Judicial Activism in India
Chief Justice P.N. Bhagwati
Last fall the Law School was honored by a visit (rom Indian Chiefjustice Praiullachand 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, '~conscious disciple of Felix Frankfurter, Learned Hand and the whole galaxy of activist judges who helped fight color bar and segregation 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 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 masses 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 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. 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 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,
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 process 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...