The Hon Justice Michael Kirby AC CMG 1




Having held judicial offices of various kinds for 23 years, I have learned enough wisdom to know that one must be cautious about entering into debate on touchy subjects in another country. Its controversies can only be understood by prolonged study or encounter. Any naive doubts that I might have had about the subject of judicial activism in India was dispelled by visits to India in 1996. Upon one visit, I picked up the copy of India Today 2 containing a detailed analysis of the work of the Supreme Court of India in the Jain Hawla Case and an extended interview with Justice J S Verma of the Supreme Court 3 . The flavour of the article can be found in the following exchanges 4 :


" Q: Do you see yourself as a crusader?


A: Kindly don't place me in that category. I too have some personal views, but I must wait till I retire. I can't sit in Court in the morning and lead a dharna in the evening. I can't use the trappings of my office to carry out my private agenda. And, in any case, how many people would come and listen to my speeches if I were not occupying my post?


Q: So how do you see the future of judicial activism?


A: The judiciary will continue to respond to the changing needs of the times. That is how activism has evolved. Let me dispel the popular impression that judicial activity began less than two decades ago. The truth is, way back in 1893, Justice Mehmood of the Allahabad High Court delivered a dissenting judgment which sowed the seed of activism in India. It was a case of an undertrial who could not afford to engage a lawyer. So the question was whether the court could decide his case by merely looking at his papers. Mehmood held that the pre-condition of the case being "heard" (as opposed to merely being read) would be fulfilled only when somebody speaks. Just look at how that man treated the law as a living organism. That is the spirit in which judges engage in activism even today.


Q: How does it feel to have shaken the entire polity?


A: Well, it proves that even an average man like me can achieve extraordinary results by making extraordinary efforts."


On a second visit to India, in October 1996, The Times of India reported comments of the Chief Minister, Shif Sena chief Bal Thackeray, at a meeting with the Prime Minister where he was reported as asking:


"'Who is running the country, the government, the courts or the media?' ... Reiterating that no judgment could be based on a 'public outcry' he [said] 'let judges behave as judges. They should not use objectionable language. If they do so it would not be possible to treat them with respect'" 5 .


Throughout the Commonwealth of Nations, with which (for the most part) India, like Australia, shares the great tradition of the common law, insufficient is known about the wonderful jurisprudence of this country. I have previously had cause to suggest that judges and lawyers in India and Australia should fashion new links with each other, relying no longer upon a common attention to the pronouncements of the English courts 6 . Although the detail of Indian jurisprudence is no more known in my country than that of Australia is known here, there is a general belief or understanding that the Supreme Court of India, and the High Courts under its leadership, have been particularly creative and imaginative in the development of the constitutional and common law of this country. Sometimes, in my own Court decisions, I have drawn upon the jurisprudence of the Indian courts to sustain a small advance in the exposition of the common law. So I did in a case involving the right of a person, affected by an administrative decision to have reasons stated 7 . However, I found that the decision was reversed in the High Court of Australia, upon which I now have the honour to serve 8 . In other decisions, I have reached conclusions on a matter of fundamental principle which, as I have later discovered, is similar to that reached by the Indian courts 9 . This has convinced me of the need to improve the flow of information between our two jurisdictions. It is one of the reasons why I am here amongst you.


However, it is sufficient for present purposes to state that the Indian courts, particularly the Supreme Court, have a respected reputation for creativity and ingenuity in the development and adaptation of the common law to the enormous contemporary problems and opportunities of this country. Those who trouble to examine the law of India carefully soon come to an understanding of the way in which the Supreme Court has, by a series of landmark judgments described by some as "judicial activism", established basic principles which would repay study in other parts of the common law world.


I refer, in this regard, to decisions on such matters as the right to go abroad 10 ; the right to privacy 11 ; the right to protection against solitary confinement 12 ; the right not to be held in fetters 13 ; the right of an indigent person to have legal aid 14 ; the right to speedy trial 15 ; the right against handcuffing 16 ; the right against custodial violence 17 ; the right against public hanging 18 ; the right, in certain circumstances, to medical assistance 19 ; and the right in certain cases to the provision of physical shelter 20 . Within recent days a decision of the Supreme Court of India has been widely publicised in Australia. It concerned the case of under-age child workers and the need to afford practical redress for their predicament.


Within India, as in my own and every other country, there are different views about judicial activism. Some judges, for example, find any variation from precedent an anathema and react with repulsion to the fact, methodology and language of the judicial activist. One distinguished Indian judge once wrote 21 :


"perorations and sermons as also theses and philosophies (political or social) whether couched in flowery language or language that needs simplification, have ordinarily no proper place in judicial pronouncements."


As against this clarion call to modesty, restraint and under-statement, other Indian judges have deliberately invoked vivid language in order to make their legal points and to explain the reasons for their decisions in a way that will be understood by ordinary citizens. This was the way, for example, of Justice Krishna Iyer. It was he who wrote that there was 'no iron curtain' between the prisoners of India and the Constitution of India 22 . What he wrote was later taken up by other courts, including the Privy Council 23 . Perhaps it was that distinguished judge's experience, of himself spending a night in prison, that galvanised him into a measure of activism for the disadvantaged. Perhaps it was a philosophy learned at the knees of his parents. Perhaps it was a special power with language that took on its own momentum the law in the search for justice, adapting where necessary legal principles which appeared to stand in the way. Anxiety about social justice and the removal of discrimination on all irrational grounds has caused judges like Krishna Iyer to become exemplars of a kind of "judicial activism" that is often in tune with the deeply felt emotions of ordinary citizens. It is concerned about the rights of children. It is concerned about torture, cruel, inhuman and degrading treatment or punishment 24 . It is also concerned about the struggle against what Justice Iyer has described as 'gargantuan corporate corruption' of Indian institutions. It is concerned about the struggle of citizens with the bureaucracy 25 ; about debtors in the grip of penury 26 and the rights of trade unionists and industrial workers.


I have no doubt that controversies exist in India about all of these causes. Judicial experience teaches me that, in all of them, there would be another point of view. For every litigant demanding judicial activism, there is ordinarily another urging judicial restraint. In India, the special features of society and its institutions, and the urgency of the problem presented to the courts, doubtless help to explain the demands for "judicial activism". Soli Sorabjee has pointed out that:


"indignant critics forget that it is the Executive's failure to perform its duty and the notorious tardiness of legislatures that impels judicial activism and provides its motivation and legitimacy. When gross violations of human rights are brought to its notice, the judiciary cannot procrastinate. It must respond".


However, to some critics, this is an unconvincing defence of judicial activism. In India, from the highest level of the judiciary there has been a recognition that excessive or ill-judged activism may damage the very institution which gives birth to it. Thus the Chief Justice of India has suggested that the phenomenon of judicial activism, evident in India today, may be seen as a temporary one, responding to the peculiar needs of the nation at this time 27 . The law abhors a vacuum. Into a vacuum left by the failure of the other branches of government to respond to urgent legal and social needs, the courts have sometimes stepped. Whether this is a good thing or wise or fraught with peril or positively damaging to the judicial institution are questions exclusively for Indians to judge. It would be unforgivably indiscreet for a guest, and particularly a judicial guest, to venture an opinion. That would certainly be the kind of "judicial activism" that I abhor.




But Indian jurists should certainly not think that they are alone with the controversies about judicial activism.


In the United States of America, the tension between judicial activism and judicial restraint has been present since the foundation of the republic and the creation of the Supreme Court.


The history of the Supreme Court of the United States teaches that judicial activism is not confined to a particular ideological or social viewpoint. It may be liberal. But it may also be quite conservative. In the early years of this century the "judicial activists" on the Supreme Court of the United States impeded legislation enacted by the Congress, or the legislatures of the States, dealing with social or economic affairs. Thus legislation governing child labour, workers' hours and workers' rights were consistently struck down as being violations of the commerce clause of the US Constitution or the judicially created doctrine of "liberty of contract" under the due process clause of the 14th Amendment. A well known example of this kind of judicial activism is the decision of the Supreme Court in Lochner v New York 28 . In that decision, the Court invalidated legislation of the State of New York regulating the hours that bakers could work. The Court held that this was a violation of "liberty of contract". These doctrines extended well into the 1930s. At one point they even threatened the New Deal programme of President F D Roosevelt. The "judicial activists" we denounced by the President. He threatened to enlarge the Court to overcome their unpopular doctrines.


In more recent times it has been "judicial activists" of the liberal school who have attracted the ire or Presidents Nixon, Ford and Reagan. Many a political slogan was devised in the United States to attack what was seen as the "adventurism" of the Supreme Court under Chief Justice Earl Warren. Yet it was during that time that the Court took many bold and courageous steps in the interpretation of the US Constitution in matters such as school de-segregation (described as the Court's "noblest enterprise" 29 ); reapportionment of unequal congressional electorates; prohibition of school prayer; aid to parochial schools and restraints on police invasions of individual civil liberties. The critics of this form of "judicial activism" complained that the Warren Court had promoted equality as the central doctrine of the United States Constitution at the expense of other values embedded in the Constitution and in society. The critics found most offensive the activist Justice's belief that "progress called history would validate their course" 30 .


The appointment of new judges and a long period of leadership by Chief Justices wedded to judicial restraint (Chief Justice Burger and Chief Justice Rehnquist) changed somewhat the debate in the United States. The advocates of judicial restraint relied heavily upon the doctrine of the separation of the judicial from the legislative and executive powers under the Constitution. This is a feature not only of the United States Constitution but also of the Constitution of Australia 31 and, to some extent at least, of the Constitution of India 32 . Advocates of judicial restraint frequently suggest that the principle is grounded, conceptually, in each branch of government sticking to its own function. They point to the fact that courts are limited to decision-making in concrete cases and controversies according to standards already established by law. Courts are not entirely free agents. They should not decide a dispute if there is no concrete interest in the litigant to be relieved by judicial decision (standing). They should not decide a dispute if the conflict is contingent and may not become actual (timeliness). They should not decide a dispute if the conflict is purely theoretical or the controversy has passed (mootness). They should not ordinarily give merely legal opinion for it is the argument in a concrete dispute between parties which will refine decision-making apt to the functions of the functions of the judicial branch (advisory opinions).


Each of the foregoing vehicles for judicial restraint have come under consideration in India and Australia in recent years. Each of them opens up large areas for legitimate differences of opinion amongst lawyers. Advocates for a broader standing rule, for a more relaxed approach to ripeness and mootness and the provision of judicial advice in appropriate cases point to the need for courts to be useful in the resolution of important controversies in society. They argue that the delays and costs of litigation will ordinarily afford more than enough restraint to prevent busy-bodies and pure theoreticians from knocking on the doors of the courts 33 . In India, by the expansion of the law of standing, the courts have enhanced their utility to prevent infringements of fundamental rights. The practice of the Supreme Court of India of entertaining letters and telegrams addressed to it as writ petitions, and in acting upon them, has naturally attracted criticism from some quarters 34 . On the other hand, it has often been the way by which the Court has transformed a purely theoretical right, and a hypothetical application of the rule of law, to the actual enforcement of the law in a way that brings justice under the law to the mass of the people.


I can think of no other final court of the common law which has gone so far as the Supreme Court of India did in SGuptaUnion of India 35 . It there unanimously ruled that where judicial redress is sought for legal injury to a person, or a determinate class of persons who, by reason of poverty, helplessness, social or economically disadvantaged position or disability are unable to approach the Court for relief, any member of the public, acting bona fide and not for oblique considerations, may maintain an action on their behalf. Such a person may seek judicial redress for the legal wrong or injury caused to such other person or determinate class of persons. Perhaps it is the special needs of India which propels its courts into radical refashioning of the instruments of the common law and reconceptualisation of the role of a modern judiciary in a free society.




The debate in the United States concerning the role of the judiciary has not, until lately, found many parallels in the United Kingdom. Doubtless this was because of the absence of a written Constitution, the judicial deference to Parliament and to the Executive Government sitting within it derived from the notion that the Sovereign in Parliament is the source of all power. However, in recent years, observers of the English scene will know that the judiciary has been taking a much more active course. It has been striking down ministerial decisions on judicial review 36 . So vigorous has this process become that it caused a major debate in the House of Lords in June 1996, initiated by Lord Irvine of Lairg 37 . The noble Lord rose "to call attention to the relationship between the judiciary, the legislature and the executive and the judicial participation in public controversy" 38 . He said that there was:


"unprecedented antagonism between the judges and the Government both over judicial review of ministerial decisions and the restrictions which the government proposed on judicial discretion in sentencing. Certainly there have been a string of decisions striking down Ministerial actions as unlawful. That has even led to some conservative politicians calling judicial review itself into question. The public must be perplexed by what they perceive as a major clash over the distinct roles of parliament, ministers and the judges".


The debate which ensued makes interesting reading for lawyers from countries such as India, Australia and the United States brought up with a written Constitution, a federal system of government and constitutional procedures for judicial review. Lord Irvine cautioned 39 :


"In exercising their powers of judicial review, the judges should never give grounds for the public to believe that they intend to reverse government policies which they dislike. That is why I regard as unwise observations off the Bench by eminent judges that the courts have reacted to the increase in the powers claimed by government by being more active themselves, and adding for good measure that this has become all the more important at a time of one-party government. It suggests to ordinary people that judicial invasion of the legislature's turf."


Lord Irvine went on to condemn extra-judicial statements by "distinguished judges" who had suggested that "in exceptional cases the courts may be entitled to hold invalid statutes duly passed by Parliament" 40 . To a noble Lord, brought up in the tradition of Dicey and the absolute supremacy of Parliament, this was heretical and an anathema. Yet to us who live in federations under the rule of law, it is a regular feature of judicial and political life. Other Lords in the debate noted that it was the growing openness of the judiciary which had led to the comments for which they were being taken to task. They hoped that the debate would not force judges back into reticence 41 . Lord Wilberforce acknowledged that there had been a period of "enthusiastic expansion of judicial review since 1968." However, he suggested that there were "now signs of a rather more cautious attitude in the higher court" 42 . This passage, from one of the great judges of the century, suggested a perception of a need to quieten the fears of Parliament and to allow the expressed anxieties about judicial activism to blow over.


There is much agonising about the "elective dictatorship" of the British system of government 43 and the differences between the judiciary in a country such as the United Kingdom and that of, say, the United States. Lord Simon of Glaisdale remarked 44 :


"The first quality that is required of a judge [was expressed] when the eminent American judge and jurists Felix Frankfurter was asked about the three most important judicial qualities, he said, 'First, detachment; secondly, detachment; and thirdly, detachment'. Although I would certainly put detachment first, there is also room for intuition particularly by judges of instant jurisdiction, and for logical rigour, particularly on the part of appellate judges. However, I entirely agree that detachment must come first. ... We must remember that every time a judge is called to conduct ... an inquiry, he is embroiled in a controversial issue and his detachment may be compromised. Indeed, the reputation for detachment of the judiciary as a whole may be compromised."


I could go on with these citations from the United Kingdom debate. It was wound up by the Lord Chancellor (Lord Mackay of Clashfern). He supported the view that judges have developed the law over the century. But he went on 45 :


"The extent to which that is permissible for them is not easy to formulate. I have seen various attempts in recent times to define the boundary between what is proper development and what is not. ... I find it difficult to enunciate what that boundary is. That can sometimes be seen in the difference of views between my colleagues as to whether that boundary has been passed. If the boundary were clear, one would not expect such a difference of opinion. ... Development of the law if part of the traditional role of the judges over the years under our system. It has been a healthy and a powerful influence on the law and on the development of the law and the protection of our people in the various centuries when it has been done, and it continues with complete health and robustness at the present time."


Enough has been said to show that the issue of judicial activism is very much a matter of controversy and debate in the country from which the common law has been derived. I suspect that the impact on that country of the external scrutiny of its law by the European Court of Justice and the European Court of Human Rights, has been a healthy corrective to the insularity and self-satisfaction which have sometimes been features of English law in the past. Every legal system, including that of India and Australia, is improved by the scrutiny of what is done by friendly strangers and a comparison of our systems with what goes on elsewhere. Because we of the common law enjoy a basically similar judicial institution, with functions both to apply and interpret but also to develop the law, we necessarily share similar problems. It is therefore useful for us to examine them and to learn from each other's insights.




Some of the controversies which have arisen in the United States, the United Kingdom and India have also presented themselves to the Australian judiciary, more urgently in recent times. For a long period the established doctrine of the courts of Australia was that expressed by Chief Justice Dixon in a passage known to every Australian lawyer and law student of my generation. Although stated in the context of constitutional interpretation, Sir Owen Dixon's words had a wider application. He said 46 :


"Close adherence to legal reasoning is the only way to maintain the confidence of all parties in federal conflicts. It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no safer guide to judicial decisions in great conflict than a strict and complete legalism."


In a later address to Yale University in 1955 "Concerning Judicial Method", Chief Justice Dixon accepted that judges do develop the law. But he was at pains to emphasise that it was a very limited function 47 :


"It is one thing for a court to seek to extend the application of accepted principles to new cases or to reason for the more fundamental to settle legal principles to new conclusions or to decide that a category is not closed against unforeseen circumstances which might be subsumed thereunder but it was wrong for a judge:


'who is discontented with the result held to flow from a long accepted legal principle, deliberately to abandon the principle in the name of justice or of social necessity or of social convenience'".


This was the doctrine in which I grew up in the law in Australia. It was the purest version of judicial restraint. One of its most vivid applications came in a comment made by one of the finest judges of the High Court of Australia (Sir Frank Kitto) in a decision of the High Court of Australia in 1967 48 . In response to a comment by another fine judge below (who later himself became a Justice of the High Court of Australia, Sir Kenneth Jacobs), Justice Kitto remarked 49 :


"I think it is a mistake to suppose that the cases concerned with 'changing social needs' or with 'a proposed new field of liability in negligence', or that it is to be decided by 'designing' a rule. And if I may be pardoned for saying so, to discuss the case in terms of 'judicial policy' and 'social expediency' is to introduce deleterious foreign matter into the water of the common lawin which, after all, we have no more than riparian rights."


It is against the background of these exchanges that recent developments in the High Court of Australia, and other Australian courts, both in constitutional and general law doctrine seem the more remarkable. This is not an occasion in which to review the whole range of innovative legal principles which have been stated by the High Court of Australia in the past decade. But they include, importantly, rulings which have the effect of ensuring legal assistance in many cases in order to avoid unfair trial 50 ; the exclusion of uncorroborated and unconfirmed police testimony to counteract a judicially perceived problem of unreliable confessions 51 ; the over-ruling of the ancient doctrine that marriage was of itself a defence to the complaint by a wife of rape 52 ; and most important of all, reversing nearly 150 years of decisional law in which it had been held that Australia was terra nullius when sovereignty was acquired by the Crown on British settlement. The Court concluded that Aboriginal and other indigenous peoples retained their "native title" to land until it had been lawfully extinguished 53 .


In addition to these (and many more) general legal developments, extremely significant decisions of a constitutional character have also been handed down in recent years. Most controversial of these has been the discovery by the High Court of Australia of a new implied constitutional right, in certain circumstances, to protected free expression about political, economic and related topics 54 . This right, or some aspects of it, is shortly to be re-argued before the Court. It would therefore not be appropriate for me to reopen the debates here 55 . But it is pertinent to note that one of the reasons which has been given for the support by the new Australian Federal Government for the consideration of the constitutional decision is that 56 :


"The role which the Court assumed for itself in these cases involves a fundamental shift in political responsibility from the Parliament to the High Court. Politically contentious issues are best handled by the Parliament as part of the political process and not by the Court."


The Federal Attorney-General stated that the Government would "seek to reverse the trend towards an interventionist High Court". It would seek to replace constitutional decision-making by the Court by effective legislation by Parliament. The Attorney-General was critical of the failure of successive Parliaments, Federal and State, to introduce reforms of defamation law. He suggested that it was preferable that such reforms should be made by the elected representatives of the people rather than by unelected judges.


The occasion which has given rise to the application for the reargument of the constitutional principle before the Courtwhich comprises seven Justicesis the retirement of two of the Justices who were in the majority in support of the extension of the constitutional right to free speech. They were the former Chief Justice, Sir Anthony Mason and the present Governor-General of Australia, Sir William Deane. They have been replaced on the Court by Justice Gummow and myself. I therefore find myself faced with an almost daily barrage of verbal injunctions either to hold the line on constitutional free speech or to retreat to the proper role of judicial restraint. Naturally, I read all of these opinions avidly. They will be dutifully forgotten as I enter the Court and concentrate my mind on the adversarial submissions that will be placed before me there. Nevertheless, it is worth citing briefly one commentary by a senior lecturer in a Sydney law school. Titled "The Rise of the Hero Judge", Mr John Gava has cautioned 57 :


"The worst result of activism is that the judges may end up losing the public's faith in their most important attributethe perception that they are impartial referees deciding according to the rule of law. Australia is wonderfully lucky in this regard. Of course our judges are human, with all the normal failings. But they do deserve their reputation for fairness impartiality. Losing that would be a tragedy.


To argue against judicial activism is not to make the mistake of believing that the judge's role especially in appellate tribunals like the High Court is anything other than creative. Of course it is. ... This does not, however, necessarily lead to activism. There is a world of difference between an attitude to choice which recognises and limits itself to incremental changes, tries to remain faithful to earlier decisions and appreciates that caution and restraint should be foremost in the judge's mind, and one which sees judging as an opportunity to act as a surrogate or replacement legislature and government. Or, as has been said, the impossibility of a completely sterile operating environment does not mean that surgeons should operate in sewers. Judicial activism should attract criticism, not hero worship" 58 .




In a recent lecture in Australia, I suggested that, with the decline of the declaratory theory, an important challenge before the judiciary was to try to find the guideposts which would ensure a principled and not idiosyncratic approach to judicial choice in particular cases. Commentators generally reacted to the effect that my suggestion was well meant but futile. A visiting Justice of the Supreme Court of the United States, Justice Stephen Breyer, was reported as saying that a "bright line" between permissible and impermissible judicial creativity did not exist 59 .


Nevertheless, I consider that there are four guideposts which may be useful to keep in the judicial mind as we approach this vexed problem of the opportunities and limits of judicial activism. They are: opportunity; need; inclination; and methodology.


Opportunity: There is a crucial difference between courts and legislators. It exists at the threshold of their work. Courts do not choose their controversies. They do not entirely control the matters which they decide or the issues which they tackle. Many chance considerations affect the ascent of a controversy to a nation's highest court. These include the perception of the importance of an issue by the lawyers; a foolhardy willingness of the litigant to press on with appeals; and the availability of funding to permit all this to happen 60 . This point was made well by Justice S G Pollack in a recent essay on "The Art of Judging" 61 :


"Artists begin with a creative impulse. Judges do not begin at all until someone starts a law suit. Even the most activist judges do not create causes of action, but must wait for someone else to start the process. Once the process begins, most judges depend on the adversary system to shape the case. The process is inherently rational and controlled."


This truism has limitations. The courts may signal an issue. Some judges have suggested that a point will not be ripe for development of the law until such a signal is given. Some courts, including my own, can control the issues they deal with, to some extent, by the gateway of leave to appeal. The court can afford a welcoming environment for legal innovation or one which repels every attempt at change. The requirement to afford procedural fairness to the parties; the limits on the admission of the submissions of strangers to the litigation; and the abiding judicial obligation to provide reasons for decisions puts a brake on purely idiosyncratic judicial change. This is why the history of the common law has tended to be one of incremental or interstitial change, made on notice 62 , rather than abrupt and revolutionary alteration. It should, in my view, continue in this tradition for that is the tradition of law as distinct from pure policy.


Need: Judges know, or ought to know, the limits on their legitimacy. Such limits derive from the fact that, at least in India and Australia, the judges are not elected. True, they are appointed by elected officials. But they are only rendered accountable to elected legislatures for their office by the most extreme and exceptional power of removal 63 . Accordingly, judges must accept that their undemocratic office and their limited function puts a check on their creativity. Justice Stephen Breyer remarked that the recognition of the "undemocratic" nature of the judicial function was the single most important restraint on justice 64 . By that I took him to mean that bold strokes, large leaps and complex, detailed reform ought ordinarily to be left to parliaments. This is so in most cases for the simple reason that, if the people do not like what is done, they can render those who did it accountable. They can replace them with other law-makers more to their own liking 65 . Yet the difficulty with this, oft repeated theory of judicial deference to the elected legislature is that parliaments today all too often appear disinclined to attend to important issues of law reform. In part, this may be the result of the interaction of the media and legislatures today. Issues must be simplified, even trivialised and, if possible, politicised. Unless they are part of the "game" of politics, the needs of reform tend to be dismissed by many politicians on the spurious footing that there are "no votes in it". Judicial assertions that a particular reform is up to Parliament ring rather hollow in the ears of those who hear them. I suspect that this is why, in recent decades, abhorring the vacuum in law-making, judges of the common law tradition have been more inclined to see particular areas as suitable for judicial development and reform. This is most especially true of questions involving court procedures where the judges feel comfortable, know they have expertise and see the unjust results of unreformed laws and practices 66 . But it may extend to other areas of substantive law where the original rules were judge-made and where the judges of today have no real conviction that reform, if left to Parliament, will ever be seriously addressed. This may be a presumption on the judges' part. But if so, it is one borne of long experience and frequent disappointments despite the urgencies of reform presented by societies undergoing extremely rapid change. Nevertheless, even in the face of clearly established needs, a point will often be reached where the judge should stay his or her hand. If the permanent values of the community are clear and the issue is relatively discrete and manageable, the judges may feel willing to do what predecessors have done and develop the law 67 . But India, like Australia, is a multi-cultural society where the "permanent values" of the people are often hard to find 68 . Moreover, both are societies undergoing rapid social and economic change 69 . That change creates at once the urgent needs for judicial activism but the obligation to restrain the largest temptations.


Inclination: The judiciary is the last empire of governmental individualism. Every judge is aware of the importance of certainty and predictability in the law, at least in those areas where the people's liberty or their major investments of capital and wealth are involved 70 . Judges vary in their inclination to develop or change the law. Some are by nature conservative; some activist; and some selectively evidence both tendencies at different times 71 . There are judges who have a large confidence in their own abilities to foresee the direction in which the river of the law is flowing. If such confidence is combined with assurance that they can perceive the "permanent values of [their] community" 72 and if they have great technical skills, much valuable reformist work may be done which is seen as a justifiable adaptation of underlying legal principles 73 .


Every judge, especially in the higher courts, nudges the law forward a little. Even judges whose inclinations are rule-based and whose personal predilections are conservative will occasionally strike a topic upon which the sense of justice in the particular facts moves them to do what judges of our tradition have been doing for 800 years. Nor is it appropriate to limit judicial creativity to the highest court. Necessarily, that Court can accept only a small proportion of the important issues of legal principle and policy which confront the nation at any time. In Australia, the High Court has emphasised the need for the intermediate appellate courts to play their role in the development of legal doctrine 74 . Inevitably, this extends the opportunities for judicial creativity. Even dissenting judgments can play an important part in furthering new ideas and promoting the eventual emergence of new principles.


Methodology: In terms of day to day judging, the methodology of the common law judge also tends to impose a measure of restraint. Adversary trial limits most proceedings to a contest between particular parties who rarely., if ever, have an esoteric interest in legal developments. They just wish to win the case. The stimulus to new legal authority must often come from the judge's own reading and perceptions stimulated by a sense of grave injustice to which the law or legal procedures seem directed. The adversary trial tends to limit the material available to the judge, particularly on the social and economic consequences of alternative solutions to the problem in hand 75 . In an often unformulated way, the judge will be conscious of the need to avoid large changes which would have wide economic and social ramifications. This is simply because these may not be wholly predictable 76 . Appeals to judicial commonsense are increasingly seen today to be suspect, given the comparatively narrow band of persons from whom the judiciary is typically drawn.


No established protocol exists for the introduction of important new principles. Because appellate courts are ordinarily limited to the evidence adduced at trial, some of them resist the admission of the economic and social data that would help them to make correct policy choices, if that is their wish in a particular case 77 . Reading law books on the resolution of past cases will but rarely be a suitable preparation for the large leap of judicial creativity. If the role of judges in developing legal principle is to be recognised overtly and not secretly in whispers, it behoves courts to adopt a new protocol or methodology for the judicial function . This would identify the leeways for choice; invite the provision of sufficient information and materials on social and economic consequences of the competing choices; and expand the opportunities to selected interest groups to be heard to assist the court to come to the preferable conclusion.


Yet all of this must be achieved within the framework of judge-like activity in a court disposing of real cases for real parties in a true dispute. Otherwise, courts will run the risk of expanding their procedures to take on the appearance of a legislative committee and enlarging their function beyond the disposal by reference to legal norms of the case before them. True, the norms may need to be expanded and adapted. But the judge is not a completely free agent. A measure of creativity is allowed. But it is a limited one whose parameters are fixed by the very nature of the judicial function.




The modern judge of the common law, in India, Australia and far beyond, is controlled in any temptations to activism. The judge's boldest ambitions are held in check by opportunity, need, inclination and the judicial method 78 . Of judges, the community expects honesty, integrity and learning. Increasingly, it also expects efficiency, timeliness and attention to case management. Prejudice and partiality have no place in the judicial function. The people have a right to expect the judge to be calm, objective and neutral 79 .


Society is slowly and somewhat reluctantly coming to realise that the "fairytale" of the declaratory theory of the judicial function is false and always was. But there is no clear divide which marks off the limits of judicial creativity and activism. Our communities have come to understand that some measure of "judicial activism" is not only permissible but is traditional in our system of law. Moreover, it is beneficial to the noble cause of justice under the law. The challenge for modern judges is to find where the line lies in a particular case, at a particular time and place. Each judge knows that limits exist. Most would agree with the recent remarks of Justice Anthony Kennedy, of the United States Supreme Court, that a society that leaves all or most of its hardest decisions to the courts is a weak society 80 . The burdens which society casts on its judges are greater today than ever before. We, the judges, are the servants of the law and of our societies. We must continue to find the sources of our discipline in legal authority. But when new problems arise, when the common law has no exactly analogous decision or where (as it so often the case) the Constitution or the legislation is ambiguous, we must also look to legal principle and legal policy. Judges do not usually have the privilege to decline the obligation of decision. Sometimes we will err, for that is inherent in the human condition. But if we search for the solution to the particular case with the illumination of legal authority, legal principle and legal policy and are sometimes called "judicial activists", we must accept that appellation with fortitude. Our activism has limits as every one of us knows. But in a real sense the common law itself is the product of "judicial activists". The most we can hope is that we are successors, worthy in our time, to the great spirits who have preceded us.


Let me finish with the words of one of the finest of those spirits, Oliver Wendell Holmes Jr. Nearing his 60th birthday, and unaware that he was shortly to be elevated from Chief Justice of Massachusetts to the Supreme Court of the United States, Homes said 81 :


"I ask myself, what is there to show for this half lifetime that has passed? I look into my book in which I keep a docket of the decisions of the full court which falls to me to write, and find about a thousand cases. A thousand cases, many of them upon trifling or transitory matters, to represent nearly a half a lifetime. A thousand cases when one would have liked to study to the bottom and say his say on every question which the law has presented ... I often imagine Shakespeare or Napoleon summing himself up and thinking: 'Yes, I have written 5,000 lines of solid gold and a good deal of paddingI, who would have covered the Milky Way with words that outshone the stars'. We are lucky enough if we can give a sample of our best and if in our hearts we can feel that it has been nobly done."


May each of us, lawyer and judge, evidence the same humility and aspire to the same noble contribution as that great jurist made to the living law.


1 Justice of the High Court of Australia. President of the International Commission of Jurists. *


2 15 March 1996 at 108-122.


3 Ibid, at 120-122.


4 Ibid, at 122.


5 Times of India, 22 October 1996 at 1.


6 M D Kirby, "India and Australia: A Neglected Legal Relationship and a Plan of Action", Address, New Delhi, India, 24 October 1996.


7 Osmond v Public Service Board [1984] 3 NSWLR 447 (CA).


8 Public Service Board (NSW)Osmond (1986) 159 CLR 656 at 668.


9 Ballina Shire Council v Ringland (1994) 33 NSWLR 640 (CA); cf R Rajagopal v State of Tamil Nadu (1994) 6 FCC 632.


10 Satwant Sing Sawhney v D Ramarathnan APO New Delhi, AIR 1967 SC 1836 .


11 Govind v State of MP, 1975 Cri LJ 1111: AIR 1975 SC 1378. Reliance was laced upon Griswold v Connecticut 381 US 479 (1965).


12 Sunil Batra v Delhi Administration, AIR 1978 SC 1675; Cri LJ 1741.


13 Shobraj v Supdt Central Jail, AIR 1978 SC 1514: 1978 Cr LJ 1534.


14 M H Hoaskot v State of Maharashtra, AIR 1978 SC 1548: 1978 Cri LJ 1678.


15 Hussainara Khatoon v Home Secretary, State of Bihar, AIR 1979 SC 1360: 1979 Cri LJ 1036.


16 T Vatheeswaran v State of TN, AIR 1983 SC 361(2): 1983 Cri LJ 481.


17 Sheela Barse v State of Maharashtra, AIR 1983 SC 378: 1983 Cri LJ 642.


18 Attorney General of India v Lachma Devi, AIR 1986 SC 467: 1986 Cri LJ 364.


19 Paramand Katra v Union of India, AIR 1989 SC 2039: 1990 Cri LJ 671.


20 Shelter Shantistar Builders v N K Totame, AIR 1990 SC 630.


21 V D Thuljapurkarin Manohar Rao Nath v Marod Rao SCC (4) 93 1979.


22 Sunhil Patra v Delhi Administration, AIR 1978 SC 1675(I); AIR 1980 SC 1579 (II).


23 Riley v Attorney General of Jamaica [1983] AC 719 (PC) at 734.


24 Raghubu Singh v State of Harayana, 1980 SC 1087, 1088.


25 Maneka Gandhi v Union of India AIR 1978 SC 597.


26 Jolly George Varghese v Bank of Ceylon, AIR 1980 SC 470.


27 A M Ahmadi, Zakir Hussain Memorial Lecture, 1996.


28 Lochner v New York, 198 US 45 (1905).


29 A Bickel, The Least Dangerous Branch. The Supreme Court and the Idea of Progress , 1970.


30 Ibid, at 13-14.


31 R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254. See also Wilson v Minister for Aboriginal and Torres Strait Islander Affairs & Anor (1996 70 ALJR 743; 138 ALR 220 (HC).


32 Ram Jawaya v State of Punjab, AIR 1955 SC 549, 556; cf Chandra Mohan v State of UP, AIR 1967 SCR 1987, 1993; V N Shukla, Constitution of India , 9th ed, Eastern, 1996 at 50.


33 North Ganalanja Corporation; Ex parte Queensland (1996) 70 ALJR 344 (HC); Lindon v The Commonwealth (1996) 70 ALJR 145 (HC).


34 Noted S J Sorabjee, "Public Interest Litigation for Protection and Promotion of Human Rights: The Indian Experience" in 1996 New Zealand Law Conference Proceedings, 40 at 48.


35 1981 (Supp) SCC 87.


36 V N Shukla, Constitution of India 9th ed, 1996 at 51-52.


37 Hansard , House of Lords, 5 June 1996 at 1254.


38 Ibid. Note that the debate about activism extends to civil law countries. For a comment on the position in the Netherlands see M de Werd and R de Winter "Judicial Activism in the Netherlands: Who Cares?" in B Bakker et al (eds) Judicial Control - Comparative Essays on Judicial Review (1996) at 8.


39 Id, at 1255.


40 Loc cit.


41 Lord Rodgers at 1264.


42 Ibid, at 1268.


43 For example ibid, at 1276.


44 Ibid, at 1282.


45 Ibid, at 1309.


46 (1952) 85 CLR xi, xiv.


47 Sir Owen Dixon (1956) 26 ALJ 468 at 469-470.


48 Rootes v Shelton (1967) 116 CLR 383 at 386-387.


49 The comment was addressed to a remark by Jacobsin Rootes v Shelton (1966) 86 WN (NSW Pt 1) at 101-102. See also JDoyle, "Judicial Law-MakingIs Honesty the Best Policy?" (1995) 17 Adel L Rev 161 at 203.


50 Dietrich v The Queen (1992) 177 CLR 292.


51 McKinney v The Queen (1989) 171 CLR 468.


52 The Queen v L (1991) 174 CLR 379.


53 Mabo v Queensland [No 2] (1992) 175 CLR 1. See also The Wik People v Queensland, unreported, High Court of Australia, 23 December 1996.


54 Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106.


55 Levy v Victoria, adjourned, part-heard, 6 August 1986. Note the comment by Justice P N Bhagwati that "the judiciary and the press are institutions pedestaled in fragile loneliness in the constitutions of most democratic functions". See (1995) 4 CIJL Yearbook 43. He states that "the independence of the press depends to a large extent on the vibrant activism of the judiciary".


56 D Williams QC AG quoted Courier Mail (Brisbane) 14 November 1996 at 1.


57 Australian Financial Review, 14 November 1996 at 21.


58 Loc cit.


59 Australian Financial Review, 29 October 1996 at 4.


60 R Sackville, "Continuity and Judicial CreativitySome Observations", unpublished paper, October 1996 at 21; D"Do Judges Make Law? Too Much?" (1996) 3 Judicial Review at 1.


61 71 NYUL Rev 591 (1996) at 593.


62 Lord Devlin, The Judge, (1979) at 11.


63 Indian Constitution, s 124(4); Australian Constitution s See also Sub-Committee on Judicial AccountabilityUnion of India (1991) 4 SCC 699; Krishnaswami v Union of India (1992) 4 SCC 605; and Sv Union of India (1992) 4 SCC 506.


64 Reported Australian Financial Review 29 October 1995 at 4.


65 Doyle, above n 48, at 207.


66 Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26 (CA) at 35-42.


67 Cf Brennanin Dietrich v The Queen (1992) 177 CLR 292 at 322-324; cf Doyle, above nat 199. See also Gummowin The Wik Peoples and Ors v Queensland, High Court of Australia, unreported, 23 December 1996.


68 A Mason, "Courts and Community Values" (1996) 6 (No 9) Eureka Street at 32.


69 Cf Doyle, above n 48, at 186.


70 Ibid, at 172.


71 Ibid, at 199.


72 Brennanquoted in Doyle, ibid, at 199.


73 R Dwarkin, Law's Empire (1986) at 243, 255.


74 Nguyen v Nguyen (1990) 169 CLR 245 at 268-270.


75 Doyle, above nat 172, 204.


76 Ibid, at 197.


77 Ibid, at 208.


78 F G Brennan, "The Judicial Method" in (1996) 8 Judicial Officers' Bulletin (NSW) at 73.


79 R Cooke "The Courts and Public Controversy" (1985) 5 Otago Law Rev 357 at 356.


80 J Rosen, "The Agoniser", New Yorker, 11 November 1996 at 90.


81 Extract cited J H Wootten, "Creativity in the Law" (1972) 4 Aust J Forensic Sciences, at 107.