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Judicial Activism in IndiaChief Justice P.N. BhagwatiLast fall the Law School was honored bya visit (rom Indian Chiefjustice Praiulla-chand Natwarlal Bhagwati. JusticeBhagwati came as the guest of Prof MarcGalanter, himself an expert on Indian lawand a consultant to the Indian governmentin the Bhopal disaster. Bhagwati is the 17thchief justice of the Indian Supreme court,and follows his father as a justice ofthat court.

India Today called Bhagwati, '~con-scious disciple of Felix Frankfurter, LearnedHand and the whole galaxy of activistjudges who helped fight color bar and segre-gation laws in the US. during the 30's." Inthis article, adapted (rom a speech he gavewhile here, Justice Bhagwati discusses hisconcept of judicial activism, with its impli-cations for this country as well as India.

I have the privilege to speak to you onthe subject of judicial activism in India.This subject is very fascinating and itsdimensions are so large that it is not pos-sible to cover them within the short timethat is available to me. But I shall try toplace a few aspects of it before you todemonstrate how through activism we inIndia have developed our human rightsjurisprudence and brought help and suc-cor to the masses of people in the coun-try. Let me first of all make clear what Imean by judicial activism and why judi-cial activism is necessary in a countrylike India.

One basic and fundamental questionthat confronts every democracy, run by arule of law is, what is the role or functionof a judge. Is it the function of a judgemerely to declare law as it exists-or tomake law? And this question is veryimportant, for on it depends the scope ofjudicial activism. The anglo-saxon tradi-tion persists in the assertion that a judgedoes not make law; he merely interprets.Law is existing and eminent; the judgemerely finds it. He merely reflects whatthe legislature has said. This is the photo-graphic theory of the judicial function. It

has long held the field in England and itsmost vigorous exposition is to be foundin a speech made by Lord ChancellorJowett at the Australian Law Conventionwhere he said, "The function of a judgeis merely to find the law as it is. The law-making function does not belong to him,it belongs to the legislature."

This judicial view, I'm afraid, hidesthe truth of the judicial process. This the-ory has been evolved in order to insulatejudges against vulnerability to public crit-icism and to preserve their image of neu-trality, which is regarded as necessary forenhancing their credibility. It also helpsjudges to escape accountability for whatthey decide. They can plead helplessnessby saying that it is a law made by the leg-islature and they have no choice but togive effect to it. The tradition of the lawand the craft of jurisprudence offers suchjudges plenty of dignified exits from theagony of self-conscious wielding ofpower. And hence the incredibly persist-ent attempt on the part of lawyers andjudges to convince the people about thetruth of the lie that judges do not makelaw. There can be no doubt that judgesdo take part in the law making process,

And even some judges have now openlyavowed their creative role. Lord Reid, agreat English judge said, "There was atime when it was thought almost inde-cent to suggest that judges make law;they only declare it. Those with a tastefor fairy tales seem to think that in someAladdin's cave there is hidden a commonlaw in all its splendor and that on ajudge's appointment there descends onhim knowledge of the magic words,

It is for the judge to give meaningto what the legislature has said andit is this process of interpretationwhich constitutes the most creativeand thrilling function of a judge.

'Open Sesame'. Bad decisions are givenwhen the judge has muddled the pass-word and the wrong door opens. But wedo not believe in fairy tales anymore."

Lord Reid considered that in a demo-cratic society the legitimacy of judiciallawmaking had to be faced. He did not

agree with Lord Radcliff's solution ofpublicly denying one's creativity whileprivately exercising it-what he calledthe facade approach. He asserted in afamous address, "We must accept thefact that for better or worse judges domake law and tackle the question how dothey approach the task and how shouldthey approach it." Lord Denning alsoremonstrated that judges cannot afford tobe timorous souls. They cannot remainimpotent, incapable and sterile in theface of injustice. The same view, I believehas prevailed in your country where afrank and ruthless analysis of the judicialfunction and its lawmaking potentialhave been acknowledged and recognized.It is no doubt true that a judge has tointerpret the law according to the wordsused by the legislature. But as pointedout by Justice Holmes, a word is not a

The judge infuses life and bloodinto the dry skeleton provided bythe legislature and creates a livingorganism appropriate and adequateto meet the needs of the society.

crystal, transparent and unchanged. It isa skin of a living thought and may varygreatly in color and content according tothe circumstances and the time in whichit is used. It is for the judge to give mean-ing to what the legislature has said and itis this process of interpretation whichconstitutes the most creative and thrillingfunction of a judge. Plato posed the prob-lem 2,000 years ago: Is it more advanta-geous to be subject to the best men or thebest laws? He answers by saying thatlaws are by definition general rules andgenerality falters before complexities oflife. Laws' generality and rigidity are atbest a makeshift, far inferior to the dis-cretion of the philosopher king whosepure wisdom will render real justice bygiving each man his due. Aristotle was,however, in favor of the rule of the law.He said, "He who bids the law's rule bidsGod and reason rule, but he who bidsman's rule adds the element of the beast,for desire is a wild beast and passion per-verts the minds of rulers even thoughthey be the best of men."

YetAristotle and Plato knew that lawcannot anticipate the endless permuta-tions of circumstance and situation.There is bound to be a gap between thegeneralities of law and the specifics oflife. This gap in our system of administra-tion of justice is filled by the judge. Inentrusting this task to the judge we havesynthesized the wisdom of Plato andAristotle. It is here that the judge takes

part in the process of lawmaking. Law-making is an inherent and inevitable partof the judicial process. The judge infuseslife and blood into the dry skeleton pro-vided by the legislature and creates a liv-ing organism appropriate and adequateto meet the needs of the society. By thusmaking and molding the law he takespart in the work of creation. The judge isnot a mimic. Greatness of the bench liesin creativity. It is for this reason thatwhen a law comes before a judge he hasto invest it with meaning and content.

There are cases where a decision oneway or the other will count for thefuture, will advance or retard sometimesmuch, sometimes little, the developmentof the law in a proper direction. It is inthese types of cases where the judge is toleap into the heart of legal darkness,where the lamps of precedent and com-mon law principles flicker and fade, thatthe judge gets an opportunity to mold thelaw and to give it its shape and direction.This is what we have been trying to doin India.

Once it is recognized that the judgesdo make law, though not in the samemanner as the legislature, it will immedi-ately become apparent why judges canand should adopt an activist approach.There is no need for judges to feel shy orapologetic about the law creating roles.The Supreme Court of India has beenperforming this role in the last 7 or 8years by wielding judicial power in amanner unprecedented in its history ofover 30 years.

There is no need for judges to feelshy or apologetic about the lawcreating roles.

The courts in India have been activein other ways as well. We also started thelegal aid movement. We said that thisprogram by itself would not be enough toassist our people, so we developed cer-tain strategies: the first was encouragedlegal awareness. Then we organized legalaid camps. We would take lawyers to therural areas, invite the people to comewith their problems, and the lawyerswould advise them, try to solve their dif-ficulties. Wewould also take the govern-ment officials with us because someproblems related to administration. Weadded to that another dimension, whatwe have been calling Lok Adalat, whichare voluntary mediation agencies. Theselawyers, retired judges, and social activ-ists would take cases pending in the low-est courts and attempt to secure a settle-ment. Even those cases which have notcome to court also would be mediated. In

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The Supreme Court has developeda new normative regime of rightsand insisted that a state cannot actarbitrarily but must act reasonablyand in public interest on pain of itsaction being invalidated by judicialintervention.

the last two years we have settled morethan 10,000 cases and this movement isgrowing fast. Practically every fortnight ateam goes to a place where a lowest courtis situated, to bring about settlement ofdisputes.

We have also fostered the develop-ment of social-action groups. We startedorganizing them, providing them assis-tance in the shape of funds, the shape oflawyers and under the auspices of mycommittee they started holding campusfor training social activists as paralegalsso that they may provide first-aid in lawin the rural areas.

Lastly we developed the strategy ofpublic interest litigation. This litigationis of a slightly different character thanyours and that is why some jurists inIndia prefer to call it social action litiga-tion. We felt that even if we had all theselegal aid offices it would not be possiblefor the poor people to afford the courtsfor justice. Therefore we sought the waysand means by which we can provideaccess to justice to the poor and under-privileged segment of society. One majorimpediment in the way of access to jus-tice for the poor was the doctrine ofstanding. It requires that only a person towhom a legal wrong is done can seekjudicial redress. So in one seminal deci-sion we took the view that where a legalwrong is done to a person or class of per-sons who, by reason of poverty, disabil-ity, socially or economically disadvan-taged position, cannot approach a courtof law for justice, any member of thepublic or any social action group can ini-tiate an action in the high court or thesupreme court for vindicating the rightsof the underprivileged. That is how webroadened access to justice. The resultwas a large number of cases coming tothe court. We also said in appropriatecases they can move the court by justaddressing a letter to the court. Thusdeveloped what was now come to beknown as epistolary jurisdiction, jurisdic-tion which is invoked by writing epistlesto a court. Of course the parameters ofthis jurisdiction have been laid down: itcan be only on behalf of a person in cus-tody or on behalf of a class of personswho cannot approach the court on the

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In the last few years the SupremeCourt has, through intense judicialactivism, become a symbol ofhope for the people of India.

account of their poverty or under-privileged position.

Once the portals of the court werethrown open to the poor and under-privileged, large numbers of cases startedcoming. Social action groups, professorsof law, journalists, social scientists, allstarted moving the court and investiga-tive journalism played a very vital role.Investigative journalism now exposeswhat I call governmental repression,administrative deviance and exploitationby vested interests. So on the basis ofreports of investigative journalism peoplestarted approaching the courts and westarted entertaining letters and petitionsfor redressing the wrongs that had beendone to the underprivileged segments ofsociety. We had cases relating to bondedlaborers, landless peasants fighting forminimum wages, women in distress,juveniles in jails, and a host of other dis-advantaged people. These are class prob-lems-the problem of poor are basicallydifferent from the problems that so farhave been resolved by the courts. Theyare qualitatively different and the lawyer-ing skills required was also of a differentkind.

Another difficulty was how to produceevidence for these persons. Under theadversary system of justice both sides

produce their evidence and the judge sitslike an umpire and decides. Under ouranglo-saxon system, he does not take partin the process of data and fact collection,but doing so just would not work. Sowemade a departure from the adversary sys-tem and we have started appointing com-missioners for the purpose of investigat-ing and making reports to the court.Copies of their reports are given to bothsides and they are asked to make theirsubmissions, file their affadavits and thecourt will decide. Next we faced theproblem of what remedies to be given.The ordinary remedy of Writs of Cer-tiorari and Prohibition would not help.Sowe developed a wide ranging reper-toire of remedies which would help tosolve the problems of these people.Finally, we needed to develop monitoringmechanisms for the purpose of seeingthat our orders are implemented. Veryoften a social action group which has ini-tiated an action will try to see that ordersare implemented. Sometimes they set upmonitoring mechanisms. Sometimes weinstruct an officer of the government togo and find out what had happened andreport to the court. If the orders are notcarried out the court will take contemptproceedings. This is how, gradually, wehave been trying to develop social actionlitigation in India, and large numbers ofpeople are getting the benefit. Sometimesone action may result in granting of bene-fits to a thousand people, sometimes fif-teen hundred and so on.

Youthus see that the Supreme Courtof India has expanded the frontiers offundamental rights and of natural justice.In the process it has rewritten some parts

of the constitution. The right to life andpersonal liberty and the procedure estab-lished by law has been converted de factoand de jure into a procedural due processclause contrary to the intent of the mak-ers of the constitution. This expandingright has encompassed, within itself, theright to bail, the right to a speedy trial,immunity against cruel and unusual pun-ishment, the right to dignified treatmentin custodial institutions, the right to legalaid in criminal proceedings and above allthe right to live with basic human dig-nity. The Supreme Court has developeda new normative regime of rights andinsisted that a state cannot act arbitrarilybut must act reasonably and in publicinterest on pain of its action being invali-dated by judicial intervention. TheSupreme Court has developed the doc-trine of promissory estoppel, departingfrom any English and American deci-sions. We have held that it can be thebasis of a cause of action and it can beused against the government and itsinstrumentalities as much as against aprivate individual. The Supreme Courthas evolved a strategy of public interestlitigation and made it possible for theproblems of the disadvantaged to bebrought before the courts. A host of otherprinciples of constitutional and publiclaw have been developed and many moreare in the process of formulation anddevelopment. In the law few years theSupreme Court has, through intense judi-cial activism, become a symbol of hopefor the people of India. It has augmentedits moral authority and acquired a newcredibility with the people through judi-cial activism and judicial creativity.