By Prachi Agrawal, CNLU Patna
Editor’s Note– Judicial Activism is not a result of general development of judicial procedure. It is an essential aspect of the dynamics, derivatives and independent findings of the courts. It is a specific judicial interest about the issues. Judicial Activism does not mean governance by the judiciary. Judicial Activism must also function within the limits of judicial process.
Within those limits it performs the function of stigmatizing, as well as legitimizing, the actions of the other bodies of the Government- more often legitimizing. The author, in this paper, has dealt with the various theories of social contract along with the other recent jurisprudential theories to substantiate her research on the judicial activism by the Courts in India. She has also dealt with the constitutional challenges faced by the courts while dealing with such cases.
Judicial activism describes judicial rulings suspected of being based on personal or political considerations rather than on existing law. The question of judicial activism is closely related to constitutional interpretation, statutory construction, and separation of powers. Legal academics often describe judicial invalidation of legislative enactment as “judicial activism.” As one scholar has written, “at the broadest level, judicial activism is any occasion where a court intervenes and strikes down a piece of duly enacted legislation.”
Professor Lino Graglia: “By judicial activism I mean, quite simply and specifically, the practice by judges of disallowing policy choices by other government officials or institutions that the Constitution does not clearly prohibit.” [i] In other words, the Court is engaging in judicial activism when it reaches beyond the clear mandates of the Constitution to restrict the handiwork of the other government branches.
The idea of judicial activism has been around far longer than the term. Before the twentieth century, legal scholars squared off over the concept of judicial legislation, that is, judges making positive law. “Where Blackstone favored judicial legislation as the strongest characteristic of the common law, Bentham regarded this as a usurpation of the legislative function and a charade or miserable sophistry.”
Bentham, in turn, taught John Austin, who rejected Bentham’s view and defended a form of judicial legislation in his famous lectures on jurisprudence. In the first half of the twentieth century, a flood of scholarship discussed the merits of judicial legislation, and prominent scholars took positions on either side of the debate.
Arthur Schlesinger Jr. introduced the term “judicial activism” to the public in a Fortune magazine article in January 1947. Schlesinger’s article profiled all nine Supreme Court justices on the Court at that time and explained the alliances and divisions among them. The article characterized Justices Black, Douglas, Murphy, and Rutlege as the “Judicial Activists” and Justices Frankfurter, Jackson, and Burton as the “Champions of Self Restraint.” Justice Reed and Chief Justice Vinson comprised a middle group.
This conflict may be described in several ways. The Black-Douglas group believes that the Supreme Court can play an affirmative role in promoting social welfare; the Frankfurter-Jackson group advocates a policy of judicial self-restraint. One group is more concerned with the employment of the judicial power for their own conception of the social good; the other with expanding the range of allowable judgment for legislatures, even if it means upholding conclusions they privately condemn.
One group regards the Court as an instrument to achieve desired social results; the second as an instrument to permit the other branches of government to achieve the results the people want for better or worse. In brief, the Black-Douglas wing appears to be more concerned with settling particular cases in accordance with their own social preconceptions; the Frankfurter-Jackson wing with preserving the judiciary in its established but limited place in the American system.
Black’s Law Dictionary defines judicial activism as a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.” Judicial activism means an active role played by the judiciary in promoting justice. Judicial Activism to define broadly is the assumption of an active role on the part of the judiciary.
Ronald Dworkin, for example, rejects a “strict interpretation of the constitutional text because it limits constitutional rights “to those recognized by a limited group of people at a fixed date of history.” Yet even in the early days of its use, the term was most often considered a slight. As now-judge Louis Pollak observed in 1956, “It seems safe to say that most judges regard ‘judicial activism’ as an alien ‘ism’ to which their misguided brethren sometimes fall prey.” By the mid-1950s, the term had taken on a generally negative connotation, even if its specific meaning was hard to pin down.
The phrase ‘judicial activism’ carries more than one connotation. The common law tradition conceives of courtroom litigation as an adversarial process where the onus is on the leaders to shape the overall course of the proceedings through their submissions. In this conception, the role of the judge is cast in a passive mold and the objective is to dispassionately evaluate the arguments made by both sides.
However, the actual experience of a courtroom clearly bears witness to the tendency on part of some judges to pose incisive questions before the practitioners. This may have the consequence of proceedings being judicially-directed to a certain degree. While this literal understanding of activism from the bench may have its supporters as well as detractors, the focus of my talk will be on another understanding of ‘judicial activism’.
In the Indian context, there has been a raging debate on the proper scope and limits of the judicial role – especially of that played by the higher judiciary which consists of the Supreme Court of India at the Centre and the High Courts in the various States that form the Union of India. The terms of that debate have been broadly framed with respect to the considerations of ensuring an effective ‘separation of powers’ between the executive, legislature and the judiciary as well as concerns about the efficacy and legitimacy of judicial interventions in the long-run. In the course of this project, I will attempt to present some background information as well as the main themes of these debates.
In the early Platonic dialogue[ii], Crito, Socrates makes a compelling argument as to why he must stay in prison and accept the death penalty, rather than escape and go into exile in another Greek city. He personifies the Laws of Athens, and, speaking in their voice, explains that he has acquired an overwhelming obligation to obey the Laws because they have made his entire way of life, and even the fact of his very existence, possible.
Importantly, however, this relationship between citizens and the Laws of the city are not coerced. Citizens, once they have grown up, and have seen how the city conducts itself, can choose whether to leave, taking their property with them, or to stay. Staying implies an agreement to abide by the Laws and accept the punishments that they mete out.
In Plato’s most well-known dialogue, Republic[iii], social contract theory is represented. In Book II, Glaucon offers a candidate for an answer to the question “what is justice” by representing a social contract explanation for the nature of justice. What men would most want is to be able to commit injustices against others without the fear of reprisal, and what they most want to avoid is being treated unjustly by others without being able to do injustice in return. Being unable to commit injustice with impunity, and fearing becoming victims themselves, men decide that it is in their interests to submit themselves to the convention of justice. Socrates rejects this view, and most of the rest of the dialogue centers on showing that justice is worth having for its own sake and that the just man is the happy man
From Socrates ‟point of view, a just man is one who will, among other things, recognize his obligation to the state by obeying its laws. The state is the morally and politically most fundamental entity, and as such deserves our highest allegiance and deepest respect. Just men know this and act accordingly. Justice, however, is more than simply obeying laws in exchange for others obeying them as well. Justice is the state of a well-regulated soul, and so the just man will also necessarily be the happy man.
So, justice is more than the simple reciprocal obedience to the law, as Glaucon suggests, but it does nonetheless include obedience to the state and the laws that sustain it. So in the end, although Plato is perhaps the first philosopher to offer a representation of the argument at the heart of social contract theory, Socrates ultimately rejects the idea that social contract is the original source of justice.
MODERN SOCIAL CONTRACT THEORY
Thomas Hobbes, 1588-1679, lived during the most crucial period of early modern England’s history: the English Civil War, waged from 1642-1648. To describe this conflict in the most general of terms, it was a clash between the King and his supporters, the Monarchists, who preferred the traditional authority of a monarch, and the Parliamentarians, most notably led by Oliver Cromwell, who demanded more power for the quasi-democratic institution of Parliament. Hobbes represents a compromise between these two factions.
On the one hand, he rejects the theory of the Divine Right of Kings, which is most eloquently expressed by Robert Filmer in his Patriarcha or the Natural Power of Kings, (although it would be left to John Locke to refute Filmer directly). Filmer’s view held that a king’s authority was invested in him (or, presumably, her) by God, that such authority was absolute, and therefore that the basis of political obligation lay in our obligation to obey God absolutely.
According to this view, then, political obligation is subsumed under religious obligation. On the other hand, Hobbes also rejects the early democratic view, taken up by the Parliamentarians, that power ought to be shared between Parliament and the King. In rejecting both these views, Hobbes occupies the ground of one is who both radical and conservative.
He argues, radically for his times, that political authority and obligation are based on the individual self-interests of members of society who are understood to be equal to one another, with no single individual invested with any essential authority to rule over the rest, while at the same time maintaining the conservative position that the monarch, which he called the Sovereign, must be ceded absolute authority if society is to survive.
Hobbes has, first and foremost, a particular theory of human nature, which gives rise to a particular view of morality and politics, as developed in his philosophical masterpiece, Leviathan, published in 1651[iv].
Hobbes infers from his mechanistic theory of human nature that humans are necessarily and exclusively self-interested. All men pursue only what they perceive to be in their own individually considered best interests – they respond mechanistically by being drawn to that which they desire and repelled by that to which they are averse. This is a universal claim. We are infinitely appetitive and only genuinely concerned with our own selves.
In addition to being exclusively self-interested, Hobbes also argues that human beings are reasonable. They have in them the rational capacity to pursue their desires as efficiently and maximally as possible.
From these premises of human nature, Hobbes goes on to construct a provocative and compelling argument for why we ought to be willing to submit ourselves to political authority. He does this by imagining persons in a situation prior to the establishment of society, the State of Nature.
According to Hobbes, the justification for political obligation is this: given that men are naturally self-interested, yet they are rational, they will choose to submit to the authority of a Sovereign in order to be able to live in a civil society, which is conducive to their own interests. Hobbes argues for this by imagining men in their natural state, or in other words, the State of Nature.
In the State of Nature, which is purely hypothetical according to Hobbes, men are naturally and exclusively self- interested, they are more or less equal to one another, (even the strongest man can be killed in his sleep), there are limited resources, and yet there is no power able to force men to cooperate. Given these conditions in the State of Nature, Hobbes concludes that the State of Nature would be unbearably brutal. In the State of Nature, every person is always in fear of losing his life to another. The state of Nature can be aptly described as a state of utter distrust. It is the state of perpetual and unavoidable war.
The situation is not, however, hopeless. Because men are reasonable, they can see their way out of such a state by recognizing the laws of nature, which show them the means by which to escape the State of Nature and create a civil society. Men can be expected to construct a Social Contract that will afford them a life other than that available to them in the State of Nature. This contract is constituted by two distinguishable contracts. First, they must agree to establish society by collectively and reciprocally renouncing the rights they had against one another in the State of Nature. Second, they must imbue some one person or assembly of persons with the authority and power to enforce the initial contract.
Since the sovereign is invested with the authority and power to mete out punishments for breaches of the contract which are worse than not being able to act as one pleases, men have good, albeit self-interested, reason to adjust themselves to the artifice of morality in general, and justice in particular. Society becomes possible because, whereas in the State of Nature there was no power able to “overawe them all”, now there is an artificially and conventionally superior and more powerful person who can force men to cooperate.
While living under the authority of a Sovereign can be harsh (Hobbes argues that because men’s passions can be expected to overwhelm their reason, the Sovereign must have absolute authority in order for the contract to be successful) it is at least better than living in the State of Nature.
Prior to the establishment of the basic social contract, according to which men agree to live together and the contract to embody a Sovereign with absolute authority, nothing is immoral or unjust – anything goes. After these contracts are established, however, then society becomes possible, and people can be expected to keep their promises, cooperate with one another, and so on. The Social Contract is the most fundamental source of all that is good and that which we depend upon to live well. Our choice is either to abide by the terms of the contract or return to the State of Nature, which Hobbes argues no reasonable person could possibly prefer.
Given his rather severe view of human nature, Hobbes nonetheless manages to create an argument that makes a civil society, along with all its advantages, possible. Within the context of the political events of his England, he also managed to argue for a continuation of the traditional form of authority that his society had long since enjoyed, while nonetheless placing it on what he saw as a far more acceptable foundation.
For Hobbes, the necessity of absolute authority, in the form of a Sovereign, followed from the utter brutality of the State of Nature. The State of Nature was completely intolerable, and so rational men would be willing to submit themselves even to absolute authority in order to escape it. For John Locke, 1632-1704, the State of Nature is a very different type of place, and so his argument concerning the social contract and the nature of men’s relationship to authority are consequently quite different.
While Locke uses Hobbes’s methodological device of the State of Nature, as do virtually all social contract theorists, he uses it to a quite different end. Locke’s arguments for the social contract and for the right of citizens to revolt against their king were enormously influential on the democratic revolutions that followed, especially on Thomas Jefferson and the founders of the United States.
Locke’s most important and influential political writings are contained in his Two Treatises on Government[v]. The first treatise is concerned almost exclusively with refuting the argument of Robert Filmer’s Patriarcha[vi], that political authority was derived from religious authority, also known by the description of the Divine Right of Kings, which was a very dominant theory in seventeenth-century England. The second treatise contains Locke’s own constructive view of the aims and justification for civil government, and is titled “An Essay Concerning the True Original Extent and End of Civil Government”.
According to Locke, the State of Nature, the natural condition of mankind, is a state of perfect and complete liberty free from the interference of others. The State of Nature, although a state wherein there is no civil authority or government to punish people for transgressions against laws, is not a state without morality. The State of Nature is pre-political, but it is not pre-moral. Persons are assumed to be equal to one another in such a state, and therefore equally capable of discovering and being bound by the Law of Nature.
The Law of Nature, which is on Locke’s view the basis of all morality, and given to us by God, commands that we not harm others with regards to their “life, health, liberty, or possessions”. Because we all belong equally to God, and because we cannot take away that which is rightfully His, we are prohibited from harming one another. The State of Nature, therefore, is not the same as the state of war, as it is according to Hobbes. It can, however, devolve into a state of war, in particular, a state of war over property disputes.
The state of war begins between two or more men once one man declares war on another, by stealing from him, or by trying to make him his slave. Since in the State of Nature, there is no civil power to whom men can appeal, and since the Law of Nature allows them to defend their own lives, they may then kill those who would bring force against them. Since the State of Nature lacks civil authority, once war begins it is likely to continue. And this is one of the strongest reasons that men have to abandon the State of Nature by contracting together to form civil government.
Property is the linchpin of Locke’s argument for the social contract and civil government because it is the protection of their property, including their property in their own bodies, that men seek when they decide to abandon the State of Nature.
According to Locke, the State of Nature is not a condition of individuals, as it is for Hobbes.
Rather, it is populated by mothers and fathers with their children, or families – what he calls “conjugal society”. These societies are based on voluntary agreements to care for children together, and they are moral but not political. Political society comes into being when individual men, representing their families, come together in the State of Nature and agree to each give up the executive power to punish those who transgress the Law of Nature, and hand over that power to the public power of a government.
Having done this, they then become subject to the will of the majority. In other words, by making a compact to leave the State of Nature and form a society, they make “one body politic under one government” and submit themselves to the will of that body. Having created a political society and government through their consent, men then gain three things which they lacked in the State of Nature: laws, judges to adjudicate laws, and the executive power necessary to enforce these laws.
Given that the end of “men’s uniting into common-wealth is the preservation of their wealth, and preserving their lives, liberty, and well-being in general, Locke can easily imagine the conditions under which the compact with government is destroyed, and men are justified in resisting the authority of a civil government, such as a King.
When the executive power of a government devolves into tyranny, such as by dissolving the legislature and therefore denying the people the ability to make laws for their own preservation, then the resulting tyrant puts himself into the State of Nature, and specifically into a state of war with the people, and they then have the same right to self- defense as they had before making a compact to establish society in the first place. That is when the king becomes a tyrant and acts against the interests of the people, they have a right, if not an outright obligation, to resist his authority. The social compact can be dissolved and the process to create political society begun anew.
Because Locke did not envision the State of Nature as grimly as did Hobbes, he can imagine conditions under which one would be better off rejecting a particular civil government and returning to the State of Nature, with the aim of constructing a better civil government in its place. It is therefore both the view of human nature and the nature of morality itself, which account for the differences between Hobbes‟ and Locke’s views of the social contract.
Jean-Jacques Rousseau[vii], 1712-1778, lived and wrote during what was arguably the headiest period in the intellectual history of modern France–the Enlightenment. Rousseau has two distinct social contract theories. The first is found in his essay, Discourse on the Origin and Foundations of Inequality Among Men, and the second is his normative, or idealized theory of the social contract, and is meant to provide the means by which to alleviate the problems that modern society has created for us, as laid out in the Second Discourse.
According to Rousseau, the State of Nature was a peaceful and quixotic time. People lived solitary, uncomplicated lives. Their few needs were easily satisfied by nature. As time passed, however, humanity faced certain changes. As the overall population increased, the means by which people could satisfy their needs had to change. People slowly began to live together in small families, and then in small communities.
Divisions of labor were introduced, both within and between families, and discoveries and inventions made life easier, giving rise to leisure time. Such leisure time inevitably led people to make comparisons between themselves and others, resulting in public values, leading to shame and envy, pride and contempt.
Most importantly, however, according to Rousseau, was the invention of private property, which constituted the pivotal moment in humanity’s evolution out of a simple, pure state into one characterized by greed, competition, vanity, inequality, and vice. For Rousseau, the invention of property constitutes humanity’s „fall from grace‟ out of the State of Nature.
Having introduced private property, initial conditions of inequality became more pronounced. Some have property and others are forced to work for them, and the development of social classes begins. Eventually, those who have property notice that it would be in their interests to create a government that would protect private property from those who do not have it but can see that they might be able to acquire it by force. So, the government gets established, through a contract, which purports to guarantee equality and protection for all, even though its true purpose is to fossilize the very inequalities that private property has produced.
The Social Contract begins with the most oft-quoted line from Rousseau: “Man was born free, and he is everywhere in chains”. Humans are essentially free and were free in the State of Nature, but the “progress” of civilization has substituted subservience to others for that freedom, through dependence, economic and social inequalities, and the extent to which we judge ourselves through comparisons with others.
Since a return to the State of Nature is neither feasible nor desirable, the purpose of politics is to restore freedom to us, thereby reconciling who we truly and essentially are with how we live together. So, this is the fundamental philosophical problem that the Social Contract seeks to address: how can we be free and live together? We can do so, Rousseau maintains, by submitting our individual, particular wills to the collective or general will, created through an agreement with other free and equal persons.
Like Hobbes and Locke before him, and in contrast to the ancient philosophers, all men are made by nature to be equals, therefore no one has a natural right to govern others, and therefore the only justified authority is the authority that is generated out of agreements or covenants. The most basic covenant, the social pact, is the agreement to come together and form a people, a collectivity, which by definition is more than and different from a mere aggregation of individual interests and wills. Through the collective renunciation of the individual rights and freedom that one has in the State of Nature, and the transfer of these rights to the collective body, a new “person”, as it were, is formed.
The sovereign is thus formed when free and equal persons come together and agree to create themselves anew as a single body, directed to the good of all considered together. So, just as individual wills are directed towards individual interests, the general will, once formed, is directed towards the common good, understood and agreed to collectively. Included in this version of the social contract is the idea of reciprocated duties: the sovereign is committed to the good of the individuals who constitute it, and each individual is likewise committed to the good of the whole. They must be made to conform themselves to the general will, they must be “forced to be free”.
For Rousseau, this implies an extremely strong and direct form of democracy. One cannot transfer one’s will to another, to do with as he or she sees fit, as one does in representative democracies. Rather, the general will depend on the coming together periodically of the entire democratic body, each and every citizen, to decide collectively, and with at least near unanimity, how to live together, i.e., what laws to enact.
Rousseau’s social contract theories together form a single, consistent view of our moral and political situation. We are endowed with freedom and equality by nature, but our nature has been corrupted by our contingent social history. We can overcome this corruption, however, by invoking our free will to reconstitute ourselves politically, along strongly democratic principles, which is good for us, both individually and collectively.
RECENT SOCIAL CONTRACT THEORIES
John Rawls’ ‘Theory of Justice’
In 1972, the publication of John Rawls„ extremely influential Theory of Justice[viii] brought moral and political philosophy back from what had been a long hiatus of philosophical consideration. Rawls‟ theory relies on a Kantian understanding of persons and their capacities. For Rawls, as for Kant, persons have the capacity to reason from a universal point of view, which in turn means that they have the particular moral capacity of judging principles from an impartial standpoint.
In A Theory of Justice, Rawls argues that the moral and political point of view is discovered via impartiality. (It is important to note that this view, delineated in A Theory of Justice, has undergone substantial revisions by Rawls, and that he described his later view as “political liberalism”.) He invokes this point of view by imagining persons in a hypothetical situation, the Original Position.
In the original position, behind the veil of ignorance people are assumed to be rational and disinterested in one another’s well-being. Because no one has any of the particular knowledge he or she could use to develop principles that favor his or her own particular circumstances Hence Rawls describes his theory as “justice as fairness.” Because the conditions under which the principles of justice are discovered are basically fair, justice proceeds out of fairness.
In such a position, behind such a veil, everyone is in the same situation, and everyone is presumed to be equally rational. All those who consider justice from the point of view of the original position would agree upon the same principles of justice generated out of such a thought experiment. Any one person would reach the same conclusion as any other person concerning the most basic principles that must regulate a just society.
The principles that persons in the Original Position, behind the Veil of Ignorance, would choose to regulate a society at the most basic level (that is, prior even to a Constitution) are called by Rawls, aptly enough, the Two Principles of Justice-Commutative and Distributive.
The first principle states that each person in a society is to have as much basic liberty as possible, as long as everyone is granted the same liberties. That is, there is to be as much civil liberty as possible as long as these goods are distributed equally.
The second principle states that while social and economic inequalities can be just, they must be available to everyone equally and such inequalities must be to the advantage of everyone. This means that economic inequalities are only justified when the least advantaged member of society is nonetheless better off than she would be under alternative arrangements.
Having argued that any rational person inhabiting the original position and placing him or herself behind the veil of ignorance can discover the two principles of justice, Rawls has constructed what is perhaps the most abstract version of social contract theory. It is highly abstract because rather than demonstrating that we would or even have signed to a contract to establish a society, it instead shows us what we must be willing to accept as rational persons in order to be constrained by justice and therefore capable of living in a well-ordered society. The principles of justice are more fundamental than the social contract as it has traditionally been conceived.
Rather, the principles of justice constrain that contract and set out the limits of how we can construct a society in the first place. If we consider, for example, a constitution as the concrete expression of the social contract, Rawls‟ two principles of justice delineate what such a constitution can and cannot require of us. Rawls‟ theory of justice constitutes, then, the Kantian limits upon the forms of political and social organization that are permissible within a just society.
In his 1986 book, Morals by Agreement, David Gauthier set out to renew Hobbesian moral and political philosophy[ix]. In that book, he makes a strong argument that Hobbes was right: we can understand both politics and morality as founded upon an agreement between exclusively self- interested yet rational persons. He improves upon Hobbes‟ argument, however, by showing that we can establish morality without the external enforcement mechanism of the Sovereign.
Hobbes argued that men’s passions were so strong as to make cooperation between them always in danger of breaking down, and thus that a Sovereign was necessary to force compliance. Gauthier, however, believes that rationality alone convinces persons not only to agree to cooperate but to stick to their agreements as well.
We should understand ourselves as individual Robinson Crusoes, each living on our own island, lucky or unlucky in terms of our talents and the natural provisions of our islands, but able to enter into negotiations and deals with one another to trade goods and services with one another. Entering into such agreements is to our own advantage, and so rationality convinces us to both make such agreements and stick to them as well.
Gauthier has an advantage over Hobbes when it comes to developing the argument that cooperation between purely self-interested agents is possible. He has access to rational choice theory and its sophisticated methodology for showing how such cooperation can arise. In particular, he appeals to the model of the Prisoner’s Dilemma to show that self-interest can be consistent with acting cooperatively. (There is a reasonable argument to be made that we can find in Hobbes a primitive version of the problem of the Prisoner’s Dilemma.)
According to the story of the Prisoner’s Dilemma, two people have been brought in for questioning, conducted separately, about a crime they are suspected to have committed. The police have solid evidence of a lesser crime that they committed but need confessions in order to convict them on more serious charges. Each prisoner is told that if she cooperates with the police by informing on the other prisoner, then she will be rewarded by receiving a relatively light sentence of one year in prison, whereas her cohort will go to prison for ten years.
If they both remain silent, then there will be no such rewards, and they can each expect to receive moderate sentences of two years. And if they both cooperate with police by informing on each other, then the police will have enough to send each to prison for five years. The dilemma then is this: in order to serve her own interests as well as possible, each prisoner reasons that no matter what the other does she is better off cooperating with the police by confessing.
Each reason: “If she confesses, then I should confess, thereby being sentenced to five years instead of ten. And if she does not confess, then I should confess, thereby being sentenced to one year instead of two. So, no matter what she does, I should confess.” The problem is that when each reason this way, they each confess, and each goes to prison for five years. However, had they each remained silent, thereby cooperating with each other rather than with the police, they would have spent only two years in prison.
According to Gauthier, the important lesson of the Prisoner’s Dilemma is that when one is engaged in interaction such that others‟ actions can affect one’s own interests, and vice versa, one does better if one acts cooperatively. By acting to further the interests of the other, one serves one’s own interests as well. We should, therefore, insofar as we are rational, develop within ourselves the dispositions to constrain ourselves when interacting with others. We should become “constrained maximizers” (CMs) rather remain the “straightforward maximizers” (SMs) that we would be in the State of Nature.
Both SMs and CMs are exclusively self-interested and rational, but they differ with regard to whether they take into account only strategies, or both the strategies and utilities, of whose with whom they interact. To take into account the others‟ strategies is to act in accordance with how you expect the others will act. To take into account their utilities is to consider how they will fare as a result of your action and to allow that to affect your own actions. Both SMs and CMs take into account the strategies of the other with whom they interact.
But whereas SMs do not take into account the utilities of those with whom they interact, CMs do. And, whereas CMs are afforded the benefits of cooperation with others, SMs are denied such an advantage. According to Gauthier, when interacting in Prisoner’s Dilemma-like situations, where the actions of others can affect one’s own outcome, and vice versa, rationality shows that one’s own interest is best pursued by being cooperative, and therefore agents rationally dispose themselves to the constrain the maximization of their own utility by adopting principles of morality.
According to Gauthier, rationality is a force strong enough to give persons internal reasons to cooperate. They do not, therefore, need Hobbes‟ Sovereign with absolute authority to sustain their cooperation. The enforcement mechanism has been internalized. “Morals by agreement”[x] are therefore created out of the rationality of exclusively self-interested agent.
INDIAN PERSPECTIVE: THE JUDICIARY IS NOT A DESPOTIC BRANCH OF THE STATE
Although the Supreme Court of India has widened its scope of interference in public administration and the policy decisions of the government, it is well aware of the limitations within which it should function. In the case of P Ramachandran Rao v State of Karnataka[xi], reported in, has observed that “The Supreme Court does not consider itself to be an imperium in imperio or would function as a despotic branch of the State”.
The Indian Constitution does not envisage a rigid separation of powers, the respective powers of the three wings being well-defined with the object that each wing must function within the field earmarked by the constitution. The Supreme Court of India took all this into account in the judgment reported in the case of State of Kerala v A Lakshmi Kutty[xii], stating that “Special responsibility devolves upon the judges to avoid an over activist approach and to ensure that they do not trespass within the spheres earmarked for the other two branches of the State.”
The judges should not enter the fields constitutionally earmarked for the legislature and the executive. Judges cannot be legislators, as they have neither the mandate of the people nor the practical wisdom to understand the needs of different sections of society. They are forbidden from assuming the role of administrators; governmental machinery cannot be run by judges as that is not the intention of our constitution makers. While interpreting the provisions of the constitution the judiciary often rewrites them without explicitly stating so.
As a result of this process, some of the personal opinions of the judges crystallize into legal principles and constitutional values. A classic example of the above problem is the recent order by the Supreme Court of India to demolish and seal off all the commercial entities run in residential areas of Delhi. Even though the Delhi Government passed a Bill regularizing all the constructions, which were illegal, the Supreme Court of India took the view that all those places should be sealed off.
The Delhi Municipal Corporation was reluctant to continue with the sealing drive because it was against the popular sentiments of the people. However, the Supreme Court remained steadfast in its decision and the municipal authorities had no other option except to go ahead. There were demonstrations and violence against the sealing drive; the Congress Party, which was in power during the sealing drive, lost municipal councilor seats in the elections conducted during that time.
The argument over the economic, social and physiological impact the sealing drive would create did not dissuade the court. The Supreme Court of India is well aware of its limitations, and hence exercises self-restraint and caution over encroachment of the field exclusively reserved for the legislature and the executive.
The seven judge bench of the Supreme Court declared in P Ramachandra Rao’s case that: “The primary function of the Judiciary is to interpret the law. It may lay down principles, guidelines and exhibit creativity in the field left open and unoccupied by legislation. But they cannot entrench upon in the field of legislation properly meant for the legislature. It is no difficult to perceive the dividing line between permissible legislation by judicial directives and enacting a w – the field exclusively reserved for the legislature.”
In the case of Keshavanada Bharathi case[xiii] the Supreme Court held for the first time that a constitutional amendment duly passed by the legislature was invalid for damaging or destroying its basic structure. This was a gigantic judicial leap unknown to any legal system. The supremacy and permanency of the constitution were ensured by this pronouncement, with the result that the basic features of the constitution are now beyond the reach of Parliament.
The criticism of this judgment by the Supreme Court is that since the court has not exhaustively defined what these basic features are, the judicial arm can be extended any distance at will. Article 21 of the Constitution of India provides that no person shall be deprived of its life and liberty except according to the procedure established by law has become the most dynamic article in the hands of the Indian courts. A whole new set of rights which were not explicitly provided by the constitution were read into Article 21.
SUBSTANTIVE DUE PROCESS AND ARTICLE 21
The Supreme Court of India gave a new interpretation to Article 21 of the Constitution of India in the case of Maneka Gandhi v Union of India[xiv]. It became a great trendsetter for further evolution of notions of reasonableness and fairness. When Maneka Gandhi’s passport was impounded, she was served with the required notice under the Indian Passport Act. She contended that the procedure contemplated under the Act was in violation of the constitution.
The Supreme Court held that life does not merely mean an animal-like existence, but an existence with all the freedoms associated with it. The Supreme Court stated for the first that it is not enough merely to prescribe a procedure for denying life and liberty; the procedure itself must be fair and reasonable. This paved the way for the concept of substantive due process, which is not mentioned directly in the Indian Constitution (unlike the American Constitution). The concept of substantive due process was imported into Article 21 by the decision in Maneka Gandhi. It was asserted by the Supreme Court that the courts have the power to not only judge the fairness and justness of procedure established by law for the purpose of Article 21, but also the power to judge and decide the reasonableness of the law itself.
EARLY CASES OF JUDICIAL ACTIVISM
The following Supreme Court cases provide a useful insight into the growth and development of judicial activism in independent India.
In the Privy Purse case Madhav Rao Jivaji Rao Scindia v Union of India[xv] the broad question was whether the President rightly exercised his power in de-recognizing the princes. In this case, the court ruled that by virtue of Article 53 of the constitution, the executive power of union vested in the President must be exercised “in accordance with law”. That power was intended to be exercised in aid of, not to destroy, the constitution. An order merely “de-recognizing” a ruler without providing for the continuation of the institution of his rule – an integral part of the constitutional scheme – was therefore plainly illegal.
In R C Cooper v Union of India [xvi], the legislative competence of Parliament to enact the Banking Companies (Acquisition and Transfer of Undertakings) Act, known as the Bank Nationalisation Act, was in question. The court struck down the Act primarily on the ground of unreasonableness, explaining that the restriction imposed on the banks to carryon “non-banking business” in effect made it impossible for the banks, in a commercial sense, to carry on any business at all. In Golaknath v State of Punjab, the Supreme Court while dealing with the constitutional validity of the 17th Amendment to the constitution evolved the concept of “prospective overruling” and held that Parliament had no power to amend Part III of the constitution, or take away, or abridge any of the fundamental rights.
In the fundamental rights case Keshavananda Bharti v State of Kerala[xvii], 1973 the Supreme Court rendered a judgment that can be regarded as an important milestone in the Indian constitutional jurisprudence. While dealing withquestion as to the extent of the amending power conferred by Article 368 of the constitution, the court evolved the theory of “basic structure.” A bench of 13 judges held by a majority of 7:6 that the Parliament had wide powers to amend the constitution extending to all articles of the constitution, but this power could not be used in an unlimited way to abridge, abrogate or destroy the “basic structure” or the “basic framework” of the constitution.
In VC Shukla v Delhi Admin [xviii](1980), the court while dealing with the legislative competence of the state to pass a law establishing special courts for dealing with offenses committed by persons holding high public office, held such courts to be valid. It also held that the court could strike down an administrative action if bias or mala fides was proved. The court, in this case, clarified that the theory of “basic structure” would apply only to constitutional amendments and not to an ordinary law passed by the Parliament or the state legislature.
In the Bhagalpur Blinding case(Khatri (II) v State of Bihar[xix], it was held that Article 21 included the right to free legal aid to the poor and the indigent and the right to be represented by a lawyer. It was also held that the right to be produced before a magistrate within 24 hours of arrest must be scrupulously followed.
In Fertilizer Corpn Kamgar Union v Union of India[xx], the petitioners of a public enterprise challenged the sale of the plant and machinery of the undertaking, as it resulted in their retrenchment. The Supreme Court held that sale resulting in retrenchment had not violated their rights under Article 19(1)(g) of the constitution, and likened it to termination of employment due to abolition of posts.
The court ruled that the petitioner did not have the locus standi to petition under Article 32. While reiterating that the jurisdiction of the Supreme Court under Article 32 was part of the “basic structure” of the constitution, the court violated, a petition under Article 32 was not maintainable even though one under Article 226 may be permissible.
In T V Vaitheeswaran v State of TN[xxi], the Supreme Court held that a delay in the execution of the death sentence for two years would entitle the prisoner to the utation of the death sentence to one of life imprisonment. However, in Sher Singh v State of Punjab[xxii] this view was overruled. In the latter case, the delay was due to the conduct of the convict.
In the judges transfer case S P Gupta v Union of India, 1983, the court while dealing with the question of the meaning of the word “consultation” in Article 124(2) held that in the matter of the appointment of judges, the executive is supreme and is not bound by the views expressed by the Chief Justice of India or the other judges of the SC. However, this view has been overruled in S C Advocates-on-Record Association v Union of India[xxiii] in 1993 to ensure judicial supremacy in the appointment of judges.
In the Asian Games case (People’s Union for Democratic Rights v Union of India[xxiv], 1982), the court held that workers temporarily employed by contractors for construction work were entitled to the benefit of the relevant labor and industrial laws and to seek for their implementation under Article 32 of the constitution. The court directed the government and the concerned authorities to ensure compliance with the laws in respect of workers connected with the construction work of the ensuing Asian Games in Delhi.
In A R Antulay v R S Nayak[xxv] , the court, while dealing with the question of prior sanction for prosecution of a public servant, held that an MLA was not a ‘public servant’ within the meaning of the relevant clauses as he was not remunerated by the fees paid by the executive in the form of the State Government.
THE PIL REGIME: A HEYDAY OF JUDICIAL ACTIVISM
The proponents of judicial activism were judges like V R Krishna Iyer, P N Bhagwati, Chinnappa Reddy, and D A Desai, who have rendered many judgments touching upon basic rights of the people. It is often said that the genesis of judicial activism lies in the evolution of public interest litigation and the consequent liberalization of the locus standi rule.
PIL was originally conceived with the noble objective of empowering the downtrodden, the poor and the needy by ensuring justice to them by relaxing the rigor of locus standi. In 1979 in Hussainara Khatoon v State of Bihar[xxvi], the Supreme Court first took up a PIL action on behalf of prisoners awaiting trial who had been languishing in jails for periods longer than the maximum punishment prescribed for the offenses concerned. The court in this case issued directions ensuring appropriate relief to the prisoners.
Thereafter, there was no looking back for PIL; again, in Sunil Batra v Delhi Admin [xxvii](1980) and in Sheela Barse v Union of India (1983) the court gave significant directions for the protection of accused and convicts (male and female) concerning their safety and security, better conditions in prisons, separate lock-ups for female prisoners, etc.
JUDICIAL ACTIVISM AND ENVIRONMENTAL JURISPRUDENCE
The steady growth of principles and doctrines that have enriched environmental jurisprudence owe their existence to PIL cases and the accompanying activist approach of the judiciary.
Municipal Council, Ratlam v. Vardichand,[xxviii] the Court recognized the locus standi of a group of citizens who sought directions against the local Municipal Council for removal of open drains that caused stench as well as diseases. The Court, recognizing the right of the group of citizens, asserted that if the: “…centre of gravity of justice is to shift as indeed the Preamble to the Constitution mandates, from the traditional individualism of locus standi to the community orientation of public interest litigation, the court must consider the issues as there is need to focus on the ordinary men.”
In Bandhua Mukti Morcha v. Union of India[xxix], the Supreme Court’s attention was drawn to the widespread incidence of the age-old practice of bonded labor which persists despite the constitutional prohibition. Among other interventions, one can refer to the Shriram Food & Fertilizer case[xxx] where the Court issued directions to employers to check the production of hazardous chemicals and gases that endangered the life and health of workmen.
It is also through the vehicle of PIL, that the Indian Courts have come to adopt the strategy of awarding monetary compensation for constitutional wrongs such as unlawful detention, custodial torture and extrajudicial killings by state agencies.[xxxi] In the realm of environmental protection, many of the leading decisions have been given in actions brought by renowned environmentalist M.C. Mehta. He has been a tireless campaigner in this area and his petitions have resulted in orders placing strict liability for the leak of Oleum gas from a factory in New Delhi,[xxxii] directions to check pollution in and around the Ganges river,[xxxiii] the relocation of hazardous industries from the municipal limits of Delhi,[xxxiv] directions to state agencies to check pollution in the vicinity of the Taj Mahal[xxxv] and several afforestation measures.
A former Solicitor General of India, Mr.Dipankar P Gupta, wrote (Hindustan Times, June 15, 2007): “There is a real danger that the activism of the courts may aggravate the activism of the authorities. Today, inconvenient decisions are left by the executive for the courts to take.
Extensive use of judicial powers in the administrative filed may well, in the long-run, blunt the judicial powers themselves. This is not a healthy situation. “What then is the solution? The task of the court should be to compel the authorities to act and to pass appropriate executive orders rather than substitute judicial orders for administrative ones. They must be told how their duties are to be properly discharged and then commanded to do so. For this, they must be held accountable to the court.”
The Supreme Court recently noted in Indian Drugs & Pharmaceuticals Ltd v Workmen[xxxvi] that: “the Supreme Court cannot arrogate to itself the powers of the executive or legislature… There is broad separation of powers under the Constitution of India, and the judiciary, too, must know its limits”.
Judicial Activism is not a result of general development of judicial procedure. It is an essential aspect of the dynamics, derivatives and independent findings of the courts. It is a specific judicial interest about the issues. Judicial Activism does not mean governance by the judiciary. Judicial Activism must also function within the limits of judicial process.
Within those limits it performs the function of stigmatizing, as well as legitimizing, the actions of the other bodies of the Government- more often legitimizing. The judiciary is having certain limitation according to statutes which are framed by the legislature. It becomes strong only when people repose faith in it. Such faith constitutes the legitimacy of the Court and of judicial activism. Courts do not have to bow to public pressure, but rather they should stand firm against public pressure. Such inarticulate and diffused consensus about the impartiality and integrity of the Judiciary is the source of the Court’s legitimacy. It is an essential aspect of the dynamics of a constitutional court. I have a hope that, in modern India, judicial activism may develop through many aspects and it will play an important role to future challenges of democratic India.
Formatted on March 13th, 2019.
[i] Lino A. Graglia, It’s Not Constitutionalism, It’s Judicial Activism, 19 Harv. J.L. & Pub. Pol’y 293, 296 (1996)
[ii] Plato. Five Dialogues. (Trans. G.M.A. Grube) Hackett Publishing Company (1981).
[iv] Hobbes, Thomas. 1651a. Leviathan. C.B Macpherson (Editor). London: Penguin Books (1985)
[v] Locke, John. Two Treatises of Government and a Letter Concerning Toleration. Yale University Press (2003)
[vii] Rousseau, Jean-Jacques. The Basic Political Writings. (Trans. Donald A. Cress) Hackett Publishing company (1987)
[viii] Rawls, John. 1971. A Theory of Justice. Harvard University Press.
[ix] Gauthier, David. 1988. “Hobbes‟s Social Contract” Noûs 22: 71-82
[x] Gauthier, David. 1986. Morals by Agreement. Oxford: Oxford University Press.
[xi] (2002) 4 SCC 578
[xii] (1986) 4SCC 632
[xiii] AIR 1973 SC 1461
[xiv] 1978 AIR 597, 1978 SCR (2) 621
[xv] 1971 AIR 530
[xvi] 1970 AIR 564; 1970 SCR (3) 530
[xvii] Supra., note 13
[xviii] 1980 AIR 1382; 1980 SCR (3) 500
[xix] 1981 SCR (2) 408, 1981 SCC (1) 627
[xx] 1981 AIR 344, 1981 SCR (2) 52.
[xxi] 1983 AIR 361, 1983 SCR (2) 348
[xxii] 1983 AIR 465, 1983 SCR (2) 582
[xxiii] (1993) 4 SCC 441;AIR 1994 SC 268
[xxiv] 1982 AIR 1473, 1983 SCR (1) 456
[xxv] 1984 AIR 684, 1984 SCR (2) 495
[xxvi] 1979 AIR 1369, 1979 SCR (3) 532
[xxvii] 1980 AIR 1579, 1980 SCR (2) 557
[xxviii] (1980) 4 SCC 162
[xxix] AIR 1982 SC 1473
[xxx] (1986) 2 SCC 176
[xxxi] See observations justifying the payment of compensation for human rights violations by state agencies in the following decisions: Bhim Singh v. State of Jammu and Kashmir, (1985) 4 SCC 677
[xxxii] M.C. Mehta v. Union of India, (1987) 1 SCC 395
[xxxiii] M.C Mehta v. Union of India (1988) 1 SCC 471
[xxxiv] M.C. Mehta v. Union of India, (1996) 4 SCC 750
[xxxv] M.C. Mehta v. Union of India, (1996) 4 SCC
[xxxvi] (2007) 1 SCC 408