Some Thoughts Regarding the Meeting of A

 Client by A Budding Lawyer

(By N. Subramaniam Advocate, High Court of Kerala, Ernakulam)

1. Every beginner in the practice of law would experience a feeling of great fear and anxiety, when he thinks of meeting his clients at his office. His fear would be that, he might be asked his opinion upon law and facts, which he, the beginner, is not in a position to answer at the meeting. Anxiety would be more when the client narrates complex questions of fact and Law and seeks the budding lawyer’s opinion and remedy. This feeling is only natural and every lawyer will have that feeling at the beginning stage.

2. This natural fear is when suddenly the beginner is called upon to apply his theoretical knowledge to the practical affairs of life. The youngster would be hesitating to confess his ignorance. He feels hesitant to consult authorities in presence of client, and he may feel hesitant to ask the client to leave the papers and allow him to consider in a day or two. Perhaps, these may be equal to professional suicide. In the back ground of his hesitancy, he may give some opinion or remedy, only to find that his opinion and remedy is wrong. And the young lawyer may lose his clients by show of knowledge supported by authorities.

3. The first element of truth to be impressed upon the young lawyer in this connection is the fact that he cannot deceive the public into the belief that he is older or more experienced than he actually is. Every man of experience has a pretty good idea of what the law is so far as relates to ordinary affairs; there must be and there are men in every society and community who know more of certain branches of law than the average young lawyer. The clients, for example, bankers, builders, merchants, manufacturers and the like may be familiar with the law on their subjects. But they think that every lawyer, including a beginner, knows more than they do upon the subjects, when as a matter of fact, the lawyer undoubtedly knows less than those types of clients.  If such lawyer expresses any opinion immediately, perhaps, the result would be he would lose his client.

4.  It must be borne in mind that the first client of a young lawyer are the people who for some reason or other are interested in his welfare, and wish to help him; they are usually from among his friends or acquaintances, and employ him from a desire to give him a start in his profession and to encourage him if possible. He must appreciate the spirit in which they come, and if he does so, and divests himself of the idea that he must appear to have all the law at the tip of  his tongue, he will come through the ordeal of his early consultations with a fair amount of credit to himself.

5. The client goes to the lawyer for help and comfort; his property is in danger and he looks to the lawyer to save it, if he can, even sometimes by playing miracles, his affairs are tangled and in a generally unsatisfactory condition, and he wants sympathy, not sarcastic allusions to his past actions, he is looking for ability to straighten out his difficulties, and if he does not find what he seeks he will go elsewhere perhaps never to return again to the young lawyer. When such is the case, it is desirable and necessary for a young lawyer to treat his clients with kindness and affection; that he should beware of the sore and wounded places and refrain from doing or saying anything that will hurt or annoy one who is already tried almost beyond endurance.

6. There may be clients who get nervous upon hearing of a law suit that may destroy their peace of mind. With such clients a young lawyer should be very patient, he should seek to allay their excitement and point out the folly of worrying.

7. Needless to say that in order to become a sound advisor, a lawyer should be a good listener and should not impatiently cut him off in his narration.

8. By assuming the role of a listener the lawyer will have time to overcome his first feeling of nervousness and become cool and composed. This will enable him to more readily grasp the details as related by the client and very soon he will find that his mind begins to arrange these details in their correct relationship to each other.

9. When the client has completed his story, the lawyer should ask him to give the version of the other side, and by careful questioning he can ascertain from his own client facts and details which to him may seem unimportant, but which may have a controlling influence in the determination of a court. If the question presented is a simple one that can be answered without an examination of authorities well and good; but if it is at all involved, or if there is the slightest doubt it should be examined into so that the lawyer may be satisfied in his own mind of the correctness of his position before advising. If the question is one that can be settled by reference to a statute or reports in the office, the best plan is to settle it on the spot, but if it requires research and consideration the lawyer will be wise if, after taking full notes and questioning his client, and possibly others who were witnesses to the transaction, he takes sufficient time to enable him to give a sound opinion. 

10. There is a class of clients who want things done in a hurry, who wait until the last minute and then rush off to a lawyer and expect him to preserve their rights as effectively as though he had been employed sooner. Sometimes it can be done and the lawyer should always do the best he can under the circumstances, but he must not allow himself to be carried off his feet by the haste or impatience of his client, nor should he commence proceedings until he knows all the facts of the case and is satisfied that the client has a cause of action and that he has chosen the proper remedy. A lawyer may cause great mischief by hasty, ill-considered action for an impatient client and jeopardize his client’s right to a very serious extent. 

11. It is necessary, therefore, that the lawyer should first seek to win the confidence of his client and impress him with a feeling that he is acting for his/her interests in every way; he must strive to win his or her respect for his ability, so that she/he will be satisfied to rely upon him without taking her/his friends and relations into her/his confidence and appealing to them before accepting his advice. If he desires to retain her/him as a client he must be very patient and overlook many things which he would not tolerate in a man. If, however, he finds that he cannot win her/his entire confidence, or that she/he habitually acts contrary to the advice which he gives her/him, he will do well to suggest to her pleasantly but frankly that he must decline any longer to act for her. A lawyer cannot afford to be known as the legal adviser of a person who is constantly doing the wrong thing, presumably under his advice.

12. If their manner is natural and not assumed, the public may in time discover that there is a man with warm heart under the icy cloak, and come to recognize his ability notwithstanding his unfortunate manners and employ him in cases in which his abilities, rather than display, will have weight; but if the manner is assumed and persisted in, it indicates an empty head, a vast conceit, and the public will humour him by letting him severely alone.

13. Lawyer should study his client and try to understand his characteristics, so as to avoid doing or saying anything to offend the client.

14. If the client's work needs his immediate attention, then should be willing to put aside everything that will not suffer by so doing in order, that he may take the matter up. He should be ready to meet his client before or after officer hours. Night or day or Sundays and holidays whenever and wherever wanted, the lawyer should forego his pleasure and convenience, if the work of client demands it. Clients appreciate such lawyers and talk about it and the fame of the lawyer speech and his services becomes greatly in demand, which the man who will not so adjust, will soon find himself far back in the race for professional honour and emoluments.

The writer, who is a novice in law, would be happy if 10 out of 100 get inspiration and guidance from this article.

Impeachment of Justice Sen Unconstitutional -- 
Sets A Bad Precedent with Serious Consequences

(By Sivan Madathil, Advocate, High Court of Kerala)

After Independence of India, former Judge of Calcutta High Court, Sri. Soumitra Sen has been the second person facing impeachment proceedings by Parliament for ‘proved misbehavior’. During 1991, former Judge of Supreme Court, Sri.V. Ramaswamy, though faced impeachment proceedings before Lok Sabha, since the members of Congress party refrained from voting, the motion was not passed. However on the allegations of corruption he was forced to resign. Similarly, during 1995, the former Chief Justice of Bombay High Court, Sri. A.M.Bhattacharjee was forced to resign on allegations of corruption before facing impeachment. The impeachment proceeding adopted by the Rajya Sabha in Sri.Sen’s case has evoked legal and constitutional issues causing not only serious repercussions in the Judiciary but also in the faith of public in the Indian Legal system especially the higher end of Judiciary.

From the close reading of the entire issue of initiating action against Sri.Sen, three major issues arise which are of much significance. The first one is the manner in which the in-house enquiry was ordered and sending of letter to the Prime Minister of India for initiating impeachment proceedings against Sri.Sen by the former Chief Justice of India, Sri. Justice K.G.Balakrishnan. Further, the motion adopted and the impeachment proceedings by the Upper House needs to be scrutinized in detail on their legal and constitutional bearing. If there is any allegation against a sitting judge of both High Court and Supreme Court, the Chief Justice of India can and needs to order in-house enquiry by constituting appropriate committee. But the issue of a letter to the Prime Minister by the Chief Justice of India is unheard of and has no legal bearing. Further, the reasons that really prompted the Sri. Justice K.G.Balakrishnan to initiate the action against Sri.Sen for his alleged misbehavior needs introspection especially when there were serious allegations against other members of the higher judiciary far greater than that against Sri.Sen in the light of the discussions in the media and among public. This gains significance in the light of the fact that no allegations of misbehavior was leveled against Sri. Sen while he was discharging duties as a Judge of the Calcutta High Court. The allegation of misbehavior that prevailed was during his career as a lawyer prior to his elevation as a Judge. If that be so, the action to be initiated was under the Advocates Act by the Bar Council or under the Criminal Justice System.

Further, during the selection of Judges’ panel by the Calcutta High Court Collegium and thereafter affirming this selection by the collegium of the Supreme Court and the final authority confirming the selection and appointing Sri. Sen as a Judge by the then Hon’ble  President of India,  the moral and constitutional responsibility lie  on  their shoulders in elevating Sri.Sen as a judge. Such selection was to be done considering every aspects and antecedents of Sri.Sen as a candidate and failing to do so is a failure in the selection process. The Collegium having recommended his appointment after due enquiry and the President of India having consented his appointment, an estoppel operates against raising any allegation of misbehavior prior to the appointment as a judge.

The next serious issue that requires anxious consideration is the manner in which the motion was adopted and the impeachment proceedings were initiated by the Rajya Sabha. From the reading of the related constitutional provisions viz., Art 124(5) which specifically stipulates that “Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehavior or incapacity of a judge under Clause (4)”. According to this provision, two procedures are to be regulated by law by the Parliament. It is evident that the Judges (Inquiry) Act, 1968 is the Act regulated by the parliament for the above two procedures. Though the act regulated the procedure for investigation and proof of misbehavior or incapacity of a judge, the act is silent on the procedure for presentation of an address by both Houses. It may be noted that the relevant Sevtion  6 (2) & (3) of the Act just states that ‘motion adopted by each house of parliament in accordance with the provisions of Cl. (4) of Art.124 -- And an address praying for the removal of the judge shall be presented in the prescribed manner... ‘. But regarding the manner in which the motion is to be adopted and address to be presented on the report of ‘proved misbehavior’, the Act remains silent. Further Art.118 of the Constitution contemplates the rules of procedure which says “Each House of Parliament may make rules for regulating, subject to the provisions of this Constitution, its procedure and the conduct of its business."

On going through the parliamentary procedure/Rules for regulating its procedure and conduct of its business, there is no provision specifically provided for removal/impeachment of a judge in case of proved misbehavior or incapacity. The removal of a judge does not come under the category ‘Conduct of its business’. The parliament has to, by law, make specific provision for the procedure for passing of the motion for removal or impeachment, which is a Constitutional obligation as demanded by Art. 124(5) of the Constitution.

When the report of the committee was placed before the Rajya Sabha on 17.8.2011, the house in fact adopted the procedure for usual conduct of its business. The persons who spoke on the occasion including Sri. Sitaram Yechury, who moved the motion, Sri. Arun Jaitley and Sri.Ram Jethmelani attempted to criticize the judiciary expressing their opinion in general about the judges’ conduct and behavior and the need and necessity for establishing the judicial commission. Even the legal luminary Sri.Ram Jethmelani , made a specific statement that this occasion in making the judiciary realize that the   parliament is supreme should not be wasted.   Some of the members criticized the mode of appointment of judges based on Collegiums. All these discussions amount to scandalizing of judiciary and judicial process which is barred under Art. 121 of the Constitution. The constitution has drawn a clear ‘Lakshman Rekha’ that the debate in Parliament should not be discussed by the judiciary and similarly the judges conduct and proceedings should not discussed inside the Parliament except regarding impeachment of the judge concerned based on the report of proved misbehavior. On the contrary, during the impeachment proceedings, the merits of the report were not independently discussed or appreciated by the members.

When the motion is adopted and the Report is already submitted before each member of the House, the members ought to have formed an opinion, as a juristic person, on whether the report of ‘proved misbehavior’ is to be accepted or not. Mere report of the committee on proved misbehavior or incapacity is just one part of the procedure which should be culminated with passing of the motion on appreciation of the report by each member of the House and the majority should judiciously opine by applying their mind independently without any political or any other bias. But this did not happen and the motion was made on political considerations based on partisan politics which is not recognized by the constitution and this was not contemplated by Art. 124(5) & (4) of the constitution.

In the matter relating to questioning the impeachment of Sri. V.Ramaswamy, former Judge of Supreme Court, the Supreme Court clearly observed that once the report of proved misbehavior is submitted before the House for consideration for removal of a judge, each member of the House becomes a Juristic person. Ignorance of Law or language impediment or lack of competency to understand the report on the part of the members are not reasons for waiving the constitutional obligation of Members. More so, since removal of a judge without proper procedure causes serious prejudice to the personal/official life of the judge concerned and also causes serious repercussions and far reaching consequences to the judicial fraternity. More over this improper execution of a constitutional obligation without adopting a proper procedure by law in accordance with Art.124(5) of the Constitution sets a bad precedent seriously affecting the independence of judiciary enshrined in the Constitution. Apart from general criticism and personal observations on Judiciary with no relevance to the findings of the report, what has happened inside Rajya Sabha for passing the motion was just pressing the green light as consent for impeachment, which by no stretch of imagination would have been the procedure contemplated for removal of a judge, a constitutional functionary, by the great framers of our Constitution.

The trial of the judge before the parliament is a quasi judicial procedure which requires fairness, due process and application of principles of Natural Justice. During the submission of Sri.Sen before the house, serious allegations of corruption were raised by him against other judges in the higher judiciary with special reference to the former Chief Justice of India for defending his case. The House, instead of taking serious note of these allegations made by a constitutional functionary, just discarded these statements as emotional outbursts of an Accused. The Chairman of the Rajya Sabha, prior to his submission had dictated the time limit and after his submission, directed Sri.Sen to leave the House. In his absence, the House plunged into the discussion making serious allegations against him without any reference to the merit of the findings of the committee or his submissions before the House. Thus he was denied opportunity to submit his version in reply.

As a part of procedure, Sri.Sen was invited to make his submissions before the House which was actually a submission of his defense before each member present in the House. Only on such presence, the members could have understood his expressions and body language which were part of his submissions and was necessary for proper appreciation. If otherwise, the house could have just asked for sending his note of defense in writing. However, unfortunately, he addressed the members of the House from the extreme rear end of House and not facing them. For the sake of argument, it may be contented that his address was to the Chairman of the House. But in-fact the address was before the entire House and each member of the House was part of the jury. Such arrangement for addressing the House by the Judge concerned in the proceeding was not only a mockery of the procedure but also undermining the status of a person holding a Constitutional Position and in degradation of status of Indian Judiciary.

The provisions as per Constitution as well as Judges (Inquiry) Act, 1968 to establish the allegations of misbehavior or incapacity, are fundamentally meant to be on allegations during discharge of his duties as a Judge. That is what the Constitution and Law contemplates. Once a person was elevated to the Constitutional position of a judge, any allegation prior to the elevation has no relevance in the eyes of law and is estopped in making such allegations. This was the position taken by the Hon’ble Supreme Court of India when the elevation of Justice K.G. Balakrishnan was challenged. At this juncture, it may be noted that even Justice V.R.Krishna Iyer, a legal luminary and an icon in the Indian Judicary, through the media, has also affirmed that the alleged misbehavior as a lawyer could not be a ground for removal of a judge. In furtherance to all these, the committee has no case that Sri.Sen has committed any misbehavior while discharging his duties as a judge of the High Court. The procedure adopted by the House is just an empty formality with larger consequences.

The impeachment recommended by Rajya Sabha was communicated to the Lok Sabha and before initiation of proceeding by Lok Sabha, Sri. Sen has submitted his resignation to the President of India. The reason cited by Sri. Sen for his resignation is that he does not expect justice from the Parliament. To a great extent, this belief is justified due to his experience before the Rajya Sabha. Now, taking note of his resignation and its acceptance by the President of India, the Lok Sabha has dropped further proceedings before the House in the matter of impeachment. In the absence of any prescribed manner for impeachment proceeding before parliament for considering the report of ‘proved misbehavior’ as stated above, it is only to believed that the proceedings if any had been initiated by the Lok Sabha would also have had the same fate as in Rajya Sabha.

From the above observations, it is clear that the entire action of the Houses of Parliament is in non-compliance of the legal and constitutional mandate. Apart from the decision of inquiry and sending letter to Prime Minister recommending proceedings for impeachment by the former Chief Justice and the entire procedure adopted by the House in the issue of impeachment have to, be subjected to strict judicial review more so in the light of far reaching consequences on the independence of Judiciary and since the above crucial issues were not occasioned to be considered by the Supreme Court in any of the cases regarding removal of Judges on the question of Impeachment.

My Sorrow over "The Last Page"

(By R.P. Remesan, Advocate, Kannur)

The first page in the Part 1, 2011 (2) KLT bears the title “The Last Page”. When I finished it in a single sitting, I felt for a moment, as if it were my last breath.

Among the many, I am a devotee of you. None of the articles you have written and I came across were ‘passed over’ for reading even for an hour. I am inspired from the articles as if those are the pages from a Holy book. The same enthusiasm that I felt decades ago while reading from the articles is still filled within me.

The article “the last page” is not a page from the Holy book. It has nothing to quench the thirst of any reader of you. Instead it threatens them that they should suffer the days ahead without any consoling words and guidelines from your pen and tongue.

Your inimitable talancy and skill made you as an outstanding lawyer for all the time. The legal profession is a “difficult terrain”, as you said once, but it was so easy for you. The walls of the High Court of Kerala also will speak about your charismatic handling of complicated questions of law. The furniture in the court hall may crackle when the citations of precedents came out of your tongue without any aid of notes. The articles that you have written are the examples of your deep knowledge and unbeatable courage. You are skilled to write without verbal pomposity and circumlocution which you lamented in “Judicial Prose” ((1976 KLT Journal Page 61).). When you said “ the noblest profession has now become the sorriest of trades, going fast forward, from zero to zero” (Quo Vadis Legal Profession : 1999 (1) KLT Journal Page 4.) the readers found in themselves the elements of decaying factor. There is no one to sit near you and chances of getting such kind of articles and speeches which compel us to assimilate the saga of wisdom are remote. Let me choose your own sentence with modification ‘search for another personality like you, would certainly be elusive (A Testament to Towering Judge : Justice P.T.Raman Nayar: 2001 (2) KLT Journal Page 1.).

The articles that you have written are to be obeyed and followed by the legal fraternity. In the article “Judicial Over Speed” (1980 KLT Journal Page 71.) you have pointed out the absurdity of listing system and disposal mania of the presiding officers. But Alas!, who cares!, the system acquired more speed. Contra to this the article “Once a Justice always a Justice?”(2000 (3) KLT Journal Page 84) is seen accepted by the persons among the class and I couldn’t see any of the former judges using the prefix “Justice”. When you said “a judge is only the second incarnation of a lawyer with a conferred Constitutional status for a limited period, which brings honour, not immunity” it became the more suitable definition for the word judge (Cry Noble Profession : 2001 (3) KLT Journal Page 12.).

The fledgling lawyers of all time guided by you with your mesmeric elocution and chronicles. Though the spirit of words are not followed very strictly it is the torch light in the pitch darkness. The light should continue to shine. The stunning comments that you have made in the article “Choosing God’s Middleman” that “The bar being the feeder category of the judiciary, also needs up gradation, especially when solo law practice is the order of the day; and nobody works as a junior under a senior for the tariff period. If this be the state of affairs, we should be prepared to face a judicial earthquake" will prick all hearts (2001 (2) KLT Journal page 23.).

You have taken a wand to guide the judges. The articles in which you have showed anguish over the conduct of the judges are many and it gave courage to my community. “Judge not the crusader, but the cause (1979 KLT Journal Page 100.). When you have expressed your anxiety posing a question “Quo Vadis Mandamus” you have reminded the judges about the practice of issuing of mandamus in reticent vocabulary (2001 (2) KLT Journal Page 57.). Your courage to say the truth openly and frankly influenced the persons like me heavily. You are brave enough to say that naming CHIEF JUSTICE OF KERALA is unconstitutional (1981 KLT Journal Page 15.). You have reminded a Judge who indulged in verbal exuberance and complexities that “a judge should discipline his words to the purpose of decision, and not indulge in exaggerated violence and pathos (1981 KLT Journal Page 63.). My admiration went up when I read “the quality of the Judges has been dwindling slowly” (Nambiar Second Miscellany p.62.) and “the Bar’s affection is precious judicial assets for a Judge. (Nambiar Third Miscellany, p. 66.)”

Sir, it is your privilege to stop or continue academic exercise and I have no right to say anything over it, but still I think that “the last page” is not an article to be read while the author is alive and capable of rendering wisdom. Missing of a doyan lawyer who exhorts us to become Karmayogi lawyers is unendurable.

Judicial Activism -- Walking on the Razor's Edge

(By A.K. Jayasankaran Nambiar, Senior Advocate, High Court of Kerala)

In a recent judgment (G.V.K. Industries v. I.T.O.– 2011 (2) KLT SN 2 (C.No.2) SC = (2011) 4 SCC 36), a Constitutional Bench of the Hon’ble Supreme Court observed as follows:

“ Our Constitution charges the various organs of the State with affirmative responsibilities of protecting the interests of the welfare of and the security of the nation...powers are granted to enable the accomplishment of the goals of the nation. The powers of judicial review are granted in order to ensure that such power is being used within the bounds specified in the Constitution. Consequently, it is imperative that the powers so granted to various organs of the State are not restricted impermissibly by judicial fiat such that it leads to inabilities of the organs of the government in discharging their constitutional responsibilities. Powers that have been granted, and implied by and borne by the Constitutional text have to be perforce admitted. Nevertheless, the very essence of constitutionalism is also that no organ of the State may arrogate to itself powers beyond what is specified in the Constitution. Walking on that razors edge is the duty of the judiciary. Judicial restraint is necessary in dealing with the powers of another coordinate branch of the Government; but restraint cannot imply abdication of the responsibility of walking on that edge.”

Instances are not few where Judges in our country have thought it fit to walk on that edge and correct executive/legislative action so as to bring it in line with the Constitutional text. Their choice of positive action, as against the traditional restraint, in situations where it was deemed necessary, has acquired the rather exaggerated label of “judicial activism”. Judicial activism in a democracy is a legally sophisticated way of saying that a Judge has just done what the legislature or executive ought to have done. It was born out of a necessity to provide relief to citizens who, in a democracy, were exasperated with the inefficiency of a legislature or an executive body. The justification for this sort of transgression into the realm of legislative or executive action is often found in the expression “Well, somebody had to do it !”

The need for action by someone does not, however, justify the conferring of unbridled powers on any particular organ, especially the judiciary, to act in such situations. The opposition to judicial activism - in its unbridled form - is both vehement and historic. The proposition that, in a democratic set up, Judges should be left to legislate on matters, as yet untouched by the legislature, was considered as “nonsense upon stilts” by Jeremy Bentham. This sentiment hasn’t changed in the last half century and understandably so, for no form of governance, that is built up on a system of checks and balances between the various organs that constitute it, can readily accept a proposal that cuts at the very core of the system. “All would be lost”, wrote Montesquieu, “if the same man or the same body of principal men, either of nobles, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals. (Spirit of the Laws (1750))”.

Judges, the argument goes, are not elected representatives of the people and hence their views cannot represent the views of the people. They are people trained in law and legal interpretation and their opinions ought to be confined to issues involving an interpretation of the law enacted by the legislative body. Inherent in this argument is the recognition that the laws that govern a society are ultimately a set of rules that owe their existence to an acceptance of them by a majority of those governed. It is this recognition that led Sir Paul Vinogradoff to define law as “a set of rules imposed and enforced by a society with regard to the attribution and exercise of power over persons and things (Common  Sense  in  Law;  Second  Edn. P.44)”. Laws cannot exist or be validly enforced if a majority of those that are governed by them do not see them as necessary for peaceful coexistence within the society. This is why the preamble of the Constitution of India - our grundnorm - uses the words “ We the people of India give to ourselves this Constitution”.                                                                                                                  (emphasis supplied).

The legislature being comprised of elected representatives of the people, a law enacted by such a body is presumed to have the consent of the people. But is this necessarily the case? Can we really say that all our laws accord with what the majority really believes should be the law? Do our legislators really ascertain the views of the people before enacting laws? And what happens if our legislators do not enact a much-needed law? Over the years we have seen legislators let us down, and the executive not live up to the expectations of the people. Judicial intervention was necessitated to address these issues and, in so intervening, the judiciary was not being overly “active” but simply exercising its role as the guardian of the constitutional rights of citizens - the sentinel on the qui vive. However, in exercising their duties, Judges are not to act in accordance with their perception of the needs of the society for they do not possess the expertise or the means of gathering information as regards the needs of the society. Even if they do get the required information, can we afford to entrust the fate of our society to the perceptions of a couple of persons? The answer must certainly be in the negative.

In practice, Judges mostly decide issues that arise in connection with individual rights - be it against the State, another individual or some other legal entity. These cases bring to the fore issues that are relevant for resolving particular conflicts. They seldom involve an issue that affects the society as a whole or one that requires a balancing of the interests of various sections of the society. It is these latter kind of issues that go into the making of a law for the society as a whole. It might be argued that such issues do get debated in courts when public interest litigations are considered. In practice, however, such instances are rare. The guidelines laid down by the Supreme Court in relation to entertainment of public interest litigations are indicative of the problems that were faced, and are still being faced, by the courts in identifying the genuine from among a multitude of petitions that are filed as public interest litigations. One can safely conclude, therefore, that law making for a society should not be left solely to the judiciary either.

The principle of separation of powers, though not in the strict sense advocated by Montesquieu in the 18th Century, offers a solution to the myriad of problems that we face today. When read with the allied concept of checks and balances, it urges the various organs of Government to adopt an attitude of self restraint in their functioning while, at the same time, checking the excesses, if any, of the other organs. The power of judicial review is an exception to the principle of separation of powers and it postulates that, in the event of a dispute as to whether the legislature or the executive has overstepped its constitutional bounds, the judiciary shall decide the dispute by application of well established constitutional doctrines and principles of interpretation. The judiciary cannot be overly active or annoyingly inactive while dealing with a situation of either legislative inaction or legislative excess. A balance, therefore, has to be struck by the judiciary while deciding on its course of “activism”.

Supporters of the conservative approach view judicial restraint as a kind of “activism” in itself. There is a conscious decision not to act. Judicial restraint in its traditional sense views law as a logical, closed system, detached from particular historical, social and cultural circumstances; the law as comprised of a system of rules, including rules established for the purpose of fact-determination. The subjective social policy preferences of a Judge have no role to play in such a decision making process. Judicial enthusiasm, to such persons, spells danger. An eminent Judge of our Supreme Court opined, in 2005, that “tradition and good sense demand that, irrespective of the political debate around, the Judge maintains a neutral stance in his decision making, being guided only by accepted legal principles and the dictates of his conscience. The Judge being human, the social ambience in which he operates is likely to affect his judgment, but the extent to which he disallows this to happen determines his mettle”. He went on to state “indeed nothing can be more headier than the power to invalidate another constitutional organ’s action. Such great power must of necessity bring in its wake great responsibility. The problem with judicial activism is its proclivity for excessive and legally improper use of this very great power to invalidate arguably lawful and proper legislative or executive actions. In fact, history abounds with instances where overactive Judges have jettisoned well-established principles to produce incongruous results, which they honestly thought were necessary, even if democratically elected legislatures or executive thought otherwise (“Skinning a Cat” by Justice B. N. Srikrishna - 2005 (8) SCC (J) 3)”.

The “bold spirits”, on the other hand, would state that if judicial activism is to offer a solution to the particular problems highlighted above, it must be founded on the notion that the essence of legal life lies in reality rather than logic and the realisation that the object of the law is to outline policies which will serve to resolve social conflicts. Judges working under a Constitution, that upholds the Rule of Law in a society, can play an “active role” in curing legislative inaction or curbing legislative excesses. Active interpretation of the letter of the law, to encompass within its meaning rights or obligations, not expressly stated but which can be implied in the light of the existing policy, is viewed as judicial creativity and innovation. The judiciary acts in situations that call for imagination and creativity to appropriately mould the law to do justice to one and all and to balance the rights of competing individuals.

How then is the balance to be struck? In Re Spectrum Plus Ltd, Lord Nicholls of Birkenhead observed that courts exercise the “legitimate law-making function of keeping the common law abreast of current social conditions and expectations ((2005) 2 AC 680 @ p. 697 C-F.)”. In the Indian context, this would mean that while discharging its dual functions of curing legislative inaction and curbing legislative excess, judicial activism must ensure that, when the legislature fails to enact a much-needed legislation, the judiciary steps in - but only temporarily - to provide a law that would hold the field until the legislature comes out with a comprehensive law on the said subject. The “activism” of the judiciary would then have the effect of providing the required “nudge” to the legislative and executive bodies to act promptly to address citizen’s needs, and nothing more. Judge made law would be viewed as merely “provisional” and pending affirmative action by the other organs of Government. This, for instance, was what the Supreme Court did in the case of Visakha & Ors. v. State of Rajasthan & Ors (1997 (2) KLT SN 72 (C.No.72) SC = JT (1997) 7 SC 384.).while laying down guidelines to deal with sexual harassment of women at their workplace. A more recent example of such activism was seen in the case of Aruna Ramachandra Shanbaug v. Union of India & Ors.(2011 (3) KLT SN 26 (C.No.30) SC = (2011) 4 SCC 454.), which explored the scope and ambit of a citizen’s right to die.

When dealing with a situation of legislative excess, on the other hand, judicial activism should ensure, through a process of purposive interpretation, that the law made by the legislature does not transgress the boundaries set by the Constitution and is brought in line with the social object that it seeks to achieve. Such intervention would, apart from preventing unintended consequences, also ensure a change in the attitude of the lawmakers who would be mindful of possible judicial intervention while enacting a law. That this is the current thinking in our country is apparent from the observations of the Supreme Court in a recent case where it said “It must be understood that while a statute is made by the peoples’ elected representatives, the Constitution too is a document which has been created by the people (as is evident from the preamble). The courts are guardians of the rights and liberties of the citizens, and they will be failing in their responsibility if they abdicate this solemn duty towards the citizens. For this, they may sometimes have to declare the act of the executive or the legislature as unconstitutional (Govt. of A.P v. P. Laxmi Devi - 2008 (2) KLT SN 13 (C.No.13) SC = (2008) 4 SCC 720 @753)”.

It is apparent, therefore, that while an “active” judiciary is both necessary as well as desirable to ensure a proper system of governance, “activism” cannot justify an unwise encroachment into the domain of the executive or the legislature. In my view, due caution must be exercised by the judiciary while interfering with laws enacted by the legislative bodies and interference ought to be limited to cases where the civil liberties and fundamental rights of the citizens are at stake.