115] where the issue was whether directions should be issued to the Municipal Corporation regarding how to make Delhi clean, the Court held that it was not for the Supreme Court to direct them as to how to carry out their most basic functions and resolve their difficulties, and that the Court could only direct the authorities to carry out their duties in accordance with what has been assigned to them by law.  Also, in Union of India Vs. Kishan K. Sharma,[116] when the High Court issued a Mandamus to the Government to pay a particular scale to its officers, the Supreme Court laying down the boundaries of judicial activism in general held that such Mandamus would not be permissible as fixation of salaries was an administrative decision. Similarly, creation of a post is an administrative or legislative functions, and cannot be done by the court vide Divisional Manager, Aravali Golf Course (supra)

PUBLIC INTEREST LITIGATION IN INDIA
The traditional legal principle was that only a person, whose own right has been infringed, can file a petition in Court.  In other words, the petitioner must show his `standing’ or locus standi.

In S.P. Gupta’s case (AIR 1982 SC 149), however, the Indian Supreme Court gave up this principle, and thereafter there has been a flood of cases in the High Courts and Supreme Court (called P.I.L.).  There could be some justification for some of these as they are filed by public spirited persons or organizations on behalf of poor and weaker sections of Indian society who could not bear the lawyers’ fees and Court expenses. Thus, in State of Uttaranchal v. Balwant Singh, AIR 2010 S.C. 2550 the Supreme Court observed: “This Court realized that a large section of society because of extreme poverty, ignorance, discrimination and illiteracy had been denied justice from time immemorial. Predominantly, to provide access to justice to poor, deprived vulnerable, discriminated and marginalized sections of society, this court has initiated encouraged and propelled public interest litigation. This litigation is the upshot  and product of this Court’s deep and intense urge  to fulfil its bounden duty and constitutional obligation”.   
However, in the landmark decision in Common Cause Vs. Union of India,[117] (authored by the writer) the Apex Court observed that PIL in the present times are being entertained by many courts routinely in large numbers in matters which are mostly frivolous or motivated by extraneous considerations. PIL has these days largely become “Publicity Interest Litigation”, “Private Interest Litigation” or “Politics Interest Litigation” or the latest trend “Paise Income Litigation”.  Much of P.I.L. is really blackmail.  Often one businessman gets a P.I.L. filed against a rival businessman to harm him.
In Divisional Manager, Aravalli Golf Club Vs. Chandrahass,[118] the Supreme Court again declared that though judicial activism is sometimes a useful appendage to democracy, it should be resorted to only in exceptional circumstances when the situation forcefully demands it in the interest of the nation or the poorer and weaker sections of society.  Ordinarily the judiciary should exercise self-restraint.
Where the judiciary unwarrantedly tries to perform executive and legislative functions in the name of judicial activism, the delicate balance in the Constitution is disturbed and this invite reactions from politicians and other quarters. Therefore it is extremely important for the judiciary to exercise restraint and it should not ordinarily try to perform the functions of the Executive or the Legislature. The Court in the Aravalli Golf Club case pointed out some instances where the Court had strayed into the Legislative or Executive domain or in matters of policy.  In Common Cause the Court observed:-
“Public Interest Litigation, which was initially created as a useful judicial tool to help the poor and weaker sections of society who could not afford to come to Court has in course of time, largely developed into an uncontrollable Frankenstein and a nuisance which is threatening to choke the dockets of the superior court obstructing the hearing of the genuine and regular cases which have been waiting to be taken up for years together.”
Justice A.S. Anand former Chief Justice of India, in a public lecture cautioned that with a view to see that judicial activism does not become “judicial adventurism”, judges need to be circumspect and self- disciplined in the discharge of their judicial functions. The worst result of judicial activism is unpredictability.  Unless judges exercise self-restraint, each judge can become a law unto himself and issue directions according to his personal fancies, which will create chaos.[119] Reservations have been expressed in many quarters about some very recent decisions of the Supreme Court. 
JUDICIAL ACTIVISM BY JUDICIAL INTERPRETATION
            In Britain since there was no written Constitution, and since Parliament was supreme, the literal rule of interpretation was normally followed in interpreting statutes.  This principle said that Courts should not twist the language of a statutory provision, and should not add or delete words from it, because to do so would be to thwart the will of Parliament which was supreme.
            In countries with written Constitutions like U.S.A. and India on the other hand, it is the Constitution and not the legislature which is supreme, and since the Constitution means what the Judges say it means, this by itself makes the judiciaries in these countries more powerful and activist than in England.
            In the garb of interpretation Judges often make law (though they never openly say so), e.g. the creation of a right to privacy in Griswold.
            There are some vague provisions like the `due process’ clause in the U.S. Constitution which can be interpreted in different ways.  Similarly, the rights in Article 19(1) of the Indian Constitution e.g. freedom of speech, freedom to assemble peacefully, freedom of movement etc. are all subject to reasonable restrictions vide clauses (2) to (6) of Article 19.  But what is reasonable?  This is for the Courts to decide, and what is reasonable to one Judge may not be so to another.
            Similarly, there are words which may appear to be clear, e.g. `liberty’ but were interpreted by the U.S. Supreme Court at one time to include liberty of contract.  The word `life’ in Article 21 of the Indian Supreme Court has been interpreted to mean a life of dignity, and this has been held to include a plethora of  rights. 
The commerce clause in the U.S. Constitution, which states (in Article Section 8) that Congress can regulate interstate commerce, has been given a very expanded meaning by the U.S. Supreme Court so as to give Congress very wide powers to regulate the economy, even where strictly speaking there was no evident interstate trade or commerce.
 The commerce clause in Article 1 Section states “Congress shall have power to regulate commerce among the several states”.
Now two things may be noticed in the commerce clause (1) It mentions commerce (i.e. trade) and not manufacture (2) It gives power to Congress to regulate interstate commerce, and not intra state commerce. Thus, as originally conceived,  the commerce clause had a narrow scope, because in 1789 when the U.S. Constitution was made U.S.A. was broadly an agricultural country, and an agricultural society does not need many powers for its Central Government.
However, when U.S.A. become a highly industrial country, a strong Central Legislature and Executive were required. Hence the scope of the commerce clause was greatly expanded by judicial interpretation. The most important decision of the U.S. Supreme Court in this connection was Wickard vs. Filburn, 317 U.S. 111 (1942), and we may consider it in some detail.
To stabilize the price of wheat in the national market, Congress enacted the Agricultural Adjustment Act, 1938. This Act limited the area that farmers could devote to wheat production, so as to control the amount of wheat produced in the country. The purpose of this was to drive up the wheat price which had crashed during the Great Depression, ruining many farmers.
Filbury was a small farmer in Ohio who was permitted in 1941 to plant wheat on 11 acres of his land, but he planted it on 23 acres, thus admittedly producing more wheat than the amount permitted. His defence was that the wheat produced was for his own consumption on his own land. Since the wheat never entered commerce at all (because it was self consumed and not sold), much less interstate commerce, he argued that it was not a proper subject of federal regulation under the Commerce Clause.
The U.S. Supreme Court rejected this argument, holding that if Filburn and not used the wheat grown by him he would have had to buy it from the open market. This effect on interstate commerce may not be substantial from the action of Filburn alone, but through the cumulative actions of thousands of similar farmers its effect could became substantial. Hence Congress could regulate such activity, even though it was intra state and non commercial.
The court rejected the argument that production, manufacture and mining could not be regulated under the commerce clause because the activity was local and their effect on interstate commerce was only indirect.
This decision, therefore, included manufacture or agricultural production within the meaning of commerce, and it permitted regulation not only of interstate commerce but also intra state commerce. Thus by judicial interpretation the court deviated completely from the plain language of the commerce clause. The ratio of the decision, that even if one produces on one’s land for self consumption it affects interstate commerce, appears to be very farfetched. But considering the fact that in the industrial age Congress had to be given extensive power for regulating the economy, the decision is unexceptional. It has been followed in Gonzales vs. Reich, 2005.
In U.S. vs. Wrightwood Dairy Co 315 U.S. 110 (1942), the question to be decided was whether the Agricultural Marketing Agreement Act, which permitted the Secretary, Agriculture to fix the minimum price of milk, also governed intra state milk sales. The Court held that the price of intra state milk in competition with interstate milk adversely affects the price structure and regulation of the latter.
In U.S. vs. Darby Lumber Co. 312 U.S. 100 (1941) the Court held that Congress had power under the Commerce Clause to regulate employment conditions. This decision overturned the decision in Hammer vs. Dagenhart 247 US 251 (1918).
Thus we see that the Commerce Clause, which on a plain and literal reading seems to grant very narrow power to Congress to regulate the U.S. economy, by judicial interpretation (often by very strained reasoning) has given very extensive powers.
It may be pointed out here that the legislative powers of Congress are those given in Article 1 Section 8 of the U.S. Constitution, and all other powers not mentioned therein are with the States vide Tenth Amendment. Hence residuary powers in the U.S. Constitution are with the States, unlike in the Indian Constitution where Article 248 gives residuary powers to Parliament. Hence, if the U.S. Supreme Court had not given an expansive interpretation to the Commerce Clause, Congress would have little power to regulate the economy. 
          
            Apart from the above, it must be kept in mind that a Constitution is designed as an enduring document intended to serve a long era.  It is not designed to meet the  needs of the day when it is enacted, but also the needs of an unforeseen future with greatly altered circumstances.  Hence it has to receive a liberal interpretation so as to include within its ambit future developments in various fields of human activity, rather than restricting its language to the state of affairs existing at the time of its enactment.  In the interpretation of a Constitution it must be remembered that words used in it are but a framework of concepts, and concepts may change more than words themselves.  Hence constitutional issues cannot be resolved by mere abstract consideration of the words used without keeping in mind the line of their growth and the new conditions which have come into existence.
            Also, it must be kept in mind that a Constitution only outlines general principles rather than going into details.  As observed by the Indian Supreme Court in Peoples Union for Civil Liberties v. Union of India (2003) 4 SCC 399 (453):
“Fundamental Rights (in the Constitution) have no fixed content; most of them are empty vessels into which each generation must pour its content in the light of its experiences”.

            The preponderant legal opinion all over the world is against the ‘original intent’ theory.  Thus Justice Michael Kirby of the Australian High Court has observed: “We are not bound to the imaginings of the men who in the last decade of a past century wrote the Constitution.  It is a governmental charter of today’s Australians”, vide Abebe Vs. Commonwealth (1999) ALJR 584 (624).  Mr. Justice John Roberts, the newly appointed Chief Justice of the U.S.  Supreme Court, during his confirmation hearings, is reported to have said (The New York Times, September 26, 2005): “I think the framers, when they used broad language like ‘liberty’, like ‘due process’, like ‘unreasonable’ with respect to search and seizures, were crafting a document that they intended to apply in a meaningful way down the ages, ….and to apply to evolving societal conditions”.  As observed by Justice Brennan : “ We current justices read the Constitution in the only way we can: as the Twentieth Century Americans”.  A Constitution is a living document, said Chief Justice Marshall “intended to endure for ages to come” vide McCulloch vs. Maryland (1819).
            It follows that Courts have more freedom in interpretation of a Constitution than in interpretation of ordinary statutes, and the literal rule, which is applied in interpreting criminal and tax statutes, has no strict application in interpreting the Constitution.     
Activism of U.S. Supreme Court
As already mentioned earlier in this note, there were two main periods of activism in the history of the U.S. Supreme Court, the first being from the end of the 19th Century to the year 1937 when the decision in West Coast Hotels v. Parrish was delivered.  This was the era of ‘economic due process’.  The second period was the period of the Warren Court from 1953 to 1969. 

            The interesting point to note is that while ‘economic due process’ vanished from the scene after 1937, the liberalism of the Warren Court and the important decisions like Brown v. Board of Education, Griswold v. Connecticut and Miranda v. Arizona still broadly hold the field today, and indeed in some ways were advanced e.g. in Roe v. Wade, 1973 (modified in Casey).

            There was an important reason for this.  The U.S. Constitution is a short document (as contrasted to the Indian Constitution).  It sought to incorporate the ideals of the Founding Fathers who wanted to set up a republican, democratic government, but also wanted to protect the people against this government lest it turn oppressive.  Practical concerns motivated this fear.  The Founding Fathers had lived through bitter years when they had seen governments, both the royal government in England as well as their own state governments (headed by British Governors) trample on the human rights which they and their ancestors had fought so hard to secure.  Hence they were determined that there should be no uncontrolled power in America.  As Jefferson said “an elective despotism was not the government we fought for” (see Charles Warren’s ‘Congress, the Constitution and the Supreme Court’).  It is for this reason that the Bill of Rights was inserted in the original draft of the Constitution.  

            The problem, however, was that many of the expressions in the U.S. Constitution, particularly the Bill of Rights, required elucidation.  The Founding Fathers wisely spoke in general language and left to succeeding generations the task of applying that language to the constantly changing environment in America.  Similarly, those who framed the civil war amendments used what have been described as ‘majestic generalities’ in the Fourteenth Amendment.  The Framers of the Constitution gave latitude to later interpreters to make the language applicable to cases which the Framers might not have foreseen.

For instance, the expression ‘due process’ in the Fifth and Fourteenth Amendments is vague (just as the expression `reasonable restrictions’ in Article 19 of the Indian Constitution is vague).  Also some words like liberty, equality etc. may appear clear, but they are often interpreted differently.  For instance, are liberty or free speech enshrined in the Constitution absolute (as Justice Hugo Black perceived it), or can restrictions be placed on them?  Most Judges disagree with the extreme view of Black, and believe that there are no absolute rights in the Constitution.  But what kind of restrictions can be placed on them, and in what situations, and to what degree?  Opinions may, and do, differ here.

In this connection it may be noted that the rights mentioned in Article 19 (1) of the Indian Constitution e.g. freedom of speech and expression, freedom to assemble peaceably, freedom to form associations, freedom of movement throughout India, freedom to practice any profession etc. are all subjection to reasonable restrictions in the interests of the sovereignty and integrity of India, security of the State, public order, decency, morality etc. vide Articles 19 (2) to (6).  The Bill of Rights in the U.S. Constitution, however, does not specifically say that the rights mentioned therein are subject to reasonable restrictions.  However, by judicial interpretation the result is the same i.e. these rights are not absolute, but subject to certain restrictions e.g. the law of defamation, obscenity, security and the need to maintain public order.  Freedom of speech does not permit shouting ‘fire’ in a crowded theatre causing a stampede, as Justice Holmes pointed out. 

It was here that the role of the U.S. Supreme Court was crucial.  The Warren Court sought to inject flesh and blood into the Bill of Rights and make them truly meaningful. For instance, while the American Declaration of Independence, 1776 declared that ‘all men are created equal’ and this was made explicit by the Fourteenth Amendment, a section of American society still regarded black men as not equals to whites, and this mentality continued even after the Civil War of 1861-65 reaching its culmination in Plessy Vs. Ferguson, 1896 which effectively validated segregation in American society, like the apartheid in South Africa.  
           
By the end of World War II a situation had been reached where the black man had become fed up of being treated as inferior.  American society would have been torn apart but for Brown, and this decision showed the wisdom of the U.S. Supreme Court at its best, for it fulfilled the ideals of the Founding Fathers.

            There were many attempts at overruling Miranda, Roe, etc. but these decisions had in course of time, so much become a part of American culture that all these attempts failed.  (see ‘The Nine by Jeffrey Toobin)

            In other fields also the U.S. Supreme Court has displayed great statesmanship.  With the growth of industrialization there was need of a strong Central Legislature and Executive, and hence the Court interpreted the Constitutional provisions liberally (and not literally) to give them these powers.  For instance, when Congress established a bank a challenge was made that this was unconstitutional as Article 1 Section 8 of the U.S. Constitution which mentions the powers of Congress does not mention ‘bank’ or ‘incorporation’.  The Court held in McCulloch v. Maryland, 1819 that the power to set up a bank emanated from the great powers to levy and collect taxes, to regulate commerce, etc.  Thus the technique (of regarding as unenumerated rights as emanating from specified rights) used in Griswold had its forbear in McCulloch.  The ‘penumbra’ or ‘emanation’ theory of Justice Douglas in Griswold really dates back to Marshal.

            The commerce clause in the U.S. Constitution was developed and expanded by judicial interpretation, making it one of the most important grants of authority.  As Justice Stone said “The commerce clause and the wise interpretation of it, perhaps more than any other contributing element, have united to bind  the several states into a nation.”  Largely through the use of the commerce power the national government regulates almost every conceivable aspect of American life. 

            The interesting point is that if the commerce clause is given a literal interpretation it will have a very narrow scope.  Article 1 Section 8 states that Congress “shall have power………..to regulate commerce with foreign nations and among the several states.”   

            However, in National Labour Relations Board Vs. Jones and Laughlin Steel Corporation, 301 U.S. 1, the U.S. Supreme Court upheld the National Labour Relations Act, 1935 by which workers were granted the right to collective bargaining, on the ground that if there is industrial strife it will affect interstate commerce.  Ever since a wide, and not literal, meaning has been given by the U.S. Supreme Court to the commerce clause. (Some relevant case law has already been discussed above).

            The interpretation of this provision by the U.S. Supreme Court was so expansive that is impossible to believe that the Court followed the original intent of the Constitution makers.  Bork, Scalia, and other ‘original intent’ advocates are thus in a conflicting situation.  While they talk of ‘original intent’, they have never criticized the expansion of the commerce clause by the U.S. Supreme Court.  The correct view seems to be that of Richard Posner in his book ‘Law, Pragmatism and Democracy’ in which Posner sought to demonstrate that great U.S. Judges often resorted to the pragmatic, rather than the formalistic or abstract approach in interpreting the Constitution.  The ‘original intent’ approach will make the U.S. Constitution totally unworkable, since the America of 1791 (when the Constitution was adopted) is very different from the America of 2011.
Activism of the Indian Supreme Court
The Indian Supreme Court has been much more activist than the U.S. Supreme Court. One important reason for this is due to the different historical situations prevailing in the two countries.
            The United States is an industrialized country, in fact the most advanced in the world.  On the other hand, India is still in a transition period, between feudal agricultural society to a modern industrial one.  This transition period is always a very painful one, as a study of the European history from the 16th to 19th centuries discloses, full of turbulence and intellectual ferment. 
            Since the Indian Constitution is modern while Indian society is still backward, one of the important roles of the Indian judiciary is to help India get over its transition period faster and with less pain.
            The fact that the Indian higher judiciary is not elected and has a secure (though not life) tenure is in fact its strength.  The politicians in India have usually to rely on caste or religious vote banks to get elected, and caste and religion are really feudal forces.  Hence the Indian politicians often cannot take strong steps against feudal practices, while the judiciary, which does not depend on these vote banks, can do so.
            A good example of this is the judgment in Bhagwan Das vs. State (NCT) of Delhi, 2011 authored by the writer.

            In parts of India (and Pakistan) there is a phenomenon called ‘honour killing’. This means that if a girl falls in love with a boy of a different caste or religion, or belonging to the same village, both are killed by the family members or their caste organizations (as they are said to have ‘dishonoured’ their family, caste or religion).  Many political leaders do not interfere with these ‘honour’ killings as they are dependent on the votes supplied by these caste (or religious) organizations, and the police and administrative officials (who surely know of what is happening through their intelligence agencies) do not interfere out of fear of the wrath of their political masters.

            On the other hand, the Indian Judges do not have to face elections, and hence have no need to please these feudal caste organizations.  Accordingly, in the above decision the Indian Supreme Court held that in cases of ‘honour’ killing there must be a mandatory death sentence for the perpetrators of such crimes, and the police and administrative officials who did not prevent them must be immediately suspended.  This decision raised a hue and cry among the caste organizations, but has been widely acclaimed by the enlightened section of Indian society. 

The U.S. Supreme Court did not have to play a role in transforming a feudal society into a modern one.  The U.S. was already a modern society, and the U.S. Supreme Court  had only to perform two basic functions.  (1) To help complete the unfinished tasks set by the American Founding Fathers of creating a truly democratic society with liberty and equality.  Brown is a good example how the U.S. Supreme Court boldly performed this task by doing away with the injustices to the black man.  Miranda was another.  (2) To resolve some of the major problems in a modern society.  Griswold and Roe were important decisions in this connection.  Great Judges like Justices Holmes, Brandeis, Frankfurter, Black, Douglas, Brennan, and Sandra Day O’Connor played an important role in this connection by their vision and intellect.

            Cases in the U.S. Supreme Court are decided by all 9 Judges sitting together, and there are no division benches as in the Indian Supreme Court.  Since U.S. Supreme Court Judges have a life tenure (unlike Indian Supreme Court Judges who retire at 65), and since most Judges in the higher Courts broadly have a stable judicial philosophy (e.g. Justices Scalia and Clarence Thomas will almost always be strict constructionists and believers in the ‘original intent’ theory), it follows that the  approach of the U.S. Supreme Court (that is, its majority) is broadly stable and consistent for long periods of time.  Thus, ‘economic due process’ lasted for a whole third of the 20th century, while the liberalism of the Warren Court lasted throughout his tenure as Chief Justice.  In the Burger and Rehnquist Courts an intermediate philosophy prevailed, while about the present U.S. Supreme Court it is too early to say how it will be regarded by history. Its decisions are often by a 5-4 majority, which shows the deep divide among the present Judges, e.g. in the Affordable Healthcare case.

            The Indian Supreme Court, while conservative in the initial years, had later a burst of judicial activism through the social philosophies of Justice Gajendragadkar, Krishna Iyer, P.N. Bhagwati, etc. who in the garb of interpretation of Articles 14, 19 and 21 of the Indian Constitution created a host of legal norms by judicial verdicts.          

            It may be noted that Part III of the Indian Constitution enumerates certain Fundamental Rights which are enforceable e.g. freedom of speech, liberty, equality, freedom of religion, etc.  On the other hand Part IV called the Directive Principles of State Policy contain certain socio-economic ideals e.g. right to work, to education, to a living wage, to health etc. which though unenforceable are ideals which the State is directed to strive for.  Though Article 37 states that these Directive Principles are unenforceable, the Indian Supreme Court has enforced many of them often by reading them into certain Fundamental Rights e.g. in Unnikrishan’s case the right to education was read into Article 21.

            This has on the one hand been acclaimed by a section of Indian society as the judiciary’s enlightened response to the social and economic situation prevailing in India, on the other hand it has its dangers.  When Judges start thinking they can solve all the problems in society and start performing legislative and executive functions (because the legislature and executive have in their perception failed in their duties), all kinds of problems are bound to arise.  Judges can no doubt intervene in some extreme cases, but otherwise they neither have the expertise nor resources to solve major problems in society.  Also, such encroachment by the judiciary into the domain of the legislature or executive will almost invariably have a strong reaction from politicians and others.  The politicians will then step in and try to curb the functioning, or even the independence, of the judiciary (as President Franklin Roosevelt sought to do when the conservative Court kept invalidating his New Deal legislation).
           
Thus in Divisional Manager, Aravali Golf Course vs. Chander Haas (2008) 1SCC 683 (a judgment authored by the writer) it was observed:

“Judges must know their limits and not try to run the government.  They must have modesty and humility, and not behave like emperors.  There is broad separation of powers under the Constitution, and each organ of the State – the legislature, the executive and the judiciary – must have respect for each other and must not encroach into each other’s domains”.

            The judgment quoted Justice Frankfurter’s dissenting opinion in Trop Vs.. Dulles, 356 U.S. 86 where it was said :

“All power is, in Madison’s phrase, of an encroaching nature.  Judicial power is not immune against this human weakness.  It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint”.

            In the Indian Supreme Court most Judges sit in 2 Judge benches, but the verdict of that 2 Judge bench is regarded as the judgment of the Supreme Court (unless overruled by a larger bench).  Since Judges have their own judicial philosophies this often results in the Supreme Court speaking in differing voices, which often leads to inconsistency.  

            Reservations have been expressed in many quarters about several verdicts of the Indian Supreme Court as it is perceived by some that they have grossly violated the principle of separation of powers.  Criticism has in particular been made against the decisions in the Judges Cases (Supreme Court Advocates on Record Association Vs. Union of India AIR 1994 SC 268 and In Re Presidential Reference, AIR 1999 SC 1) on the ground that these decisions have practically substituted Article 124(2) of the Constitution by introducing a Collegium system nowhere envisaged by the Constitution. (See article of Lord Cooke entitled ‘Where Angels Fear to Tread’ in the book ‘Supreme but not Infallible’). 
            In the opinion of the writer many of these decisions may require reconsideration.
Conclusion about Judicial Activism
            My own view is that while judicial activism may be a good thing on certain special occasions, there should not be too frequent use of it. Where to draw the line is, of course, sometimes a difficult question to answer.
            In Divisional Manager vs. Aravali Golf Course a bench of which I was a member advocated judicial restraint by court.
           
            However, in certain cases I (along with a brother/sister Judge) resorted to activism. Some examples are (1) In Budhadev Karmaskar vs. State of West Bengal, Crime Appeal 135/2010 a bench of which I was the senior member directed the government to try to rehabilitate sex workers. In India there are hundreds of thousands of them. These women enter the flesh trade not because they enjoy it but because of abject poverty. Hence we directed the Central and  State Governments to prepare schemes for giving some technical training to these sex workers so that they can earn their bread not by selling their bodies but  by some technical skills, and we formed a committee headed by a senior Supreme Court lawyer for overseeing this. This case is still being heard from time to time even after my retirement in 2011 by another bench.

(2) In Aruna Shanbang vs. Union of India we declared passive euthanasia valid, but subject to some restrictions. We did this because often when a person goes into come and is on life support in hospital the relatives cannot go on paying for the hospital expenses, although the doctors have declared that the patient will not come out of the coma.
(3)       In M.K. Balakrishnan v. Union of India we directed formation of a Water Committee to do scientific research for finding out ways of solving the grave and widespread water shortage problem in India.
            These orders were passed because of pressing needs.
            However, pressing need should not be a ground for ignoring the statutory or constitutional provisions, and hence I have grave reservations about several decisions e.g. the Supreme Court Advocates on Record case, 1994 (The Second Judges case).
            The law should have some stability and predictability. The burst of judicial activism by some Indian judgments in recent decades is often mind boggling, and is a negation of this requirement. The time has come when a vigorous debate should be held by jurists on this subject.
           
           
***************




[1] Separation of Power has been held by the Supreme Court to be a basic feature of the Constitution  vide State of West Bengal v. Committee for Protection Democratic Rights, AIR 2010 SC 1476
[2] Nicholas Katers, Judicial Activism and Restraint: The role of the Supreme Court. Available online at http://www.associatedcontent.com/article/21725/judicial_activism_and_restraint_the.html.          
[3] JUDICIAL ACTIVISM, Black’s Law Dictionary,
[4] See, e.g., Frank B. Cross & Stefanie Lindquist, The Decisional Significance of the Chief Justice, 154 U. Penn. L. Rev. 1665, 1701 (2006). Also, see, Caprice Roberts, In Search of Judicial Activism: Dangers in Quantifying the Qualitative, 74 Tenn. L. Rev. 567 at 571.
[5] 1973 IE SC 2
[6] 347 U.S. 483 (1954),
[7] 410 U.S. 113 (1973).
[8] 5 U.S. (1 Cranch 137) (1803).
[9] Id.
[10] James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, Harv. Law Review (1893).
[11] 198 U.S. 45 (1905).
[12] Holden v. Hardy, 169 U.S. 366 (1898).
[13] 165 U.S. 578 (1897),
[14] Id. At 589.
[15] Mathew J. Lindsay, In Search of Laissez-Faire Constitutionalism, Harv. L. R. 123. (5).
[16] 247 U.S. 251 (1918).
[17] In the case of United States v. Darby Lumber Corporation, 312 U.S. 100 (1941).
[18] 261 U.S. 525 (1923).
[19] See, for instance, United States v. Butler, 297 US 1 (1936) which dealt with the Agricultural Adjustment Act, and Carter v. Carter Coal Company, 298 U.S. 238 (1936) which struck down legislation which sought to regulate the coal manufacturing industry in the US.
[20] 300 U.S. 379 (1937).
[21] The exact nature of such switch, and the reasons for doing so, still remain clouded in suspicion. There exists some evidence to prove that the bill was sought to be passed in the senate after Roberts, J. had decided to change his stance from the laissez-faire doctrine that had hitherto prevailed.
[22] A fact that was noticed by, and commented upon by other judges, notably Sutherland, J., whose minority judgment contained a strong, albeit veiled, rebuke to Roberts, J.
[23] See ‘Earl Warren’ and ‘Living Constitution’
[24] See, for instance, the dissent of Justice Black in Griswold v. Connecticut, 381 U.S. 479, 527 (1965),
[25] 388 U.S. 218 (1967), at 249, 250.
[26] 247 U.S. 483 (1954).
[27] See judicial decisions that said that the due process guarantee contained within the 14th amendment did not specifically contain the protections of the Bill of Rights in the U.S. Constitution vis-à-vis state action.  Hurtado v. California, 110 U.S. 516, (1884).
[28] See Korematsu  v. United States¸ 323 U.S. 214. (1944).
[29] Supra n. 30.
[30] (349 U.S. 294) 1955.
[31] Supra n. 26, p. 20.
[32] Griffin  v.  County School Board, Prince Edward County,
[33] See, for instance, the case of Burron v. Baltimore, 7 Pet. 243 (1833) which said that the due process clause provided very little protection to persons tried in state Courts, being modified by the case of Murrays Lessee v. Hoboken Land and Improvement Co.,  where it was definitively stated that all branches of the Federal Government were bound by the clause.
[34] See Gideon v. Wainwright, 372 U.S. 335 (1963)
[35] Escobedo v. Illinois, 378 U.S. 478 (1964).
[36] Id.
[37] See the case of Malloy v. Hogan, 378 U.S. 1 (1964).
[38] Twining v. New Jersey, Adamson v. California.
[39] 384 U.S. 436 (1966).
[40] Id.
[41] Supra n. 45, at 475,
[42] See Ronald Dworkin, A Special Supplement: The Jurisprudence of Richard Nixon, Available online at http://www.nybooks.com/articles/archives/1972/may/04/a-special-supplement-the-jurisprudence-of-richard-/.
[43] 381 U.S. 479.
[44] For an account of the whole debate, see J.M. Balkin, What Roe v. Wade Should Have Said, New York University Press, New York. 2005.
[45] Supra n. 5.
[46] For a larger understanding of the matter, see Laurence Tribe, Lawrence v. Texas: The Right that Dare Not Speak Its Name, 117 Harv. L. Rev. 1893 (2004).
[47] Citizens United v. Federal Election Commission 558 U.S. 08-205 (2010)
[48] http://www.law.cornell.edu/supct/html/08-205.ZX.html.
[49] AIR 1978 SC 597
[50] (1994) 6 SCC 632
[51] Oliga Tellis Vs. Bombay Municipal Corporation; AIR 1986 SC 180
[52] (2003) 6 SCC 1
[53] A. P. Pollution Control Boards Vs. Prof. MV Nayudu; AIR 1999 SC 822
[54] Police Commissioner, Delhi Vs. Registrar, Delhi High Court, AIR 1999 SC 95
[55] Consumer Education and Research Vs. Union of India, AIR 1995 SC 922
[56] Hich Lal Tiwari Vs. Kamla Devi and Others, (2001) 6 SCC 496
[57] S. K. Mastan Bee Vs. GM South Central Railway, (2003) 1 SCC 184
[58] M. H. Hoskot Vs. State of Maharashtra, AIR 1978 SC 1548
[59] Vishakha Vs. State of Rajasthan, 1997 (6) SCC 241
[60] P. Katara Vs. Union of India, (1998) 4 SCC 286
[61] Sunil Batra Vs. Delhi Admi. (1978) 4 SCC 498
[62] Charles Shobhraj Vs. Delhi Admi. (1978) 4 SCC 104
[63] Hussainara Khatoon Vs. Home Secretary, (1980) 1 SCC 81
[64] Sheela Barse Vs. State of Maharashtra, (1983) 2 SCC 96 and D. K. Basu Vs. State of West Bengal, (1997) 1 SCC 4116
[65] Khatri Vs. State of Bihar, AIR 1981 SC 928
[66] State of M.P. Vs. Shobharam, AIR 1966 SC 2193
[67] Prabha Dutt Vs. Union of India, AIR 1986 SC 6
[68] State of Gujarat Vs. Hon’ble High Court of Gujarat, (1998) 7 SCC 392
[69] Ramana Vs. International Airport Authority., (1979) 3 SCC 479
[70] Romesh Thapar Vs. State of Madras, AIR 1950 SC 124
[71] Indian Express Newspaper (Bombay) Vs. Union of India, AIR 1986 SC 515
[72] Peoples Union for Civil Liberties Vs. Union of India, (2003) 4 SCC 399
[73] (1993) 1 SCC 645
[74] Article 45: The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.
[75] (1988) 1 SCC 471
[76] Article 48-A: The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.
[77] Supra footnote 15.
[78] (2004) 5 SCC 518
[79] 2006 (5) SCC 475
[80] JT 2011 (3) SC 300
[81] AIR 1952 SC 75
[82] AIR 1982 SC 149
[83] (1993) 4 SCC 441
[84] Article 50: The State shall take steps to separate the judiciary from the executive in the public services of the State.
[85] 1998 Cri. L. J. 1208
[86] (1996) 5 SCC 281
[87] (2001) 3 SCC 763
[88] Sheela Barse Vs. State of Maharashtra, (1983) 2 SCC 96
[89] Labors on Sala Hydro Electricity Project Vs. State of J & K, (1984) 3 SCC 538
[90] Pradeep Kumar Jain Vs. State of .P., AIR 1984 SC 1420
[91] Bombay Hawkers Union Vs. B.M.C., (1985) 3 SCC 528
[92] Center for PIL Vs. Union of India, 1995 Sppl. (3) SCC 382
[93] ONGC Vs. Collector of Central Excise, 1995 Sppl. (3) SCC 541 (This decision has since been reversed)
[94] Supra footnote 51.
[95] M. C. Mehta v. Union of India, (1986) 2 SCC 176
[96] Shantisar Builders Vs. L. Narayan, (1990) 1 SCC 520
[97] M. C. Mehta v. Union of India, (1991) 2 SCC 353



[98] See Duport Steels Ltd. v. Sirs, (1980) WLR 142.
[99] See Montesquieu’s ‘The Spirit of Laws’
[100] Griffith, in his ‘The Politics of the Judiciary’ has shown that the values which the judges esteem are implemented in their judgments.
[101] Until 1932 the tort of negligence did not exist in English Law. In the modern era of mass production by huge cartels and business firms, and mass consumerism, this position had to change, but this change was not brought about by Parliament but by the decision of  House of Lords in Donoghue v. Stevenson. Thus the judiciary proved to be more sensitive to social pressure then the legislature
[102] See Heck’s ‘The Jurisprudence of Interests’.
[103] See Geny’s Methode d’interpretationet sources en droit prive positif’
[104] See Fuchs’ ‘Juristischer Kulturkampf’ 
[105] See Kantorowicz’ ‘Der Kumpf um die Rechtswissenschaft’.
[106] See Gray’s Nature and Sources of the Law’.
[107] (1949) 2 KB 181
[108] (1951) 2 All ER 839
[109] 1994 (23) ALR 31 SC (Summ).
[110] AIR 1981 SC 463
[111] AIR 1978 SC 949
[112] AIR 1977 SC 1361
[113] (1994) 3 SCC 1
[114]Judicial Activism v. Judicial Self-Restraint” at http://legalsutra.org/933/judicial-activism-v-judicial-self-restraint/ as last on 10 July, 2011
[115] (2000) 2 SCC 679
[116] (2004) 5 SCC 518
[117] AIR 2008 SCW 3164
[118] AIR 2008 SCW 406
[119] Rathore, K.S. “Role Of Judicial Activism Towards Protection And Promotion Of Constitutional Rights” at http://airwebworld.com/articles/index.php?article=1062 as last visited on July 10, 2011

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  2. Great article Sir.
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    But don't you think Legislature is taking away judicial power by bringing in One Hundred and Twentieth Amendment bill ?

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