Sociology Unit I - Social Basis of Law

Relation Between Law and Society

Law and society are related to each other. Nothing can explain without any of them. Society becomes the jungle without the law. Law also needs to be changed according to the changes the society faces, because without the necessary changes law cannot keep pace with society. Without the control of the law, the society became the jungle or at least barbaric. So, to keep the society peaceful, we need to create a harmonious relationship between law and society.

We can take an example of our country, where everyday we watch so many crimes. But due to lack of evidence the criminal is set free or there are too little penalty, that law breakers did not care about it. Just the example we can see few cases of eve teasing.

What is Law:

Law is the command of the Sovereign. Law must flow from a determinate person or group of persons with the threat of displeasure, if it is not obeyed. As we know, Sovereignty is a only part of the state. So, we can say that Law is used to denote rules of conduct emanated from and enforced by the state.

According to Holland, Law is “a rule of external human action enforced by the sovereign political authority.” 

According to Salmon, “Law is the body of principles recognized and applied by the State in the administration of justice” 

According to Woodrow Wilson, “Law is that portion of the established habit and thought of mankind which has gained distinct and formal recognition in the shape of uniform rules backed by the authority and power of the government.” 

According to Anson,” The objects of Law is Order, and the result of Order is that men are enables to look ahead with some sort of security as to the future. Although human action cannot be reduced to the uniformities of nature, men endeavoured to reproduce by Law something approaching to this uniformity.” 

So we can say that law must have three characteristics which are given below:

Law has its sovereign authority,

Law is accompanied by sanctions,

The command of law should compel a course of conduct. Being a command the law must flow from a determinate person or group of persons with the threat of displeasure, if it is not obeyed.  

WHAT IS SOCIETY?

A community or a group of persons, living in any region, who are united by some common bond, is known as society.  A society is a group of people related to each other through persistent relations such as social status, roles and social networks.

They also share the same geographical territory and subject to the same political authority and dominant cultural expectations.  Common bond is some kind of uniformity of factors like nature of the people, habit, custom, beliefs, culture, etc.

This common bond helps the members of the society to form the rules of social behaviour. The punishment of disobeying the social rules is come from in the form of social disapproval. The punishments are generally excommunication or ostracism. 

RELATIONSHIP BETWEEN LAW AND SOCIETY:

Theorists have traditionally maintained that there are certain broad on the substantive criminal law. One set of such constraints concerns the sorts of behaviour that may legitimately be prohibited. Is it proper, for example, to criminalize a certain kind of action on the grounds that most people in one’s society regard it as immoral?

The other set of constraints which concern what is needed in order to establish criminal responsibility that is liability, independently of the content of the particular statute whose violation is in question. 

Legal system reflects all the energy of life within in any society. Law has the complex vitality of a living organism. We can say that law is a social science characterized by movement and adaptation.

Rules are neither created nor applied in a vacuum, on the other hand they created and used time and again for a purpose. Rules are intended to move us in a certain direction that we assume is good, or prohibit movement in direction that we believe is bad. 

The social rules are made by the members of the society. Disobedience of the social rules is followed by punishment of social disapproval. There is no positive penalty associated with the violation of rules except excommunication or ostracism.

On the other hand, Law is enforced by the state. The objective of law is to bring order in the society so the members of society can progress and develop with some sort of security regarding the future. 

The state makes laws. Disobedience of state laws cause penalty, which is enforced by the Government by the power of the state. Which is not enforceable is not Law. 

CHANGE OF LAW AND CHANGE OF SOCIAL ROLES:

The legal system of a country reflects the rules of society. If there is a change social rules then we can say that a change in social law just occurs. Law can be changed due to social condition of any country. Many people know the revolution 1990 of Bangladesh, which is take place due to political unrest of the country.

When Bangladesh Nationalist Party forms the government they change the law and under the new law lead to the parliamentary democracy in the country.

Recently acid violence, eve teasing, domestic violence took place due insufficient laws. The penalty of eve teasing is light that many people did not take the penalty seriously. The penalty of eve teasing is given in Article 76 of the Dhaka Metropolitan Police Ordinance 1976 and Article 509 of the Penal Code of 1860 affirm that any acts, conducts, or verbal abuses that are used to disgrace women are punishable by law.

Article number 10(2) of the Prevention of Women and Children Repression Act 2000 mildly addressed eve-teasing. However, that section of the law was eliminated in 2003, through amendment and justified it on the ground of manipulation of the law.

In its place, a new provision has been added under Article 9 of the present law that says that if a woman is forced to commit suicide as a direct consequence of somebody’s willfuldishonor/sexual harassment/assault, then the guilty person will be liable to a maximum of ten years and a minimum of five years of imprisonment.

This law is so light in terms of death of a innocent girl. The criminal dare breach the law this no strong law, if the law is death penalty, to force a suicide then criminal would think twice to breach law.

As we know, the acid violence is major problem I our country. Few years ago it becomes like epidemic. Now acid violence is go down due to the strong law which is death penalty.

Section 4 of the Acid Crime Act, 2002 prescribes death penalty or rigorous imprisonment for life including fine taka not more than one lakh if any body causes death or makes an attempt to cause death to any child or woman by using any burning substance, e.g., acid. The law also states that, import, production, storage, sale or usage of acid without a license is a punishable offence. But the mechanisms prevalent to regulate importation, preparation and sale of the acid used in these attacks are inadequate.

However, the Acid control Act, 2002, provides for the formation of a national council to control the selling use, production, import, transportation and storing of acid. 

The law is hard that everyone obey the law regarding the acid violence which causes less acid related crime. Every person loves their own life.

SOME RECENT INTRESTING EXAMPLES OF LAW INFLUENCING SOCIETY:

In early January this year, police found 13-year-old NashfiaAkandPinky, a class nine student, hanging from a ceiling fan in the city’s West Agargaon area. According to her parents, 35year-old Murad, a driver by profession, would harass Pinky on a regular basis in the streets. Fifteen days before Pinky killed herself, Murad’s mother along with his grandmother had gone to Pinky’s house with a marriage proposal on Murad’s behalf. Pinky’s parents had, obviously, declined the proposal. Murad and his family are currently absconding. 

Eighteen-year-old ReshmaKhatun, a class 12 student of Salpa Technical School, took pesticides and killed herself on March 7, 2010 in Shanti Nagar village at the Sherpurupazila. She would be harassed on her way to school by her neighbour 24-year-old Munaf and his friend Robin. For a long time, Reshma had to stay silent while enduring the mental torture every day before she decided to end her life. The perpetrator in this case is also absconding. 

On March 20, 2010, 15-year-old Chand Moni committed suicide by hanging herself from a ceiling fan at her house in Kishoreganj. A student of class 9 at the Azimuddin High School, Chand Moni used to be harassed on her way to school by 20-year-old Alam and his friends 21-year-old AbdurRahman, 20-year-old Saddam Hossain and 23-year-old Russel Mia. Alam’s mother and aunts would also pressurise Moni’s parents to marry their underage daughter off to Alam, to which the parents would always decline.

A few days before killing herself, Alam and his accomplices had barged into Moni’s house and threatened to kidnap Moni if the parents had rejected his proposal. So, little Moni decides to end her then marry Alam. After the incidents, Alam and his family are absconding. 

Fourteen-year-old Umme Kulsum Elora ended her life on April 3, 2010, by taking pesticides in her house in Madhya Nandi para. A class eight student of Dakkhin Banasri Model High School in the capital, Eldora had been harassed by 19-year-old Rezaul Karim and his friends for over a year.

Elora ended her life by swallowing pesticides in their house at around 3:00pm. In the primary interrogation, Rezaul claimed that he had a relationship with Elora. However, when Elora was alive, Rezaul and his friends would often disturb her over the phone.

Elora would go to school in a van with other children. But as the harassment got intolerable, Elora’s mother Halima would take her daughter to school herself for over a month and a half. Her mother says that her husband Amin Mollah and herself had even taken the issue up with Rizal’s parents, but that does not solve the problem and in the end Elora ended her life by swallowing pesticides. 

The wrongdoer set free because there is no strong law against the eve teasing. The law against eve teasing in Bangladesh is given in Article 76 of the Dhaka Metropolitan Police Ordinance 1976 and Article 509 of the Penal Code of 1860 affirm that any acts, conducts, or verbal abuses that are used to disgrace women are punishable by law.

Article number 10(2) of the Prevention of Women and Children Repression Act 2000 mildly addressed eve-teasing.

However, that section of the law was eliminated in 2003, through amendment and justified it on the ground of manipulation of the law. In its place, a new provision has been added under Article 9 of the present law that says that if a woman is forced to commit suicide as a direct consequence of somebody’s willfuldishonor/sexual harassment/assault, then the guilty person will be liable to a maximum of ten years and a minimum of five years of imprisonment.

But this is not strong law, because the girl who committed suicide because of teasing then it is just like a murder. It cannot be stopped unless strong law is passed and implemented.

CONCLUSION:

Legal system reflects all the energy of life within in any society. Law has the complex vitality of a living organism. We can say that law is a social science characterized by movement and adaptation.

Rules are neither created nor applied in a vacuum, on the other hand they created and used time and again for a purpose. Rules are intended to move us in a certain direction that we assume is good, or prohibit movement in direction that we believe is bad.

So, we can say that rules had to be change according to the roles of the society. Law also reflects the society. Such as, in Saudi Arabia law are based on Quran and Sunnah.

In Bangladesh property act, marriage act and many other act based on the Quran and Sunnah. Also when emergency arise, then according to the social condition the law is also changed by the Government. So, we can say that, the relationship between law and society are interrelated.

Customary Law – Some Case Studies

Custom is recognized as a major source of law under the Indian legal system. Article 13(1) of India’s Constitution provides that when the Constitution entered into force, all previous laws that were inconsistent with the Constitution were considered void. The Constitution defines “law” to include “ custom or usage having in the territory of India the force of law.” The Courts of India have recognized custom as law only if the custom is (1) “ancient or immemorial” in origin, (2) “reasonable in nature and continuous in use,” and (3) “certain.” 

The Courts have interpreted “ancient or immemorial” to mean that for a custom to be binding it “must derive its force from the fact that by long usage it has obtained the force of law.”  A custom also “derives its validity from being reasonable at inception and present exercise.”  Lastly, a “certain” custom is one that is “certain in its extent and mode of operation” and invariable.

India’s Constitution also provides protection of tribal indigenous communities and their customs through Articles 244, 244-A, 371-A, and the Fifth and Sixth Schedules.  The Fifth and Sixth Schedules provide for a system of “Scheduled Areas” or tribal regions, which are designed to protect the interests of listed indigenous communities or “Scheduled Tribes.”   

The Fifth Schedule provides for the administration of scheduled areas and scheduled tribes in the states outside the northeastern areas of India.  The Sixth Schedule contains provisions for the administration of tribal areas in the northeastern states of India and grants tribes considerable administrative autonomy, endowing each regional administrative unit with its own regional council, and each district level unit with local district councils. 

Autonomous councils are invested with both executive and legislative powers, subject to the approval of the provincial governor, to “make laws with respect to a variety of subjects,” and even exercise “judicial authority through traditional legal systems embedded with certain features of federal law.”

 Under the Fifth Schedule, on the other hand, tribal affairs are administered by the provincial government.  

It was only with the enactment of the Panchayat (Extension to Scheduled Areas) Act, 1996, that tribal communities were granted a limited level of local governance at the village level and that certain “political, administrative and fiscal powers” were devolved to local village assemblies or panchayat.

In addition, other laws are in force to protect the customary rights of tribal communities.  The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006“provides for the recognition, vesting and securing of individual and community tenure rights to all forest dwelling Scheduled Tribes and Traditional Forest Dwellers on all forest lands.”

Role Played by Custom in Hindu Personal Status Law

Custom plays a significant part in Hindu law and is accepted as part of the Indian legal system.  A variety of Hindu tribal customs concerning personal status and inheritance are also recognized despite the codification efforts of the central government.

Section 2(2) of the Hindu Marriage Act and the Hindu Succession Act have left the door open for the recognition of tribal customary laws and practices of “Scheduled Tribes.”

Customary Hindu practices in marriage and divorce that are outside the traditional norm are also recognized under Indian law. Traditional Hindu law recognizes eight forms of marriage, of which three—Brahma, Asura, and Gandharba—are the most prevalent. 

However, a marriage in a form “which is out of practice or obsolete is not necessarily prohibited by Hindu law.”According to advocate D. H. Chaudari,

[i]n a vast country like India, with so many castes living in so many different places, multifarious forms of marriage allowed by custom have come into existence.  These customary forms of marriage may be perfectly valid even though they do not strictly come within the definitions of any of the eight forms.

According to Hindu law, ceremonies “of some sort are absolutely essential.”  For example, “[c]ourts have attached great importance to the performance of Saptapathi or the ceremony of seven steps which is considered to be the most important of ceremonies.”

However, it should be noted that the performance of ceremonies other than those referred to above are recognized by the Indian Courts where the ceremonies are allowed by the custom of the community or caste to which the parties belong.

Divorce is not recognized by general Hindu law.  Traditionally marriage, from the Hindu legal standpoint, “creates an indissoluble tie between the husband and the wife.  Neither party, therefore, to a marriage can divorce the other unless divorce is allowed by custom.”

The Hindu Marriage Act modified this position, however, creating nine grounds for both husband and wife to claim divorce, and some additional grounds available to the wife alone.  According to section 29 of the Hindu Marriage Act, dissolution of a Hindu marriage can also be obtained through a valid custom

Role of Courts and Lawyers as Social Engineers

 Man is a social animal and needs a society for his leaving, working and enjoying life . A group of individual forms a society. Society has become an essential condition for human life to develop his or her personality. Therefore society and human life always go together . Every human being has also born with some desires and expectations which are inherent in nature. From childhood to till old age, every human being expects that his or her desire is to be fulfilled for which their arise conflict of desires or claims which comes under the term interest’. It is impossible to fulfil all the desires of a human being. So to fulfil the desires of maximum human being for the welfare of society the concept of Social Engineering was emerged and which was coined by Roscoe Pound . The force which asks for the adoption of Social engineering is nothing but the conflict of interests of individuals. Interests more particularly the conflicting interest are the subject of Social Engineering. Social engineering is based on the notion that Laws are used as a means to shape society and regulate people’s behaviour. It is an attempt to control the human conduct through the help of Law . According to Pound, -Law is social engineering which means a balance between the competing interests in society’, in which applied science are used for resolving individual and social problems. For this purpose this paper is going to discuss about the mechanism of Law in bringing Social Engineering. This paper is divided into three parts. Part II will discuss about the object of the paper. Part III will give suggestions and conclusion.

Conflict of interest and the order of priority – To which interest importance will be given so that balancing of interest, can be achieved for the benefit of society by sacrificing other interest and how law helps in bringing social engineering. The object of the paper is to find out how Law helps in harmonizing conflict of interests. According to Pound, Law is Social Engineering. He says that -like an engineer’s formulae, laws represent experience, scientific formulations of experience and logical developments of the formulations, also inventive skill in conceiving new devices and formulating their requirements by means of a developed technique- . He called this theory as -Theory of Social Engineering’. Here Pound has used two words i.e. -Social’ means group of individual forming a society. The second word is Engineering’ which means applied science carried out by engineers to produce finished products which are necessary for the society and which fulfil all their needs. By combining these two words he tries to say about engineers and what they do. They use the formula which is based on continuous experimentation and experience to get the finished product by means of an instrument or device. Therefore Pound represents -experience with law’, instrument with organs of government, -engineers with judge and lawyer’ and -finished product with the wants of human beings’ and -society with a factory’. He says that like engineers, the lawyer should apply law in a court room so that the desires of the people are fulfilled. Therefore he calls law as Social Engineering and says that the aim of Social Engineering is to build as efficient a structure of society as possible which requires the satisfaction of wants with the minimum of friction and waste. It means Law should work for balancing of competing interest within the society for the greatest benefit. In a society everybody is motivated by their own interest and wants that preference be given to his or her interest over the other. Conflicts between interests arise because of the competition of the individuals with each other, with the public in order to satisfy human wants. Therefore it is needed to recognise the interest to which law should take account. For this purpose a legal system has to i.Recognize certain interest

 ii.Define the limits within which such interest are to be legally recognized and given effect to it.

 iii.And finally the above interest should be secured. Suppose I want to stand first in the exam. It is my desire.

 But this desire cannot be fulfilled because there is no legal recognition as there is no state’s interest in standing first position. Therefore law has to take into account the desires which need recognition. For the purpose of satisfying human interests, Pound defined interest as claims or wants or desires which men assert de facto about which the law must do something if organised societies are to endure’ . Pound classified various interests which are to be protected by the law under three categorise which are the following:

  1. INDIVIDUAL INTERESTS: These are claims or demands involved from the stand point of the individual life which consists of interest of personality, interest in domestic relations and interest of substance.
  2. PUBLIC INTEREST: These are the claims or desires asserted by the individual from the stand point of political life which means every individual in a society has a responsibility towards each other and to make the use of things which are open to public use.
  3. SOCIAL INTEREST: These are the claims or demands in terms of social life which means to fulfil all the needs of a society as a whole for the proper functioning and maintenance of it. It is found that there is overlapping of interest between Public and Social Interest because both are same. Pound is silent about the overlapping of interest and discussed the problem of interests in terms of balancing of Individual Interest and Social Interest. He has classified the interest into three categories but talks about the balancing of only Individual and Social Interest. It is also found that interests are the subjects on whom law has to apply social engineering. How to evaluate the conflicting interests in due order to priority? What are the guidelines on the basis of which social engineering should be carried out? Pound’s answer by saying that every society is based on basic assumptions which help in ordering of interest. One interest is of more value than that of other and the object of law should be to satisfy the interest which is in the benefit of the maximum people. Thus these assumptions are identified as jural postulates which are based on hypothesis. According to Pound, jural postulates are not the absolute one and they keep on changing as the needs of the situation, place and time demands. In 1919, Pound summarised the postulates which every individual in civilised society must be able to take it for granted that:I. Others will not commit any intentional aggressions upon him. E.g. Assault, battery, wrongful restraint etc.

ii.Others will act with due care and will not cast upon him an unreasonable risk of injury. E.g. Negligence 

iii.He can appropriate what he has created by his own labour and what he has acquired under existing economic order for his own use. E.g. agricultural land and usufruct as property.

iv.The people with whom he deals with in the general intercourse of society will act in good faith. E.g. Defamation v.He must keep the things within his boundary and should look after those things so that their escape should not harm others. E.g. Ryland vs. Fletcher case In

1942, Pound added three new postulates in the list which are

i.A person will have security as a job holder. E.g. ruled by labour law, law of contract ii.Society will bear the burden of supporting him when he becomes aged. E.g. 1/3rd concession in railway ticket, ceiling of income tax range is more. iii.And the society as a whole will bear the risk of unforeseen misfortunes such as disablement. E.g. reservation quota for physically disabled person in education, travel etc. The jural postulates are to be applied both by the legislators and judiciary for evaluating and balancing the various interests and harmonizing them. Somehow Pound has told about the procedure of evaluating interests. But he has not said anything about the interest which will be given more priority over other.

Whether balance between Individual and Social Interest can be achieved or not? According to Pound, balance of competing interest means satisfaction of maximum interests with less friction and waste. It means to reconcile and adjust the social and individual interest. But in practice two interests cannot be balanced. It is also found that Pound has not given much detailed attention to the way one conflicting interest is to be compared with another. Balance can only be done only when two things are able to be compared. Here, the -balancing’ metaphor is misleading. If two interests are to be balanced, that presupposes some scale or yardstick to measure and two things should be able for comparison. For balancing of anything, mathematical calculation or ratio is the outcome. For e.g. in case of ecological balance, the amount of CO2 in terms of % is to be balanced with O2 which means reduction of CO2 by afforestation or increasing the level of O2 by afforestation so that ecological balance can be attained. Therefore balance means to upgrade one thing at par with other so that neither of the two things loses anything. As per Pound’s theory, there is a clause relating to the protection of natural environment coming under social interest. There is no doubt that every society wants a healthy environment and the factory producing nuisances and pollution needs to be closed. It is in the interest of whole public for which factory is closed and the maximum satisfaction of people is achieved. But the owner of the factory having Individual Interest suffers a lot. In this circumstance, though maximum interest of the people is satisfied with least sacrifice of individual interest of the owner but balance between Individual and Social Interest has not been achieved because one has to suffer and other has to gain. When there is a matrimonial dispute between a husband and wife and wife gets a divorce decree against her husband, in this case interest of wife prevails over the husband and balance of two Individual Interests is not there because husband has to give maintenance to wife and children for which the husband suffers a lots. Exception is in case of Divorce by Mutual Consent in which both husband and wife are satisfied with divorce decree and their individual interests are fulfilled. By above discussion it is opined that conflicting interests can be satisfied by reconciliation and adjustment and the word balance is not the appropriate one for conflicting interest. How does the satisfaction of the maximum of wants with the minimum of friction and waste can be done? Pounds theory asks for the maximum gain with least friction and waste i.e. maximum satisfaction of human wants or expectations with least sacrifice. Here Pound wants to bring social control in the society. According to him social control means satisfaction of the maximum of wants of the human being in a society. Pound says that for social control, interest is the only thing which should be taken into account and Law is a means of social control. Thus law should work for balancing of interest within the society i.e. satisfying maximum interest with least waste. Somehow this theory gives prime importance to interest of public at large over individual interest and if interpreted strictly then they may result in eliminating individual interest. Here law is not supposed to deal with individual interest but bunch of interest. The tool is given in the hands of law to set them at their right position for the maximum outcome. It is true that law and order plays an important role in a society. Law and order are carried out by the Judiciary and they keep on harmonising the conflicting interests of the individual and the public through the process of social engineering. It has been witnessed through the action of Supreme Court in Vellore Citizen’s Welfare Forum Vs. The Union of India in which Kuldip Singh J. delivered the judgment that -even if the industries are of vital importance for the countries progress as they provides employment but having regard to the pollution caused by him, the principle of -sustainable development’ has to be adopted as a balancing concept between ecology and development- . In this case the two principles emerged i.e. -precautionary principle’ and the -Polluter Pays’ principle. In a land mark case of Union Carbide Corporation vs. Union of India , the Supreme Court laid down the rule of Absolute Liability in which it was held that -where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous activity, then the enterprise involved is strictly and absolutely liable to compensate to all those who are affected by the accident- . In this case regarding the compensation the Court said that the measure of compensation must be correlated to the magnitude and capacity of the enterprise because such compensation has a deterrent effect for future accident.

After this case, Central government passed an Act known as –The Bhopal Gas Leak Disaster (Registration and Processing of Claims) Act, 1985′ in which sec.5 of this Act says about the categorization and registration of claims . The various claims of the each individual relating to their own body, property and the claims arising from damage to flora and fauna were registered. Under sec11 of this Act, the quantum of compensation payable to the claimants was decided.

From this judgment it can be said that law gives first priority to social interest over individual interest of substance i.e. in conserving natural resources and in the protection of natural environment which is required by the whole public against the private individual who is the owner of the enterprise. Finally the maximum claims of the people were satisfied with least sacrifice of individual interest. By this act it can be seen that how various claims were categorized and compensation were given, which ultimately says that law is an instrument of social change.

In Deepa vs. S.I of Police It was held that the interest of society should be given paramount consideration over the individual interest of those who are running the show for profit and who are also earning livelihood by performing the cabaret dance in a hotel . It was a situation where the whole public says that the dance was obscene in the eyes of onlookers, which is an offence u/s 294 of IPC 1860. Hence it is found that Social Interest prevails over the Individual Interest. But this is not true in many cases. Social Engineering deals with as many satisfactions of human wants which means law should play an important role in bringing social change by fulfilling the interest of the society as a whole. There are also instances where individual interest has priority over social interest. According to Sec122 of Evidence Act 1872, marital communication between husband and wife which is an individual interest in domestic relation are privileged . Then Social Interest can be fulfilled by securing privilege communication (matrimonial communication) in which individual interest in connection with domestic relation is first privileged and which in turn secure the social institution of marriages.

Law has given preference to the interest of backward classes through reservation in government jobs, educational institutions, which not only hampers the interest of eligible candidate but also it hampers the interest of the public at large. By this type of law general people cannot tell that this reservation policy which comes under constitutional law is a bad law for them. Sometimes bad law becomes good law. Here Law helps in social engineering by giving special protection to the minority class having individual interests over social interests so that there can be ultimate social progress by bringing the minority class equally to the standard of upper class.

CONCLUSION: By analysing this paper it is concluded that, Law plays an important role in reconciling and adjusting conflict of interests. Both the Social Interest and Individual Interest prevail over each other. Priority is given to both the interests. Roscoe Pound has given the concept of Social Engineering for the American Society but this concept is followed by other countries in resolving disputes. India has also followed the same concept in establishing a welfare society. Both Judiciary and Legislators play an important role in enacting the statutes which fulfil the various desires of human being. In this techsavvy society desires of human being grows and to fulfil their desires new policies, strategy has been developed.

The first principle to observe is that the wisdom of the law must be accepted. A little incursion into law-making interstitially, as Holmes put it, may be permissible. For other cases the attention of Parliament and/or Government can be drawn to the flaw.”

The traditional role of the Judge has been envisaged as that of an impartial arbiter who hears the forensic debate before him and renders judgment without ever stepping into the arena of debate. Lately, however, it has become fashionable for Judges to jump into the fray and actively participate in the debate by supporting one side or the other and this process masquerades under the felicitous name “judicial activism”. In the name of judicial activism, modern day Judges in India have abandoned the traditional role of a neutral referee and have increasingly resorted to tipping the scales of justice in the name of “distributive justice”. The legitimacy of such actions needs critical appraisement at the hands of the legal fraternity, even at the risk of unpopularity by swimming against the tide.

The term “judicial activism” came into currency sometime in the twentieth century to describe the act of judicial legislation i.e. Judges making positive law. Although, the underlying debate on judicial activism has been around since the days of Blackstone and Bentham, the credit belongs to a non-lawyer Arthur Schlesinger Jr., for popularising the term “judicial activism”. His 1947 article in Fortunestarted the modern debate. It brought into focus the dichotomy observed in the judicial process: unelected

Judges versus democratically elected legislatures; result-oriented judging versus principled decision-making; observance versus side-stepping of precedents; lawversus politics and so on. On the basis of their judicial philosophies, Schlesinger characterised some Judges of the US Supreme Court as “judicial activists”, some as “champions of self-restraint” and others as comprising the middle group. Scholars of law, practitioners as well as the general public have debated, often fractiously, the correctness or otherwise of this kind of judicial activity, some advocating John Austin’s deference to restraint and others Justice Benjamin Cardozo’s views which tended towards activism.

In India, although the activism versus restraint debate existed even in the pre-Constitution period, it did not vigorously take-off till the 1970s when the Supreme Court of India itself became very activist. However, the underlying philosophical issue of the relationship between means and ends has been long debated in Indian philosophy. In recent times, it was Mahatma Gandhi who advocated that the means used for achieving a particular result must also be as acceptable as the result itself. As we shall see, the saga of judicial decision-making by the highest court in India indicates that judicial activism or the mere pursuit of ends without regard to the means has become the dominant approach in judicial thinking.

With this background, it becomes necessary for the Judge to ask, like Hamlet, whether it is nobler in the mind to remain impervious to the dominant discourse around, or to trim the sails of his thinking to the winds blowing around. This is a question of great moment, which must haunt any conscientious Judge. Tradition and good sense demand that, irrespective of the political debate around, the Judge maintains a neutral stance in his decision-making, being guided only by accepted legal principles and the dictates of his conscience. The Judge being human, the social ambience in which he operates is likely to affect his judgment, but the extent to which he disallows this to happen determines his mettle. This is the theme that I propose to explore in this lecture.

  1. The Fault Lines in the Debate the discourse of judicial restraint and judicial activism leads to discernment of distinct fault lines that may lead to volcanic upheavals if not repaired in good time. These fault lines can be examined under distinct heads as discussed hereinafter.
  2. The relationship between “proper” judicial review and “improper” judicial activism

(iImproper exercise of the power of judicial review

The judicial branch is invested with the power of being the final arbiter of constitutional disputes under many democratic Constitutions. India, which has modelled its Constitution, to some extent, on the US Constitution, falls in this category. One of the fundamental features of such a constitutional set-up is the judicial power to invalidate legislation on the ground of infringement of the constitutional parameters such as legislative incompetence, violation of guaranteed fundamental rights, inconsistency with an express provision or basic feature of the Constitution, etc. The power of judicial review is an exception to the principle of separation of powers, which demarcates distinct areas for the different constitutional organs to exercise their powers. The power of judicial review postulates that, in the event of a dispute as to whether the legislature or the executive has overstepped its constitutional bounds, the judiciary shall decide the dispute by application of well-established constitutional doctrines and principles of interpretation. Although the doctrine of separation of powers is not watertight or immutable, judicial interpretation must not reduce it to a nullity. Indeed, in some areas, our Constitution-framers have created evident and unambiguous barriers against judicial intervention in legislative or executive domains, but even these have been breached by the courts eager to assert their authority.

Indeed, nothing can be headier than the power to invalidate another constitutional organ’s action. Such great power must of necessity bring in its wake great responsibility. The problem with judicial activism is its proclivity for excessive and legally improper use of this very great power to invalidate arguably lawful and proper legislative or executive actions. In fact, history abounds with instances where overactive Judges have jettisoned well-established principles to produce incongruous results, which they honestly thought were necessary, even if democratically elected legislatures or executive thought otherwise. I now propose to examine some of these instances in the US, India and the UK.

During the period of the Great Depression in the 1930s in the US, the US Supreme Court invalidated a series of legislative measures taken by the Government under the so-called “New Deal” program. These legislations were intended to directly address the problems arising from the Great Depression by generating employment, obligating minimum wages, safe working conditions and other social welfare measures. However, these legislations were struck down by a majority of the Judges on the premise that they interfered with the doctrine of freedom of contract and were, therefore, contrary to the then current philosophy of laissez faire. The activism of the Judges in striking down such obviously valid legislation contributed to the elongation of the Great Depression leading to unavoidable loss of life and misery for millions of people. This judicial attitude led the US President Franklin Roosevelt to threaten to “pack” the Supreme Court with Judges who would show restraint and accept the legislative wisdom of the “New Deal”. With this threat hanging over their heads and with the death or retirement of the activist Judges, the US Supreme Court eventually restrained its activism, leading to the famous quip about the “switch in time that saved nine”—the nine Justices!

Judicial activism has still a darker history as seen in the infamous case of Dared Scott v. Sandford where the US Supreme Court virtually supported slavery by denying the power of the Federal Government to abolish this practice. The preposterous reasoning put forward by the Judges, ignoring clear provisions of law, was that black people were not citizens and could not, therefore, claim constitutional protections. Moreover, since slaves were chattels of the slave-owners, freeing them from slavery meant forfeiture of the slaveowner’s property without compensation—something, which in the thinking of those activist Judges was unfair and unreasonable. As we shall see later as well, this sort of result-oriented jurisprudence requires embarrassing legal gymnastics from Judges.

Turning to India, I wish to point to a recent and disturbing trend of using the judiciary to second-guess unambiguously legislative or executive powers. Indeed, our Judges have succumbed to the temptation to interfere even with well-recognised executive powers such as treaty-making or foreign relations. A Delhi High Court judgment in 2002, made a treaty signed by India with another sovereign foreign State virtually inoperable, by striking down an administrative order connected with it, inter alia, on the ground that the Court did not like the policy being effectuated by it. One shudders to think whither this trend could lead—whether, for example, the constitutionality of a declaration of war or peace treaty signed by India could also be questioned in a court of law? If the courts were to strike down the peace treaty as being “unconstitutional”, would the armed forces be compelled to prosecute the war under a judicial mandamus? Indeed, the mind boggles at such eventualities, however improbable they may appear, given the new-found enthusiasm for judicial activism in areas that are inarguably no pasaranfor Judges.

(iiImproper non-exercise of the power of judicial review

“Judicial activism”, in my view, has both a positive and a negative aspect. It involves both exceeding the judicial sphere as well as refusing to act within the judicial sphere. Improper non-exercise of judicial review is as dangerous as improper overuse of judicial review. Judicial activism of the former variety is best seen in the infamous ADM, Jabalpur v. Shiva ant Shukla,1better known as Habeas Corpus case,19 where the Supreme Court bent backwards to support what was clearly improper executive action in detaining persons without just cause during the “phoney emergency” of the 1970s. It went to the extent of expressing its “diamond-bright, diamond-hard hope” that the powers that ought to have been clipped, would not be misused. As we all know, the executive, blessed with the Supreme Court’s judgment, did precisely the opposite, confirming Lord Acton’s declaration: “power tends to corrupt, absolute power corrupts absolutely”. This judgment was not, however, totally unexpected because, in previous years, we had seen the spectre of the supersession of “independent” Judges in favour of more politically and ideologically “committed” ones. Often judicial independence is compromised at the altar of political or social ideology in the name of activism. Indeed, an activist Supreme Court, eager to jump into the political arena by abdicating its “counter-majoritarian” role as the guardian of the Constitution, almost brought our cherished ideal of a democratic republic to a standstill.

Similarly disingenuous was the judgment of the House of Lords in Liversidge v. Anderson,by which the British Government was given virtually unlimited powers to detain persons, even on entirely dubious grounds, during wartime. But, inevitably, there will be conscientious Judges who will not fall prey to such dubious arguments. Thus, Lord Atkin who was the sole dissenter (like Justice H.R. Khanna in Habeas Corpus case19), went on to deplore the majority Judges who according to him:

“When face to face with claims involving the liberty of the subject, show themselves more executive-minded than the executive.”

This abdication of the judicial role led one Judge to later comment that from being lions under the throne, the judgment of the House of Lords had “reduced us to mice squeaking under a chair in the Home Office”. Thus, we have seen that judicial activism, especially the explosive admixture of law and politics, whether exceeding or abdicating the judicial function, has a thoroughly disreputable history in many parts of the world including India.

  1. “Result driven” decision-making and activist interpretations of Article 14

Activist Judges have often ignored or side-stepped binding legal precedents to arrive at preconceived results, which conform to their conception of justice. However honest and bona fide this exercise, its legal legitimacy is open to question, as I shall presently examine.

E.P. Royappa v. State of T.N. is a classic example of this kind of activism in the interpretation of Article 14 of the Constitution, which, as a matter of fact, simply deals with “equality before the law or the equal protection of the laws” and nothing more. The classic formulation of the “Doctrine of reasonable classification” in Anwar Ali Sarkar, reformulated in Ram Krishna Dalmia and in Special Courts Bill, 1978In re  held the field and became formally recognised as the touchstone for testing legislative and executive violations of Article 14. However, all of a sudden, in E.P. Royappa25 the Supreme Court through the concept of “substantive due process”, which had been specifically rejected by the Constituent Assembly,equated the concept of “arbitrariness” with “inequality”. The Court observed:

“Now, what is the content and reach of this great equalising principle? … We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be ‘cribbed, cabined and confined’ within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies…. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14….

From Royappa25 it was a merry ride through Maneka GandhiR.D. ShettyAjay Hasia, and a host of other cases where the Supreme Court freely struck down actions of the other coordinate branches of the Government on the basis that it was not “reasonable” or was “arbitrary”, a standard of judicial review, neither contemplated by the framers of the Constitution nor by the plain text of Article 14.

Indeed, there are numerous other problems with this “New Doctrine” as some have pejoratively dubbed it.A noted critic is Mr H.M. Seervai who in his monumental book Constitutional Law of India has found several faults with the “New Doctrine”.

At the outset, Mr Seervai argues that the New Doctrine hangs in the air, because it is propounded without reference to the terms in which the guaranteed right to “the equal protection of the laws” is conferred. Indeed, by obfuscating its true meaning, the “New Doctrine” gives Judges the untrammelled power to strike down legislative and executive action at will with a bald observation that they are not “reasonable”. In fact, I would submit that the standard of “reasonability” is no standard at all because what is “reasonable” or “unreasonable” is in the eye of the beholder without reference to any objective examination. It is not the duty of the court to decide whether a certain statute was “reasonable” or not because that is in the policy realm of India’s democratically elected representatives. The court’s only duty is to examine whether the legislature had the authority to promulgate the statute and examine whether the statute violated one of the Constitution’s textually enumerated fundamental rights.

Secondly, the “New Doctrine” involves the logical fallacy of the undistributed middle or the fallacy of simple conversion.The “New Doctrine” purports to treat “arbitrariness” and “inequality” as the same thing. In fact, not all arbitrary actions can be termed unequal simply because some arbitrary actions are both arbitrary and unequal. If, for example, all red-haired students are expelled from a school without reason, that action is both arbitrary and unequal vis-…-vis non-red-haired students. If, however, all students irrespective of hair colour are expelled, it is simply arbitrary but not unequal. Hence, while “arbitrariness” and “inequality” are conceptually different, this fact is ignored by the activist mindset.

Thirdly, the “New Doctrine” fails to distinguish between the violation of equality by a law and its violation by executive action. Finally, the “New Doctrine”, as Mr Seervai argues, fails to analyse certain concepts like “arbitrary”, “law”, “executive action” or “discretionary power” and fails to recognise the necessary implication of numerous Supreme Court decisions on classification that were arguably binding precedents and certainly settled law.

  1. Judicial legislation and separation of powers

(i“Substantive due process” and Article 21

The Supreme Court, early in its history, in a series of judgments beginning from A.K. Gopalan, V.G. Row, and others, held that the discredited US concept of “substantive due process” could have no role in the interpretation of Article 21 because it essentially involved substituting a Judge’s notion of “reasonableness” with that of the legislature’s.However, from Maneka Gandhi31 onwards, the Supreme Court introduced into Article 21 the concept of “substantive due process”, or in other words, a standard that requires executive and legislative action to be “reasonable” or “fair”—nebulous terms that are totally at the discretion of an activist Judge to use as he pleases. Indeed, as we saw in the examples of the “New Deal” cases and the Slavery judgment in the US, “substantive due process” is a concept with a blackened history. With this in mind, the Drafting Committee of the Constitution of India was not in favour of using the expression “due process” in the text of

Article 21 for they were familiar with its misuse in the US context. Accordingly, the Drafting Committee while debating the Draft Constitution of India decided that “due process of law” be substituted by “procedure established by law” similar to Article 30 of the Japanese Constitution of 1946. What the framers of the Constitution consciously avoided, judicial activism has brought in by the back door.

There are several problems with the use of “substantive due process” in the interpretation of Article 21. The first is the legitimacy of creating fundamental rights through judicial interpretation. With the power of “substantive due process” behind them, the courts have constantly foraged the forbidden fields by creating newer rights by treating them as flowing from the “right to life” in Article 21 of the Constitution. Article 21 simply reads,

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Article 21 has verily been treated as the cornucopia from which all such newly created rights flow out. Such judicial legislation is only possible by committing violence to the plain words of the article, which, as evident, is only worded in the negative. Founding new rights on Article 21 is, to say the least, debatable. The entire Constitution, in particular Part III, has been designed to provide a framework for regulation of human society in an orderly manner by providing certain specifically enumerated fundamental rights. The argument in favour of judicial legislation on Article 21 is that “new fundamental rights” are intricately connected with the right to life and without these “new fundamental rights” life would itself become meaningless. This argument, however, has a serious flaw. In fact, if these “new fundamental rights” are premised on their intricate connection with the right to life, then the whole of Part III would be redundant, by the same token, as all rights guaranteed therein by specific enumeration would also be similarly connected. In other words, if the judicial legislation argument were correct, the entire scheme of Part III could have been telescoped into only one provision, namely, Article 21!

(iiJudicial legislation and international law

Judicial activism has even extended to wholesale importation of principles of international law, which are controversial even internationally. For example, principles like “precautionary principle” and “polluter pays” have been made a part of domestic environmental law by the judicial dicta in Vellore Citizens’ Welfare Forum v. Union of India

15. Even otherwise once these principles are accepted as part of the customary international law there would be no difficulty in accepting them as part of the domestic law. It is (sic) almost an accepted proposition of law that the rules of customary international law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the courts of law.”

In fact, these principles have been the subject of much critical debate and there is no unanimity amongst scholars as to their exact content. Even the concept of “sustainable development”, which the Supreme Court heavily relied upon, is an extremely nebulous concept, a fact even conceded to in the judgment itself!If that is the case, then I wonder what purpose was served by making it the fulcrum of a judgment which would obviously bind all subordinate courts in India who would then inevitably fumble when considering what was “sustainable development” or how it should influence their judgments. Let me make it clear that I am not against “sustainable development” as a legislative or executive policy. In fact, I am personally for it; but I am against the courts dabbling in concepts that are beyond proper legal definition.

Further, acceptance of international norms and laws is an exclusively executive function since it is closely associated with questions of national sovereignty. Moreover, even if these particular international environmental law principles are trite for incorporation into domestic law, the Supreme Court’s judgment provides for automatic incorporation of all customary international legal principles, whatever their content or validity, into domestic law. This is clearly a judicial overkill.

Similarly, in M.V. Elisabeth v. Harwan Investment and Trading (P) Ltd. the Court felt that where statutes are silent “it is the duty of the court to devise procedure by drawing analogy from other systems of law and practice “Drawing upon this rather debatable “duty”, the Court read into the Merchant Shipping Act, 1958, something that was not even provided for by the said Act, but provided for in international conventions and according to the Court was a part of customary international maritime law. This was despite a catena of Indian precedents to the contrary. Guidance from other jurisdictions is always welcome, but not the wholesale incorporation of foreign principles without concern for the actual state of domestic law and the consequences of such incorporation.

  1. Activism, “political questions” and the problem of justifiability

“Political questions” which were meant to be out-of-bounds for the courts have often been thrown into the laps of Judges. Instead of throwing them back, the courts have, with great enthusiasm, essayed into adjudication of such questions, often with unsatisfactory results. We need to explore first the reasons for excluding the adjudication of “political questions” by the courts.

The “political questions’ exclusion” doctrine is best stated in Baker v. Carr, where the US Supreme Court held that certain questions were non-justiciable in a court of law when there was:

“… a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it;”

The recent Jharkhand Assembly dispute would probably fall under the first category because there is a constitutional provision, Article 212, entrusting the adjudication of such issues to a coordinate constitutional branch, namely, the legislature, which ideally should have been left free to deal with the question, the courts keeping aloof.

Ayodhya Reference case, where the President requested the Supreme Court to answer politically sensitive questions like: whether there existed a temple at Ayodhya before the construction of the Babri Mosque, fall in the second category, where the matter cannot be resolved by reference to “judicially manageable standards”. It would have in fact required the Judges to opine on a point of archaeology rather than law, and thereby step on to a political minefield. The Supreme Court was perfectly correct in refusing to answer the reference. In fact, such questions have arisen merely on account of the failure of the executive or the legislature to resolve their own political problems and are attempts to pass the buck to the judiciary. The Supreme Court should stoutly refuse the temptation to crown itself with political thorns.

Yet, despite the dangers of entering the political Eddy stone Rocks, the philosophy of judicial activism has propelled Judges to sail into uncharted waters. Judges now seem to want to engage themselves with boundless enthusiasm in complex socio-economic issues raising myriads of facts, and ideological issues, that cannot be adjudicated by “judicially manageable standards”.

In SarlaMudgalthe Supreme Court made wide-ranging observations on the need to bring in a uniform civil code and directed the State to explain the steps it had taken towards the enactment of the same.The question of a uniform civil code is undoubtedly an issue fraught with complex political fault lines involving minority rights, personal laws, women’s rights and so on, and the Supreme Court’s observations not unexpectedly erupted into a major political issue. In a later case, the Supreme Court was forced to back down by explaining away its controversial observations in Sarla Mudgal56 as having been “incidentally made”. In other cases, Judges have sought to incorporate ideologically grounded concepts such as “Hindutva” and “Socialism”. into their judgment with no credit whatsoever.

Judicial activism has also extended to the use of authorities with political overtones for deciding cases—a wholly improper approach. For instance, in Shah Bano, while the final order granting maintenance to a divorced Muslim woman is probably correct, the Supreme Court’s approach of relying on unfamiliar non-legal sources (such as theHoly Qur’an itself)and making sweeping generalisations, instead of narrow legal reasoning, made the Court the target of unseemly political controversies.

It appears that the Supreme Court has slowly begun to realise the futility of entering upon policy issues, especially economic policy, and this culminated in the following observations in BALCO Disinvestment case:

47. Process of disinvestment is a policy decision involving complex economic factors. The courts have consistently refrained from interfering with economic decisions as it has been recognised that economic expediencies lack adjudicative disposition and unless the economic decision, based on economic expediencies, is demonstrated to be so violative of constitutional or legal limits on power or so abhorrent to reason, that the courts would decline to interfere. In matters relating to economic issues, the Government has, while taking a decision, right to ‘trial and error’ as long as both trial and error are bona fide and within limits of authority.”

This attitude, presently only extending to the economic sphere, should govern all policyrelated disputes that are brought to the courts. Indeed, the answers to many socio-economic and political problems lie with Parliament and in a polling booth and not in a courtroom.

  1. Enforceability of activist judgments

ArunShourie’s book Courts and Their Judgments is a useful chronicle of the difficulties that arise when the courts attempt to do what the executive is constitutionally required to do. The concept of “continuing mandamus” is an admission of the fact that controversial socioeconomic issues need constant monitoring over intricate details to be sustained over a considerable period of time. Frequent resort to such orders, which the courts have neither the time nor institutional mechanism to enforce to their ultimate conclusion, eventually erodes the         credibility        of         the       judicial             institution.        Despite            the        acclaim            showered on BandhuaMuktiMorcha orders, as pointed out in Courts and Their Judgments, the results came to nought.

The courts possess neither the power of the sword, nor the purse; they only have to rely upon the goodwill and respect of the two coordinate constitutional branches as that of the general public, for the enforcement of their orders. This argument should, however, not be misunderstood as recommending the pursuit of public popularity, or suggesting that Judges be moved by the hysterias of the day, for even Adolf Hitler was popular in his time. It only means that Judges should be conscious of the limitations of the judicial function and the consequent need to remain within the judicial sphere. Indeed, the only power to enforce activist judgments is the power to punish executive or legislative functionaries for contempt of court, which gets stunted with overuse. Moreover, it is not possible for the Court to keep on exercising this contempt power to implement minute details of its orders, the consequences of some of which may not even be fully realised before their implementation.

  1. Erosion of the principle of stare decisis

During the 1980s, there was a tendency to deviate from settled principles of law in the name of “innovative principles”; the objective being to render “social justice”. On the other hand, Professor Roscoe Pound has stated “Law must be stable, yet it cannot stand still.”Similarly, Justice Aharon Barak says, “Stability without change is degeneration. Change without stability is anarchy.” These wise observations imply that changes in law brought about by judicial interpretation must, more often than not, be evolutionary and not be revolutionary or dramatic.As dramatically changed interpretations are error-prone and based only on expediency, it would be wiser to take one step at a time than a quantum leap, particularly into unknown regions. There may, however, be situations that call for dramatic or sudden changes in law, but exceptions must be few and far between and not easily resorted to, as stare decisis is yet one of the fundamentals of our legal system.

Judicial activists do not easily accept stare decisis as a fundamental principle and in the 1980s the Supreme Court gave the lead to the process of dismantling stare decisis. The judgment in D.S. Nakarais a classic example of this approach. In D.S. Nakara74, the Court observed:

“Socio-economic justice stems from the concept of social morality coupled with abhorrence for economic exploitation. And the advancing society converts in course of time moral or ethical code into enforceable legal formulations. Overemphasis on precedent furnishes an insurmountable road-block to the onward march towards promised millennium. An overdose of precedents is the bane of our system which is slowly getting stagnant, stratified and atrophied.”

If the observations of the Court are right, then at any given time the Judge may do what he thinks in conformity with his conception of “social justice” by throwing to the winds established principles of law and binding judgments. Moreover, dramatic changes in law create immeasurable difficulties for the High Courts and the subordinate courts for they are left to flounder in a sea of conflicting precedents. They also create chaos and instability for citizens who have moulded their legal relationships based on the extant law but now find that the goal post has been moved in the middle of the game! Further, when the highest court in the land itself shows scant respect for precedents, it may well encourage the High Courts and the subordinate courts to follow suit, leading to judicial indiscipline and anarchy, which bodes ill for any legal system.

III. Undesirable Consequences Ensuing from Judicial Activism

  1. Delay, backlog and abuse of public interest litigation

The judicial system, which is currently unable to handle ordinary litigation, as it faces a huge backlog of undecided cases, has to now contend with non-traditional types of litigation in the form of public interest litigation (PILs) that are attempts to use Judges as “social engineers”. Abrogating the principle of locus standi in the name of ushering in social justice and the upliftment of the downtrodden sections of society, the courts opened their doors so wide that they find it difficult to control the influx today. The US Chief Justice John Roberts, writing about the US Supreme Court, which only hears a small fraction of the cases the Supreme Court of India hears, had this to say about the problem:

“So long as the Court views itself as being ultimately responsible for governing all aspects of our society, it will, understandably, be overworked.”

Unmindful of the sobering dicta that Judges have neither the power of sword nor of the purse, the courts have taken upon themselves the duty of monitoring several actions, which fall exclusively within the purview of the executive domain. Often one may not find fault with the final results achieved, but one doubts whether the reasoning by which those results were arrived at is legally supportable.

Articles 32, 136 and 142 of the Constitution invest extraordinary powers in the Supreme Court. Correspondingly, Article 226 invests the High Courts with the all-powerful writ jurisdiction. By abandoning the principle of locus standi, Judges have now become roaming knights-errant on white chargers tilting at windmills of injustice to defend the honour of the Dame of justice. Extraordinary powers must be reserved for extraordinary occasions. Its frequent use detracts from its efficacy and produces an incongruous effect. As is said in a well-known subhashita:

There are a substantial number of bogus litigations, which sneak in as public interest litigation and can simply be collusive, profiteering, or speculative. In my view, the Supreme Court should not be using Justice Felix Frankfurter’s words, an “… umpire to debates concerning harmless, empty shadows”. In fact, the ‘P’ in ‘PIL’ often represents “profit”, “publicity” or “persecution” as more and more manipulative litigants use the court’s shoulder to fire at rivals. Frequent use of public interest litigation for dubious purposes, may have a chilling effect on entrepreneurs, who would become wary of venturing into business with the threat of liberally granted injunction order obtained by their business rivals.

  1. Expediency and judicial error

The legislative and the executive wings of the body politic, which possess the core competence and specialisation in dealing with complex socio-economic problems, are getting progressively marginalised. The judicial organ of the State, the least equipped to deal with socio-politico-economic issues, has occupied the centre stage, and has got bogged down in more and more of such cases. Sheer expediency or the urge for immediate justice in an abstract sense is hardly a justification for taking on problems with myriad fine details that the court is ill-equipped to handle.

Fine-tuning of administrative details is beyond the capacity of the courts, but unfortunately it is something that they have engaged in with enthusiasm. Judicial forays into policy issues through trial and error, without necessary technical inputs or competence, have resulted in unsatisfactory orders that have been passed beyond “judicially manageable standards”. The reliance on affidavits tendered or even placing reliance on a report of a court-appointed Commissioner can hardly supplant a judgment made by a competent executive officer with regard to the actual ground realities.

  1. The credibility of the institution

As we have seen, the tendency of the Supreme Court to pronounce on issues, which require purely political decisions, has led to situations where the Court has had to subsequently back down. The most embarrassing instance has been in the case of the directive for uniform civil code legislation, as we have already seen, where the Court had to later downplay its initial activist observations.

In my view, while activist judgments may bring immediate and transitory succour, if, in the long run, the judgments do not strike at the root of the problem, what follows is loss of credibility and respect for the institution among the other constitutional branches and the general public. As Justice Felix Frankfurter said in Baker v. Carr:

“There is nothing neither judicially more unseemly nor more self-defeating than for this Court to make in terrorism pronouncements, to indulge in merely empty rhetoric, sounding a word of promise to the ear, sure to be disappointing to the hope.”

Indeed, Justice Frankfurter could well have been talking about the bonded labourers and the Supreme Court of India after BandhuaMukti Morcha67 orders.

  1. Diversion of institutional resources

Instead of playing the role that has been constitutionally assigned to it and utilising its resources towards such role, the assumption of a non-traditional, activist role by the Supreme Court has led to the diversion of its attention and resources. As in cases of “continuing mandamus”, where it has to exercise continuous monitoring and supervision over executive authorities, judicial activism strains the institutional resources of the Court. It also diverts the time, talent and energy of Judges into channels that they are neither required to navigate, nor equipped to, for lack of competence, skill or resources.

  1. Personality driven rather than institutionalised adjudication

Judicial activism creates labels for Judges such as “pro-labour”, “anti-labour”, “pro-tenant”, “anti-tenant”, “progressive”, “conservative” and so on. This is so because the scope and the extent of judicial activism ultimately depends on the personal predilections of the individual Judge and his/her own conception of what “social justice” ought to be. In effect, the result becomes personality-oriented rather than oriented towards “justice accords to law”, which is the duty of a Judge. Personality-driven adjudication provides avenues for “forum shopping” by lawyers and litigants. Instead of “justice according to law”, the courts would administer justice according to the propensities of the Judge, harking back to the days of justice at the Chancellor’s foot in England.

  1. Arguments against Judicial Restraint
  2. “Judicial restraint is a ‘rightist’ ideology”

One of the criticisms of judicial restraint is that it is “pro-government”, “pro-rich” and “antisocial justice” and hence a “rightist” ideology. It is a misconception to think that judicial activism arises from “left” or “right” oriented philosophies, two terms with hazy meanings at best. Judicial activism is nothing but jumping the fence. The fact that it is done from the “right” or “left” is hardly of significance because to an activist Judge what he considers to be the correct philosophy matters, “leftist” or “rightist” being sheer coincidence. In fact, as we have seen earlier, the “New Deal” cases, the Habeas Corpus judgment, the “Hindutva” judgments and the pro-slavery judgment are instances of activist Judges with a so-called “rightist” ideology.

More often than not, the individual philosophy of the Judge becomes tailored to the dominant discourse. A Judge is enjoined by the Constitution to often perform a counter-majoritarian role to prevent unjustified executive or legislative incursions into the textually enumerated fundamental rights of citizens, or to prevent abuse of representative democracy. By entering into the political thicket, as evidenced in the Habeas Corpus case, judicial activism can wholly erode judicial independence and run contrary to the Judge’s constitutional duty to decide cases “without fear or favour”.

  1. “Judicial restraint is an activist philosophy in itself”

There can be no difficulty in accepting judicial restraint or legal centrism as a judicial philosophy in itself. But this philosophy is very different from judicial activism that I have spoken against. Despite the high-sounding words, “judicial restraint” only means that the Judge shall stick by the law and decide legal controversies strictly in accordance with established principles of law without foraging the constitutionally forbidden territories reserved for another branch of the government. In my view, that precisely is the role a Judge is called upon to play by reason of the oath that he undertakes. A Judge is not free to render justice as he thinks, but is required to render “justice accords to law”. As Times of India in an editorial has aptly commented:

“Judges are meant to act as humble interpreters of law, not pose as emperors who adjudicate on a whim. We need faceless, impassive Judges, compassionate but disciplined legislators and an executive that acknowledges the supremacy of the legislature and independence of the judiciary. Sadly, technical Judges are not easy to come by in India. Some arrange marriages between rapists and their victims. Others turn into committed municipal authorities. Courts are meant to be more serious than Bollywood makes them out to be.”

Conceded that in a few cases “justice according to law” may produce less-than-perfect results, but more often than not, “justice accords to law” produces an outcome that is in line with crystallised public opinion. Indeed, if “justice according to law” was so abhorrent, then we would have seen a revolution in India and a scrapping of the Constitution. The fact that this has not happened is positive proof that “justice according to law” and “justice without fear or favour” is the correct approach.

  1. “Judicial restraint would have meant no Kesavananda Bharati85″

There may occur occasions in judicial history, when Judges must make dramatic, sudden and even revolutionary changes to law, by marginalising the “justice according to law” principle. Exceptional situations may call for drastic steps, but that can happen only exceptionally. In fact, in fifty-odd years of our Constitution, I can only think of one such situation. This was when the executive and legislature in collusion sought to use the Constitution to destroy the Constitution itself. Therefore, in my view, the “Basic Structure Doctrine” evolved by the Supreme Court in KesavanandaBharati is, if at all an exercise of judicial legislation, a justifiable one, because without it there would have been no Constitution and no independent judiciary worth the name. After all, as the maxim goes,necessitas non habetlegem.That is a different kettle of fish from the activism of the 1980s and 1990s where judicial legislation was resorted to at the drop of a hat to address every socio-economic problem of the day, however unfortunate, but nevertheless lacking the imperative urgency facing Kesavananda Bharati85 court. The Queensberry Rules are to be strictly observed except when your own life is at stake!

  1. Conclusion

Fortunately, the fervour for judicial activism, which engulfed the courts during the third and fourth decades, seems to be ebbing with the progressive realisation that it is preferable to tread the “highways” of justice instead of resorting to the “bye-lanes” of activism in the hope of expeditiously reaching the goal of justice. As I have pointed out, deviation from the welltrodden path frequently leads to wholly unjust outcomes. The wholesome admonition of the Garuda Purana in this respect is worth bearing in mind:

 Man is a social animal and needs a society for his leaving, working and enjoying life . A group of individual forms a society. Society has become an essential condition for human life to develop his or her personality. Therefore society and human life always go together . Every human being has also born with some desires and expectations which are inherent in nature. From childhood to till old age, every human being expects that his or her desire is to be fulfilled for which their arise conflict of desires or claims which comes under the term interest’. It is impossible to fulfil all the desires of a human being. So to fulfil the desires of maximum human being for the welfare of society the concept of Social Engineering was emerged and which was coined by Roscoe Pound . The force which asks for the adoption of Social engineering is nothing but the conflict of interests of individuals. Interests more particularly the conflicting interest are the subject of Social Engineering. Social engineering is based on the notion that Laws are used as a means to shape society and regulate people’s behaviour. It is an attempt to control the human conduct through the help of Law . According to Pound, -Law is social engineering which means a balance between the competing interests in society’, in which applied science are used for resolving individual and social problems. For this purpose this paper is going to discuss about the mechanism of Law in bringing Social Engineering. This paper is divided into three parts. Part II will discuss about the object of the paper. Part III will give suggestions and conclusion.

Conflict of interest and the order of priority – To which interest importance will be given so that balancing of interest, can be achieved for the benefit of society by sacrificing other interest and how law helps in bringing social engineering. The object of the paper is to find out how Law helps in harmonizing conflict of interests. According to Pound, Law is Social Engineering. He says that -like an engineer’s formulae, laws represent experience, scientific formulations of experience and logical developments of the formulations, also inventive skill in conceiving new devices and formulating their requirements by means of a developed technique- . He called this theory as -Theory of Social Engineering’. Here Pound has used two words i.e. -Social’ means group of individual forming a society. The second word is Engineering’ which means applied science carried out by engineers to produce finished products which are necessary for the society and which fulfil all their needs. By combining these two words he tries to say about engineers and what they do. They use the formula which is based on continuous experimentation and experience to get the finished product by means of an instrument or device. Therefore Pound represents -experience with law’, instrument with organs of government, -engineers with judge and lawyer’ and -finished product with the wants of human beings’ and -society with a factory’. He says that like engineers, the lawyer should apply law in a court room so that the desires of the people are fulfilled. Therefore he calls law as Social Engineering and says that the aim of Social Engineering is to build as efficient a structure of society as possible which requires the satisfaction of wants with the minimum of friction and waste. It means Law should work for balancing of competing interest within the society for the greatest benefit. In a society everybody is motivated by their own interest and wants that preference be given to his or her interest over the other. Conflicts between interests arise because of the competition of the individuals with each other, with the public in order to satisfy human wants. Therefore it is needed to recognise the interest to which law should take account. For this purpose a legal system has to i.Recognize certain interest

 ii.Define the limits within which such interest are to be legally recognized and given effect to it.

 iii.And finally the above interest should be secured. Suppose I want to stand first in the exam. It is my desire.

 But this desire cannot be fulfilled because there is no legal recognition as there is no state’s interest in standing first position. Therefore law has to take into account the desires which need recognition. For the purpose of satisfying human interests, Pound defined interest as claims or wants or desires which men assert de facto about which the law must do something if organised societies are to endure’ . Pound classified various interests which are to be protected by the law under three categorise which are the following:

  1. INDIVIDUAL INTERESTS: These are claims or demands involved from the stand point of the individual life which consists of interest of personality, interest in domestic relations and interest of substance.
  2. PUBLIC INTEREST: These are the claims or desires asserted by the individual from the stand point of political life which means every individual in a society has a responsibility towards each other and to make the use of things which are open to public use.
  3. SOCIAL INTEREST: These are the claims or demands in terms of social life which means to fulfil all the needs of a society as a whole for the proper functioning and maintenance of it. It is found that there is overlapping of interest between Public and Social Interest because both are same. Pound is silent about the overlapping of interest and discussed the problem of interests in terms of balancing of Individual Interest and Social Interest. He has classified the interest into three categories but talks about the balancing of only Individual and Social Interest. It is also found that interests are the subjects on whom law has to apply social engineering. How to evaluate the conflicting interests in due order to priority? What are the guidelines on the basis of which social engineering should be carried out? Pound’s answer by saying that every society is based on basic assumptions which help in ordering of interest. One interest is of more value than that of other and the object of law should be to satisfy the interest which is in the benefit of the maximum people. Thus these assumptions are identified as jural postulates which are based on hypothesis. According to Pound, jural postulates are not the absolute one and they keep on changing as the needs of the situation, place and time demands. In 1919, Pound summarised the postulates which every individual in civilised society must be able to take it for granted that:I. Others will not commit any intentional aggressions upon him. E.g. Assault, battery, wrongful restraint etc.

ii.Others will act with due care and will not cast upon him an unreasonable risk of injury. E.g. Negligence 

iii.He can appropriate what he has created by his own labour and what he has acquired under existing economic order for his own use. E.g. agricultural land and usufruct as property.

iv.The people with whom he deals with in the general intercourse of society will act in good faith. E.g. Defamation v.He must keep the things within his boundary and should look after those things so that their escape should not harm others. E.g. Ryland vs. Fletcher case In

1942, Pound added three new postulates in the list which are

i.A person will have security as a job holder. E.g. ruled by labour law, law of contract ii.Society will bear the burden of supporting him when he becomes aged. E.g. 1/3rd concession in railway ticket, ceiling of income tax range is more. iii.And the society as a whole will bear the risk of unforeseen misfortunes such as disablement. E.g. reservation quota for physically disabled person in education, travel etc. The jural postulates are to be applied both by the legislators and judiciary for evaluating and balancing the various interests and harmonizing them. Somehow Pound has told about the procedure of evaluating interests. But he has not said anything about the interest which will be given more priority over other.

Whether balance between Individual and Social Interest can be achieved or not? According to Pound, balance of competing interest means satisfaction of maximum interests with less friction and waste. It means to reconcile and adjust the social and individual interest. But in practice two interests cannot be balanced. It is also found that Pound has not given much detailed attention to the way one conflicting interest is to be compared with another. Balance can only be done only when two things are able to be compared. Here, the -balancing’ metaphor is misleading. If two interests are to be balanced, that presupposes some scale or yardstick to measure and two things should be able for comparison. For balancing of anything, mathematical calculation or ratio is the outcome. For e.g. in case of ecological balance, the amount of CO2 in terms of % is to be balanced with O2 which means reduction of CO2 by afforestation or increasing the level of O2 by afforestation so that ecological balance can be attained. Therefore balance means to upgrade one thing at par with other so that neither of the two things loses anything. As per Pound’s theory, there is a clause relating to the protection of natural environment coming under social interest. There is no doubt that every society wants a healthy environment and the factory producing nuisances and pollution needs to be closed. It is in the interest of whole public for which factory is closed and the maximum satisfaction of people is achieved. But the owner of the factory having Individual Interest suffers a lot. In this circumstance, though maximum interest of the people is satisfied with least sacrifice of individual interest of the owner but balance between Individual and Social Interest has not been achieved because one has to suffer and other has to gain. When there is a matrimonial dispute between a husband and wife and wife gets a divorce decree against her husband, in this case interest of wife prevails over the husband and balance of two Individual Interests is not there because husband has to give maintenance to wife and children for which the husband suffers a lots. Exception is in case of Divorce by Mutual Consent in which both husband and wife are satisfied with divorce decree and their individual interests are fulfilled. By above discussion it is opined that conflicting interests can be satisfied by reconciliation and adjustment and the word balance is not the appropriate one for conflicting interest. How does the satisfaction of the maximum of wants with the minimum of friction and waste can be done? Pounds theory asks for the maximum gain with least friction and waste i.e. maximum satisfaction of human wants or expectations with least sacrifice. Here Pound wants to bring social control in the society. According to him social control means satisfaction of the maximum of wants of the human being in a society. Pound says that for social control, interest is the only thing which should be taken into account and Law is a means of social control. Thus law should work for balancing of interest within the society i.e. satisfying maximum interest with least waste. Somehow this theory gives prime importance to interest of public at large over individual interest and if interpreted strictly then they may result in eliminating individual interest. Here law is not supposed to deal with individual interest but bunch of interest. The tool is given in the hands of law to set them at their right position for the maximum outcome. It is true that law and order plays an important role in a society. Law and order are carried out by the Judiciary and they keep on harmonising the conflicting interests of the individual and the public through the process of social engineering. It has been witnessed through the action of Supreme Court in Vellore Citizen’s Welfare Forum Vs. The Union of India in which Kuldip Singh J. delivered the judgment that -even if the industries are of vital importance for the countries progress as they provides employment but having regard to the pollution caused by him, the principle of -sustainable development’ has to be adopted as a balancing concept between ecology and development- . In this case the two principles emerged i.e. -precautionary principle’ and the -Polluter Pays’ principle. In a land mark case of Union Carbide Corporation vs. Union of India , the Supreme Court laid down the rule of Absolute Liability in which it was held that -where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous activity, then the enterprise involved is strictly and absolutely liable to compensate to all those who are affected by the accident- . In this case regarding the compensation the Court said that the measure of compensation must be correlated to the magnitude and capacity of the enterprise because such compensation has a deterrent effect for future accident.

After this case, Central government passed an Act known as –The Bhopal Gas Leak Disaster (Registration and Processing of Claims) Act, 1985′ in which sec.5 of this Act says about the categorization and registration of claims . The various claims of the each individual relating to their own body, property and the claims arising from damage to flora and fauna were registered. Under sec11 of this Act, the quantum of compensation payable to the claimants was decided.

From this judgment it can be said that law gives first priority to social interest over individual interest of substance i.e. in conserving natural resources and in the protection of natural environment which is required by the whole public against the private individual who is the owner of the enterprise. Finally the maximum claims of the people were satisfied with least sacrifice of individual interest. By this act it can be seen that how various claims were categorized and compensation were given, which ultimately says that law is an instrument of social change.

In Deepa vs. S.I of Police It was held that the interest of society should be given paramount consideration over the individual interest of those who are running the show for profit and who are also earning livelihood by performing the cabaret dance in a hotel . It was a situation where the whole public says that the dance was obscene in the eyes of onlookers, which is an offence u/s 294 of IPC 1860. Hence it is found that Social Interest prevails over the Individual Interest. But this is not true in many cases. Social Engineering deals with as many satisfactions of human wants which means law should play an important role in bringing social change by fulfilling the interest of the society as a whole. There are also instances where individual interest has priority over social interest. According to Sec122 of Evidence Act 1872, marital communication between husband and wife which is an individual interest in domestic relation are privileged . Then Social Interest can be fulfilled by securing privilege communication (matrimonial communication) in which individual interest in connection with domestic relation is first privileged and which in turn secure the social institution of marriages.

Law has given preference to the interest of backward classes through reservation in government jobs, educational institutions, which not only hampers the interest of eligible candidate but also it hampers the interest of the public at large. By this type of law general people cannot tell that this reservation policy which comes under constitutional law is a bad law for them. Sometimes bad law becomes good law. Here Law helps in social engineering by giving special protection to the minority class having individual interests over social interests so that there can be ultimate social progress by bringing the minority class equally to the standard of upper class.

CONCLUSION: By analysing this paper it is concluded that, Law plays an important role in reconciling and adjusting conflict of interests. Both the Social Interest and Individual Interest prevail over each other. Priority is given to both the interests. Roscoe Pound has given the concept of Social Engineering for the American Society but this concept is followed by other countries in resolving disputes. India has also followed the same concept in establishing a welfare society. Both Judiciary and Legislators play an important role in enacting the statutes which fulfil the various desires of human being. In this techsavvy society desires of human being grows and to fulfil their desires new policies, strategy has been developed.

The first principle to observe is that the wisdom of the law must be accepted. A little incursion into law-making interstitially, as Holmes put it, may be permissible. For other cases the attention of Parliament and/or Government can be drawn to the flaw.”

The traditional role of the Judge has been envisaged as that of an impartial arbiter who hears the forensic debate before him and renders judgment without ever stepping into the arena of debate. Lately, however, it has become fashionable for Judges to jump into the fray and actively participate in the debate by supporting one side or the other and this process masquerades under the felicitous name “judicial activism”. In the name of judicial activism, modern day Judges in India have abandoned the traditional role of a neutral referee and have increasingly resorted to tipping the scales of justice in the name of “distributive justice”. The legitimacy of such actions needs critical appraisement at the hands of the legal fraternity, even at the risk of unpopularity by swimming against the tide.

The term “judicial activism” came into currency sometime in the twentieth century to describe the act of judicial legislation i.e. Judges making positive law. Although, the underlying debate on judicial activism has been around since the days of Blackstone and Bentham, the credit belongs to a non-lawyer Arthur Schlesinger Jr., for popularising the term “judicial activism”. His 1947 article in Fortunestarted the modern debate. It brought into focus the dichotomy observed in the judicial process: unelected

Judges versus democratically elected legislatures; result-oriented judging versus principled decision-making; observance versus side-stepping of precedents; lawversus politics and so on. On the basis of their judicial philosophies, Schlesinger characterised some Judges of the US Supreme Court as “judicial activists”, some as “champions of self-restraint” and others as comprising the middle group. Scholars of law, practitioners as well as the general public have debated, often fractiously, the correctness or otherwise of this kind of judicial activity, some advocating John Austin’s deference to restraint and others Justice Benjamin Cardozo’s views which tended towards activism.

In India, although the activism versus restraint debate existed even in the pre-Constitution period, it did not vigorously take-off till the 1970s when the Supreme Court of India itself became very activist. However, the underlying philosophical issue of the relationship between means and ends has been long debated in Indian philosophy. In recent times, it was Mahatma Gandhi who advocated that the means used for achieving a particular result must also be as acceptable as the result itself. As we shall see, the saga of judicial decision-making by the highest court in India indicates that judicial activism or the mere pursuit of ends without regard to the means has become the dominant approach in judicial thinking.

With this background, it becomes necessary for the Judge to ask, like Hamlet, whether it is nobler in the mind to remain impervious to the dominant discourse around, or to trim the sails of his thinking to the winds blowing around. This is a question of great moment, which must haunt any conscientious Judge. Tradition and good sense demand that, irrespective of the political debate around, the Judge maintains a neutral stance in his decision-making, being guided only by accepted legal principles and the dictates of his conscience. The Judge being human, the social ambience in which he operates is likely to affect his judgment, but the extent to which he disallows this to happen determines his mettle. This is the theme that I propose to explore in this lecture.

  1. The Fault Lines in the Debate the discourse of judicial restraint and judicial activism leads to discernment of distinct fault lines that may lead to volcanic upheavals if not repaired in good time. These fault lines can be examined under distinct heads as discussed hereinafter.
  2. The relationship between “proper” judicial review and “improper” judicial activism

(iImproper exercise of the power of judicial review

The judicial branch is invested with the power of being the final arbiter of constitutional disputes under many democratic Constitutions. India, which has modelled its Constitution, to some extent, on the US Constitution, falls in this category. One of the fundamental features of such a constitutional set-up is the judicial power to invalidate legislation on the ground of infringement of the constitutional parameters such as legislative incompetence, violation of guaranteed fundamental rights, inconsistency with an express provision or basic feature of the Constitution, etc. The power of judicial review is an exception to the principle of separation of powers, which demarcates distinct areas for the different constitutional organs to exercise their powers. The power of judicial review postulates that, in the event of a dispute as to whether the legislature or the executive has overstepped its constitutional bounds, the judiciary shall decide the dispute by application of well-established constitutional doctrines and principles of interpretation. Although the doctrine of separation of powers is not watertight or immutable, judicial interpretation must not reduce it to a nullity. Indeed, in some areas, our Constitution-framers have created evident and unambiguous barriers against judicial intervention in legislative or executive domains, but even these have been breached by the courts eager to assert their authority.

Indeed, nothing can be headier than the power to invalidate another constitutional organ’s action. Such great power must of necessity bring in its wake great responsibility. The problem with judicial activism is its proclivity for excessive and legally improper use of this very great power to invalidate arguably lawful and proper legislative or executive actions. In fact, history abounds with instances where overactive Judges have jettisoned well-established principles to produce incongruous results, which they honestly thought were necessary, even if democratically elected legislatures or executive thought otherwise. I now propose to examine some of these instances in the US, India and the UK.

During the period of the Great Depression in the 1930s in the US, the US Supreme Court invalidated a series of legislative measures taken by the Government under the so-called “New Deal” program. These legislations were intended to directly address the problems arising from the Great Depression by generating employment, obligating minimum wages, safe working conditions and other social welfare measures. However, these legislations were struck down by a majority of the Judges on the premise that they interfered with the doctrine of freedom of contract and were, therefore, contrary to the then current philosophy of laissez faire. The activism of the Judges in striking down such obviously valid legislation contributed to the elongation of the Great Depression leading to unavoidable loss of life and misery for millions of people. This judicial attitude led the US President Franklin Roosevelt to threaten to “pack” the Supreme Court with Judges who would show restraint and accept the legislative wisdom of the “New Deal”. With this threat hanging over their heads and with the death or retirement of the activist Judges, the US Supreme Court eventually restrained its activism, leading to the famous quip about the “switch in time that saved nine”—the nine Justices!

Judicial activism has still a darker history as seen in the infamous case of Dared Scott v. Sandford where the US Supreme Court virtually supported slavery by denying the power of the Federal Government to abolish this practice. The preposterous reasoning put forward by the Judges, ignoring clear provisions of law, was that black people were not citizens and could not, therefore, claim constitutional protections. Moreover, since slaves were chattels of the slave-owners, freeing them from slavery meant forfeiture of the slaveowner’s property without compensation—something, which in the thinking of those activist Judges was unfair and unreasonable. As we shall see later as well, this sort of result-oriented jurisprudence requires embarrassing legal gymnastics from Judges.

Turning to India, I wish to point to a recent and disturbing trend of using the judiciary to second-guess unambiguously legislative or executive powers. Indeed, our Judges have succumbed to the temptation to interfere even with well-recognised executive powers such as treaty-making or foreign relations. A Delhi High Court judgment in 2002, made a treaty signed by India with another sovereign foreign State virtually inoperable, by striking down an administrative order connected with it, inter alia, on the ground that the Court did not like the policy being effectuated by it. One shudders to think whither this trend could lead—whether, for example, the constitutionality of a declaration of war or peace treaty signed by India could also be questioned in a court of law? If the courts were to strike down the peace treaty as being “unconstitutional”, would the armed forces be compelled to prosecute the war under a judicial mandamus? Indeed, the mind boggles at such eventualities, however improbable they may appear, given the new-found enthusiasm for judicial activism in areas that are inarguably no pasaranfor Judges.

(iiImproper non-exercise of the power of judicial review

“Judicial activism”, in my view, has both a positive and a negative aspect. It involves both exceeding the judicial sphere as well as refusing to act within the judicial sphere. Improper non-exercise of judicial review is as dangerous as improper overuse of judicial review. Judicial activism of the former variety is best seen in the infamous ADM, Jabalpur v. Shiva ant Shukla,1better known as Habeas Corpus case,19 where the Supreme Court bent backwards to support what was clearly improper executive action in detaining persons without just cause during the “phoney emergency” of the 1970s. It went to the extent of expressing its “diamond-bright, diamond-hard hope” that the powers that ought to have been clipped, would not be misused. As we all know, the executive, blessed with the Supreme Court’s judgment, did precisely the opposite, confirming Lord Acton’s declaration: “power tends to corrupt, absolute power corrupts absolutely”. This judgment was not, however, totally unexpected because, in previous years, we had seen the spectre of the supersession of “independent” Judges in favour of more politically and ideologically “committed” ones. Often judicial independence is compromised at the altar of political or social ideology in the name of activism. Indeed, an activist Supreme Court, eager to jump into the political arena by abdicating its “counter-majoritarian” role as the guardian of the Constitution, almost brought our cherished ideal of a democratic republic to a standstill.

Similarly disingenuous was the judgment of the House of Lords in Liversidge v. Anderson,by which the British Government was given virtually unlimited powers to detain persons, even on entirely dubious grounds, during wartime. But, inevitably, there will be conscientious Judges who will not fall prey to such dubious arguments. Thus, Lord Atkin who was the sole dissenter (like Justice H.R. Khanna in Habeas Corpus case19), went on to deplore the majority Judges who according to him:

“When face to face with claims involving the liberty of the subject, show themselves more executive-minded than the executive.”

This abdication of the judicial role led one Judge to later comment that from being lions under the throne, the judgment of the House of Lords had “reduced us to mice squeaking under a chair in the Home Office”. Thus, we have seen that judicial activism, especially the explosive admixture of law and politics, whether exceeding or abdicating the judicial function, has a thoroughly disreputable history in many parts of the world including India.

  1. “Result driven” decision-making and activist interpretations of Article 14

Activist Judges have often ignored or side-stepped binding legal precedents to arrive at preconceived results, which conform to their conception of justice. However honest and bona fide this exercise, its legal legitimacy is open to question, as I shall presently examine.

E.P. Royappa v. State of T.N. is a classic example of this kind of activism in the interpretation of Article 14 of the Constitution, which, as a matter of fact, simply deals with “equality before the law or the equal protection of the laws” and nothing more. The classic formulation of the “Doctrine of reasonable classification” in Anwar Ali Sarkar, reformulated in Ram Krishna Dalmia and in Special Courts Bill, 1978In re  held the field and became formally recognised as the touchstone for testing legislative and executive violations of Article 14. However, all of a sudden, in E.P. Royappa25 the Supreme Court through the concept of “substantive due process”, which had been specifically rejected by the Constituent Assembly,equated the concept of “arbitrariness” with “inequality”. The Court observed:

“Now, what is the content and reach of this great equalising principle? … We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be ‘cribbed, cabined and confined’ within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies…. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14….

From Royappa25 it was a merry ride through Maneka GandhiR.D. ShettyAjay Hasia, and a host of other cases where the Supreme Court freely struck down actions of the other coordinate branches of the Government on the basis that it was not “reasonable” or was “arbitrary”, a standard of judicial review, neither contemplated by the framers of the Constitution nor by the plain text of Article 14.

Indeed, there are numerous other problems with this “New Doctrine” as some have pejoratively dubbed it.A noted critic is Mr H.M. Seervai who in his monumental book Constitutional Law of India has found several faults with the “New Doctrine”.

At the outset, Mr Seervai argues that the New Doctrine hangs in the air, because it is propounded without reference to the terms in which the guaranteed right to “the equal protection of the laws” is conferred. Indeed, by obfuscating its true meaning, the “New Doctrine” gives Judges the untrammelled power to strike down legislative and executive action at will with a bald observation that they are not “reasonable”. In fact, I would submit that the standard of “reasonability” is no standard at all because what is “reasonable” or “unreasonable” is in the eye of the beholder without reference to any objective examination. It is not the duty of the court to decide whether a certain statute was “reasonable” or not because that is in the policy realm of India’s democratically elected representatives. The court’s only duty is to examine whether the legislature had the authority to promulgate the statute and examine whether the statute violated one of the Constitution’s textually enumerated fundamental rights.

Secondly, the “New Doctrine” involves the logical fallacy of the undistributed middle or the fallacy of simple conversion.The “New Doctrine” purports to treat “arbitrariness” and “inequality” as the same thing. In fact, not all arbitrary actions can be termed unequal simply because some arbitrary actions are both arbitrary and unequal. If, for example, all red-haired students are expelled from a school without reason, that action is both arbitrary and unequal vis-…-vis non-red-haired students. If, however, all students irrespective of hair colour are expelled, it is simply arbitrary but not unequal. Hence, while “arbitrariness” and “inequality” are conceptually different, this fact is ignored by the activist mindset.

Thirdly, the “New Doctrine” fails to distinguish between the violation of equality by a law and its violation by executive action. Finally, the “New Doctrine”, as Mr Seervai argues, fails to analyse certain concepts like “arbitrary”, “law”, “executive action” or “discretionary power” and fails to recognise the necessary implication of numerous Supreme Court decisions on classification that were arguably binding precedents and certainly settled law.

  1. Judicial legislation and separation of powers

(i“Substantive due process” and Article 21

The Supreme Court, early in its history, in a series of judgments beginning from A.K. Gopalan, V.G. Row, and others, held that the discredited US concept of “substantive due process” could have no role in the interpretation of Article 21 because it essentially involved substituting a Judge’s notion of “reasonableness” with that of the legislature’s.However, from Maneka Gandhi31 onwards, the Supreme Court introduced into Article 21 the concept of “substantive due process”, or in other words, a standard that requires executive and legislative action to be “reasonable” or “fair”—nebulous terms that are totally at the discretion of an activist Judge to use as he pleases. Indeed, as we saw in the examples of the “New Deal” cases and the Slavery judgment in the US, “substantive due process” is a concept with a blackened history. With this in mind, the Drafting Committee of the Constitution of India was not in favour of using the expression “due process” in the text of

Article 21 for they were familiar with its misuse in the US context. Accordingly, the Drafting Committee while debating the Draft Constitution of India decided that “due process of law” be substituted by “procedure established by law” similar to Article 30 of the Japanese Constitution of 1946. What the framers of the Constitution consciously avoided, judicial activism has brought in by the back door.

There are several problems with the use of “substantive due process” in the interpretation of Article 21. The first is the legitimacy of creating fundamental rights through judicial interpretation. With the power of “substantive due process” behind them, the courts have constantly foraged the forbidden fields by creating newer rights by treating them as flowing from the “right to life” in Article 21 of the Constitution. Article 21 simply reads,

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Article 21 has verily been treated as the cornucopia from which all such newly created rights flow out. Such judicial legislation is only possible by committing violence to the plain words of the article, which, as evident, is only worded in the negative. Founding new rights on Article 21 is, to say the least, debatable. The entire Constitution, in particular Part III, has been designed to provide a framework for regulation of human society in an orderly manner by providing certain specifically enumerated fundamental rights. The argument in favour of judicial legislation on Article 21 is that “new fundamental rights” are intricately connected with the right to life and without these “new fundamental rights” life would itself become meaningless. This argument, however, has a serious flaw. In fact, if these “new fundamental rights” are premised on their intricate connection with the right to life, then the whole of Part III would be redundant, by the same token, as all rights guaranteed therein by specific enumeration would also be similarly connected. In other words, if the judicial legislation argument were correct, the entire scheme of Part III could have been telescoped into only one provision, namely, Article 21!

(iiJudicial legislation and international law

Judicial activism has even extended to wholesale importation of principles of international law, which are controversial even internationally. For example, principles like “precautionary principle” and “polluter pays” have been made a part of domestic environmental law by the judicial dicta in Vellore Citizens’ Welfare Forum v. Union of India

15. Even otherwise once these principles are accepted as part of the customary international law there would be no difficulty in accepting them as part of the domestic law. It is (sic) almost an accepted proposition of law that the rules of customary international law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the courts of law.”

In fact, these principles have been the subject of much critical debate and there is no unanimity amongst scholars as to their exact content. Even the concept of “sustainable development”, which the Supreme Court heavily relied upon, is an extremely nebulous concept, a fact even conceded to in the judgment itself!If that is the case, then I wonder what purpose was served by making it the fulcrum of a judgment which would obviously bind all subordinate courts in India who would then inevitably fumble when considering what was “sustainable development” or how it should influence their judgments. Let me make it clear that I am not against “sustainable development” as a legislative or executive policy. In fact, I am personally for it; but I am against the courts dabbling in concepts that are beyond proper legal definition.

Further, acceptance of international norms and laws is an exclusively executive function since it is closely associated with questions of national sovereignty. Moreover, even if these particular international environmental law principles are trite for incorporation into domestic law, the Supreme Court’s judgment provides for automatic incorporation of all customary international legal principles, whatever their content or validity, into domestic law. This is clearly a judicial overkill.

Similarly, in M.V. Elisabeth v. Harwan Investment and Trading (P) Ltd. the Court felt that where statutes are silent “it is the duty of the court to devise procedure by drawing analogy from other systems of law and practice “Drawing upon this rather debatable “duty”, the Court read into the Merchant Shipping Act, 1958, something that was not even provided for by the said Act, but provided for in international conventions and according to the Court was a part of customary international maritime law. This was despite a catena of Indian precedents to the contrary. Guidance from other jurisdictions is always welcome, but not the wholesale incorporation of foreign principles without concern for the actual state of domestic law and the consequences of such incorporation.

  1. Activism, “political questions” and the problem of justifiability

“Political questions” which were meant to be out-of-bounds for the courts have often been thrown into the laps of Judges. Instead of throwing them back, the courts have, with great enthusiasm, essayed into adjudication of such questions, often with unsatisfactory results. We need to explore first the reasons for excluding the adjudication of “political questions” by the courts.

The “political questions’ exclusion” doctrine is best stated in Baker v. Carr, where the US Supreme Court held that certain questions were non-justiciable in a court of law when there was:

“… a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it;”

The recent Jharkhand Assembly dispute would probably fall under the first category because there is a constitutional provision, Article 212, entrusting the adjudication of such issues to a coordinate constitutional branch, namely, the legislature, which ideally should have been left free to deal with the question, the courts keeping aloof.

Ayodhya Reference case, where the President requested the Supreme Court to answer politically sensitive questions like: whether there existed a temple at Ayodhya before the construction of the Babri Mosque, fall in the second category, where the matter cannot be resolved by reference to “judicially manageable standards”. It would have in fact required the Judges to opine on a point of archaeology rather than law, and thereby step on to a political minefield. The Supreme Court was perfectly correct in refusing to answer the reference. In fact, such questions have arisen merely on account of the failure of the executive or the legislature to resolve their own political problems and are attempts to pass the buck to the judiciary. The Supreme Court should stoutly refuse the temptation to crown itself with political thorns.

Yet, despite the dangers of entering the political Eddy stone Rocks, the philosophy of judicial activism has propelled Judges to sail into uncharted waters. Judges now seem to want to engage themselves with boundless enthusiasm in complex socio-economic issues raising myriads of facts, and ideological issues, that cannot be adjudicated by “judicially manageable standards”.

In SarlaMudgalthe Supreme Court made wide-ranging observations on the need to bring in a uniform civil code and directed the State to explain the steps it had taken towards the enactment of the same.The question of a uniform civil code is undoubtedly an issue fraught with complex political fault lines involving minority rights, personal laws, women’s rights and so on, and the Supreme Court’s observations not unexpectedly erupted into a major political issue. In a later case, the Supreme Court was forced to back down by explaining away its controversial observations in Sarla Mudgal56 as having been “incidentally made”. In other cases, Judges have sought to incorporate ideologically grounded concepts such as “Hindutva” and “Socialism”. into their judgment with no credit whatsoever.

Judicial activism has also extended to the use of authorities with political overtones for deciding cases—a wholly improper approach. For instance, in Shah Bano, while the final order granting maintenance to a divorced Muslim woman is probably correct, the Supreme Court’s approach of relying on unfamiliar non-legal sources (such as theHoly Qur’an itself)and making sweeping generalisations, instead of narrow legal reasoning, made the Court the target of unseemly political controversies.

It appears that the Supreme Court has slowly begun to realise the futility of entering upon policy issues, especially economic policy, and this culminated in the following observations in BALCO Disinvestment case:

47. Process of disinvestment is a policy decision involving complex economic factors. The courts have consistently refrained from interfering with economic decisions as it has been recognised that economic expediencies lack adjudicative disposition and unless the economic decision, based on economic expediencies, is demonstrated to be so violative of constitutional or legal limits on power or so abhorrent to reason, that the courts would decline to interfere. In matters relating to economic issues, the Government has, while taking a decision, right to ‘trial and error’ as long as both trial and error are bona fide and within limits of authority.”

This attitude, presently only extending to the economic sphere, should govern all policyrelated disputes that are brought to the courts. Indeed, the answers to many socio-economic and political problems lie with Parliament and in a polling booth and not in a courtroom.

  1. Enforceability of activist judgments

ArunShourie’s book Courts and Their Judgments is a useful chronicle of the difficulties that arise when the courts attempt to do what the executive is constitutionally required to do. The concept of “continuing mandamus” is an admission of the fact that controversial socioeconomic issues need constant monitoring over intricate details to be sustained over a considerable period of time. Frequent resort to such orders, which the courts have neither the time nor institutional mechanism to enforce to their ultimate conclusion, eventually erodes the         credibility        of         the       judicial             institution.        Despite            the        acclaim            showered on BandhuaMuktiMorcha orders, as pointed out in Courts and Their Judgments, the results came to nought.

The courts possess neither the power of the sword, nor the purse; they only have to rely upon the goodwill and respect of the two coordinate constitutional branches as that of the general public, for the enforcement of their orders. This argument should, however, not be misunderstood as recommending the pursuit of public popularity, or suggesting that Judges be moved by the hysterias of the day, for even Adolf Hitler was popular in his time. It only means that Judges should be conscious of the limitations of the judicial function and the consequent need to remain within the judicial sphere. Indeed, the only power to enforce activist judgments is the power to punish executive or legislative functionaries for contempt of court, which gets stunted with overuse. Moreover, it is not possible for the Court to keep on exercising this contempt power to implement minute details of its orders, the consequences of some of which may not even be fully realised before their implementation.

  1. Erosion of the principle of stare decisis

During the 1980s, there was a tendency to deviate from settled principles of law in the name of “innovative principles”; the objective being to render “social justice”. On the other hand, Professor Roscoe Pound has stated “Law must be stable, yet it cannot stand still.”Similarly, Justice Aharon Barak says, “Stability without change is degeneration. Change without stability is anarchy.” These wise observations imply that changes in law brought about by judicial interpretation must, more often than not, be evolutionary and not be revolutionary or dramatic.As dramatically changed interpretations are error-prone and based only on expediency, it would be wiser to take one step at a time than a quantum leap, particularly into unknown regions. There may, however, be situations that call for dramatic or sudden changes in law, but exceptions must be few and far between and not easily resorted to, as stare decisis is yet one of the fundamentals of our legal system.

Judicial activists do not easily accept stare decisis as a fundamental principle and in the 1980s the Supreme Court gave the lead to the process of dismantling stare decisis. The judgment in D.S. Nakarais a classic example of this approach. In D.S. Nakara74, the Court observed:

“Socio-economic justice stems from the concept of social morality coupled with abhorrence for economic exploitation. And the advancing society converts in course of time moral or ethical code into enforceable legal formulations. Overemphasis on precedent furnishes an insurmountable road-block to the onward march towards promised millennium. An overdose of precedents is the bane of our system which is slowly getting stagnant, stratified and atrophied.”

If the observations of the Court are right, then at any given time the Judge may do what he thinks in conformity with his conception of “social justice” by throwing to the winds established principles of law and binding judgments. Moreover, dramatic changes in law create immeasurable difficulties for the High Courts and the subordinate courts for they are left to flounder in a sea of conflicting precedents. They also create chaos and instability for citizens who have moulded their legal relationships based on the extant law but now find that the goal post has been moved in the middle of the game! Further, when the highest court in the land itself shows scant respect for precedents, it may well encourage the High Courts and the subordinate courts to follow suit, leading to judicial indiscipline and anarchy, which bodes ill for any legal system.

III. Undesirable Consequences Ensuing from Judicial Activism

  1. Delay, backlog and abuse of public interest litigation

The judicial system, which is currently unable to handle ordinary litigation, as it faces a huge backlog of undecided cases, has to now contend with non-traditional types of litigation in the form of public interest litigation (PILs) that are attempts to use Judges as “social engineers”. Abrogating the principle of locus standi in the name of ushering in social justice and the upliftment of the downtrodden sections of society, the courts opened their doors so wide that they find it difficult to control the influx today. The US Chief Justice John Roberts, writing about the US Supreme Court, which only hears a small fraction of the cases the Supreme Court of India hears, had this to say about the problem:

“So long as the Court views itself as being ultimately responsible for governing all aspects of our society, it will, understandably, be overworked.”

Unmindful of the sobering dicta that Judges have neither the power of sword nor of the purse, the courts have taken upon themselves the duty of monitoring several actions, which fall exclusively within the purview of the executive domain. Often one may not find fault with the final results achieved, but one doubts whether the reasoning by which those results were arrived at is legally supportable.

Articles 32, 136 and 142 of the Constitution invest extraordinary powers in the Supreme Court. Correspondingly, Article 226 invests the High Courts with the all-powerful writ jurisdiction. By abandoning the principle of locus standi, Judges have now become roaming knights-errant on white chargers tilting at windmills of injustice to defend the honour of the Dame of justice. Extraordinary powers must be reserved for extraordinary occasions. Its frequent use detracts from its efficacy and produces an incongruous effect. As is said in a well-known subhashita:

There are a substantial number of bogus litigations, which sneak in as public interest litigation and can simply be collusive, profiteering, or speculative. In my view, the Supreme Court should not be using Justice Felix Frankfurter’s words, an “… umpire to debates concerning harmless, empty shadows”. In fact, the ‘P’ in ‘PIL’ often represents “profit”, “publicity” or “persecution” as more and more manipulative litigants use the court’s shoulder to fire at rivals. Frequent use of public interest litigation for dubious purposes, may have a chilling effect on entrepreneurs, who would become wary of venturing into business with the threat of liberally granted injunction order obtained by their business rivals.

  1. Expediency and judicial error

The legislative and the executive wings of the body politic, which possess the core competence and specialisation in dealing with complex socio-economic problems, are getting progressively marginalised. The judicial organ of the State, the least equipped to deal with socio-politico-economic issues, has occupied the centre stage, and has got bogged down in more and more of such cases. Sheer expediency or the urge for immediate justice in an abstract sense is hardly a justification for taking on problems with myriad fine details that the court is ill-equipped to handle.

Fine-tuning of administrative details is beyond the capacity of the courts, but unfortunately it is something that they have engaged in with enthusiasm. Judicial forays into policy issues through trial and error, without necessary technical inputs or competence, have resulted in unsatisfactory orders that have been passed beyond “judicially manageable standards”. The reliance on affidavits tendered or even placing reliance on a report of a court-appointed Commissioner can hardly supplant a judgment made by a competent executive officer with regard to the actual ground realities.

  1. The credibility of the institution

As we have seen, the tendency of the Supreme Court to pronounce on issues, which require purely political decisions, has led to situations where the Court has had to subsequently back down. The most embarrassing instance has been in the case of the directive for uniform civil code legislation, as we have already seen, where the Court had to later downplay its initial activist observations.

In my view, while activist judgments may bring immediate and transitory succour, if, in the long run, the judgments do not strike at the root of the problem, what follows is loss of credibility and respect for the institution among the other constitutional branches and the general public. As Justice Felix Frankfurter said in Baker v. Carr:

“There is nothing neither judicially more unseemly nor more self-defeating than for this Court to make in terrorism pronouncements, to indulge in merely empty rhetoric, sounding a word of promise to the ear, sure to be disappointing to the hope.”

Indeed, Justice Frankfurter could well have been talking about the bonded labourers and the Supreme Court of India after BandhuaMukti Morcha67 orders.

  1. Diversion of institutional resources

Instead of playing the role that has been constitutionally assigned to it and utilising its resources towards such role, the assumption of a non-traditional, activist role by the Supreme Court has led to the diversion of its attention and resources. As in cases of “continuing mandamus”, where it has to exercise continuous monitoring and supervision over executive authorities, judicial activism strains the institutional resources of the Court. It also diverts the time, talent and energy of Judges into channels that they are neither required to navigate, nor equipped to, for lack of competence, skill or resources.

  1. Personality driven rather than institutionalised adjudication

Judicial activism creates labels for Judges such as “pro-labour”, “anti-labour”, “pro-tenant”, “anti-tenant”, “progressive”, “conservative” and so on. This is so because the scope and the extent of judicial activism ultimately depends on the personal predilections of the individual Judge and his/her own conception of what “social justice” ought to be. In effect, the result becomes personality-oriented rather than oriented towards “justice accords to law”, which is the duty of a Judge. Personality-driven adjudication provides avenues for “forum shopping” by lawyers and litigants. Instead of “justice according to law”, the courts would administer justice according to the propensities of the Judge, harking back to the days of justice at the Chancellor’s foot in England.

  1. Arguments against Judicial Restraint
  2. “Judicial restraint is a ‘rightist’ ideology”

One of the criticisms of judicial restraint is that it is “pro-government”, “pro-rich” and “antisocial justice” and hence a “rightist” ideology. It is a misconception to think that judicial activism arises from “left” or “right” oriented philosophies, two terms with hazy meanings at best. Judicial activism is nothing but jumping the fence. The fact that it is done from the “right” or “left” is hardly of significance because to an activist Judge what he considers to be the correct philosophy matters, “leftist” or “rightist” being sheer coincidence. In fact, as we have seen earlier, the “New Deal” cases, the Habeas Corpus judgment, the “Hindutva” judgments and the pro-slavery judgment are instances of activist Judges with a so-called “rightist” ideology.

More often than not, the individual philosophy of the Judge becomes tailored to the dominant discourse. A Judge is enjoined by the Constitution to often perform a counter-majoritarian role to prevent unjustified executive or legislative incursions into the textually enumerated fundamental rights of citizens, or to prevent abuse of representative democracy. By entering into the political thicket, as evidenced in the Habeas Corpus case, judicial activism can wholly erode judicial independence and run contrary to the Judge’s constitutional duty to decide cases “without fear or favour”.

  1. “Judicial restraint is an activist philosophy in itself”

There can be no difficulty in accepting judicial restraint or legal centrism as a judicial philosophy in itself. But this philosophy is very different from judicial activism that I have spoken against. Despite the high-sounding words, “judicial restraint” only means that the Judge shall stick by the law and decide legal controversies strictly in accordance with established principles of law without foraging the constitutionally forbidden territories reserved for another branch of the government. In my view, that precisely is the role a Judge is called upon to play by reason of the oath that he undertakes. A Judge is not free to render justice as he thinks, but is required to render “justice accords to law”. As Times of India in an editorial has aptly commented:

“Judges are meant to act as humble interpreters of law, not pose as emperors who adjudicate on a whim. We need faceless, impassive Judges, compassionate but disciplined legislators and an executive that acknowledges the supremacy of the legislature and independence of the judiciary. Sadly, technical Judges are not easy to come by in India. Some arrange marriages between rapists and their victims. Others turn into committed municipal authorities. Courts are meant to be more serious than Bollywood makes them out to be.”

Conceded that in a few cases “justice according to law” may produce less-than-perfect results, but more often than not, “justice accords to law” produces an outcome that is in line with crystallised public opinion. Indeed, if “justice according to law” was so abhorrent, then we would have seen a revolution in India and a scrapping of the Constitution. The fact that this has not happened is positive proof that “justice according to law” and “justice without fear or favour” is the correct approach.

  1. “Judicial restraint would have meant no Kesavananda Bharati85″

There may occur occasions in judicial history, when Judges must make dramatic, sudden and even revolutionary changes to law, by marginalising the “justice according to law” principle. Exceptional situations may call for drastic steps, but that can happen only exceptionally. In fact, in fifty-odd years of our Constitution, I can only think of one such situation. This was when the executive and legislature in collusion sought to use the Constitution to destroy the Constitution itself. Therefore, in my view, the “Basic Structure Doctrine” evolved by the Supreme Court in KesavanandaBharati is, if at all an exercise of judicial legislation, a justifiable one, because without it there would have been no Constitution and no independent judiciary worth the name. After all, as the maxim goes,necessitas non habetlegem.That is a different kettle of fish from the activism of the 1980s and 1990s where judicial legislation was resorted to at the drop of a hat to address every socio-economic problem of the day, however unfortunate, but nevertheless lacking the imperative urgency facing Kesavananda Bharati85 court. The Queensberry Rules are to be strictly observed except when your own life is at stake!

  1. Conclusion

Fortunately, the fervour for judicial activism, which engulfed the courts during the third and fourth decades, seems to be ebbing with the progressive realisation that it is preferable to tread the “highways” of justice instead of resorting to the “bye-lanes” of activism in the hope of expeditiously reaching the goal of justice. As I have pointed out, deviation from the welltrodden path frequently leads to wholly unjust outcomes. The wholesome admonition of the Garuda Purana in this respect is worth bearing in mind:

Reciprocity Between Law and Social Change

At the beginning of industrialization and urbanization in Europe, Bentham expected legal reforms to respond quickly to new social needs and to restructure society. He freely gave advice to the leaders of the French revolution, because he believed that countries at a similar stage of economic development needed similar remedies for their common problems.

However, Savigny believed that only fully developed popular customs could form the basis of legal change. As customs grow out of the habits and beliefs of specific people, rather than expressing those of an abstract humanity, legal changes are codifications of customs, and they can only be national and never universal.

There are two contrasting views on this relationship: 

  1. Law is determined by the sense of justice and the moral sentiments of the population, and legislation can only achieve results by staying relatively close to the prevailing social norms.
  2. Law and especially legislation, is a vehicle through which a programmed social evolution can be brought about. In general, a highly urbanized and industrialized society like the US law does play a large part in social change, and vice versa, at least much more than is the case in traditional societies or in traditional sociological thinking. [eg. In the domain of intrafamily relations, urbanization, with its small apartments and crowded conditions, has lessened the desirability of three-generation families in a single household. This social change helped to establish social security laws that in turn helped generate changes in the labor force and in social institutions for the aged.]

Social changes as causes of legal changes

In a broad theoretical framework, social change has been slow enough to make custom the principal source of law. Law could respond to social change over decades or even centuries. Today the tempo of social change accelerated to a point where today’s assumptions may not be valid even in a few years from now. The emergence of new risks to the individual as a result of the decrease of the various family functions, including the protective function, has led to the creation of legal innovations to protect the individuals in modern society.

Eg provisions of workers compensation, unemployment insurance, old-age pensions. Many sociologists and legal scholars assert on the basis of a large amount of accumulated data that technology is one of the great moving forces for change in law in three ways: (read page 335 paragraph 3).

The computer and easy access to cyberspace, especially internet, also have inspired legislation on both the federal and the state levels to safeguard privacy, protects against abuse of credit information and computer crime. Change in law may be induced by a voluntary and gradual shift in community values and attitudes. [eg. People may think that poverty is bad, and laws should be created to reduce it in some way.]

Alternations in social conditions, technology knowledge values, and attitudes then may induce legal change. in such cases law is reactive and follows social change. However, changes in law are only one of many responses to social change. Additionally, laws can be considered both as reactive and proactive in social change.

Law as an Instrument of Social Change

The conversion of Rome from republic to empire could not have been accomplished except by means of explicit legal decree buttressed by the doctrine of imperial sovereignty. Law, far from being a reflection of social reality, is a powerful means of accomplishing reality – that is, of fashioning it or making it. 

  • The Soviet Union succeeded in making enormous changes in society by the use of

              In Spain law was used to reform agrarian labour and employment relations.

  • China also managed to moderate through law its population growth and as a result devote more of its resources to economic development and modernization.

The law, through legislative and administrative responses to new social conditions and ideas, as well as through judicial re-interpretations of constitutions, statutes or precedents, increasingly not only articulates but sets the course for major social change. Attempted social change, through law, is a basic trait of the modern world. Many authors consider law as a desirable necessary and highly efficient means of inducing change, preferable to other instruments of change. In present-day societies, the role of law in social change is of more than theoretical interest.

n many areas of life such as education, race relations, housing, transportation, energy utilization, protection of the environment, and crime prevention, the law and litigation are important instruments of change. Law plays an important indirect role in social change by shaping various social institutions, which in turn have a direct impact on society. [eg. Mandatory school attendance upgraded the quality of the labor force, which in turn played a direct role in social change by contributing to an increased rate of industrialization.

The law interacts in many cases directly with basic social institutions, constituting a direct relationship between law and social change]. Social change through litigation has always been an important feature in the US. Whether the change produced by such action is considered ‘constructive’ or ‘destructive,’ the fact remains that law can be a highly effective device for producing social change.

The efficacy of Law as an Instrument of Social Change

As an instrument of social change, law entails two interrelated processes: the institutionalization and the internalization of patterns of behavior. 

Institutionalization of a pattern of behavior refers to the establishment of a norm with provisions for its enforcement (such as desegregation of public schools).

Internalization of a pattern of behavior means the incorporation of the value or values implicit in a law (eg. Integrated public schools are ‘good’).

The extent to which law can provide an effective impetus for social change varies according to the conditions present in a particular situation. Evan suggests that a law is likely to be successful to induce change if it meets the following seven conditions:

  1. Law must emanate from an authoritative and prestigious source
  2. Law must introduce its rationale in terms that are understandable and compatible with existing values
  3. Advocates of the change should make reference to other communities or countries with which the population identifies and where the law is already in effect
  4. Enforcement of the law must be aimed at making the change in a relatively short time
  5. Those enforcing the law must themselves be very much committed to the change intended by the law
  6. The instrumentation of the law should include positive as well as negative sanctions
  7. The enforcement of the law should be reasonable, not only in the sanctions used but also in the protection of the rights of those who stand to lose by violation

(Suggestion: read pg 341-342)

Advantages of law in creating social change

In many instances, the state of the art of social change endeavors is not methodologically sophisticated enough to distinguish clearly among casual, necessary, sufficient, and contributory conditions to produce desired effects in society. The advantages of law as an instrument of social change are attributed to the fact that law in society is seen as legitimate, more or less rational, authoritative, institutionalized, generally not disruptive, and backed by mechanisms of enforcement.

Legitimate Authority

A principal advantage of law as an instrument of social change is the general feeling in society that legal commands or prohibitions ought to be observed even by those critical of the law in question. To a great extent, this feeling of obligation depends on respect for legitimate authority and the perception of power. Webber says that there are three types of legitimate authority: 

  1. Traditional authority bases its claims to legitimacy on an established belief in the sanctity of traditions and the legitimacy of the status of those exercising authority. The obligation of obedience is not a matter of acceptance of the legality of an impersonal order, but rather a matter of personal loyalty [Rule-of-elders].
  2. Charismatic authority cases its claim to legitimacy on devotion to the specific and usual sanctity, heroism, or exemplary character of an individual and the normative patterns that are revealed or ordained. The charismatic leader is obeyed by virtue of personal trust in his or her revelation or exemplary qualities [Moses, Christ, Mohammed, Gandhi].
  3. Rational-legal authority bases its claims to legitimacy on a belief in the legality of normative rules and in the right of those elevated to authority ti issue commands under such rules. In such authority, obedience is owed to a legally established impersonal order.

“Rational” people “voluntarily” make a “contract” that generates the impersonal legal order.

The binding force of law

Law is binding because most people in society consider it to be. Some consider the content of the law to command obedience, which, in turn, is seen as a compelling obligation. The law achieves its claim to obedience, and at least part of its morally obligatory force, from a recognition that it receives from those, or from most of those, to whom it is supposed to apply.

Even when laws are against accepted morality, they are often obeyed. The extermination of more than six million Jews in Nazi Germany, clearly the most extreme instance of abhorrent immoral acts, was carried out by thousands of people in the name of obedience to the law.

Milgram contends that the essence of obedience is that individuals come to see themselves as instruments for carrying out someone else’s wishes, and they therefore no longer view themselves are responsible for their actions. Under certain conditions many people will violate their own moral norms and inflict pain on other human beings, and that succinctly underlines the notion that most people willingly submit to authority and, by extension, the law.

Sanctions

Sanctions for disobedience to the law are surely among the primary reasons that laws have binding force. “The law has teeth; teeth that can bite if need be, although they need not necessarily be bared.” Sanctions are related to legal efficacy and are provided to guarantee the observance and execution of legal mandated to enforce behavior.

Limitations of Law in Creating Social Change

To most people law is imposed externally in an almost coercive way. Today people are characterized by a “crisis of confidence” and alienation from social institutions because of uncontrollable economic conditions. Therefore, law is hardly an expression of their will.

Few people participate in the formulation of laws and legislation. One of limitations of law as an instrument of social change is the possibility of prevailing conflict of interest. Other limitations related to the efficacy of law in social change include divergent views on law and the prevailing morality and values.

The scarcity of resources causes conflicting interests. Decades ago, Karl Marx and Max Weber said that many laws are created to protect special economic interests. This is because economic interests are strong factors influencing the creation of laws.

Weber recognized that besides economic interests law protects other interests too such as personal security, personal honour, and it guarantees political, ecclesiastical, and other positions of authority and social pre-eminence.

Weber emphasizes two points:

  1. Conflict of interests provides the base for the formation of laws that bring change; so the stratification of society and the preferences of those who promulgate the changes determine the role of laws in social change.
  2. Law as an instrument of social change can be seen as the organization of power and processes that protect special interests in society and result in social change.

For powerful and influential people “the law in effect structures the power relationships in a society, maintains the //status quo//and protects various //strata//against each other”. Many legislative enactments, administrative rulings, and judicial decisions reflect the power configurations in society.

Even members of legal professions serve to unify the power elite by serving as “professional go-betweens” for principal political, corporate and other interest groups.

Interestingly, a lot of people who are coerced or oppressed by the laws imposed by a ruling minority are unaware of their oppression. They may even strongly support the existing legal system because the ruling party has used its power to confuse them as if they are protecting their true interests.

However, a distinction should be made between what people claim as their interests and what their “true” interests are. There are many examples when people are organized to protect what they conceive as their interests. Blacks have been instrumental in the passage of many civil rights laws.

Farmers have affected laws dealing with migrant workers, farm subsidies, importation of food items, etc. so it is the division of society into the “powerful” and “powerless” that simple? The mechanisms of change through law include large segments of the population. Even in democratic countries, the large-scale participation of citizens in social change is not feasible; however, the lack of participation doesn’t mean lack of representation.

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