Constitutional Democracy and Government by Judges*

(By Justice K. Balakrishnan Nair, Former Judge, High Court of Kerala &  

Chairman of Kerala Administrative Tribunal)

 

“A candid citizen must confess that if the policy of the Government upon vital questions, affecting  whole people, is to be irrevocably fixed by the decisions of the Supreme Court, the instant they are made in ordinary litigations between parties in personal actions, the people will have ceased to be their own rulers, having to that extent, practically resigned their own Government into the hands of that eminent Tribunal.”               

-- Abraham Lincoln

 

I am really privileged to have been called upon to deliver this lecture dedicated to the memory of  Justice K.K.Mathew who was an eminent jurist and one of the finest judges,  this country has ever produced.  

                

2. Justice K.K.Mathew  (3 January  1911 - 2 May 1992) was a Judge of the Supreme Court of India,  highly regarded for his scholarship and for his seminal contribution to the Constitutional and Administrative Law in India.  He later served the nation as its Tenth Law Commission Chairman and also as the Chairman of the Second Press Commission.       

 

Mr.Mathew  was  born  into  a  pious  Christian  family; Kuttiyil, at Athirampuzha, a town in the Kottayam District of Kerala.  After passing out with a Law degree from Trivandrum Law College, Mr.Mathew was called to the bar in 1935. His  initial  years  of  apprenticeship   and the growing practice in the bars of Kottayam and Trivandrum, both in the erstwhile princely State of Travancore, laid the foundation for a distinguished and lucrative practice that awaited him in the newly formed Kerala High Court,  where he shifted over to in 1956 after the formation of the State of Kerala in the same year. From then on, it was meteoric rise in the legal profession, fuelled by hard work and years of dedicated scholarship.

 

The year 1960 witnessed Mr.K.K.Mathew being appointed as the Advocate-General of Kerala and shortly thereon in 1962 as a Judge of the Kerala High Court.  On October 4, 1971 he was elevated as a Judge of the Supreme Court of India, the position, which he held until his retirement on January 2, 1976.

 

Justice K.K.Mathew has left a rich legacy of judgments bearing high precedential value.  The notable ones, to mention a few, are  Bennett Coleman (AIR 1973 SC 106);  Sukhdev Singh (AIR 1975 SC 1331); Ambica Mils (AIR 1974 SC 1300);  St. Xavier (AIR 1974 SC 1389); Prabhu Dayal  (AIR 1974 SC 183); Khan Chand  (AIR 1974 SC 543); Gobind  (AIR 1975 SC 1378); K.P.Joseph ( AIR 1978 SC 303); Gwalior Rayon (AIR 1974 SC 1660); Kodar (AIR 1974 SC 2272) N.M. Thomas (1976 KLT  SN 5 (C.No.11) SC = AIR 1976 SC 490); Kesavananda Bharati (AIR 1973 SC 1461) and finally the Indira Gandhi Election case (AIR 1975 SC 2299). 

 

The State utilized the long experience and scholarship of Justice K.K.Mathew by appointing him first as the Law Commission Chairman, the post which he adorned during 1981-1985. Then came the appointments as the Chairman of the L.N.Mishra’s Murder Enquiry Commission, the Boundary Commission to inquire into the boundary dispute between Haryana and Punjab, and finally as the Chairman of the Press Commission of India.

 

The book ‘Democracy, Equality, and Freedom’ which is a compilation of his lectures and addresses stands testimony  to his wide and deep learning.

 

After a long and dedicated life in the service of the Indian judiciary, Justice K.K.Mathew died on May 2, 1992.  As a brilliant jurist and as a dedicated  judicial  scholar,  he  had left  his indelible signature upon  the annals of Indian judiciary. Justice Mathew was married to Ammini Tharakan. The couple had three children; Mr.K.M.Kurian who is the manager of Air India in Riyadh, Saudi Arabia, Mrs.Shantha Kakkappan a housewife, and Mr.Justice K.M.Joseph, a sitting Judge of the Kerala High Court.   The life and works of Justice K.K.Mathew will inspire generations of Judges and lawyers.  

 

3.  India,  that is Bharath,  is a republic.  We, the people of India, have given unto ourselves a democratic form of Government. Democracy means  rule by the people,  which in practice is rule  by the representatives of the people,  elected based on universal adult suffrage.  This is in contrast to Aristocracy,  where the people had no role in the election of the Ruler and usually the  lineal  descendant  of the King succeeded to the throne subject to the rules of the royal family.  The King’s will was the law.  He was the final arbiter in all disputes and his was the last word in matters of administration. Democratic form of election of the ruler was prevalent in many parts of the world even during olden  times.  In such cases, generally the elite among the people were the voters. The Parliamentary democracy,  in  its modern form,   evolved in England, which  is considered to be its cradle.  The legislative powers of the King of England were progressively transferred to the Parliament.  The powers of the King for adjudication were in due course vested in the courts and the administration was run by the King on the advice of his ministers who have majority support in the Parliament.  Finally the principle that ‘the King can do  no wrong’ came to be firmly established in British Parliamentary democracy.  The essence of the  said doctrine in the context of democracy is that  the King shall always find advisers to take responsibility for his actions and such advisers should have majority support in the Parliament.In practice, it meant the King always acted on the advice of his council of ministers which had majority support in the House of Commons, the lower house of the Parliament.  To put it pithily, the authorship of the actions of the King could always be traced back to the Ministers, who advised him and who, in turn were responsible to the House of Commons. India adopted the same parliamentary form of Government. Here we have a President who can, except in very limited areas, act only on the basis of advice of his council of ministers.  More or less same is the position of Governors in the States.   This principle is the reason for framing Article 361(1) of the Constitution of India,  which  grants immunity to the President and Governor before courts for their decisions, concerning exercise of their powers and functions.   The areas where the President or the Governor may act independently without the advice of the  council of ministers have been stated by the Apex Court in   Samsher Singh v. State of Punjab (AIR 1974 SC 2192) as follows:

 

“We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various articles shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations.  Without being dogmatic or exhaustive, these situations relate to (a) the choice of Prime Minister (Chief Minister), restricted though this choice is by the paramount consideration that he should command a majority in the  House; (b) the dismissal of a Government which has lost its majority in the House, but refuses to quit office; (c) the dissolution of the House where an appeal to the country is necessitous, although in this area the head of State should avoid getting involved in politics and must be advised by his Prime Minister (Chief Minister) who will eventually take the responsibility for the step.  We do not examine in detail the constitutional proprieties in these predicaments except to utter the caution that even here the action must be compelled by the peril to democracy and the appeal to the House or to the country must become blatantly obligatory.”

 

 The Constitution authorises the Governors to act in their discretion in a few more circumstances also. The Cabinet headed by the Prime Minister at the Centre or by the Chief Minister in the State has to step down the moment they do not have majority support in the Lok Sabha or in the Legislative Assembly.  It means the ministers can rule the State only when they command majority support in the concerned Legislature.  In this speech,  this aspect is highlighted only to emphasise that those who have majority support in the Legislature alone can run the executive Government under our Constitution.  In other words,  if persons without majority support in the Legislature  are allowed to run the Government the same will be illegitimate and undemocratic.                                                                                                                         

 

4. The above salutary constitutional principle applies to the courts also.  In other words, courts cannot discharge any executive functions as they are not responsible to the Legislature.    When they leave their judicial domain and embark upon the task of advising the people’s representatives how to run the Government and issue mandatory directions concerning the running of the Government,  citizens who believe in democracy would describe their actions as unauthorised and unconstitutional.  More than 150 years ago, Abraham Lincoln, who was a renowned lawyer, in his first inaugural speech  as the President of the United States said:  “A candid citizen must confess that if the policy of the Government upon vital questions, affecting  whole people, is to be irrevocably fixed by the decisions of the Supreme Court, the instant they are made in ordinary litigations between parties in personal actions, the people will have ceased to be their own rulers, having to that extent, practically resigned their own Government into the hands of that eminent Tribunal.”  When a democratically elected Government is suspected of having lost majority in the Legislature, immediately the Head of the Government is expected to resign. The public opinion will be unanimous on this point.  If the Prime Minister or the Chief Minister claims that he has majority,  notwithstanding the circumstances  pointing the other way, he will be called upon to prove his majority in the Legislature by the President or the Governor as the case may be.  The principle that only those, who command majority  in the Legislature, can rule us is held to  be sacrosanct and inviolable.  But unfortunately the said principle is not strictly insisted or it is rather ignored by the public,  when the courts venture to admonish the rulers for the way they run the business of the Government or order how to run it.  This is because of the ignorance of the people of the powers of the superior courts in India.  Ordinary courts called inferior courts consisting of Magistrate Courts, Munsiff Courts, Sub Courts,  Sessions Courts, District Courts, etc. confine themselves to adjudicating  the  rights of parties before them.   Their decisions are binding only on the parties before them and do not have any worth as precedents.  So, even if any of their decisions is wrong, no one else is affected by that.  The aggrieved parties will avail the remedies available to them like appeal/revision, etc. before higher courts to redress their grievance.  So, the public seldom criticise their judgments.   But the position of superior courts in India (Supreme Court and High Courts) is different as they are courts of record and have been conferred with the power of judicial review, which enables them to issue certain writs.  Our founding fathers conferred on our Supreme Court and High Courts, the same powers enjoyed by the superior courts in England concerning  issuance of certain writs, namely, mandamus, prohibition, certiorari, quo-warranto and habeas corpus.  

 

5.  A writ in the nature of mandamus will be issued when a person or authority  vested with a public duty has failed to discharge that duty and a person interested moves the court.  The court will command  the person or authority concerned to perform his/its duty by issuing a mandamus.  If an inferior court or tribunal is proceeding in a matter without jurisdiction,  it will be interdicted from proceeding further, by issuing a writ of prohibition.  If an authority amenable to the writ jurisdiction of the court has acted without jurisdiction the resultant decision will be quashed by issuance of a writ of certiorari.  An usurper of a public office will be ousted by the court by issuing a writ of  quo warranto. A person detained wrongfully  will be set at liberty by issuing a writ of habeas corpus.  Unlike the courts in England, our superior courts have the power to declare  an Act of the Legislature as unconstitutional and therefore void and unenforceable.         

                      

 6.  The powers of the superior courts to issue a writ of mandamus have been thoroughly misunderstood by the public as enabling the courts to remedy every grievance and cure all maladies afflicting the society.  In some cases, it appears the Courts have also misunderstood the limits of their power.  The Constitution does not authorise the courts to don the garb of Administrator or advise the people’s representatives how to run the Government.  The people in the gallery fed up with the abysmal failures of the Executive and Legislature may resoundingly cheer on seeing such things, but the same should not prompt the courts to tread the forbidden terrain, which legitimately belongs to other branches of the government.       

   

7.  Judicial activism is a much debated topic.  An activist judge means a judge who discharges his functions vigorously  and decisively to achieve an end.  The end is dispensing justice with a view to righting wrongs  and moulding remedies  where none exists.  The traditional thinkers asserted that the role of judiciary is only to declare the law and not to make the law.  Modern jurists say the  ‘fairy tale about judges of not making law is a childish fiction and it has to be discarded’.  The Common Law in England expanded slowly from precedent to precedent.  Justice Oliver Wendel Holmes of U.S. Supreme Court conceded: “without hesitation  that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions”.  Generally, the   dos and don’ts  in a society should be formulated and enforced by the society itself.  Now the representatives of the society in the form of Legislature undertake the said activity of moulding rules containing dos and don’ts for the members of the society and provide for the wages of sin of violating such  norms. Formerly it was done  by the King according to his whims and fancies, but now the people have become their own masters and their representatives are authorised to frame the laws to be followed by them.  This well entrenched terrain of the Legislature, we find  occasionally, is breached by the activist judges disregarding the principle of separation of powers.   The robed bretheren should  realize that they have no brief to legislate under the Constitution, even assuming they have the expertise for it, and if they do so,  it will be quite undemocratic and will be relegating our society to the days, when  Monarchs  legislated at will.       

                    

8.  Our Parliament and  State Legislatures are bound by the limits set on their powers by the Constitution.  While legislating, if they overstep, the courts can legitimately step in and declare such legislative ventures void and  therefore unenforceable.  But an Act of Parliament or of the Legislature  cannot be declared unconstitutional by the court based on the personal philosophies, prejudices and predilections of the judges. The Legislature must be given freedom to do experimentations in exercising its powers, provided of course, it does not clearly and flagrantly violate its constitutional limits. Brandeis, J. of the US Supreme Court in  New State Ice  Co. v. Liebmann  (76 L.Ed. 747) said:       

                                                              

“The  discoveries in physical science, the triumphs in invention,attest the value of   the process of  trial and error. In large measure, these advances have been  due to experimentation.......There must be power in the States and the nation  to  remould,  through experimentation, our economic  practices and institutions to meet changing social and economic  needs......                     

                                                            

To stay experimentation in things social and economic is a   grave   responsibility.   Denial of the right to experiment may be fraught with serious consequences to the nation.”         

 

 Justice Frankfurter while writing a biographical essay on Justice Holmes of the US Supreme Court said:

 

“It was not for him (Holmes) to prescribe for society or to  deny it the right of experimentation within very wide limits. That  was to be left for contest by the political forces in the State.  The   duty  of  the  court  was  to  keep  the  ring  free.  He  reached  the democratic result by the philosophic route of skepticism – by his disbelief   in ultimate  answers  to social questions. Thereby he exhibited the judicial function at its purest.”                            

        

Earlier,  Justice Frankfurter while  a Professor of  Law at Harvard University wrote about Justice Marshall:

 

“With the great men of the Supreme Court, constitutional adjudication   has   always   been statecraft.  As a mere Judge,Marshall had his superiors among his colleagues. His supremacy lay in his recognition of the practical needs of the Government. The   great   judges are those to whom the Constitution is not primarily a text for interpretation but the means of ordering the  life of a progressive people.”

 

 In   Kesavananda  Bharati  v.  State  of  Kerala  (AIR 1973 SC 1461))  Justice  Khanna  said:   

“1535.   In  exercising  the  power  of judicial review, the courts   cannot be oblivious  of the practical needs of the Government. The door has to be left open for trial and error.”         

                                                      

9.  The Legislature is the best judge of what is good for the community, by whose suffrage it  comes  into  existence. It must be presumed that the Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems  made manifest by experience and that its discriminations are based upon adequate grounds. Seervai,  an eminent Jurist in Constitutional Law, stated (Constitutional Law of India (3rd Edn. Vol. I) that “there is a presumption in favour of constitutionality, and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt; to doubt the constitutionality of a law is to resolve it in favour of its validity.................. A statute cannot be declared unconstitutional merely because in the opinion of the court it violates one or more of the principles of liberty, or the spirit of the Constitution,  unless  such principles and that spirit are found in the terms of the Constitution.”   

 

In  Union of India v. Elphinstone Spinning and Weaving Co. Ltd.((2001) 4 SCC 139)  the Apex Court held as follows:  

“There is always a presumption that the legislature does not exceed its jurisdiction and the burden of establishing that the legislature has  transgressed  constitutional mandates, such as those relating to fundamental rights, is always on the person who challenges its vires.  Unless it becomes clear beyond reasonable doubt that the legislation in question transgresses the limits laid down by the organic law of the Constitution it must be allowed to stand as the true expression of the national will – Shell Co. of Australia v. Federal Commissioner of Taxation (1931 AC 275)................................ It is also a cardinal rule of construction that if on one construction  being  given  the  statute  will  become ultra vires the  powers of the legislature whereas  on another construction which may be open, the statute  remains effective and operative,  then the court will prefer the latter, on the ground that the legislature is presumed not to have intended an excess of jurisdiction.”  Justice   Frankfurter  of  the  US  Supreme  Court   observed  in    American Federation of Labour v. American Sash and Door Co.(93 L.Ed. 222)   as follows:

 

“Even  where the social undesirability of a law may be convincingly urged, invalidation of the law by a court debilitates popular democratic  Government.  Most laws dealing with social and economic problems are matters of trial and error.  That which  before trial appears to be demonstrably bad may belie prophecy in actual operation.  But even if a law is found wanting on trial, it is better that its defects should be demonstrated and removed by the  legislature than that the law should  be  aborted by judicial fiat. Such an assertion of judicial  power defeats responsibility from those on whom,  in a democratic  society,  it  ultimately rests. Hence  rather than exercise judicial review, courts should ordinarily allow  legislatures to correct  their own mistakes  wherever possible.” 

 

Recently, the Apex Court in Government of Andhra Pradesh v. P.Lekshmi  Devi (2008) 4 SCC 720)  has  made  a  powerful  call  for  judicial  restraint  while considering the constitutional validity of a legislation.  Thus unless there are compelling grounds courts should be slow to interfere with legislative judgments on various issues.

 

10.  By the decision in Kesavananda Bharati, the Supreme Court of India has asserted its power to annul any amendment to the Constitution passed under   Article  368,  the power under which is considered to be   constituent power conferred on the Parliament.  In the said decision the Supreme Court said that the basic features  of the Constitution are inviolable. 

 

‘One  post-Kesavananda development of the doctrine is that the Court  has  declined   to foreclose the list of the basic features as suggested by different Judges in the Kesavananda case.  In Rajnarain’s case (Indira Nehru Gandhi v. Rajnarain  (AIR 1975 SC 2299)),  it  has been observed that the claim of any particular feature of the Constitution to be a ‘basic’ feature would be determined by the Court in each case that comes  before  it.  In the result, it  is  impossible  for  those  responsible for amending the Constitution to guess what surprise lies in store for them before the Supreme Court.  So far, quite a multitude of features have been acknowledged as ‘basic’ by different Judges, individually, in different cases, though there is no consensus as regards each of them, in particular; (a) Supremacy of the Constitution  (b) Rule of law   (c) The principle of separation of powers (d) The principles behind fundamental rights (e) The objectives specified in the Preamble to the Constitution (f) Judicial review, Art.32; Arts.226/227 (g)Federalism (h)Secularism (i)The sovereign, democratic, republic structure  (j) Freedom and dignity of the individual (k) Unity and integrity of the Nation  (l) The principle of equality; not every feature of equality, but the  quintessence of equal justice  (m) The rule of equality in public employment   (n) The ‘essence’ of other Fundamental Rights in Part III (o) The concept of social and economic justice – to build a welfare State (p)The balance between Fundamental Rights and Directive Principles   (q) The Parliamentary system of government (r) The principles of free and fair elections  (s) Limitations upon the amending power conferred by Art.368 (t) Independence of the judiciary; but within the four corners of the Constitution and not beyond that  (u) Independent and efficient judicial system  (v) Powers of the Supreme Court under Arts.32, 136, 141, 142  (w) Effective access to justice. 

 

Parliamentary democracy and multi party system are an inherent part of the basic structure of the Indian Constitution. Basu: Shorter Constitution 14th Edition, Page 2236-2238.          

 

11. The Constituent Assembly was not representing the vast majority of the people of India, but,  in fact, it represented only about 18% of Indians.  Now our Parliament represents the people across the length and breadth of India.  Even if a constitutional amendment is cleared by both  Houses of Parliament unanimously,  still it can be declared unconstitutional by a single Judge of a High Court.  This most undemocratic result is generated by the basic feature theory propounded by the Supreme Court in Kesavananda Bharati.  Suppose a political party seeks the mandate of the people in the general elections for a particular constitutional amendment and the people of India vote them to power giving them the entire seats in the Lok Sabha and even if they are supported by an unanimous Rajya Sabha and also by all State Legislatures unanimously, still, the constitutional amendment passed by them could be nullified, as stated earlier,  even by a single judge of any  High Court,  if it is found to impinge upon a basic feature. The result is that for an amendment of a feature of the Constitution which is considered to be basic, a revolution is necessary or in other words, unconstitutional methods alone could achieve that object. Was this the intention of our founding fathers?  Is this interpretation in accord with the democratic aspirations of our people?                    

       

12. The original Constitution, as it stood in 1950, did not regard judicial review  as indispensable.  Judicial review is expressly prohibited in Articles 103(1), 136(2), 262(2), 329(a) and 363.  If these Articles were not there in the original Constitution and were introduced by  way of amendments, they would have been declared invalid for excluding judicial review .  

 

13. In USA,  the Judges think that the power of judicial review is given to the court by the people and the donors of that power can take it away also. Chief Justice Warren Burger  of the US Supreme Court at the time of  his retirement told Bill Moyers in 1986 in an interview as follows:       

 

 “Congress can  review us and change us when we decide a Constitutional issue, right or wrong; that’s it until we change it. Or, the people change it. Don’t forget that. The people made it,  and the people can change it. The  people   could abolish the Supreme Court entirely.”

 

“How” asked Bill Moyers.

The answer: “By a Constitutional amendment".

 

But in contrast,  Chief Justice  Bhagwati asserted S.P.Sampath Kumar v. Union of India ((1987) 1 SCC 124): 

 

“Judicial review is a basic and essential feature of the Constitution and no law passed by Parliament in  exercise of its constituent power can abrogate it or take it away.  If  the  power of  judicial  review is abrogated or taken away the Constitution will cease to be what it is.”                          

                   

14. Coming  to judicial review of administrative decisions,  it has to be restated that the basis of judicial review is the doctrine  of ultra vires.  A decision of the Government can be set aside  by the court if the same has no legal backing or is not authorised by law.  If the law authorises the Government  to take a decision in a particular matter and the Government takes a foolish decision, the same cannot be corrected in judicial review.  Within   the   four   corners  of law Government can take wise or foolish decisions.  For taking a decision which may not appear to be wise,  the Government is not answerable to the court, but only to the people.   

 

Appeal  against  such  decisions  will  lie to the  ballot and not to the court. Certain decisions may apparently appear within the powers of the authority.  But if that decision is so perverse or is one which  no man in his senses will take, then that decision can be condemned as unauthorised and therefore ultra vires. Ordinarily the judgment of the Government should be respected and judicial deference is the wise policy to be followed.  A teacher can be dismissed from service for a misconduct or even for inefficient teaching. But he cannot be dismissed for being  red haired. Though the disciplinary authority has power to dismiss a teacher, in the latter case, it is clear that the said power has been abused and the resultant action is unauthorised and void.  But court cannot interfere even if the view taken by the Government is not the best possible view or even if it is a foolish view.  The difference of opinion of the court  with the administrator will not enable it to interfere with the decision.  Two reasonable persons can perfectly  and reasonably come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as reasonable. Re.W. (an infant) 1971 AC 682,700 per Lord Hailsham LC.  The very concept  of administrative discretion involves a right to choose between more than one possible course of action upon which there is  room for reasonable persons to hold differing opinions as to which course  is  the best. The court cannot substitute its  judgment for the judgment of the administrative authority.  ‘The doctrine that powers must be exercised reasonably has to be reconciled with the  no less important doctrine that the court must not usurp the discretion of the public authority, appointed by the Legislature  to take the decision.Within the bounds of legal  reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds it acts ultra vires.  The court must therefore  resist temptation to draw  the bounds  too  tightly   merely according to its own opinion.  The court must try to apply an objective standard   which   gives  to  the  deciding authority the full range of choices which the Legislature is presumed to have intended. Decisions  which  are  extravagant  or  capricious   cannot be legitimate, but if the decision is within the confines of reasonableness, it is no part of the court’s function to look further into the merits’.  (Wade and Forsyth Administrative Law 10th Edn. P.302).

 

The US Supreme Court in Metropolis Theater Co. v. State of Chicago (57 L.Ed. 730)  said:  “The problems of Government are practical ones and may justify, if they do not require, rough accommodations, illogical, it  may be, and unscientific.  But even such criticism should not be hastily expressed.  What is best is not discernible, the wisdom of any choice may be disputed or condemned.  Mere errors of Government are not subject to our judicial review.  It is only its palpably arbitrary exercises which can be declared void”.  

 

15.  While  entertaining  Public Interest Litigations (PIL) and  issuing  directions  we find that the courts clearly overstep their jurisdiction in many cases. The judiciary  cannot direct the Government to construct  roads, erect buildings, unify a  municipal area, create posts, etc.  Such directions have serious fiscal and budgetary implications and will amount to breaching the principle of separation of powers and trespassing into the terrain of the Legislature and Executive.  It is said that the law reached its finest moments when it succeeded in controlling the unlimited discretion  vested in the Executive.  The law reports are abundant with decisions where abuse of discretion by the Government was controlled by the courts.  But who will guard the guards?  When the courts abuse the power vested in them, the citizens will have to take the role of guarding the guards. Enlightened public opinion and its assertion through constructive criticism is one of the remedies. The judges should remember that “the judge even when he is free is still not wholly free.  He is not to innovate at pleasure.  He is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness of things.  He is to draw his inspiration from consecrated principles.  He is not to yield to spasmodic sentiment, to vague and unregulated benevolence.  He is to exercise a discretion  informed by tradition, methodised by analogy, disciplined by system and subordinated to the primordial necessity of order in social life” (Benjamin N. Cardozo - The Judicial Process).

 

16. Now the decisions of courts have become unpredictable.  Forgetting the fundamentals, many decisions are rendered based on the personal views and preferences of the judges.  In that context the Supreme Court (Union of India v. Upendra Singh (1994) 3 SCC 357) said:  

 

“If we do not keep to the broad and fundamental principles   that  regulate the exercise of jurisdiction in the matter of granting such writs in English law, the exercise of  jurisdiction becomes rudderless and unguided, it tends to become arbitrary and capricious.  There will be no uniformity of approach and there will be the danger of the jurisdiction becoming personalized.  The  parameters of jurisdiction  would vary from Judge to  Judge and  from Court to Court.  (Some say, this has already happened.)  Law does advance. Jurisprudence does undoubtedly develop with the passage of time, but  not  by forgetting the fundamentals.  You  have  to  build  upon the  existing   foundations  and not by abandoning them.  It leads   to confusion;  it does  not assist in  coherence in thought or action.”      

 

Unpredictable decisions act as unguided missiles and judicial booby-traps. 

 

17. There was a stage in the United States when citizens looked up to the courts to solve all the maladies of the nation.  The said view has been severely criticised by academics and the role of political process in solving the problems of the nation has been projected by them. Wallace  Mendelson, an American Jurist, wrote an article published in 31 Vand. Law Review 71 (1978) criticising the people who looked  up to the courts for the solution of all social and political problems in the following words:

 

 “First, how legitimate is the Government by Judges?  Is anything to be beyond the reach of their authority?  Will anything be left for ultimate resolution by the democratic processes – for what Thayer (Prof. James Bradley, Thayer, Professor of Law of Harward University who wrote ‘The origin and scope of American Constitutional Law’ published in Harward Law Review (1893) called ‘that wide margin of considerations which address themselves only to the practical judgment of a legislative body’  representing (as courts do not)  a wide range of mundane needs and aspirations?  The legislative process, after all, is a major - ingredient of freedom under the Government.         

 

Legislation is a process slow and cumbersome.  It turns out a product – laws – that rarely are liked by everybody, and frequently little liked by anybody.  When seen from the shining cliffs of perfection, the legislative process of compromise appears shoddy indeed.  But when seen from some concentration camp as the only alternative way of life, the compromises of legislation appear but another name for what we call civilization and even revere as Christian forbearance. 

 

Let philosophy fret about ideal justice.  Politics is our substitute for  civil war in a constant struggle between different conceptions of good and bad.  It is far too wise to gamble for utopia or nothing – to be fooled by its own romantic verbiage.  Above all, it knows that none of the numerous clashing social forces is apt to be completely without both vice and virtue.  By give and take,  the legislative process seeks not final truth, but an acceptable balance of community interests.  In this view the harmonising and educational function of the process itself counts for more than any of its legislative products.  To intrude upon its pragmatic adjustments by judicial fiat is to frustrate our chief instrument of social peace and political stability.  

 

Second, if the Supreme Court is to be the ultimate policy-making body – without political accountability – how is it to avoid the corrupting effects of raw power?  Can the court avoid  the self-inflicted wounds that have marked other episodes of judicial imperialism?  Can the court indeed satisfy the expectations it has already aroused?

 

A third cluster of questions involves the competence of the Supreme Court as a legislative body.  Can any nine men master the complexities of every phase of American life which, as the post-1961 cases suggest, is now the Court’s province?  Are any nine men wise enough and good enough to wield such power over the lives of millions?  Are courts institutionally equipped for such burdens? Unlike legislatures, they are not representative bodies reflecting a wide range of social interest.  Lacking a professional staff of trained investigators, they must rely for data almost exclusively upon the partisan advocates who appear before them.  Inadequate or misleading information invites unsound decisions.  If courts are to rely upon social science data as facts, they must    recognise that such data are often tentative at best, subject to varying interpretations, and questionable on methodological grounds.  Moreover, since social science findings and conclusions are likely to change with continuing research, they may require a system of ongoing policy reviews as new or better data become available.   Is the judiciary capable of performing this function of supervision and adjustment traditionally provided  by  the  legislative  and  administrative  processes?                                                                 

Finally, what kind of citizens will such a system of judicial activism produce – a system that trains us to look not to ourselves for the solution of our problems, but to the most elite among elites; nine judges governing our lives without political or judicial accountability?  Surely this is neither democracy nor the rule of law.”   

                                                            

18. But in India,  we have started looking  to the courts for solving all the problems of  administration.  Such an approach is immature.  Too much reliance on the courts will take us  nowhere.  There are several matters which the courts cannot solve or remedy.  Through the political process they have to be resolved.    Then what is political process?    Political process in this context means vigorous involvement of the people by way of public criticism of the legislative measures which are found to be oppressive or unconstitutional.   Our Constitution guarantees freedom of speech and expression, right to assemble peaceably and the right to form associations.  These rights form the foundation of freedom and liberty.  The uninhibited freedom to argue and discuss is an integral part of legislative processes of democracy.  By exercising the freedom of speech and communications,  the temporary majority enjoyed by certain views will be reduced to minority and this is considered to be a process essential to the very concept of democracy.  Professor Chafee commented that statutes, to be sound and effective, must be preceded by abundant printed and oral controversy.  Discussion is really legislation in the soft.  The US Supreme Court in Terminiello v. Chicago (93 L.Ed. 1131)) observed that free speech may best serve its high purpose when it induces  a condition of unrest,  creates dissatisfaction with conditions as they are, even  stirs people to anger.  Thus, citizens by alert exercise of their democratic rights can compel the Legislature to withdraw any law  or to amend it appropriately.  In India, political process has succeeded in removing the obnoxious portions of the 42nd Constitution Amendment Act 1976 by introducing 44th Constitution Amendment Act in 1978.  59th Amendment Act of 1988 suspending the fundamental rights under Article 21 in the State of Punjab, in the case of proclamation of emergency in that State,was repealed unanimously by the Parliament by Constitution 62nd Amendment  Act  in  1990.  When this highway of political  process is available for  modifying the legislations, it is undesirable and undemocratic to follow the labyrinthine by-lanes of judicial review to obtain similar results. The deleterious effect of judicial review on political process was highlighted felicitously  by Prof. Thayer.  He was of the firm opinion that judicial review “is always attended with a serious evil” of denying people of “the political experience and moral education and stimulus that comes from fighting out the question in the ordinary way, and correcting their own errors” and with the tendency “to dwarf the political capacity of the people and to deaden its sense of moral responsibility”. American Jurist Alexander Bickel highlighted the undemocratic character of judicial review in the following words: 

 

“Judicial review is a counter-majoritarian force in our  system,  since when  the Supreme Court declares  unconstitutional a legislative  Act or  the act  of an  elected  executive, it  thus thwarts  the will of  the  representatives of  the  people;  it  exercises  control, not on  behalf  of  the prevailing   majority, but against it”. Alexander Bickel’s ‘The Least Dangerous Branch". 

 

 19.  Liberty and other constitutional values can be sustained and saved if only they lie  in   the hearts of men and women.  Judge Billings Learned Hand said: 

 

“What do we mean when we say that first of all we seek liberty?  I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts.  These  are  false hopes;  believe me, these  are false hopes. Liberty lies in the hearts of men and women.  When it dies there, no constitution, no law, no court can save it.  No constitution, no law, no court can even do much  to help it.  While it lies there, it needs no constitution, no law, no court  to save it.

 

And   what  is  this  liberty which must lie in the hearts of men and women?  It is not the ruthless, the unbridled will.  It is not freedom to do as one likes.  That is the denial of liberty, and leads straight to its overthrow.   A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few; as we have learned to our sorrow. 

 

What then is the spirit of liberty?  I cannot define it; I can only tell you my own faith.  The spirit of liberty is the spirit which is not too sure that it is right.  The spirit of liberty is the spirit which seeks to understand the minds of other men and women.  The spirit of liberty is the spirit which weighs their interests alongside its own without bias.  The spirit of liberty remembers that not even a sparrow falls to earth unheeded.”  The learned Judge also cautioned: “A society, so riven, that the spirit of moderation is gone, no constitution can save; a society, where that spirit flourishes, no constitution needs save; a society, which evades its responsibility by thrusting upon the courts the nurture of that spirit, in the end, will perish”. 

 

20. The liberty and other ideals by which the Constitution stands can be realised only by educating the people on those values vigorously.  An enlightened citizenry  can resist all excesses from the Executive, Legislature and the Courts. Woodrow Wilson forewarned  “No more vital truth was  ever uttered than that freedom and free institutions cannot long be maintained by any people who do not understand the nature of their own government.”  The political process of educating the people will not generate the desired results, unless more and more young men of character and integrity join politics.  Some consider politics as a necessary evil.  It is easy to accuse that such views reflect total ignorance of constitutionalism.  But a little introspection will make us realise that  now politics has the appearance of a  haven of careerists and opportunists.  Many leaders fail to inspire confidence of the public.  Then what is the solution for this crisis?  The politics should be transformed into an area meant for the best persons in our society. We should discard the fallacy that gentlemen should shun politics.  We should persuade  the best among our children to join politics.  Every family should send the best child in it to work in politics.  It will be a real sacrifice for the child and the family.  Let him join any party of his choice. All honest people should be persuaded to actively participate in politics.  They should be taught that it is a patriotic  duty expected of them by the nation.  If the space meant for  gentlemen remains vacant for long, it will be occupied by undesirable persons.  That has already happened in politics.  The space encroached by such persons should be recaptured.  Now, it is fashionable to deride  politics and advise that gentlemen should keep away from it.  But we should realise that ‘politics is our substitute for civil war in a constant struggle between different conceptions of good and bad’.  If I may say so, discouraging good people from joining politics is an anti national activity.  Let us exhort all good people to join politics, so that they abound all political parties and consequently public funds will be safe in their hands, and freedom and liberty will endure for ever in our Republic.  Political work is a thankless job. Let our unstinted support encourage the good people  to join and continue in politics, in view of the great advantage derived by the nation from it. Let us also salute the honest men, who are working in politics braving hazardous conditions therein and are thereby strengthening constitutional democracy.  No nation will progress or even survive without the sacrifices of its sons and daughters.  The attitude that “everyone else should sacrifice, except me and my family” bodes ill for our country and it deprives us of our moral right to criticize politics or politicians. 

 

21. As an insider, I have tried to point out some of the shortcomings of the functioning of courts, but it does not mean that I do not realize the great role played by the courts in India for stabilising and strengthening  democracy, upholding the civil liberties of the people and running an efficient judicial system substantially free from corruption and other drawbacks.  India has stabilised into the largest democracy in the world and for the same, contribution of the judiciary was enormous.   But that does not mean their aberrations should not be criticised.    The judges should  be  firmly, albeit  respectfully,  told  that  they are subject to the principles that “Even the King is subject to Law and God” and “Be you never so high, the Law will be above you”.   Inherent in these words is the basic concept of Rule of Law.  Every order passed by the administrator should be shown to have strict legal pedigree when challenged before the court; otherwise, the order will be quashed.  Every judge passing an order remedying a failure of the administration should give clear reasons for the same, reflecting the constitutional/statutory pedigree for his order or the jurisprudential foundation for the same.  The usual words “I am of the view that” such an order should be passed will not pass muster.  It reminds us of the  orders passed by  Monarchs of yesteryears.                       

            

22. David Pannick Q.C. in his book ‘Judges’ said: 

“Some politicians, and a few jurists, urge that it is unwise or even  dangerous to tell the truth about the judiciary.Judge Jerome  Frank of the US Court of  Appeals sensibly explained that he had  little patience with, or respect for, that suggestion.  I am unable to  conceive........ that, in a  democracy, it can ever be unwise to  acquaint the public with  the truth  about the workings of any  branch of  government. It is wholly undemocratic to treat the  public as  children who are  unable to  accept the inescapable  shortcomings of man-made institutions ............The best way to   bring about the elimination of those shortcomings of our judicial  system which are capable of being   eliminated is to have all our citizens informed as to how that system now functions.It is a mistake,therefore, to try to establish and   maintain, through ignorance, public esteem for our courts.”        

                        

23. I conclude this speech by quoting the words of an eminent lawyer, Sri.T.R.Andhyarujina (Judicial Activism and Constitutional Democracy (1992).  

“Under no Constitution can the power of courts go far to  save the people from their own failure.  There are too many dangers to the judiciary itself from an omnipresent and  rescuing  judicial review.  In its own  interests the Indian judiciary may  sooner  or  later   have  to  propound a policy of  judicial   non- intervention in defined  areas. Such  a policy is not a sign of weakness or abdication by the judiciary but only a recognition the fact  that the  Constitution  did  not  make  the judiciary  a substitute for the failure of the other branches of government and  that judicial power has its limitations".

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 * Speech  delivered on 3rd December, 2011 at Kottayam, by Justice K.Balakrishnan Nair, Former Judge, High Court of
    Kerala and Chairman of Kerala Administrative Tribunal.