6 Judicial Activism in India Chief Justice P. N. Bhagwat’ Last fall the Law School was honored by a visit (rom Indian Chief]ustice Praiullachand Natwarlal Bhagwat’. Justice Bhagwat’ 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.
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India Today called Bhagwati, ‘”conscious disciple of Felix Frankfurter, Learned Hand and the whole galaxy of activist Judges who helped fght color bar and segregation laws in the US. uring the 30’s. ” In this article, adapted (rom a speech he gave while here, Justice Bhagwat’ discusses his concept of Judicial activism, with its implications for this country as well as India. I have the privilege to speak to you on the subject of Judicial activism in India. This subject is very fascinating and its dimensions are so large that it is not possible to cover them within the short time that is available to me.
But I shall try to place a few aspects of it before you to demonstrate how through activism we in India have developed our human rights Jurisprudence and brought help and succor to the asses of people in the country. Let me first of all make clear what I mean by Judicial activism and why Judicial activism is necessary in a country like India. One basic and fundamental question that confronts every democracy, run by a rule of law is, what is the role or function of a Judge. Is it the function of a Judge merely to declare law as it exists-or to make law?
And this question is very important, for on it depends the scope of Judicial activism. The anglo-saxon tradition persists in the assertion that a judge does not make law; he merely interprets. Law is existing and eminent; the judge merely finds it. He merely reflects what the legislature has said. This is the photographic theory of the Judicial function. It has long held the field in England and its most vigorous exposition is to be found in a speech made by Lord Chancellor Jowett at the Australian Law Convention where he said, “The function of a Judge is merely to find the law as it is.
The lawmaking function does not belong to him, it belongs to the legislature. ” This Judicial view, I’m afraid, hides the truth of the Judicial process. This theory has been evolved in order o 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. They can plead helplessness by saying that it is a law made by the legislature and they have no choice but to give effect to it.
The tradition of the law and the craft of Jurisprudence offers such Judges plenty of dignified exits from the agony of self-conscious wielding of power. And hence the incredibly persistent attempt on the part of lawyers and udges to convince the people about the truth of the lie that Judges do not make law. And even some Judges have now openly avowed their creative role. Lord Reid, a great English Judge said, “There was a time when it was thought almost indecent to suggest that Judges make law; they only declare it.
Those with a taste for fairy tales seem to think that in some Aladdin’s cave there is hidden a common law in all its splendor and that on a Judge’s appointment there descends on him knowledge of the magic words, It is for the Judge to give meaning to what the legislature has said and it is this rocess of interpretation which constitutes the most creative and thrilling function of a Judge. ‘Open Sesame’. Bad decisions are given when the Judge has muddled the password and the wrong door opens. But we do not believe in fairy tales anymore. Lord Reid considered that in a democratic society the legitimacy of Judicial lawmaking had to be faced. He did not 7 agree with Lord Radcliffs solution of publicly denying one’s creativity while privately exercising it-what he called the facade approach. He asserted in a famous address, “We must accept the fact that for better or worse Judges do make law and tackle the uestion how do they approach the task and how should they approach it. ” Lord Denning also remonstrated that Judges cannot afford to be timorous souls.
They cannot remain impotent, incapable and sterile in the face of injustice. The same view, I believe has prevailed in your country where a frank and ruthless analysis of the judicial function and its lawmaking potential have been acknowledged and recognized. It is no doubt true that a Judge has to interpret the law according to the words used by the legislature. But as pointed out by Justice Holmes, a word is not a art in the process of lawmaking. Lawmaking is an inherent and inevitable part of the judicial process.
The Judge infuses life and blood into the dry skeleton provided by the legislature and creates a living organism appropriate and adequate to meet the needs of the society. By thus making and molding the law he takes part in the work of creation. The Judge is not a mimic. Greatness of the bench lies in creativity. It is for this reason that when a law comes before a Judge he has to invest it with meaning and content. There are cases where a decision one way or the other will count for the uture, will advance or retard sometimes much, sometimes little, the development of the law in a proper direction.
It is in these types of cases where the Judge is 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 mold the law and to give it its shape and direction. This is what we have been trying to do in India. Once it is recognized that the Judges do make law, though not in the same manner as the legislature, it will immediately become apparent why Judges can and should adopt an activist approach.