However, in view of the judicial turmoil currently prevailing in Pakistan because of some highly controversial orders passed by the Pakistan Supreme Court, particularly the order ousting the Prime Minister, a clear elaborate enunciation of the philosophy of judicial restraint is called for. This in my opinion is necessary because it is evident that the Pakistan Supreme Court, particularly its Chief Justice, have for some time embarked on a perilous path of confrontation with the political authorities, for reasons best known to themselves, which can only have disastrous consequences, not only for the judiciary but also for the entire country.
The grave problem, however, which Courts are often faced with is this: on the one hand there is no doubt that the Constitution is the supreme law of the land and prevails over statutes and executive decisions, and it is for the Courts to interpret the Constitution, on the other hand, in the garb of interpretation, the Court must not seek an unnecessary confrontation with the legislature, particularly since the legislature consists of representatives democratically elected by the people.
The solution to the problem was provided in the classical essay written in1893 (and published in the Harvard Law Review the same year) by Prof. James Bradley Thayer, the then Professor of law of Harvard University entitled 'The Origin and Scope of the American Doctrine of Constitutional Law'. This essay elaborately discusses the doctrine of judicial restraint and explains why Courts should follow it.
Justice Holmes, Brandeis, and Frankfurter of the U.S.Supreme Court were followers of Prof. Thayer's philosophy of judicial restraint. Justice Frankfurter referred to Thayer as "the great master of Constitutional Law", and in a lecture in Harvard Law School said:
"If I were to name one piece of writing on American Constitutional Law, I would pick Thayer's once famous essay, because it is a great guide for Judges, and therefore the great guide for understanding by non-judgesof what the place of the judiciary is in relation to Constitutional questions."
The Court certainly has power to decide Constitutional issues. However, as pointed out by Justice Frankfurter in West Virginia State Board of Education vs. Barnette 319 U.S. 624 (1943), since this great power can prevent the full play of the democratic process, it is vital that it should be exercized with rigorous self restraint.
The philosophy behind the doctrine of judicial restraint is that there is broad separation of powers under the Constitution, and the three organs of the State, the legislature, the executive, and the judiciary must respect each other, and must not ordinarily encroach into each other's domain, otherwise the system cannot function properly. Also, the judiciary must realize that the legislature is a democratically elected body which expresses the will of the people (however imperfectly) and in a democracy this will is not to be lightly frustrated or thwarted.
Apart from the above, as pointed out by Prof. Thayer, judicial overactivism deprives the people of " the political experience and the moral education and stimulus that comes from fighting the problem in the ordinary way, and correcting their own errors".
"Although the doctrine of separation of powers has not been recognized under the Constitution in its absolute rigidity, the Constitution makers have meticulously defined the functions of various organs of the State. The legislature, executive, and judiciary have to function within their own spheres demarcated in the Constitution. No organ can usurp the function of another.--While exercize of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercize of power is the self imposed discipline of judicial restraint."
"All power is, in Madison's phrase, of an encroaching nature. Judicial power is not immune against this human weakness. It must be on guard on going beyond its proper bounds, not the less so since the only restraint upon it is self restraint.--The Court must observe a fastidious regard about limitation of its own power, and this precludes the Court's giving effect to its own notions of what is wise and politic. That self restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgement on the wisdom of what the legislative and executive branch may do."
As observed by Justice A.S.Anand, former Chief Justice of India:
"Courts have to function within the established parameters and Constitutional bounds. With a view to see that judicial activism does not become judicial adventurism the Courts must act with caution and proper restraint. They must remember that judicial activism is not an unguided missile. Failure to bear this in mind would lead to chaos. Public adulation must not sway the judges. They must remember that they cannot run the government."
Judicial restraint is particularly important for the Supreme Court for two reasons:
(1) Of the three organs of the State, only one of them, the judiciary, is empowered to declare the limits of jurisdiction of all the three organs. This great power must therefore be exercised by the judiciary with the utmost humility and self restraint.
(2) The errors of the lower courts can be corrected by the higher courts, but there is none above the Sipreme Court to correct its errors.
Some people justify judicial activism by saying that the legislature and executive are not properly performing their functions. The reply to this argument is that the same charge is often leveled against the judiciary. Should the legislature or executive then take over judicial functions? If the legislature or executive are not properly performing their functions it is for the people to correct them by exercising their franchise properly, or by peaceful and lawful public meetings and demonstrations, and/or by public criticism through the media and by other lawful means. The remedy is not in the judiciary taking over these functions, because that would not only be against the separation of powers in the Constitution, but also because the judiciary has neither the expertise nor the resources to perform these functions.
In this connection I may quote from the article 'The influence of James B.Thayer upon the work of Justices Holmes, Brandeis, and Frankfurter' by Wallace Mendelson published in 31 Vanderbilt Lae Review 71 (1978):
"If, then, the Thayer tradition of judicial modesy is outmoded, if judicial aggression is to be the rule, as in the 1930s, some basic issues remain:
First,how legitimate is government by Judges? Is anything to beyond their reach? Will anything be left for ultimate resolution by the democratic process, for, what Thayer called" That wide margin of considerations which address themselves only to the practical judgment of a legislative body representing (as Courts do not) a wide range of mundane needs and aspirations?
Legislation is a process slow and cumbersome. It turns out a product--laws--that rarely are liked by everybody, and frequently little liked by anybody. When seen from the shining cliffs of perfection the legislative process of compromise appears shoddy indeed. But when seen from some concentration camp as the only alternative way of life, the compromises of legislation appear but another name for what we call civilization.
Let philosophy fret about ideal justice. Politics is our substitute for civil war. It is far too wise to gamble for Utopia or nothing, to be fooled by its romantic verbiage. By give and take, the legislative process seeks not final truth, but an acceptable balance of community interests. In this view, the harmonizing and educational function of the legislative process itself counts for more than any of its products. To intrude upon its pragmatic adjustments by judicial fiat is to frustrate our chief instrument of social peace.
Second, if the Supreme Court is to be the ultimate policy making body without accountability, how is it to avoid the corrupting effects of raw power? Also, can the Court satisfy the expectations it has aroused?
Third, can nine men (the Supreme Court Judges) master the complexities of every phase of American life? Are any nine men wise enough and good enough to wield such power over the lives of millions? Are Courts institutionally equipped for such burdens? Unlike legislatures, they are not representative bodies reflecting a wide range of social interest. Lacking a professional staff of trained investigators, they must rely for data almost exclusively upon the partisan advocates who appear before them. Inadequate or misleading information invites unsound decisions.
Finally, what kind of citizens will such a system of judicial activism produce, a system that trains us to look not to ourselves for the solution of our problems, but to the most elite among elites:nine Judges governing our lives without politiclal or judicial accountability? Surely this is neither democracy nor the rule of law."
In this connection Justice Frankfurter,while Professor of Law at Harvard University, wrote in 'The Public and its Government':
"With the great men of the Supreme Court Constitutional adjudication has always been statecraft. As a mere Judge Marshal had his superiors among his colleagues. His supremacy lay in his recognition of the practical needs of government."
A classical example of this is Marshal's judgment in Marbury vs. Madison(1803), in which while avoiding confrontation with the government of President Jefferson he upheld the supremacy of the Constitution. Another example is the very recent judgment of Chief Justice John Roberts in the Affordable Healthcare Act case, in which he basically followed the doctrine of judicial restraint.
In my opinion, adjudication must be done within the system of historically validated restraints and conscious minimization of the Judges personal preferences.
As observed by the Indian Supreme Court in State of Bihar vs. Kameshwar Singh, AIR1952 S.C. 252(274):
"The legislature is the best judge of what is good for the community, by whose suffrage it comes into existence."
In Divisional Manager, Aravali Golf Course vs. Chander Haas (2006)
the Indian Supreme Court observed (vide paragraph 20):
"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 of the organs of the state must have respect for the others and must not encroach into each other's domain."
In Lochner vs. New York, 198 U.S. 45(1905)
Mr. Justice Holmes in his dissenting judgment criticized the majority of the Court for becoming a super legislature by inventing a 'liberty of contract' theory, thereby enforcing its own laissez faire economic philosophy. Similarly, in his dissenting judgment in Griswold vs. Connecticut, 381 U.S. 479 (1965) Mr. Justice Hugo Black warned that "unbounded judicial creativity would make the Court into a day-to-day Constitutional Convention." In 'The Nature of the Judicial Process' Mr. Justice Cardozo observed: "The Judge is not a Knight Errant roaming at will in pursuit of his own ideal of beauty and goodness." In 'Some Reflections on the Reading of Statutes' Justice Frankfurter pointed out that great Judges have constantly admonished their brethren of the need for discipline in observing their limitations.
In this connection reference may usefully be made to the well known episode in the history of the U.S. Supreme Court when it dealt with the New Deal legislation initiated by President Franklin Roosevelt soon after he assumed office in 1933. When the overactive Court kept striking down this legislation President Roosevelt proposed to pack the Court with six of his nominees. This threat was enough, and it was not necessary to carry it out. In 1937 the court changed its confrontationist attitude and started upholding the legislation (see WestCoast Hotel Vs. Parrish ). "Economic due process" met with a sudden demise.
The moral of this story is that if the judiciary does not maintain restraint and crosses its limits there will be a reaction which may do great damage to the judiciary, its independence, and its respect in society.
It is not my opinion that a Judge should not never be activist. Sometimes judicial activism is a good and useful thing, such as in the School Segregation and Human Rights cases decided by the U.S. Supreme Court, e.g. Brown vs. Board of Education, Miranda vs. Arizona, Roe vs. Wade, etc or the decisions of the Indian Supreme Court expanding the scope of Articles 14 and 19 of the Indian Constitution. Such activism should, however be done only in exceptional and rare cases, and ordinarily Judges should exercise self restraint.
"Courts are not representatine bodies. They are not designed to be a good reflex of a democratic society. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when Courts become emroiled in the passions of the day, and assume primary responsibility in choosing between competing political, economic, and social pressures".
The Pakistan Supreme Court would be well advised to heed these words of wisdom, even at such a late stage.
Justice Markandey Katju
Former Judge, Supreme Court of India
Published in The Express Tribune, July 12th, 2012.