6

J udicial Activism in I ndia

C h i e f J u s t i c e P.N . B h a g w a t i
Last fall the Law School was honored by
a visit (rom Indian Chiefjustice Praiulla-
chand Natwarlal Bhagwati. Justice
Bhagwati came as the guest of Prof Marc
Galanter, himself an expert on Indian law
and a consultant to the Indian government
in the Bhopal disaster. Bhagwati is the 17th
chief justice of the Indian Supreme court,
and follows his father as a justice of
that court.
India Today called Bhagwati, '~con-
scious disciple of Felix Frankfurter, Learned
Hand and the whole galaxy of activist
judges who helped fight color bar and segre-
gation laws in the US. during the 30's." In
this article, adapted (rom a speech he gave
while here, Justice Bhagwati discusses his
concept of judicial activism, with its impli-
cations for this country as well as India.
I havetheprivilegetospeak toyou on
thesubject of judicial activism in I ndia.
This subject is very fascinating and its
dimensions aresolargethat it is not pos-
sibletocover them within the short time
that is availabletome. But I shall try to
placea fewaspects of it beforeyou to
demonstrate howthrough activism wein
I ndia havedeveloped our human rights
jurisprudence and brought help and suc-
cor tothemasses of peoplein thecoun-
try. Let mefirst of all makeclear what I
mean byjudicial activism and whyjudi-
cial activism is necessary in a country
likeI ndia.
Onebasic and fundamental question
that confronts every democracy, run bya
ruleof lawis, what is theroleor function
of ajudge. I s it thefunction of ajudge
merely todeclarelawas it exists-or to
makelaw?And this question is very
important, for on it depends the scopeof
judicial activism. Theanglo-saxon tradi-
tion persists in theassertion that ajudge
does not makelaw; hemerely interprets.
Lawis existingand eminent; thejudge
merely finds it. Hemerely reflects what
thelegislature has said. This is thephoto-
graphic theory of thejudicial function. I t
has longheld thefield in England and its
most vigorous exposition is tobefound
in a speech madeby Lord Chancellor
J owett at theAustralian LawConvention
where hesaid, "Thefunction of ajudge
is merely tofind thelawas it is. Thelaw-
making function does not belongtohim,
it belongs tothelegislature."
This judicial view, I 'm afraid, hides
thetruth of thejudicial process. This the-
oryhas been evolved in order toinsulate
judges against vulnerability topublic crit-
icism and topreserve their imageof neu-
trality, which is regarded as necessary for
enhancing their credibility. I t alsohelps
judges toescapeaccountability for what
they decide. They can plead helplessness
bysayingthat it is a lawmadebytheleg-
islature and they havenochoicebut to
giveeffect toit. Thetradition of thelaw
and thecraft ofjurisprudence offers such
judges plenty of dignified exits from the
agonyof self-conscious wieldingof
power. And hencetheincredibly persist-
ent attempt on thepart of lawyers and
judges toconvincethepeopleabout the
truth of theliethat judges donot make
law. Therecan benodoubt that judges
dotakepart in thelawmakingprocess,
And even somejudges havenowopenly
avowed their creative role. Lord Reid, a
great Englishjudge said, "There was a
time when it was thought almost inde-
cent tosuggest that judges makelaw;
they only declare it. Those with a taste
for fairytales seem tothink that in some
Aladdin's cavethere is hidden a common
lawin all its splendor and that on a
judge's appointment there descends on
him knowledge of the magic words,
I t i s f or t h e ju dg e t o g i ve m e a ni ng
t o w h a t t h e le g i s la t u re h a s s a i d a nd
i t i s t h i s proc e s s of i nt e rpre t a t i on
w h i c h c ons t i t u t e s t h e m os t c re a t i ve
a nd t h ri lli ng f u nc t i on of a ju dg e .
'Open Sesame'. Bad decisions aregiven
when thejudgehas muddled thepass-
word and thewrong door opens. But we
donot believein fairytales anymore."
Lord Reid considered that in a demo-
cratic societythelegitimacy of judicial
lawmaking had tobefaced. Hedid not
agreewith Lord Radcliff's solution of
publicly denyingone's creativity while
privately exercisingit-what hecalled
thefacadeapproach. Heasserted in a
famous address, "Wemust accept the
fact that for better or worsejudges do
makelawand tacklethequestion howdo
they approach thetask and howshould
they approach it." Lord Denning also
remonstrated that judges cannot afford to
betimorous souls. Theycannot remain
impotent, incapable and sterilein the
faceof injustice. Thesameview, I believe
has prevailed in your country where a
frank and ruthless analysis of thejudicial
function and its lawmakingpotential
havebeen acknowledged and recognized.
I t is nodoubt truethat ajudgehas to
interpret thelawaccordingtothewords
used bythelegislature. But as pointed
out byJ usticeHolmes, a word is not a
Thejudgeinfuses lifeand blood
intothedry skeleton provided by
thelegislatureand creates a living
organism appropriateand adequate
tomeet theneeds of thesociety.
crystal, transparent and unchanged. I t is
a skin of a livingthought and may vary
greatly in color and content accordingto
thecircumstances and thetimein which
it is used. I t is for thejudgetogivemean-
ingtowhat thelegislaturehas said and it
is this process of interpretation which
constitutes themost creativeand thrilling
function of ajudge. Platoposed theprob-
lem 2,000years ago: I s it moreadvanta-
geous tobesubject tothebest men or the
best laws?Heanswers by sayingthat
laws arebydefinition general rules and
generality falters beforecomplexities of
life. Laws' generality and rigidityareat
best a makeshift, far inferior tothedis-
cretion of thephilosopher kingwhose
pure wisdom will render real justice by
givingeachman his due. Aristotlewas,
however, in favor of theruleof thelaw.
Hesaid, "Hewho bids thelaw's rulebids
God and reason rule, but hewho bids
man's ruleadds theelement of thebeast,
for desireis a wild beast and passion per-
verts theminds of rulers even though
they bethebest of men."
YetAristotleand Platoknewthat law
cannot anticipate theendless permuta-
tions of circumstance and situation.
Thereis bound tobea gapbetween the
generalities of lawand thespecifics of
life. This gapin our system of administra-
tion ofjustice is filled bythejudge. I n
entrusting this task tothejudgewehave
synthesized thewisdom of Platoand
Aristotle. I t is herethat thejudgetakes
part in theprocess of lawmaking. Law-
makingis an inherent and inevitablepart
of thejudicial process. Thejudgeinfuses
lifeand blood intothedry skeleton pro-
vided bythelegislature and creates a liv-
ingorganism appropriate and adequate
tomeet theneeds of the society. Bythus
makingand moldingthelawhetakes
part in thework of creation. Thejudgeis
not a mimic. Greatness of thebench lies
in creativity. I t is for this reason that
when a lawcomes beforeajudgehehas
toinvest it with meaning and content.
Therearecases where a decision one
wayor theother will count for the
future, will advanceor retard sometimes
much, sometimes little, thedevelopment
of thelawin a proper direction. I t is in
thesetypes of cases where thejudgeis to
leapintotheheart of legal darkness,
where thelamps of precedent and com-
mon lawprinciples flicker and fade, that
thejudgegets an opportunity tomold the
lawand togiveit its shape and direction.
This is what wehavebeen tryingtodo
in I ndia.
Onceit is recognized that thejudges
domakelaw, though not in thesame
manner as thelegislature, it will immedi-
atelybecomeapparent whyjudges can
and should adopt an activist approach.
Thereis noneed forjudges tofeel shyor
apologetic about thelawcreatingroles.
TheSupremeCourt of I ndia has been
performing this rolein thelast 7or 8
years bywieldingjudicial power in a
manner unprecedented in its history of
over 30years.
Thereis noneed forjudges tofeel
shyor apologetic about thelaw
creatingroles.
Thecourts in I ndia havebeen active
in other ways as well. Wealsostarted the
legal aid movement. Wesaid that this
program byitself would not beenoughto
assist our people, sowedeveloped cer-
tain strategies: thefirst was encouraged
legal awareness. Then weorganized legal
aid camps. Wewould takelawyers tothe
rural areas, invitethepeopletocome
withtheir problems, and thelawyers
would advisethem, try tosolvetheir dif-
ficulties. Wewould alsotakethegovern-
ment officials with us becausesome
problems related toadministration. We
added tothat another dimension, what
wehavebeen callingLokAdalat, which
arevoluntary mediation agencies. These
lawyers, retired judges, and social activ-
ists would takecases pendingin thelow-
est courts and attempt tosecurea settle-
ment. Even thosecases which havenot
cometocourt alsowould bemediated. I n
7
The Supreme Court has developed
a new normative regime of rights
and insisted that a statecannot act
arbitrarily but must act reasonably
and in public interest on pain of its
action beinginvalidated byjudicial
intervention.
thelast two years wehavesettled more
than 10,000cases and this movement is
growingfast. Practically every fortnight a
team goes toa placewhere a lowest court
is situated, tobringabout settlement of
disputes.
Wehavealsofostered the develop-
ment of social-action groups. Westarted
organizing them, providing them assis-
tance in the shapeof funds, theshapeof
lawyers and under theauspices of my
committee they started holding campus
for training social activists as paralegals
sothat they mayprovidefirst-aid in law
in therural areas.
Lastlywedeveloped the strategy of
public interest litigation. This litigation
is of a slightlydifferent character than
yours and that is why somejurists in
I ndia prefer tocall it social action litiga-
tion. Wefelt that even if we had all these
legal aid offices it would not bepossible
for thepoor peopletoafford thecourts
forjustice. Therefore wesought theways
and means bywhich wecan provide
access tojustice tothepoor and under-
privileged segment of society. Onemajor
impediment in theway of access tojus-
ticefor thepoor was thedoctrine of
standing. I t requires that only a person to
whom a legal wrong is done can seek
judicial redress. Soin oneseminal deci-
sion wetook theviewthat where a legal
wrong is donetoa person or class of per-
sons who, byreason of poverty, disabil-
ity, socially or economically disadvan-
taged position, cannot approach a court
of lawforjustice, anymember of the
public or any social action group can ini-
tiatean action in thehighcourt or the
supreme court for vindicating therights
of the underprivileged. That is howwe
broadened access tojustice. Theresult
was a largenumber of cases comingto
thecourt. Wealsosaid in appropriate
cases they can movethecourt byjust
addressing a letter tothecourt. Thus
developed what was nowcome tobe
known as epistolary jurisdiction, jurisdic-
tion which is invoked bywriting epistles
toa court. Of coursetheparameters of
this jurisdiction havebeen laid down: it
can beonly on behalf of a person in cus-
tody or on behalf of a class of persons
who cannot approach thecourt on the
8
I n t h e last fewyears t h e Supreme
Court has, through intensejudicial
activism, become a symbol of
hope for the people of I ndia.
account of their poverty or under-
privileged position.
Oncetheportals of thecourt were
thrown open tothepoor and under-
privileged, largenumbers of cases started
coming. Social action groups, professors
of law,journalists, social scientists, all
started movingthecourt and investiga-
tivejournalism played a veryvital role.
I nvestigativejournalism nowexposes
what I call governmental repression,
administrative devianceand exploitation
byvested interests. Soon thebasis of
reports of investigativejournalism people
started approaching thecourts and we
started entertaining letters and petitions
for redressing thewrongs that had been
donetotheunderprivileged segments of
society. Wehad cases relatingtobonded
laborers, landless peasants fightingfor
minimum wages, women in distress,
juveniles in jails, and a host of other dis-
advantaged people. Theseareclass prob-
lems-the problem of poor arebasically
different from theproblems that sofar
havebeen resolved bythecourts. They
arequalitatively different and thelawyer-
ingskills required was alsoof a different
kind.
Another difficulty was howtoproduce
evidencefor thesepersons. Under the
adversary system ofjustice both sides
producetheir evidenceand thejudgesits
likean umpire and decides. Under our
anglo-saxon system, hedoes not takepart
in theprocess of data and fact collection,
but doingsojust would not work. Sowe
madea departure from theadversary sys-
tem and wehavestarted appointing com-
missioners for thepurpose of investigat-
ingand makingreports tothecourt.
Copies of their reports aregiven toboth
sides and they areasked tomaketheir
submissions, filetheir affadavits and the
court will decide. N ext wefaced the
problem of what remedies tobegiven.
Theordinary remedy of Writs of Cer-
tiorari and Prohibition would not help.
Sowedeveloped a widerangingreper-
toireof remedies which would helpto
solvetheproblems of thesepeople.
Finally,weneeded todevelopmonitoring
mechanisms for thepurpose of seeing
that our orders areimplemented. Very
often a social action groupwhich has ini-
tiated an action will try toseethat orders
areimplemented. Sometimes they set up
monitoringmechanisms. Sometimes we
instruct an officer of thegovernment to
goand find out what had happened and
report tothecourt. I f theorders arenot
carried out thecourt will takecontempt
proceedings. This is how, gradually, we
havebeen tryingtodevelopsocial action
litigation in I ndia, and largenumbers of
peoplearegettingthebenefit. Sometimes
oneaction may result in grantingof bene-
fits toa thousand people, sometimes fif-
teen hundred and soon.
Youthus seethat theSupremeCourt
of I ndia has expanded thefrontiers of
fundamental rights and of natural justice.
I n theprocess it has rewritten someparts
of the constitution. The right tolifeand
personal liberty and the procedure estab-
lished bylawhas been converted defacto
and dejure intoa procedural due process
clause contrary totheintent of themak-
ers of theconstitution. This expanding
right has encompassed, within itself, the
right tobail, theright to a speedy trial,
immunity against cruel and unusual pun-
ishment, theright todignified treatment
in custodial institutions, theright tolegal
aid in criminal proceedings and aboveall
the right tolivewithbasic human dig-
nity. TheSupremeCourt has developed
a new normative regime of rights and
insisted that a statecannot act arbitrarily
but must act reasonably and in public
interest on pain of its action beinginvali-
dated byjudicial intervention. The
Supreme Court has developed thedoc-
trine of promissory estoppel, departing
from any Englishand American deci-
sions. Wehaveheld that it can bethe
basis of a causeof action and it can be
used against thegovernment and its
instrumentalities as much as against a
private individual. The Supreme Court
has evolved a strategy of public interest
litigation and madeit possible for the
problems of thedisadvantaged tobe
brought beforethecourts. A host of other
principles of constitutional and public
lawhavebeen developed and many more
arein theprocess of formulation and
development. I n thelaw fewyears the
Supreme Court has, through intensejudi-
cial activism, becomea symbol of hope
for thepeopleof I ndia. I t has augmented
its moral authority and acquired a new
credibility withthepeople through judi-
cial activism and judicial creativity.