1

UNELECTED JUDGES: LEGISLATORS IN BLACK ROBES

AN INDIAN PERSPECTIVE
Vijay Choudhary
Vijay.choudhary@ymail.com
Thomas Jefferson, the 3rd President of the Unites States, prophesied: The great object of
my fear is the Federal Judiciary1 and the germ of dissolution of our federal
government is in the constitution of the federal judiciaryworking like gravity by night
and by day, gaining a little today and a little tomorrow, and advancing its noiseless step
like a thief, over the field of jurisdiction, until all shall be usurped2 that would make
the judiciary despotic branch3. James Madison was right in pointing that if the powers
of judging [were] joined with the legislative, the life and liberty of the subject would be
exposed to arbitrary control, for the judge would then be the legislator.4
WE THE PEOPLE OF INDIA5 are deeply disturbed and concerned over the
oligarchial trend of the Supreme Court of India. It is, slowly but gradually, usurping the
powers of the Legislators and becoming another federal government with unelected
leaders. Courts are no longer..outside of the policy process but more typically now
constitute just another.stage in the process of policy formation6.

In fact, the

Supreme Court has become policy-making-judiciary replacing the legislative branch.

This was never the intention and vision of our Founding Fathers, who drafted, adopted
and ratified the Constitution of India to make the Supreme Court as the Third
Legislative Chamber. Unelected members of the federal judiciary, as Chief Justice
Rehnquist once said, were never thought to be a council of revision.with a roving
commission to second guess Congress, state legislaturesconcerning what is best for the
country.7
The oligarchial trend of the Indian Supreme Court has not developed overnight;
it has progressively gained momentum, and unconstitutionally usurped the legislative
powers. The germ8 of usurping the legislative powers was unconstitutionally
inseminated by the Supreme Court radically in the Supreme Court Advocates-on-Record
Association Vs Union of India.9 The fiction of primacy of the opinion of the Chief
Justice of India..after taking into account the views of the senior colleagues 10 is its
destructive invention. It further put a stamp of judicial approval in Special Reference
No.1 of 1998

11

that the opinion of the Chief Justice means the opinion formed in

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consultation with a Collegium of at least four senior most Judges. It is most disturbing
to note that according to the Supreme Court if aid and advice tendered by the Council
of Ministers under Article 74 of the Constitution is binding and mandatory on the
President12 surely also, the term consultation, referred to in Articles 124, leads to the
same exposition.
It is shocking that artificial and absurd distinctive meaning of consultation has
been made. As per the judgment, The hue of the word consultation, when the
consultation is with the Chief Justice of India as head of the Indian Judiciary, has to be
distinguished from the colour of the same word consultation may take in the context of
executive associated in that process to assist the selection of the best talent 13 (Justice
Verma for himself and on behalf of Yogeshwar Dayal, , G.N. Ray, Dr. A.S Anand and S.P.
Bharucha JJ and in separate but concurring Judgment Pandian J).

Can the word

consultation has one meaning for the Chief Justice of India and another meaning for
the executive, the President of India [Art.124(2)] with the aid and advice of the Council
of Ministers? The word consultation does not have any or many colour; it cannot
have distinguished or many meanings; it only means formal deliberation. In fact, by
giving distinguished..colour(meaning) to the word consultation, the Supreme Court
has

adroitly amended the meaning of

word consultation under the guise of

interpreting the Constitution and made it equivalent to concurrence which

was

rejected by Dr. Ambedkar as most dangerous proposition.

According to Raoul Berge, .the words change their meaning. To be sure, they
do, and were we to write a new constitution, we could use words according to our present
meaning. But we have no right to saddle our meaning on the dearly different meaning
that the founders assigned to their words. That is just a device for escaping their
explanation of what they meant to accomplish. To this day, we seek to ascertain the
intention of Congress in construing statutes; every student of statutory construction
knows that. And I would ask: why should judges feel bound by the legislators' intention
and yet feel free to ignore the will of the framers, a will that was ratified by the people14?
Dr. Ambedkar during the debates in the Constituent Assembly on the proposed
Draft Constitution on the word concurrence opined: .with regard to the question of
the concurrence of the Chief Justice, it seems to me that those who advocate that
proposition seem to rely implicitly both on the impartiality of the Chief Justice and the
soundness of his judgment. I personally feel no doubt that the Chief Justice is a very
eminent person. But after all, the Chief Justice is a man with all the failings, all the

3
sentiments and all the prejudices which we as common people have; and I think, to allow
the Chief Justice practically a veto upon the appointment of judges is really to transfer
the authority to the Chief JusticeI, therefore, think that that is also a dangerous
proposition.15 [Italicized supplied]. The proposed amendment in the Draft Constitution
was rejected by the Constituent Assembly. It is crystal clear that the Founders of the
Constitution never intended or envisioned to empower the supremacy of the Chief
Justice and collegium to absolutely veto upon the appointment of judges contrary to
original understanding of its meaning in the text, structure and legislative history of the
Constitution of India. After all, the Constitution derives its powers from WE, THE
PEOPLE OF INDIA through the Parliament..
One of the ground for judicial review and overruling the S.P. Gupta Case 16 is that
the Constitution Bench did not deal with Article 50 of the Constitution of India. At the
very outset, I must say that Article 50 is a transitory provision. I am supported by Pt
Jawaharlal Nehru statement in the debates on Draft Constitution Article 39-A that: it
may be necessary to have certain transitory provision17. In order to understand Article
50, it is necessary to go into the legislative history prior to enactment of the Constitution.
During the East India Company, the magisterial powers were transferred to the
Collectors, first, from the magistrates (1781) and then from the District Judges (1871)
and the Collectors acted as administrators, prosecutors and judges. The said
arrangement continued even after the enactment of the Criminal Procedure Code, 1898.
It was only in the Code of Criminal Procedure, 1973, by Section 6, the categories of
Magistrate were divided into: Executive Magistrate and Judicial Magistrate. While
Executive Magistrates are still under the control of the Government, the Judicial
Magistrates were brought under the control of the High Court. According to H.M.
Seervai, the most renowned and eminent jurist, the words in the public services of the
State in Art.50 refers to Magistrates who were appointed and belonged to the public
services of the State and not the Judges of the Supreme Court and High Courts who
were appointed by His Majesty Government of the Crown. Hence, Article 50 is not
applicable to interpret the separation of powers. The words services of the State in
Art.50 has been used with the same meaning as words SERVICES UNDER THE UNION
AND THE STATES used in Part XIV of the Constitution.
The prophecy of Dr. Ambedkar has really come true when Justice Ruma Pal first
exposed the working of the Collegium in a speech delivered by her on the topic, An
Independent Judiciary18, in which she pointed out: As I have said elsewhere, the

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process by which a judge is appointed to a superior court is one of the best kept secrets in
this country. The very secrecy of the process leads to an inadequate input of information
as to the abilities and suitability of a possible candidate for appointment as a judge. A
chance remark, a rumour or even third-hand information may be sufficient to damn a
judges prospects. Contrariwise a personal friendship or unspoken obligation may colour
a recommendation. Consensus within the collegium is sometimes resolved through a
trade-off resulting in dubious appointments with disastrous consequences for the
litigants and the credibility of the judicial system. Besides, institutional independence
has also been compromised by growing sycophancy and lobbying within the system.
The dubious process of selection of judges by members of the Collegium headed by the
Chief Justice has been further unmasked by Justice Jasti Chelameshwar in his letter to
the Chief Justice expressing and exposing serious concern: [m]y experience shows that
people gang up in the collegium and selections are done without anyone recording his
view and the basis of that view. The outside world does not know what is happening
inside the collegium. Two people sit and decide the names and then ask others to give
their yes and no to the names. Valid objections are brushed aside; selection is not on
merit. This cannot be a number game (played) by an unelected body that is accountable
to none19.
Now the sponsored creed of critics, a miniscule, as expected, absurdly criticize
Justice Chelameshwar for exposing the dubious selection process, must realize,
understand and open heartedly admit the exposed truth that something is seriously
wrong with the rotten selection process of Collegium system. They are same person or
persons who, deserve to be ignored, promoted, supported and triumphantly championed
the cause of unconstitutional judicial policy of creating Collegium system in preference
to peoples mandated National Judicial Appointments Commission with checks and
balances mechanism and transparency and accountability. In the corridors of the courts
and in group discussions, vast majority of the advocates and citizens have welcomed the
brave, honest and sincere revelation made by Justice Chelameshwar true to his Oath. I
hope the creed and fraternity of such bold, brave and honest Justices is multiplied in
future to protect the sovereignty of the Constitution. I have no hesitation in saying that
the newly acquired judicial independence can be destroyed and eroded by the powerful
hierarchies within the judiciary. When power is accumulated in few hands, that is, Chief
Justice having primacy and four members of Collegeum, they may act wrongly and act
like judicial despot. The founding fathers had learned the lesson of history..that

5
judges were not angels that they could do no wrongs..We must not reject their wisdom
and destroy our own freedoms by regarding the Constitution they drafted as a piece of
ancient parchment which can be folded and rearranged to suit the whims of individual
men20 in black robes.
One can simply conclude from the above views expressed by Justice
Chalemeshwar that everything in the Supreme Court is done on the basis of
predetermined Voting Model based on seniority and not on Deliberative Model. I am
reminded of personal experience of Chief Justice William H Rehenquist of United States
Supreme Court: When I first went on the Court, I was both surprised and disappointed
at how little interplay there was between the various justices during the process of
conferring on a case. Each would state his views, and a junior justice could express
agreement or disagreement with views expressed by a justice senior to him earlier in the
discussion, but the converse did not apply; a junior justice's views were seldom
commented upon, because votes had been already cast up the line21
It is paradoxical, on the one hand, to allege about the politicization of judiciary
and, on the contrary, indulge in judicialized politics. After divulgence of secretively
protective, untrustworthy and questionable functioning of abominable and awful
Collegium by Justice Ruma Pal and now Justice Chelameshwar, everybody believes and
recognizes that something is inherently wrong with the Supreme Court; one does not
have to be an expert jurist or constitutional lawyer to sense it to believe. It is selfexplanatory.
The greatest fear of Dr. Ambedkar was that judges are not infallible. They are also
human beings like us having all the traits and shortcoming. Some of judges are as
brilliant as some of us; some of them are as honest as some of us; some of them are as
corrupt as some of us; some of them are appointed by political or judicial skullduggery as
some of us. However, the problem arises when .the Supreme Court causes the justices
to think they are gods and know more than the rest of us22. Unelected Judges are not
God23. Therefore, what Dr Ambedkar meant by dangerous proposition is that the
judges are as vulnerable and capable of usurping unconstitutionally the judicial powers,
as elected politicians. The greatest danger to the sovereignty of the Constitution is from
the judges, the protector of the Constitution, than the elected politicians; for the latter
can be removed by the people in the next election and wrongs done by them can be
corrected, but the impeachment of judges is almost a difficult task, nay impossible, in the

6
present prevailing political circumstances and cumbersome procedure involved. Hence,
the Chief Justice veto becomes irreversible.
When Judges of the Supreme Court exceed their interpretive role, the result is
not only infidelity to the Constitution, but very often poor public policy and..
unfortunately, federal judiciary has strayed far beyond its proper functions, in many
ways validating Jeffersons warning about judicial powers24 making judiciary a
despotic branch Admittedly, the interpreting role of the Supreme Court is its
constitutional duty; but it does not empower it to pervert the original understanding
and meaning of the Constitution and make judge-made-amendment called judicial
legislation thereby

legitimatizing and constitutionalizing

the judicial policy and

personal preferences of the judges. Remember, they are not writing New Constitution.
According to Professor Robert H Bork, If the judiciary is really supreme, able to rule
when and as it sees fit, the society is not democratic.25
What is the meaning of judicial legislation? According to Judge Diarmuid
Fionntain O'Scannlain,: when I use the term judicial legislation, I do not do so
literally. Rather judicial legislation is the phenomenon of judges displacing democratic
policy choices in the name of their own policy preferences couched in amorphous
constitutional clauses interpreted without the aid, text, structure, and history26
But how, exactly, is one to distinguish such impermissible judicial legislation from the
constitutionally legitimate exercise of the judicial power? I suggest that the most
effective way to ensure is to employ a methodology that relies on the Constitutions text,
structure and history as constraining forces. Without such constraints, judges are
nothing more than politicians in robes, free to tackle the social problems of the day based
on avant-garde constitutional theory or, worse yet, their own personal preferences... 27.
Benjamin N Cardozo was right in pointing about the judges: He is not a knighterrant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw
his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to
vague and unregulated benevolence. He is to exercise a discretion informed by tradition,
methodized by analogy, disciplined by system, and subordinated to primordial necessity
of order in social life28.
This unfortunate and unprecedented decision was purportedly claimed to have
been taken by the Supreme Court on fear of politicization of the judiciary but, in fact,
was actuated by the ambitious expansionism of judicial territory to monopolize the
power of appointments of judges and leave behind their self-chosen judicial heirs29.

7
However, experience shows, in its claim to de-politicize the judiciary, it has gravitated
towards judicialized politics30 as is evident when it admits that Even if I choose to
ignore the controversial statements made (in the recent past) with regard to the
appointment in question in the case, by persons who held high constitutional offices and
played some role in the appointment process including former Members of this Court,
the judgment leaves sufficient scope for believing that all did not go well with the
appointments31
James Madison was right in saying that: the accumulation of all powers,
legislative, executive and judicial in the same hands, whether of one, a few, or many, and
whether hereditary, self-appointed, or elected, may justly be described as judicial
tyranny32. By judicial tyranny, James Madison meant: When judges overstep their
authority by declaring perfectly legitimate laws enacted by the citizens of the states by
direct votes unconstitutional. It occurs whenever meaning and phrases in the
Constitution are perverted to mean something that the people who wrote and ratified the
Constitution never intended33.. This is exactly what has been done by the Supreme Court
in Second Judges Case by perverting the meaning of the word consultation and
declaring its supremacy having same exposition as aid and advice of the Council of
Ministers and binding on the President under Article 74 of the Constitution. Are we
heading towards establishing a system of judicial anarchy at worst or of judicial
impressionism at best34, or in the words of Supreme Court exhibitionism of judicial
valour35?
When a court strategize judicial policy for institutional preferences, claiming
to represent collective-judicial-instinct and interests of judiciary, replacing the
collective wisdom or WILL of the people embodied in the Constitution, with
ambitious design to usurp the legislative powers under the guise of interpretative role,
it can be termed as Judicial Dictatorship. It is a weapon of judicial discretion with the
courts that breeds the judicial politics in the institution. Bradley W. Joondeph is right
in pointing that [p]erhaps the broadest conception of "politics" as it applies to courts is
as a synonym for judicial discretion. On this reading, judicial decisions are political if
they are not strictly dictated by the accepted sources of legal authority, such as the
relevant text, history, tradition, or precedent. That is, when a judge exercises personal
judgment, (he)/she has resorted to criteria outside the law and thus rendered a decision
that is necessarily political36. Richard Posner has observed that "the Supreme Court,

8
when it is deciding constitutional cases, is political in the sense of having and exercising
discretionary power as capricious as a legislature.37
The Founding Fathers of our Constitution created distinct form of government
with three branches Legislative, Executive and Judiciary and a system of checks and
balances to insure that tyranny and despotism of any branch would never exist in India.
Mar Levin has rightly stated that they feared each branch of government would attempt
to usurp the power of the people, but they never believed they would be replacing King
George with a tyranny of unelected judges in black robes. Yet, that is exactly what has
happened38. In fact, . the doctrine of separation of powers has, strictly speaking no
place in the system of government that India has at the present day under her own
Constitution or which she had during the British Rule. ..Under article 53(1), the
executive power is indeed vested in the President, but there is no similar vesting
provision regarding the legislative and the judicial powers. The President, as the head of
the executive, is to act on the advice of the Council of Ministers, and this Council of
Ministers, like the British Cabinet, is a hyphen which joins a buckle which fastens, the
legislative part of the State to the executive39. In fact, after 42nd and 44th Constitution
Amendments, there is vesting provision that decision taken by the Council of Ministers is
binding on the President. There is no such explicit vesting provision in the Constitution
which provide supremacy of the Judiciary that its consultation shall be binding on the
President (Government).
The tripartite system of government have to function within their assigned
demarcated spheres avoiding the exercise of the powers of one department to encroach
upon another so that no one branch would ever become too powerful and despotic.
According to Prof. Gary Lawson, the famous American constitutional expert: The
Constitutions

three

vesting

clauses:

legislative,

executive

and

judicial

institution..exercising that power, must either fit within one of the three formal
categories thus established or find explicit constitutional authorization for such
deviation. The separation of power principle is violated whenever the categorization of
the exercised power and the exercising institution do not match and the Constitution
does not specifically permit such blending40.
The fiction of judicial supremacy is not enshrined or expressed in the
Constitution of India. It is often cloaked under the guise of judicial independence. Very
often, it is unconstitutionally invoked under the umbrella of judicial independence on
the pretext of interpretation of the Constitution; and personal opinions or judicial

9
policy of the Judges is substituted like King Georges judges executed King George will
not the will of the people41. Such judicial legislation is inconsistent and incompatible
with the doctrine of separation of powers, which is not absolutely rigid, in the text,
context, structure and legislative history of the Indian Constitution.
What is the meaning of judicial supremacy? It means different things to
different jurists, scholars, lawyers and judges but all of them, at least, agree with the
definition given by the Joint Statement of the Courts of British Columbia42: The term
Judicial independence means that judges are not subject to pressure and influence, and
are free to make impartial decisions based solely on fact and law. Judicial independence
is often misunderstood as something that is for the benefit of the judge. It is not. It is the
publics guarantee that a judge will be impartial43.
According to Justice Kuldip Singh: Keeping in view the expanding horizon of
judicial review it is paramount need of the time that not only the independence of an
individual Judge is to be secured but the independence of judiciary as an institution has
also to be achieved44. Firstly, Appointment of Judges is an executive act. It is not an act
of judicial review. Even when the Chief Justice and Collegium exercise the power of
selection of judges for appointment, they do so in their administrative capacity.
Secondly, to preserve judicial independence in India, the Founding Fathers of the
Constitution guaranteed five things: (1) Security of Tenure (Art. 124); (2) Removal of
Judge only by impeachment, a very difficult process. (Art.124); (3) Financial Security
(Art.125); (4) Administrative Independence (Art.145 & Art. 146); and (5) Expenses are
charged on the Consolidated Fund of India without any vote in Parliament (Art.146).
Therefore, the Founding Fathers constitutionally ensured and guaranteed the
independence of the Supreme Court from political pressure. It depends upon individual
judges courage, character and nerve how to encounter and stave off, if any, extra
political, judicial or other pressure.
Moreover, as per Dr. B.R. Ambedkar: And I have said that the relations between
the executive and judiciary are so separate and distinct that the executive has hardly any
chance of influencing the judgment of the judiciary45 . Even Sh. Biswanth Das opined in
the constituent assembly debates that: The Constitution gives them ample safeguard
regarding the tenure of service, their freedom of judgment and safeguards from
interference so far as the discharge of their functions and responsibilities are
concerned46. The very fact that for more than four decades, the judges were appointed
by the executive and they delivered the judgments against the government is ample proof

10
that judgments were delivered without any extra or political pressure. Therefore, the
apprehension of Justice Kuldip Singh that there cannot be an independent judiciary
when power of appointment of judges vests in the executive is preposterous.
Keshawanada Bharti Case is the illustrative and biggest example besides other important
judgments pre-and-post-Keshawananda case delivered by the Supreme Court.
Benjamin N Cardozo opined: I think adherence to precedent should be the rule
and not the exception47. [The Nature of the Judicial Process] At least some provisions
of the Constitution need not be interpreted but only applied because they are entirely
clear, because the meaning of the text is available to courts without interpretation, or
because the text itself excludes enough possible interpretations to reduce the dangers
thought to lurk in unrestrained constitutional interpretation"48 Hence, there was no
need to review the S.P. Gupta Case because meaning of the word consultation was
plain, simple and clear and the text was available without interpretation. Secondly, in the
First, Second and Third Judges case, it was held that the word consultation does not
mean concurrence. If that be so, to say that consultation means primacy or
supremacy of the Chief Justice is not only preposterous but an act of judge-madeamendment and exercise of unrestrained dangerous judicial discretion. It appears
that the judicial culture of constitutional interpretation is being altered and manipulated
to achieve judicial preferences and judicial policy. The methodized interpretation of the
Constitution and judicial self-restraint has been taken over by the temptation of the
judicial supremacist to achieve judicial vision of self-reform movement. It is antithetical
to the Constitution.
Madison wrote that "if the sense in which the Constitution was accepted and
ratified by the nation be not the guide in expounding it, there can be no security... for a
faithful exercise of its powers49. According to Justice Harlan, one of the most
outstanding Judge of the United States:"When the Court disregards the express intent
and understanding of the Framers, it has invaded the realm of the political process to
which the amending power was committed, and it has violated the constitutional
structure which is its highest duty to protect."50.
The recent endeavor of the Supreme Court to correct societal problems by
legislating from the bench has gravely endangered the basic structure of the
Constitution lowering judiciarys institutional prestige. Litigants do not approach the
Court with a request or prayer to make laws for them; they go to the Court to get a law
declared invalid or their case be decided as per the law. However, a disastrous situation

11
has arisen with the advent of judicial supremacy created by the radical supremacist
judges assertion that they have solutions for all the socio-economic and political
problems. The Judges should remember Justice Kennedys view, [f]ailure of political
will does not justify unconstitutional remedies51.
The constitutional courts ignore the reality that there is a constitutional
mechanism for enacting legislation by 543 Members of the Lok Sabha and 225 Members
of Rajya Sabha representing all sections of people, varying interest groups and better
equipped with specialized, well trained expertise in respective field and institutions of
proposed enactment. In contrast, Courts exercise judicial preference and avail services
of amicus curiae, generally advocates, who represent a very powerful political interest
group, with fixed ideological leanings, personal preferences and very often ready to
appease and play with the judicial psyche of the Judges.

Even when services of

specialized experts are taken by the Courts, it is not as broad and varying as possessed by
the Government with its vast infrastructure and very large contingents of specialized
well trained experts. The Courts have opened their doors to these socio-political interest
groups who have failed in their attempt to achieve political objectives through
democratic process and means, find it easy to achieve their objectives through the
Courts; be it NGOs supported and financed by foreign aids or professional political
groups operating under the guise of social organization. The constitutional courts are
eager and ready to legislate from the bench for these powerful interests groups.
The most controversial but important case of legislating by the bench in recent
time is Board of Cricket Control of India (BCCI). The BCCI is a society registered under
the Tamil Nadu Societies Registration Act, 1975 and the Tamil Nadu Societies
Registration Rules, 1978. The Supreme Court appointed a committee called Lodha
Committee to look into the affairs of management, constitution and working of the BCCI
and make recommendations including amendments in the Memorandum, by-laws etc
etc. As per Section 12 of the Tamil Nadu Societies Registration Act, 1975, the power of
amendment of memorandum and by-laws are with the registered society. As per Rule 45
of the BCCI, the Rules and Regulations of the BCCI can be repealed, added to, amended
or altered only when passed and adopted by a 3/4th majority of the members present
and entitled to vote at a Special General Meeting of the General Body convened for the
purpose or at the Annual General Meeting52.. Moreover, Section 36 of the said Act clearly
stipulates that power to inquire into the affairs of the society concerning constitution,
working and financial condition shall vest in the Registrar or person authorized by him

12
in writing, on the application of majority members of the Committee or at least 1/3 rd
members of the society, or if so moved by District Collector to hold an inquiry. Thus, the
said Act is complete code in itself so far as the registered society is concerned. In view of
the above statutory provisions, the appointment of Lodha Committee, its acceptance,
approval and ratification by the Supreme Court is illegal, invalid and unconstitutional.
Can the Supreme Court usurp the statutory powers of the Registrar vested under
Section 36 of the Act or Rule 45 of the BCCI and judicially force, coerce and dictate the
General Body to amend the Rules and Regulations of BCCI as per Judicial WILL? No. I
regret to say in all humility that unelected judges of the Supreme Court are acting like
legislators in black robes. The temptation of the judges to legislate from the bench
constitutionalizes the personal WILL or judicial preferences of the judges and not the
WILL of the members of the society. The rights and liberty of the members of the BCCI
to frame their rules and regulations as per the law has been usurped by the Court against
all the cannons of statutory and constitutional rights. As Judge Robert H Bork once
stated:If the judiciary really is supreme, able to rule when and as it sees fit, the society is
not democratic53. In other words, the democratic rights and liberty of the people or
members of the BCCI are freezed by such judicial legislation. In B.D. Kaushik case54, it
was held that the Courts leave it open to the association and its members to frame byelaws, rule or regulations and once a person becomes a member of the association, he/she
loses his individuality quo the association and has no individual rights except those given
to him by the rules and regulations and/or bye-laws of the association
It is also well settled that where the statute provides for a thing to be done in a
particular manner, then it has to be done in that manner and in no other manner. This
proposition of law laid down in Taylor Vs. Taylor55 was first adopted by the Judicial
Committee in Nazir Ahmed Vs. King Emperor56 followed by a bench of three Judges in
Rao Shiv Bahadur Singh Case57. This proposition was further explained in paragraph 8 of
State of U.P. Vs. Singhara Singh58 by a bench of three Judges: The rule adopted in
Taylor v. Taylor is well recognized and is founded on sound principle. Its result is that if
a statute has conferred a power to do an act and has laid down the method in which that
power has to be exercised, it necessarily prohibits the doing of the act in any other
manner than that which has been prescribed. The principle behind the rule is that if this
were not so, the statutory provision might as well not have been enacted.. The
aforesaid principle enunciated in Taylor Vs Taylor and subsequently followed by the

13
Supreme Court are binding on the Supreme Court and, in case of disagreement with the
above settled law, it should have been referred to larger bench.
In his testimony before the Senate Judiciary Committee, Chief Justice Roberts
stated: "Judges are like umpires. Umpires don't make the rules, they apply them. The
role of an umpire and a judge is critical. They make sure everybody plays by the rules.
Nobody ever went to a ballgame to see the umpire.59 The rules are sacrosanct boundary
within which judges have to decide. However, there is paradigm shift in judicial
temperament and self-imposed judicial restraint. Unlike in the past, the judges are
nowadays engaged in legislating from the bench rendering the constitutionally created
legislative branch redundant and constitutionally mandated procedure meaningless.
This constitutional aberration by the judiciary has created a very dangerous situation in
the contemporary constitutional history of India.
The heavy handed judicial intervention by the Supreme Court in BCCI case
contrary to the Act and Rules and Regulations of the society is unconstitutional. The
judicial threat by the Supreme Court to the BCCI to amend the Rules and Regulations by
requisitioning Special General Body Meeting or face consequences does not justify the
unconstitutional remedy by judicial legislation. It can be termed as judicial
dictatorship.

In the words of Judge, Mr. Diarmuid F. OScannlain I dare say,

members of the bench themselves have come to regard the judicial branch as an
alternative forum for achieving political goals. I am reminded of Harvard University
Professor of Psychology Daniel Gilbert may have said it best when he wrote the following
in an Op-Ed article in the New York Times: "judges strive for truth more often than we
realize, and miss that mark more often than they realize. Because the brain cannot see
itself fooling itself.60
Another example, to take only few for the present purpose, of judicial
legislation by the Supreme Court, is in the nature of legislating Environmental
Compensation Charges in the M.C. Mehta case61. In this case, the Supreme Court in its
judicial enthusiasm to check and control the air pollution in Delhi, enacted and passed
an unconstitutional judicial legislation for levying Environment Compensation Charges
for different categories of vehicles at the rate of Rs.700/- and Rs.1300/- which was
revised and enhanced to Rs.1400/- and Rs.2600/- per vehicle entry in Delhi vide Order
dated 16.12.2015 and further unconstitutionally directed that the said charges shall be
collected by the Toll Collection agencies. Yet again, the judicial legislation was enacted by
imposing 1% Green Cess on registration of vehicles above 2000 cc in the National Capital

14
Region at ex-showroom price as environmental surcharge voluntary proposed by the
manufacturers. The list goes on. This judicially-imposed-tax is unconstitutional and
without constitutional sanction. The Supreme Court first legislates from the bench and
makes law; it then passes a judicial Order on the judge-made-law and finally gets the
law executed. Never heard of such judicial practice in the democratic history of any
country in the contemporary world where all the powers - legislative, executive and
judiciary - are accumulated and exercised by judiciary. The citizens of this country, if
aggrieved, are adversely affected by this tax and are left without any remedy to
challenge its legality and constitutionality. Like East India Company, the Supreme Court
is exercising the power of the legislative, executive and judiciary. Thomas Jefferson was
right in saying that it would make the judiciary a despotic branch62. It is not the
function of the Unelected Judiciary to act as an institution for radical experimentation
of socio-economic and political reforms from judicial platform merely because it
perceives, believes and sees fit that social or institutional reforms are necessary. It has
plunged itself into dangerous zone of conflict with the executive and legislative branch,
damaging the institutional prestige and creating constitutional crisis. The
Constitution doesn't belong to a bunch of judges and lawyers. It belongs to you (people)
echoed Justice Anthony Kennedy of United States Supreme Court.
According to Art.265 of the Constitution, No tax shall be levied or collected
except by authority of law. The word tax includes any impost - general, special or local
[Art. 366 (28)]. It would thus include not only taxes but also duties, cess or fees. It
means not only the levy but also the collection of tax must be by authority of law. The
words authority of law means the law must be validly enacted by the body which has
the legislative authority and in the manner or procedure as prescribed by Art. 110, 117,
123, 199, 207 and 213 of the Constitution63; both levy and collection of tax cannot be
done except by legislative sanction64. Authority of law to levy or collect tax has to be
specific and explicit and should be expressly provided in the valid law65. Mr. H.M.
Seervai, the renowned constitutional expert and jurists opines: The object to be
taxed, the persons to be taxed, the amount to be levied, the political, social and economic
policies which a tax is designed to sub-serve are all matters of political and legislative
judgment and that judgment has been entrusted to the Legislature and not to the
Court66.
Thus, the Cess/Fee/Surcharge levied by the Supreme Court is unconstitutional
and violative of Article 265 of the Constitution. Howsoever, laudable or commendable

15
the intention of the Supreme Court may be, the failure of political will does not justify
unconstitutional remedies67 by legislating from the bench. The question of taxation
policy and its imposition is strictly with the Legislature and not for the determination
and fixation by the Courts. It is not the assigned constitutional function of the
Judges/Courts to act as politicians in black robes and legislate from the bench. The
Founding Fathers of the Constitution neither envisioned nor conferred the lawmakingpowers or any role in the lawmaking-process to the Supreme Court. James Madison was
right in saying that where whole power of one department is exercised by the same
hands which posses the whole power of another department, the fundamental principles
of free constitution are subverted68. The judicial modesty leads to constitutional
limitation of judicial-restraint. However, it has been taken over by the ambitious
temptation of personal views and impulses of self-proclaimed champion of judicial
heroism to foster social, political and institutional reforms.
According to Thomas M Cooley Whoever derives powers from the Constitution
to perform any public function, is disloyal to that instrument, and grossly derelict in
duty, if he does that which he is not reasonably satisfied the Constitution permits.
Whether the power be legislative, executive or judicial, there is manifest disregard of
constitutional and moral obligation by one who, having taken an oath to preserve that
instrument, takes part in an action which he cannot say he believes to be no violation of
its provisions.69 (emphasis supplied). I am not ready to presume that the Judges of
the Supreme Court dealing with the above cases were not aware of the constitutional
provisions. Have they acted and exercised their power true to the spirit of their Oath?
Remember that times change, the men change, that new thing are invented, new
devices, new schemes, new plans, new use of corporate powerTake care to put
proper instructions upon [the Legislature] but at the same time leave what properly
belongs in the field of legislation to the legislature70.
The basic question is: how to control and curb the growing tendency of judicial
policy to legislate from the bench? I suggest that the parliament must enact a law to be
called the Invalidation of Judicial Legislation Act and declare all those Judicial
Legislations unconstitutional which have been unconstitutionally legislated by the
bench. There is difference between law declared by the Supreme Court under Article
141 of the Constitution and law legislated or enacted by the Supreme Court which is
beyond its constitutional jurisdiction. A law created or enacted by judicial legislation
and then law declared by the Supreme Court on such judicial legislation is not

16
binding under Article 141 of the Constitution; since the declaration of the law is not
based on constitutionally mandated law enacted by the legislators. Secondly, the
constitutional remedy of impeachment available under Article 124 of the Constitution
must be invoked against those judges who follow the judicial policy or judges
preference of legislating from the bench in gross contempt of the constitutional
provision. The legislators, too, are under Oath to protect the majesty of the Constitution.
.

The constitution..is a mere thing of the wax in the hands of the judiciary, which

they may twist and shape into any form they please71 said James Madison. I am afraid,
Alexander M. Bickels The Least Dangerous Branch: The Supreme Court72 has
become the Most Dangerous Branch. In India, the supreme power and authority to
legislate is in the hands of WE THE PEOPLE OF INDIA through politically elected
representatives and not in WE THE JUDGES.
To conclude, the judicial hegemony is gradually destroying the legislative
autonomy and consequently the basic structure of the Constitution. The Judges, perhaps,
have false illusion, perception and sense of pride that they have legitimacy of people. In
fact, it was Adolph Hitler, who said that "[m]y pride is that I know no statesman in the
world who with greater right than I can say he is the representative of his people."
References:
1.

Jefferson, Thomas Letter to Judge Spencer Roane, 1821.

2.

Jefferson, Thomas Letter to Charles Hammond, August 18, 1821.

3.

Jefferson, Thomas Letter to Abigail Adams, September 11, 1804.

4.

Madison, James the Federalist No. 47, at 324, Carl Von ed. 1945.

5.

Preamble to the Constitution of India.

6.

Marbury Vs Madison 5 U.S. (1 Cranch) 137, 178 (1803).

7.

Rehnquist, William H, the Notion of Living Constitution, 54 Tx L. Rev 693, 695-698

(1976).

8.

Id 2

9.

(1993) 4 SCC 441.

10.

Id 9

11.

(1998) 7 SCC 739

17
12.

The amendment is in tune with view taken in Shamsher Singh Vs State of Punjab AIR
1974 SC 2192: (1972) 2 SCC 831. After 42nd and 44th Amendment of the Constitution, the
President is bound to act on the advice of the Council of Ministers.

13.

Id 9

14.

Cornell, Raoul Berge Originalists Theory of Constitutional Interpretation Law Review

Volume 73 Issue 2 January 1988.

15.

Constituent Assembly Debates CAD Vol.8

16.

AIR 1982 SC 149: 1981 Supp SCC 87.

17.

CAD Vol. VIII.

18.

Speech delivered by Ms. Justice Ruma Pal at the 5th V.M. Tarkunde Memorial Lecture
on 10th November 2011.

19.

As reported in Times of India dated 3rd September, 2016.

20.

Sam J. ERVIN, JR Separation of Powers: Judicial Independence.

21.

Rehnquist, William H: THE SUPREME COURT 254-55 (2001).

22.

Levin, Mark Men in Black and the Liberty Amendments.

23.

Id 22.

24.

Edwin Meese III and Rhett DeHart: The Judicial Usurpation of Politics.

25.

Robert H Bork: Neutral Principles and Some First Amendment Problems, 47 Ind. L. J 1
(1971) Page 2.

26.

Politicians in Robes: the Separation of Powers and the Problem of Judicial Legislation
Virginia Law Review Vol.101 April 2015 Pages 31-50.

27.

Id 26

28.

Benjamin N Cardozo: The Nature of Judicial Process

29.

Choudhary, Vijay, Judicial Appointments: Ambitious Expansionism of Judicial Territory,

SCRIBD.

30.

Id 29

31.

Fourth Judges Case Para 60

32.

Federalist No.47

33.

Ken Jones: Time To Take America Back

34.

Geny, op, cit, ed 1919 Vol II, p 288

35.

Vemareddy Kumaraswamy Reddy Vs St. of AP (2006) 2 SCC 670.

18
36.

THE MANY MEANINGS OF "POLITICS" IN JUDICIAL DECISION MAKING Bradley W.

Joondeph*77 UMKC L. Rev. 347 (2008).

37.

[Richard A. Posner, Foreword: A Political Court, 119 HARv. L. REv. 31, 40 (2005).

38.

Mark Levin in: Men in Black; also in his forward to Daniel Howartz book: Stolen
Sovereignty: How to Stop Unelected Judges from Transforming America, WND Books,
2016 Ed.

39.

AIR 1951 SC 332: 1951 SCR 747 Special Reference No.1 of 1951.

40.

Gary Lawson, Territorial Governments and the Limits for Formalism, 78 Calif L Rev. 853.

41.

Dr Stephen Flick.

42.

Judicial Independence (And What Everyone Should Know About It).

43.

Id 42

44.

Id 9

45.

CAD Vol.8

46.

Id 45

47.

Benjamin N Cardozo opined: The Nature of the Judicial Process

48.

11 Tushnet, A Note on the Revival of Textualism in Constitutional Theory, 58 S. CAL. L.

REV. 683 ( 1982).

49.

WRITINGS OF JAMES MADISON 191 (G. Hunt ed. 1910)

50.

Oregon v. Mitchell, 400 U.S. 112, 203 (1970)

51.

Clinton v. City of New York, 524 U.S. 417, 448-49 (1998).

52.

The Rules and Regulations of BCCI as quoted in Lodha Committee Report.

53.

Robert H Bork, Neutral Principles of Some First Amendment Problems, 47 Ind L.J. 1,
1971

54

Supreme Court Bar Association Vs B.D. Kaushik , (2011) 13 SCC 774

55.

Taylor Vs. Taylor (1875) 1 Ch D 426,431

56.

Nazir Ahmed Vs. King Emperor AIR 1936 PC 253

57.

Rao Shiv Bahadur Singh Vs. State of Vindhya Pradesh AIR 1954 SC 322.

58.

State of U.P. Vs. Singhara Singh AIR 1964 SC 358 and this principle was followed in
1999 (8) SCC 266; 2001 (4) SCC 9; 2008 (4) SCC 755 and Dipak Babaria Vs St. Of Gujarat
(2014) SCC.

19
59.

Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the
United States Before the S. Comm. on the Judiciary, 109th Cong. 55 (2005): statement of
John G. Roberts, Jr., Nominee to be Chief Justice of the United States.

60.

Daniel Gilbert, Op-Ed., I'm O.K., You're Biased, N.Y. TIMES, Apr. 16, 2006, 4, at 12 as
quoted in Judges as Umpires. Theodore A McKee Hofstra Law Review Vol 35 Issue 4
2007.

61.

M.C. Mehta Vs Union of India (2016) 2 SCC 33

62.

Thomas Jefferson Letter to Abigail Adams, September 11, 1804.

63.

Ghulam Vs St. of Raj AIR 1963 SC 479 at 484.

64.

CIT Vs McDowell & Co Ltd [2009] 10 SCC 755

65.

CCE Vs Orient Fabrics P Ltd 2004) 1 SCC 597

66.

Constitutional Law of India, 4th Ed 2007 Reprint Vol I at page 706-707

67.

Clinton v. City of New York, 524 U.S. 417, 448-49 (1998).

68.

Fedarlist No.47

69.

A Treatise on Constitutional Limitations Which Rest upon the Legislative Power of the
States of the American Union, at 73, Little Brown & Co

70.

As quoted in the Constitutional Law Scholarship of Thomas McIntyre Cooley by Paul D

Carrington.

71.

James Madison Letter to Judge Spencer Roane, Sept. 6, 1819

72.

The Least Dangerous Branch: The Supreme Court at the Bar of Politics by Alexander M.
Bickel