– Dr.Archana Ranka*


In fact the judicial restraints and judicial activisms are mutually Complementary concepts are two sides of same coins. The circumstances justify by theselection of available choices or alternatives. Both are worth of appreciation or worth condemnation. Whatis expected is fusion of varied concept while delivering judgements, daily in their business garnished with pragmatism, from moment to moment, Leaving, out-moded and redundant, Judicial Process, ridiculous from the point of time, it ought to forge new tools and new techniques, opening the gates of criticism but restraining contempt.

Dr. B.R. Ambedkar held,1

“I do not see how five or six gentlemen sitting in Federalor Supreme Court examininglaws made by legislature and thedint oftheir individual conscience or their prejudices or bias is trusted to determine which law is good law and which bad law is.”

At severalsessions atthe recent 12th Commonwealth Law Conference at Kuala Lumpur where the role of the judiciary was discussed, the passive onlooker could legitimately have formed the impression that judges as a species were embattled and headed for extinction. Such was the intensity of the debate and the polemical toneit took in auditing the juristic performance of the judiciary in several commonwealth countries. The onlooker would equally have been struck by the campaign-likeapproach adopted by thecritics who worked assiduously in distributing unflatteringleaflets and pamphlets alongthe aisles as they did in speaking trenchantly from the floor in criticism of their judiciary.

It is a reflection of thehigh emotionalstate thatjudicial non-performance engenders in thehearts and minds of concerned individuals today, and also of the high expectation of the judiciary among the people that it should truly make justice a reality to the ordinary man.

Equally noteworthy was the strident tone in which members of the concerned judiciaries defended themselves suggesting a sense of agreement in them at being wrongly or unjustly criticized or at its best, that thecritics suffered a misunderstanding of the judicial function.

JudicialAccountability: Concept and Reality

Judging is no longer easy. The traditional function assigned to the judiciary that was much in place in the 19th century of being an arbiter of disputes between citizens inter se has radically changed in the 20th century both in the old and new commonwealth. In England and the former colonies, the change has largely been brought about by the tremendous progress in administrative law which Lord Diplock acknowledged was the greatestlegaldevelopmentin his judiciallifetime.2

The process of judicial review often pitted the judiciary against the executive leading to charges of government by the judiciary.3 In the developing colonies, this function exacerbated the fault-lines of tension between the two branches of government opening the judiciary to charges of overreaching itself.

In the ex-colonies which adopted the Westminstermodelwith a written constitution that is to reign supreme, it was the doctrine of ultra virus that enabled the judiciary, and not the elected parliament, to have the last say on the validity of laws. The principle of an unelected judiciary overruling laws passed by the elected representatives of the people was argued by critics as undemocratic and violative of the principles of majoritarianism. 4

The tail end of allthis is a judiciary under pressure to discharge its role with propriety under a constitutionalsystem, and yet having to explain itself to the larger audience of politicians and the public generally. As Madam Justice Beverly McLachlin of the Supreme Court of Canada noted:

“Judging is not what it used to be. Judges are more important now. Judges are

morecriticized. And judges face more difficult tasks than they ever before faced

in the history of the commonwealth.” 5

Few would have the confidence today of a Lord Hewart CJ speaking at the Lord Mayor’s banquet in 1936 saying :

“His Majesty’s judges are satisfied with the almost universal admiration

in which they are held.”6

It is doubtful, however, whether politicians would hold themselves accountable for the judges they appoint. The opposite is more likely the case. President Eisenhower is on record somewhere as having said that one of the biggest mistakes of his presidency was to appoint Earl Warren to the Supreme Court as Chief Justice. The liberaldecisions of the Warren court were anathema to the conservative forces in the United States, then and probably even today. In the United States, where judge-watching and judge-polling is a fine art, studies have been undertaken of appointees to the Supreme court failing to live up to their expectations ofthe Presidents nominating them.7 Indeed their failure to holdany allegianceto theirnominatorspeaksvolumes fortheirimpartiality and integrity. Justice Ruth Bader Ginsburg, presently a serving justice of theUS Supreme Court, has touted as examples Chief Justice Burger, a Nixon appointee, deciding against President Nixon during the Watergate tapes controversy and more recently Clinton appointees joining in refusing president Clinton temporary immunity in the Paula Jones case.8

The judges accept it. The question really is : how far does it go both in terms of acceptance and criticism ?


When Prof. Allan Paterson conducted a survey for his book9 of the sitting Lawlords of the seventies, he was surprised to find that many of them did not address their mind to the question of who their audiences were.Amajority perceived their speeches as either correcting mistakes of lower courts orproviding guidanceto them.Only Lords Reid, Pearson and McDermott indicated that where possible the judgements should be intelligible to the man in the street.10

Lee’s viewpoint however cannot be taken too far. Judgements are not to be written as simplified newspaper pieces for public consumption. The process of reasoning in a judgement should reflect its integrity and explain its conclusion. If it has to be a technical piece, it has to be just that.

Chief Justice Brennan ofAustralia eschewed any suggestion that the duties of the judiciary are owed to the electorate. They are owed, he says, to the law, which is there for the peace, order and good government of all in the community.11 He rightly acknowledges that judges should give account forexercise ofthe judicialpower, especially when pronouncing judgements ofsignificance, but that therealproblem is not the giving of the account but “the reporting and the critical appreciation of the account that is given.”12

Public and media criticism of judges and judgements is acommon feature throughout the common law world today.Sir Anthony Mason says: “Like other public institutions, the judiciary must be subject to fair criticism and, if the occasion demands it, trenchant criticism. What I am concerned with is response to criticism, particularly criticism that is illegitimate and irresponsible.” 13

Whilst the response would seem to vary between the judiciaries of the developing and the developed commonwealth countries, there is common agreementthatunwarranted and irresponsiblecriticism subverts judicialindependence. Former Chief Justice Bhagwati of India says: “Justice is not a cloistered virtue and it must be allowed to suffer the criticism and respectful, though outspoken, comments of ordinary men and women. But improper or intemperate criticism of judges stemming from dissatisfaction with their decisions constitutes a serious inroad into the independence of the judiciary and, whatever may be the form or shape which such criticism takes, it has the inevitable effect of eroding the independence of the judiciary. Each attack on a judge for a decision given by him or her is an attack on independence of the judiciary because it represents an attempt on the part of those who indulge in such cri ti ci sm t o co erce jud icia l co nfor mi ty wit h th ei r own preconceptions and, thereby, influence the decision making process.”14

In Canada, it is said that the journalists have declared open season on the judiciary.15 Butoften itis thepoliticians who are the worst offenders, as the experience ofAustralia and the United States shows.In Australia, the Wik decision on native title fights brought on criticism in the most offensive language mostly from politicians. The justices were lablled as ‘bogus’, ‘pusillanimous and evasive’, “guilty of plungingAustralia into abyss” “a pathetic self-appointed group of kings and queens”, etc.16

These courts may not be ready yet to fully adopt USAttorney General Janet Reno’s advice that “judges must have thick skins”.17 But they do recognize theright of the public to criticize judgements as an important feature of free speech and for the judiciary to be accountable as a public institution. This point was well captured by the Indian Supreme Court in Saxena’s case.18

“Administration of justice and judges are open to public criticism and publicscrutiny. Judges have their accountability to the society and their accountability mustbe judged by theconscience and oath to their office, i.e. to defend and uphold the constitution and the laws withoutfear and favour. Thus, the judges must do, in the light given to them to determine, what is right. Any criticism about judicial system or the judges which hampers the administration of justice or which erodes the faith in the objective approach of the judges and brings administration of justice to ridicule must be prevented.” The contempt of court proceedings arise out of that attempt. Judgements can be criticized.

However, thereis an irony in allthis.Thecontinuedvitality ofthe contempt power of scandalizing the judiciary in the developing commonwealth countries gives a ring of truth still to the observation made by Lord Morris in the Privy Council at the close of the last century. In rather imperialistic terms Lord Morris had said that whilst the offence of scandalizing the judiciary was obsoletein Britain it should remain extant in the colonies because “it must be considered that in small colonies consisting principally of coloured populations, the enforcement for contempt of court forattacks on the courts may be absolutely necessary to preserve in such a community the dignity of and respect of the court.”19 Yet Lord Morris suffered a refutation himself two years later. A localEnglish newspaper had described Lord Morris as “the impudent littleman sittingwearing horsehairjudging themorals ofthe community” and the editor was then promptly prosecuted for the same species of contempt.20


The efficacy of each of theseforms ofaccountability has to bea separate study. For the present, it is sufficient to note that justice is a consumer product and must therefore meet the test of confidence, reliability and dependability like any other productif it is to survive market scrutiny. It exists for thecitizenry “atwhose serviceonly the system of justice must work”. Judicialresponsibility, accountability and independence are in every sense inseparable. They are, and must be, embodied in the institution of the judiciary. In the memorable words of Lord Delvin: “The prestige of the judiciary and their reputation for stark impartiality is not at the disposal of any government. It is an asset that belongs to the whole nation”, nay it belongs to the whole globe.” 21 Hans-Kelson opined that “Justice”, has several aspects in meaning. But to epitomize, it means, pleasure, welfare, or the benefit for those who suffer of injustice, plunder or deprivation.”22


In fact the judicial restraints and judicial activisms are mutually Complementary concepts are two sides of same coins. The circumstances justify by theselection of available choices or alternatives. Both are worth of appreciation or worth condemnation.

Whatis expected is fusion of varied concept whiledelivering judgements, daily in their business garnished with pragmatism, from moment to moment, Leaving,out-moded and redudant, JudicialProcess, ridiculous from the point of time, it ought to forge new tools and new techniques, opening the gates of criticism but restraining contempt.

Markandey Katju, J. recently in University of Kerala v/s Council of Principals of Colleges, Kerala, 23 in para 8 held that – “There is broad separation of powers under the Indian Constitution, and hence one organ of theState should not encroach into the domain ofanother organ. Thejudiciary should not thereforeseek to perform legislative or executive functions.”

Particularly, where the fog and mist has surrounded the future of UPA Government under Dr. Manmohan Singh and nationwide opposition by Anna Hajare’s team. The roaring need compels us to discover measures compatible with public opinion. Dicey had asserted it for England in his magnum opus classic book “law and public opinion in England in XIX century.”

In fact nothing should go beyond Justice, which is ever changing in its contents and that too for unfettered teeming ever increasing poverty stricken masses. India is of course one of these countries, still less developed. We have to protect constitutional institution as wellas their propriety against corruption.

The ombudsman system has to be moulded to fit in view of Indian Constitutionalism that less and less governance and more and more rights of common men. The states are also stake holders in the context of federal character. Pragmatic view of federalism can only defend our future generation as the strong and united country.