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P. N. Bhagwati, The Role of the Judiciary in the Democratic Process: Balancing
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Bhagwati, P. P. (1992). The role of the judiciary in the democratic process:
balancing activism and judicial restraint. Commonwealth Law Bulletin, 18(4),
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Activism and Judicial Restraint," Commonwealth Law Bulletin 18, no. 4 (October 1992):
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Activism and Judicial Restraint' (1992) 18(4) Commonwealth Law Bulletin 1262

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 Commonwealth Law Bulletin

The Role of the Judiciary in the

Democractic Process: Balancing Activism
and Judicial Restraint
By The Hon Mr Justice P N Bhagwati,former ChiefJustice of India
I feel deeply privileged to have been invited to this Workshop to speak on The Role of
the Judiciaryin a Democratic Society: BalancingActivism and JudicialRestraint.It is
a fascinating subject because it seeks to highlight a perennial controversey which has
been raging in most Commonwealth countries and particularly in the United States as
to whether the judicial function in a democracy should be characterised by judicial
activism or it should be qualified by judicial restraint. There have been protagonists of
both ideologies and there have been considerable juristic literature attacking or
defending either of these two positions. Let me begin by confessing straightaway that I
have always been a protagonist of judicial activism and in this paper I propose to
demonstrate that in a democratic society which has a Constitution with a Bill of Rights
or which has subscribed to regional or international instruments on human rights and
which is seeking to build a fair and just society, judicial activism on the part of the
judiciary is an imperative, both for strengthening participatory democracy and for
realisation of basic human rights by large numbers of people in the country.
One basic and fundamental question that confronts every democracy governed by
the rule of law is: what is the role or function of a judge in a democracy, and that in turn
raises a further question: is the function of a judge merely to declare law as it exists or
to make law? The anglo-saxon tradition persists in the belief that ajudge does not make
law. He merely interprets it. He merely reflects what the legislature has said and this is
the phonographic theory of the judicial function. This traditional view of the judicial
function hides the real nature of the judicial process. This theory has been evolved in
order to insulate judges against vulnerability to public criticism and to preserve their
image of neutrality which is regarded as necessary for enhancing their credibility. It
also helps judges to escape accountability for what they decide, because they can
always plead helplessness, even if the law they declare is unjust, by saying that it is the
law made by the legislature and they have no choice but to give effect to it and it is only
natural that judges should wish to exercise power but not to be accountable to anyone
for such exercise. It is natural for them, too, to indulge in the fiction that they are
merely carrying out the intention of the legislature or discovering the immanent
something called law. The tradition of the law and the craft of jurisprudence offer such
judges plenty of dignified exits from the agony of self-conscious wielding of power.
Hence the incredibly persistent attempt on the part of lawyers, and judges to convince
the people about the truth of the lie that judges do not make law. There can be no doubt
that judges do take part in the law-making process. It is now acknowledged amongst
the cognoscenti: all perceptive jurists recognise this creative function of the judicial
process. Even some of the English judges, for example Lord Reid, have now openly
avowed their creative role.
It is, no doubt, true that the judge has to interpret the law according to the words used
by the legislature. But, as pointed out by Mr Justice Holmes: "A word is not a crystal,
transparent and unchanged; it is the skein of a living thought and may vary greatly in
colour and content according to the circumstances and the time in which it is used". It
is for the judge to give meaning to what the legislature has said and it is this process of
interpretation which constitutes the most creative and thrilling function of the judge.
October 1992
Plato posed the problem two thousand years ago: Is it more advantageous to be subject
to the best men or the best laws? He answered it by saying that laws are by definition
general rules and generality falters before the complexities of life. Law's generality
and rigidity are at best a makeshift far inferior to the discretion of the philosopher king
whose pure wisdom would render real justice, by giving each man his due. Aristotle
was, however, in favour of the rule of law. He said: "He who bids the law rule, bids
God and reason rule; but he who bids man rule adds an element of the beast, for desire
is a wild beast and passion perverts the minds of rulers even though they be the best of
man". Yet Aristotle knew with Plato that law cannot anticipate the endless combina-
tions and permutations of circumstance and situation. There is bound to be a gap
between the generalities of law and the specifics of life. This gap in our system of
administration of justice is filled by the judge and in entrusting this task to the judge,
we have synthesized the wisdom of Plato and the wisdom of Aristotle.
The judge is required not only to temper his role to the individual case, but to
constantly invent new rules to more justly handle recurrent fact situations that the law
has not fully anticipated. It is there that the judge takes part in the process of law-
making-what Mr Justice Holmes called "interstitial legislation". The process is a
phase of never-ending movement and something more is expected of a judge than
imitative reproduction, the lifeless repetition of a mechanical routine. It is for this
reason that when a law comes before a judge, he has to invest it with meaning and
content. Where the language of the law is clear, then, of course, the judge must give
effect to it but there are many cases where it is possible to decide either way and it is
here that the choice of values has to be made by the judge.
Where the law and its application are alike plain or the rule of law is certain and the
application alone is doubtful, there will be no difficulty for the judge. But there are
cases where a decision one way or other will count for the future, will advance or
retard, sometimes much, sometimes little, the development of the law in the proper
direction and it is in these types of cases where the judge has to leap into the heart of
legal darkness, where the lamps of precedent and common law principles flicker and
fade, that the judge gets an opportunity to mould the law and to give it shape and
direction. It is there that the judiciary can play a highly meaningful and activist role by
developing and moulding the law so as to make it accord with the needs of the
community and promote human rights. And once it is recognised that the judges do
make law though not in the same manner and not to the same extent or on the same
scale as the legislature.
The judges have a creative function; a heavy responsibility rests on them so far as
concerns the discharge of their judicial function. They cannot afford to just mechan-
ically follow the rules laid down by the legislature; they must so interpret as to
reconcile the rules to the wider objectives of justice. Fortunately, these wider
objectives of justice have been encapsulated in the Constitutions of most of the
Commonwealth countries and so far as the United Kingdom is concerned, they are
found in the democratic values firmly rooted in the good sense of the people and the
regional and international human rights instruments. Since different countries in the
Commonwealth have different political expectations, the expectations of the people
from the judges may also vary from country to country, though in my view, there must
always be a common denominator which must inspire the judicial tradition to co-relate
the constitutional and legal interpretation to the control of executive lawlessness and
the demand for social justice and basic human rights. This calls for a certain degree of
judicial activism.
But what do we mean by judicial activism? And for what purpose and on whose
behalf? The term "judicial activism" is slippery as Robert McClosky said, but it does
 Commonwealth Law Bulletin
have some meaning. To him, one of its aspects was "the Supreme Court's propensity to
intervene in the governing process". This definition is obviously in need of greater
specificity; yet according to this definition, judicial activism is not only [defensible]
..but it is also inevitable in any system of constitutionalism. "The two fundamental
correlative elements of constitutionalism", Charles McLewan has said, "are the legal
limits of arbitrary power and a complete political responsibility of government to the
governed". Without a creative and activist judiciary, these two elements would be
impossible to achieve. Judicial activism has been used in India extensively for
actualising these two elements and establishing a new form of constitutionalism.
Judicial activism can take many forms and it is therefore necessary for me to indicate
what is the sense in which I use the term "judicial activism". At one level, it may take
the form of simply ensuring that the judges have the necessary freedom of action-
freedom to choose alternative courses of action, To take an example, the Practise
Statement issued by the House of Lords in 1966 that they were not bound by their
previous decisions and that they could deviate from the same, did no more than merely
declare a freedom from certain constraints that had been imposed by the House of
Lords upon itself in 1897. The judges of 1966 could well be regarded as activists but
this kind of judicial activism would be nothing more than what I would call "Technical
Activism". Such activism is "technical" because it is concerned merely with keeping
juristic techniques open-ended.
Technical activism may be contrasted with what I would call "juristic activism".
Juristic activism is not concerned merely with appropriation of increased power, but is
concerned as well with the creation of new concepts, irrespective of the purpose which
they serve. Common law itself is an example of the development of juristic activism.
Over the centuries it has been fashioned and refashioned to deal with new claims and
demands: it has developed new concepts and invented new principles. The doctrine of
common employment enunciated in Priestlyv Fowler and the concept of negligence in
Donoghue v Stevenson are examples of juristic activism. So also is the decision in
Ridge v Baldwin which, in its aftermath, led to a creative reassessment of British
Administrative Law through a process of judicial activism. When the English Court of
Appeal held, in a recent case, that no action of libel would be maintainable by a public
authority in respect of criticism of its governmental or administrative functions,
because there was no pressing social need to allow such a right to sue for libel to
derogate from freedom of expression, the English Court of Appeal was adopting an
activist approach by qualifying the right to sue for libel by invoking the analogy under
the European Convention on Human Rights.
There are several examples which can be given where the courts in England have
evolved new common law principles in the light of the European Convention on
Human Rights or the International Covenant on Civil and Political Rights, through a
process of judicial activism. So also there are instances where, in the worst days of
apartheid, South African Judges displayed remarkable judicial activism in interpreting
the Constitution and the law in a broad and liberal spirit condemnatory of apartheid.
In India also, the judges have developed administrative law to a remarkable extent
through techniques of judicial activism. Three examples should suffice to substantiate
this statement. The Supreme Court of India pointed out in Maneka Gandhi's case that
no one can be deprived of his life or personal liberty except after compliance with the
principles of natural justice and if, for any reason, it is not possible to observe the audi
alteram partem rule in a given case because, by giving an opportunity to the person
affected to show cause, the very object of taking the action might be defeated, and pre-
decisional hearing may, therefore, have to be dispensed with, yet, the principles of
natural justice would require that post-decisional hearing must be given to the affected
October 1992
person. Then in another decision relating to Motilal Padampat Sugar Mill, the
Supreme Court of India held that promissory estoppel can be relied upon not only as a
shield but also as a sword and a cause of action can be founded upon it.
Yet in another case relating to the International Airport Authority, the Supreme
Court of India took the view that where an administrative authority has laid down
norms or principles on which it would act in its dealings with third parties, the
administrative authority cannot be permitted to depart from such principles or norms.
All these three cases demonstrate how judicial activism can expand the reach of
administrative law with a view to curbing and controlling executive discretion and
ensuring the basic human rights of the citizen. The most remarkable example of
judicial activism by the Supreme Court of India was the Keshavanand Bharati case
where the Court was called upon to interpret Art 368 of the Indian Constitution which
confers power on Parliament to amend the Constitution. The Supreme Court of India
refused to accept narrow textual interpretation and held that the power to amend the
Constitution was not an unlimited power, but it was restricted by the basic structure
doctrine and it was not competent to Parliament to amend the Constitution so as to
affect any of its basic features like republicanism and secularism. To this list was added
by the Supreme Court of India in a subsequent decision, the power of judicial review.
This judicial activism on the part of the Supreme Court of India was intended to protect
the citizen against any drastic or draconian amendments which may be made by the
ruling party by reason of its brute majority in Parliament.
There are two issues where judges need judicial activism in order to enforce
constitutional and legal rights against State action. The first is where the issue raised by
challenge to the State action is claimed to be a political question entrusted by the
Constitution to the Executive and on that account, is not justiciable before the courts.
Now there can be no doubt that if a question brought before the court is purely a
political question not involving determination of any constitutional or legal right or
obligation, the court would not entertain it, since the court is concerned only with the
adjudication of rights and liabilities. But merely because a question has a political
complexion, that by itself is no ground why the Court should shrink from performing
its duty to adjudicate if it raises an issue of constitutional or legal determination. Every
constitutional question concerns the allocation and exercise of governmental power
and no constitutional question can therefore fail to be political. "Constitutional law"
points out Charles Black, "symbolises an intersection of law and politics". And Lord
Scarman observed: "a fundamental truth is that law and politics cannot, and at a higher
level must not, be kept separate". The decisions of the United States Supreme Court in
Baker v Carrsetting aside apportionment of legislative districts, and in Brown v Board
of Education laying down the policy of desegregation raised political issues but the
Court entertained them because they involved violation of the equality clause of the
United States Constitution. The Supreme Court of India has followed the same
principle and held in the State of Rajasthan case that the Court is entitled to examine
the question whether the President of India has rightly dissolved the State Legislature
and superseded the State Government, because, even though the question has
undoubtedly a political complexion, the Court is bound to enquire whether the
conditions for the exercise of the power are satisfied. I observed in that case that no
exercise of constitutional or legal power is beyond the scrutiny of the Court. This was
nothing but the exercise of judicial activism.
The second issue relates to State liability for violations of constitutional and legal
rights or for disobedience of Court orders. Here also the courts of India have displayed
considerable judicial activism. The principle which the Supreme Court of India has
established is that no one-not even the Prime Minister-is above the law and if there
 Commonwealth Law Bulletin
is violation of any constitutional or legal right even by the highest in office, he cannot
escape accountability before the Court. There can be no State action against a citizen
unless it is in conformity with the law. In one case which was brought before the court,
a prisoner was beaten to death in custody by the police and compensation was claimed
from the State. The defence of the State was that in beating the prisoner, the police
acted outside the authority of the law and therefore, the State should, at the threshold,
not be considered liable for the unlawful action by the police. The Supreme Court of
India negatived this argument and directed the State to pay compensation to the
relatives of the prisoner because, as observed by me, to accept the argument of the
State would make a mockery of Art 21 and reduce it to a nullity, a mere rope of sand.
The same view was taken by the Supreme Court of India in another case where some
undertrial prisoners who were notorious criminals, were blinded in custody by the
police. I directed payment of compensation to them by the State. The State cannot hide
behind its agents and servants otherwise, in no case would the State be liable for, in
every case, the State would be able to plead that the action of its agents or servants was
unlawful and therefore outside its authority. This was again an instance of judicial
activism for the control of State lawlessness and protection of human rights. If there is
an order against the State and it is defied or not obeyed, the Courts in several cases have
called upon the appropriate officer and on a few occasions, even the Minister himself,
to answer the charge of contempt of court.
However, technical and juristic activism considered in isolation obscure our
understanding of the purpose behind such activism. It is important to try to discover
why a particular kind of judicial creativity has been adopted and to inquire into the
purpose which it seeks to serve. It is the instrumental use of judicial activism that needs
to be considered, for judicial activism cannot be divorced from the purpose it serves.
We in India are moving away from formalism and to use judicial activism for
achieving social or distributive justice and in this expression, I include basic human
rights. We firmly believe that the modern judiciary cannot afford to hide behind notions
of legal justice when social justice issues are addressed to it. It can no longer obtain
social and political legitimacy without making a substantial contribution to issues of
social justice.
The Supreme Court of India was faced with a similar legitimation crisis. In a country
which has vast differentials, it could not turn away from the claims and demands of
social justice and still honour its claim to be a court of all the citizens of India. The
Supreme Court of India, therefore, in an attempt to grapple with this problem, started
wielding judicial power in a manner unprecedented in its history and developed the
strategy of Public Interest Litigation calculated to bring social justice and human rights
within the reach of the common man.
What the Court did was to bring about a revolution in the judicial process. The Court
expanded the frontiers of fundamental rights and of natural justice and in the process
rewrote some parts of the Constitution. The right to life and personal liberty enshrined
in Art 21 of the Indian Constitution was converted de facto and de jure into a
procedural due process clause contrary to the intention of the makers of the Consti-
tution. This expanding right was construed, through a process of judicial interpretation
to encompass the right to bail, the right to speedy trial, the right to dignified treatment
in custodial institutions, the right to legal aid in criminal proceedings, the right to live
with basic human dignity, the right to livelihood, and above all, the right to a healthy
environment. The Supreme Court developed a new normative regime of rights
insisting that the State cannot act arbitrarily but instead, must act reasonably and in the
public interest on pain of its action being invalidated by judicial intervention.
The Supreme Court also developed the innovative strategy of Public Interest
Litigation for the purpose of making basic human rights meaningful for the large
October, 1992
masses of people in the country and making it possible for them to realise their social
and economic entitlements. The Supreme Court incorporated international human
rights norms, not only civil and political, but also social and economic, in the
interpretation of the provisions of the Constitution and the law and this was done
through judicial activism of the highest order. The result was that the Supreme Court
became identified by the justices as well as by the people, as the last resort for the
oppressed and bewildered, and by providing easy access to justice and ensuring basic
human rights to them, the Supreme Court acquired a new credibility with the people.
Before I close, I must answer one criticism against judicial activism, namely, that it
may lead to judicial arbitrariness culminating in judicial tyranny. But here again it must
be noted that when the Court is interpreting the Constitution and the law, it is not open
to the judges to do what they like. The judge is not like a knight in armour free to roam
where he will. There are inbuilt restraints which keep the judges from straying away
from their proper judicial function. In the first place, the judges are obliged to give
reasons justifying their decisions, which reasons must satisfy not only the judges but
also critics and jurists, nay the society itself. Secondly, the judges are not, while
interpreting the Constitution and the law, on an uncharted sea. They have to decide in
conformity with the constitutional values and the human rights norms incorporated in
the international human rights instruments. Moreover, the task of judges takes them
deeper into the future-to make decisions which will affect the future course of social
and economic-and sometimes even political-development and, therefore, in all
humility, they have to be aware of social needs and requirements and economic
compulsions and to recognise changes taking place in a fast developing society and to
develop and adapt law to the changing needs and requirements of the people. These are
the guidelines which must inspire and channelise judicial activism on the part of the
judges and these very guidelines may on occasion dictate judicial restraint.