Justice P.N. Bhagwati was a jurist ahead of his time, who set out a blazing path, but would the Indian judiciary have benefitted from having him at this point of inflection, reflects Anil V. Katarki.
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DECEMBER 21 is a day that no avid champion of human rights and public interest litigation (PIL) can let wear off without remembering the late P.N. Bhagwati, the 17th Chief Justice of India, who had a tenure of 17 months.
Justice Bhagwati’s 102nd birth anniversary was filled with national and international homages for his pioneering efforts in the development of human rights jurisprudence and PIL.
He rightly earned the title, ‘Father of PIL’ for being quick off the mark when he found genuine PIL to deal with.
Public-spirited people in India were thrilled and rejoiced to see the doors of the Supreme Court being opened so wide under the leadership of Justice Bhagwati. It was the dawn of a new popular culture in the field of PIL jurisprudence and judicial activism directed at ameliorating the suffering of people due to political and executive apathy.
Justice P.N. Bhagwati rightly earned the title, ‘Father of PIL’ for being quick off the mark when he found genuine PIL to deal with.
Justice Bhagwati emerged as a new star in the judicial firmament of the country with a healing touch. For his thoughts on judicial activism, Justice Bhagwati doubtless stands in league with the great judges of England such as Sir John Holt, William Murray (Earl of Mansfield), Colin Blackburn Blackburn, Robert Alderson Wright and James Richard Atkin, who transformed common law with their creative approach.
A law-making judge
Justice Bhagwati firmly believed in what Alfred Thompson Denning once commented about judges who believe and profess that judges do not make law: “This is an illusion which they have fostered, but it is a notion which is now being discarded everywhere.”
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Prof. Upendra Baxi, who paid scholarly attention to study why many appellate justices even in this day and age believe and profess the conservative theory about the judge’s role comments: “It is natural that judges wish to exercise power but do not wish to be particularly accountable to anyone. It is natural too, for them to begin to indulge themselves in the honest fiction that they are merely carrying out the intention of legislators or discovering the immanent something called the law.
“The tradition of the law and the craft of jurisprudence offer such judges plenty of dignified exits from the agony of self-conscious wielding of power, and this stance suits equally also the lawyers and scholars who too find it more convenient to deal with immediate issues of techniques and substance rather than look back to more fundamental questions of the role of the judges and lawyers in a changeful, often traumatically so, society.
“Hence the conspiracy of the Great Blackstonian lie: and hence, the incredibly persistent attempt to convince the people, to borrow the felicitous phrase of Picasso, about the ‘truth of the lie’ that judges do not make law.”
The reason why some judges hold the traditional view dear to them is because it allows them to exercise power without being accountable to anyone. Justice Bhagwati, as can be seen in the vast body of his judgments, was foremost among those judges who did not foster any illusion about a judge’s role.
Justice Bhagwati strongly frowned upon judges “finding dignified exits from the agony of self-conscious wielding of power” and strongly espoused conscious law-making by the judges.
He strongly frowned upon judges “finding dignified exits from the agony of self-conscious wielding of power” and strongly espoused conscious law-making by the judges: “It is often said that judges do not make law but they merely administer the law: they find the law as it already exists and apply it to the facts of a given situation.
“This theory, which I may call the phonographic theory of judicial function, is, to my mind, a fallacious one. I do not agree with the conventional view that has long held the field in the common law countries that judges merely declare the law; they are simply living oracles of law; they no more make or invent law than Columbus made or invented America.
“Law-making is an inherent and inevitable part of the judicial process. Even where a judge is concerned with the interpretation of a statute, there is ample scope for him to develop and mould law. It is he who infuses life and blood into the dry skeleton provided by the legislature and creates a living organism appropriate and adequate to meet the needs of the society, thus by making and moulding the law, he takes part in the work of creation.”
From the foregoing, one can easily make out that Justice Bhagwati was a true believer in judicial power, a belief he put in practice with a strong conviction.
What underscores the eminence of Justice Bhagwati is that he thought that judges, while exercising their power under the Constitution, owe an obligation to lay bare their philosophy in the public domain for public scrutiny.
He believed that such a tradition is in sync with democratic ideals and observed: “The work of judges has been shrouded in mystery. It seems like a world of specialists, which can only be unravelled by specialists and yet what the judges say and do is crucial to the people.
“Consistent with the democratic ideal, I believe, judges are under an obligation to explain what they do and how they think, even if they must do this in a way which may give future litigants the impression that the judicial mind is overconstituted by pre-conceived notions.”
Justice Bhagwati viewed that doing so would not only be a discharge of constitutional obligation but also cause an uptick in the common man’s understanding of how the courts and judges function. He called his philosophy the ‘social justice approach’.
Judicial activism
Justice Bhagwati was level-headed and clear-headed about the activism he had started and believed that it was taking root in the judicial process of great democracies such as the United States of America and India.
He wanted judicial activism to be welcomed without inhibition by law courts of countries if not of the whole world then at least of the Third World. The social justice approach of Justice Bhagwati to some extent parallels the judicial thinking of Oliver Wendell Holmes who had been a judge for fifty years when he retired as Associate Justice of the Supreme Court of the United States of America in 1932.
Justice Bhagwati called his philosophy the ‘social justice approach’.
Justice Holmes once complained “that the judges themselves have failed adequately to recognise their duty of weighing consideration of social advantage.”
More importantly, he said, “The result of the often proclaimed judicial aversion to deal with such considerations (of social policy) is simply to leave the very ground and foundations of judgments inarticulate and often unconscious.”
Justice Bhagwati’s approach had two essential qualities, creativity and activism. He had an aversion to what he called “higher infidelity to law or bureaucratic tradition of interpretation”.
He called such an approach a “weak theory of judicial function” and called upon judges to wield judicial power creatively and vigorously to strengthen and further values laid down by the founding fathers of the Constitution, coming very close to the ‘fundamental value’ theory of constitutional interpretation.
No mechanical interpretations
He jettisoned the mechanical theory of interpretation accentuating the need for judges to judge immediately when he observed: “Here, judges are seen as wholly subordinate to the legislature. Their job is visualised as mechanical rather than creative. Under such an approach, judges are the transmitters of both justice and injustice with even-handed facilities. None would respect judges or other judicial functionaries if they felt that all that judges did was mechanically transmit rules unseasoned by justice or equity.
“Judges just cannot interpret statutes in a mechanical fashion unconcerned with the consequences of their decision or to use the words of Holmes, J., with the potential rendition of the decision they are making.”
Justice Bhagwati wanted judicial activism to be welcomed without inhibition by law courts of countries if not of the whole world then at least of the Third World.
Justice Bhagwati was a judge of mind and always thought that a creative facet of judicial functions and responsibilities is indispensable if the judiciary is to be accountable to those who gave it the power it enjoys.
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The questions that judges need to ask themselves while interpreting the Constitution, as he said, are the questions: “Can judges really escape addressing themselves substantial questions of social justice? Can they simply turn around to litigants who come to them for justice and the general public that accords them power, status and respect, and say that they simply follow the legal text when they are aware that their actions will perpetuate inequity and injustice?
Can they restrict their inquiry into law and life within the narrow confines of a narrowly defined rule of law? Does the requirement of constitutionalism not make greater demands on judicial function?”
The above questions can be answered in the negative only if judges refuse to live in the cocoon of what Lord Denning has called “a fostering illusion”.
A way with words
Justice Bhagwati was a talented writer. His opinion had a sharp thrust, a sure touch, a mastery, brevity, simplicity, pithiness and axiomatic phrasing, an avoidance of verbiage and irrelevance and originality and freshness that are the despair of his imitators, of whom there have been several.
Justice Bhagwati jettisoned the mechanical theory of interpretation accentuating the need for judges to judge immediately.
How Justice Bhagwati would have functioned as a judge in the present turbulent time if he were to be a judge considering that the executive now is getting openly irked by the judgments seeping into judicial activism and creativity is a matter of debate.
But those who know Justice Bhagwati through his bold judgments on constitutional interpretation will surely believe that Justice Bhagwati would have risen to the occasion.
