INDIAN JOURNAL OF LAW, POLITY

AND ADMINISTRATION

JUSTICE P.N. BHAGWATI: TORCHBEARER OF INDIAN LEGAL REALISM

*S.Kushi
ABSTRACT

This paper aims to trace the importance of judiciary in the interpretation of various statutes
and laws especially the Constitution Of India. It attempts to construct a bridge between the
notion of legal realism which had originated in America to that of Judicial Activism in India.
While delving deeper into this discourse, we spot Late Justice Oliver Wendell Holmes’s, Late
Justice Learned Hand’s appreciation towards a judge made law and link it with that of Late
Justice P.N. Bhagwati’s conception of Judicial Activism. The research is historical and
comparative in as much as it targets historical and contemporary analysis of the American
and Indian inclination towards a judge made law.. However, it is majorly doctrinal in its
methodology as it attempts to deconstruct various statutes, case laws, articles, journals and
commentaries. The pattern and procedure followed before penning down the paper was
inclusive of classification of principles that were laid down by all the three judges while
interpreting the ancient laws and statutes in coherence with the current social circumstances.
This provided for a comprehensive study altogether. The paper encapsulates within itself
three segments : i) introduction, which elaborates on legal concepts like legal formalism and
legal realism, a comparative analysis between the same, the importance and the scope of
legal realism enunciated by Late Justice Oliver Wendell Holmes and Late Justice Learned
Hand that is discussed further in the paper, ii) the origin of Judicial Activism in India by
eminent personalities like Justice P.N. Bhagwati, Late Justice Krishna Iyer and drawing a
parallel between the American and Indian inclination towards a judge made law, and, iii) a
synopsis of the major principles laid down by Late Justice P.N. Bhagwati while interpreting
the erstwhile Constitution in sync with a concise and substantive line of argument.

1. INTRODUCTION

1.1. AMERICAN THEORIES OF ADJUDICATION:

1.1.1 LEGAL FORMALISM:

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Christopher Columbus Langdell, an American Jurist was the propounder of the term “legal
formalism” also known as judicial restraint. It is a theory and a rule of interpretation
employed by the judges to adjudicate a particular factual matrix in accordance to the letter of
law by employing a deductive logic and not to go beyond it. Langdell had also once quoted
that the only resources which are necessary to decide upon the case are the facts at hand and a
law library. This could be well understood in Isak Dinesan’s, “Out of Africa”2341: It recounts
a dialogue between the Merchant of Venice and a Somali man named Farah. Farah had come
to know that Shylock, the landlord of Antonio was denied to a pound of flesh as in the
Venettian law, shedding of a citizen’s blood is forbidden. Farah stated that this was injustice
on the part of the landlord and the same could have been avoidable. When asked as to how
flesh could be obtained without the shedding of blood, Farah stated, “he could have used a
red hot knife. That brings out no blood.”2342

From the above mentioned excerpt, one could easily trace several literalist arguments
made by may modern judges who refuse to look beyond the statues and identify its very
purpose.2343 Legal formalism can also be termed as an autonomous discipline in which the
judges only require the facts of the case, law and its blind application. This manner of
adjudication does not take into account normative issues like morals, politics and other social
phenomena. In the case of Bowers Vs. Hardwick2344, the United States Supreme Court upheld
the constitutionality of a Georgia Sodomy Law in the ration of 5:1 which had criminalized
private sexual intercourse between homosexuals in 1986. Though this decision was later
overruled in the case of Lawrence Vs. Texas2345, it serves as a classical example of the usage
of legal formalism as a tool for adjudication by the judges which ignores the individual
identities, social distress and encroachment into the private lives of the individuals.
John.F.Manning states that statutory absurdity arises from the problem of statutory generality.

*Jindal Global Law School, Sonipat.

2341
Isak Dinesen, Out of Africa (Modern Library 1992) (lst ed 1937)
2342
Richard A. Posner, Law and Literature: A Misunderstood Relation96-97 n 38 (Harvard 1988)
2343
Farber, Daniel A. “Legal Formalism and the Red-Hot Knife.” The University of Chicago Law Review, vol.
66, no. 3, 1999, pp. 597–606. JSTOR, www.jstor.org/stable/1600418
2344
478 U.S. 186 (1986)
2345
539 U.S. 558 (2003)

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He also states that a sensitive consideration of the circumstances would help to solve the
problems created by statutory absurdity.2346

One of the major reasons why the judges in the erstwhile era used to employ legal
formalism was because of the doctrine of separation of powers which owes its origin to
Baron de Montesquieu. Separation of powers took place between the executive (implements
the law), the legislature (makes the law) and the judiciary ( applies the law). In order to
protect the sanctity of separation done, the judge made law was not emphasized upon much
as the same would lead to the criticism to the judges.

1.1.2. LEGAL REALISM:

Legal Realism arose in America as an anti thesis to legal formalism. Late Justice Oliver
Wendell Holmes was a jurist, associate judge of the Supreme Court of the United States and
also served as an Chief Justice in the year 1930. He is also considered as the Father of the
American Realist Movement and the prediction theory of law. His prediction theory states
should be defined as a prediction of how the Courts should behave? His notion was based on
a argument which he had made on “bad men”. According to him, a bad man would not care
about ethics and the concepts of natural law, but would do anything to be out of jail or escape
from the payment of damages.2347 Thus a predication can be made by taking into account
certain social facts before coming to the actual conclusion. Though this theory had been
criticized by Professor HLA Hart in his book called Concepts of Law, the prediction theory
was still a base to the American Realist Movement.

As per the Black Law Dictionary, legal realism is a theory which is employed by the
judges to benefit the larger sections of the society and it is also very useful for the purpose of
policy implementations.2348 It is opposed to the mechanical, uncontroversial and strict
statutory interpretation of laws and is reflective of the present sociological discourse. Holmes
2346
Manning, John F. “The Absurdity Doctrine.” Harvard Law Review, vol. 116, no. 8, 2003, pp. 2387–2486.
JSTOR, www.jstor.org/stable/1342768
2347
Holmes, Oliver Wendell. “The Path of the Law.” Harvard Law Review, vol. 110, no. 5, 1997, pp. 991–1009.
JSTOR, www.jstor.org/stable/1342108
2348
"What Is LEGAL REALISM? Definition Of LEGAL REALISM (Black's Law Dictionary)". 2019. The Law
Dictionary. https://thelawdictionary.org/legal-realism/

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stated that life of law cannot be logic but experience.2349 Legal realism, legal positivism and
legal pragmatism can be used interchangeably. Many analytical positivists like Bentham,
Mills had made an instrumental approach in law long before the American Realist
Movement.2350 Their ideas of classical utilitarianism and legal positivism encouraged Holmes
to make changes in the judicial decision making. Late Justice Learned Hnd was a big admirer
of Holmes and has presented many lectures in Harvard Law School on his theories of legal
realism. A story which popularly known as “Do Justice” was written by Late Justice Learned
Hand in order to pen down, the notion of legal realism according to his idol, Late Justice
Oliver Wendell Holmes:

Once, both I and him were having lunch together after which I had dropped him to his place.
While getting off his carriage, I wanted to provoke a response from him and so I had said to
him, “Well, Goodbye Sir, Do Justice! To that he replied, “That is not my Job. My job is to
play the game according to the rules”.2351

As per the above mentioned excerpt, it is clear that he did believe in the bifurcation
between law and justice but not in a manner proposed by the formalists ut scientifically. He
believed that law and justice should not be thought of while adjudicating the facts of a
particular case. Experience, social stigma and intuition should be employed in order to
decipher the factual matrix and the then conclusion which is arrived at arrived at becomes
justice.

There are many cases in which Holmes had utilized the approach of legal realism.He
was also termed as the great dissenter of the legal fraternity. Some of the most landmark
cases are as follows: In this case of Otis Vs. Parker2352, Holmes held due process of law
meant the protection of fundamental rights only of the citizens from unreasonable legislations
and did not take economic interests or economic well being into account. In the case of
Silverthorne Lumber Vs. United States2353, Holmes held that an evidence obtained by the
police through illegal means though valid as per the given fourth amendment but this would

2349
Mr. Justice Oliver Wendell Holmes, the Completely Adult Jurist, in Jerome Frank, Law and the Modern
Mind 253 -60 (1930)
2350
Grey, Thomas C. “Holmes and Legal Pragmatism.” Stanford Law Review, vol. 41, no. 4, 1989, pp. 787–
870. JSTOR, www.jstor.org/stable/1228740
2351
Herz, Michael. “‘Do Justice!": Variations of a Thrice-Told Tale.” Virginia Law Review, vol. 82, no. 1,
1996, pp. 111-161. JSTOR, www.jstor.org/stable/1073568
2352
187 U.S. 606 (1903)
2353
251 U.S. 385 (1920)

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prejudice the interests of the accused and hence cannot be admitted in the court of Law. Thus
the “fruit of the poisonous tree” doctrine came into light. One of the most popular dissent of
Holmes was in the case of Lochner Vs. New York2354, though this case upheld the
constitutionality of the Bakeshop Act of the New York Legislature, 1895 which stated that
there is no time limit for working hours of the labourers. But Justice Holmes in his dissent
stated that due process and especially substantive due process of law should ensure the
principles of fairness. Thus the Act stands unconstitutional as per the dissent given by
Holmes.

1.1.3. THE CONFLICT:

In common law, reliance has to placed upon both (legal formalism and legal realism) the
American theories of adjudication and not sole dependence on one of the two. The critiques
of legal formalism itself has led to the inception of legal realism. Further, criticizing
Holmes’s predictive theory of law, professor Hart in his book “Concepts of Law” stated that,
if law was just a prediction, judge with legal facts beside him is pondering as to “how will I
decide the case”. Such an approach completely disrupts the approach that judges employ
legal rules to guide their direction rather than predicting their eventual holdings.2355 Many
critics observe that legal realism complicate, exaggerate and riddle the law with gaps and
contradictions. Lastly, since most of the legal questions are simple and clear cut, application
of the legal rules would suffice and application of the same would negate the realist’s strong
claim of legal indeterminacy. Though, Holmes’s theory envisaged a lot of criticisms, it
relaxed the rigid bifurcation created by the separation of powers, thereby empowering the
judiciary to play a major role towards the welfare of the people.

2. INDIAN HOLMES IN THE MAKING

2.1. PARALLEL WITH THE INDIAN JUDICIARY:

2354
198 U.S. 45(1905)
2355
Hughes, Graham. “Professor Hart's Concept of Law.” The Modern Law Review, vol. 25, no. 3, 1962, pp.
319–333. JSTOR, www.jstor.org/stable/1093179

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Many similarities can be witnessed between the evolution of American and the Indian
judiciary India was also a result of the British colonization. But in India, codification took
place on the basis of certain recognized customs and traditions which soon led to a conflict of
interests between the higher and the lower strata of the society. Further, even after
independence in 1947, most of the then statutes remains oppressive and repressive to women
and the downtrodden sections of the society. Thus with the advent of eminent jurists like Late
Justice P.N. Bhagwati and Late Justice V.R. Krishna Iyer , the importance of judge made law
was enhanced and Late Justice P.N. Bhagwati can also be viewed as a person similar to that
of Late Justice Oliver Wendell Holmes. Like legal realism (introduced by Holmes), judicial
activism was introduced by Late Justice P.N. Bhagwati.

2.1.1. INTRODUCTION:

Late Justice Prafullachandra Natwarlal Bhagwati was born in Gujarat in 1921. He served as
as the 17th Chief Justice of India (1985-1986) and is also known as the Father of the Public
Interest Litigation Movement. His father Late Justice Natwarlal Bhagwati was also a judge of
the Supreme Court and served as a role model to Justice Bhagwati. Justice Bhagwati pursued
law in the Government Law College, Bombay. He also took part in the Indian Freedom
Movement, especially the Quit India Movement of 1942. He was very patriotic,
compassionate and was immensely inspired by the life of Gandhi. He started his career as a
practicing advocate in the Bombay High Court. Then, at a very early age of 45, he was
appointed as the Chief Justice of the Gujarat High Court in 1966. Meanwhie he also served as
an acting Governor for the state of Gujarat on two occasions in the year 1967 and 1973
before his elevation to the Supreme Court of India. Subsequently. he was elevated as a judge
in the Supreme Court under the Chief Justiceship of Late Justice Ray in 1973 and then he
himself was appointed as the Chief Justice of the Supreme Court in the year 1985.

2.1.2. CONTROVERSIES:

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Though Justice Bhagwati had pursued a glorious career throughout his life, however his
initial days in the Supreme Court wasn’t a desirable one. The emergency was invoked by the
then Prime Minister of India, Smt. Indira Gandhi under Article 359 of the Constitution of
India due to internal disturbances, social and political turmoil. Meanwhile during this period,
the leaders of the opposition party were unlawfully detained and were ill treated, thereby
violating their fundamental rights which were bestowed upon them by the virtue of Part three
of the Indian Constitution. Subsequently, during the pendency of the emergency, the Indira
Gandhi Government announced the suspension of fundamental rights during the emergency
period. Aggrieved by the same, the leaders of the opposition of the party had filed a writ
petition before the Supreme Court under Article 32 of the Indian Constitution.

The Constitutional Bench at that time comprised of Justice P.N. Bhagwati, Justice Hans Raj
Khanna, Chief Justice A.N.Ray, Justice Y.V. Chandrachud and Justice M.H. Beg. The major
issue before the Court was a whether a writ petition could be filed during emergency when
the fundamental rights suspended? The Court in the ratio of 4:1 gave a verdict that no
detention can be questioned on the violation of fundamental rights till the emergency was
lifted. The only dissenting judge was Justice H.R. Khanna who also paid a cost by leaving his
post which was the Highest office in the Indian Judiciary. However, he still amassed a lot of
respect from the masses because f his brave an fearless dissent.

The above mentioned judgment is also infamously known as the “Habeas Corpus Case”
(ADM Jabalpur Vs. Shivkant Shukla2356). This judgment had given birth to a lot of backlash
in the general public especially post the emergency which resulted in the fall of the Indira
Gandhi government. The emergency period was one of the darkest hours for the executive,
legislature and the judiciary. This led to a lot of criticism to Justice Bhagwati and the other
judges as well since the reasoning behind the judgement was seriously flawed and showed
total disregard to human rights in India. Bhagwati openly praised Smt. Indira Gandhi during
the pendency of the emergency and then criticized her during the regime of the Janta Party
led government. Surprisingly, he again praised Smt. Indira Gandhi when she was re-elected

2356
AIR 1976 SC 1207

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in 1980. He was criticized for not taking a firm stand2357, favouring the ruling government,
which were deemed to have been taken to better his career prospects. To have been taken to
better his career prospects. Though, he apologized for the same after 30 years,the same was
overruled by the 9 judge Bench in the case of Justice K.S. Puttaswamy Vs. Union Of
India2358, which declared Right to Privacy as a fundamental right under Article 21 of the
Constitution.

Another case, which sprung up a lot of controversy was in the case of S.P. Gupta Vs. Union
of India2359(First Judge case). It was a 7 judge Bench in which Justice Bhagwati delivered his
opinion on behalf of all the judges. In this case, he bestowed all the powers to the government
in the selection of judges to the Supreme Court and the High Court by the virtue of giving a
literal interpretation to the world consultation with the Chief Justice of India under Article
124 and 217 of the Constitution. This judgment literally left the judiciary at the mercy of the
executive and the same was delivered during the regime of the Indira Gandhi government as
Justice Bhagwati’s recommendations with regard to the promotion of judges was itself nt
taken into account and the appointments were carried on as the will and wish of the Central
Executive. Later, however this judgment was overruled by Supreme Court Advocates- On-
Record Association Vs. Union of India2360, also known as the Second Judge Case, stated that
in the interest of constitutional philosophy and the independence of the judiciary, a collegium
system should and the word of the Chief Justice would be final in the appointment of judges
in the High and Supreme Court of India. In re Special Reference2361 or third Judge case,
merely an opinion was the Supreme Court of India upholding the Second Judge Case.

2.1.3. STALWART OF INDIAN LEGAL FRATERNITY:

2357
Jayan, Shanmugham D; Sudheesh, Raghul (16 September 2011). "A Chief Justice of India says "I am sorry"
but 30 years too late". First Post. Retrieved 16 June 2017
2358
(2017) 10 SCC 1
2359
AIR 1982 SC 149
2360
AIR 1994 SC 628
2361
AIR 1999 SC 1

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Despite countering a lot of criticisms, Late Justice V.N. Krishna Iyer, another gem of the
Indian judiciary had stated that Justice Bhagwati was not a judge but a social activist who
always wanted justice to be accessible to all the sections of the society and the same should
not be tampered or hindered by mere procedural irregularities. He and Justice Iyer became
flagbearer of human rights in India by the virtue of introducing public interest litigation in
India which will be elaborated in much detail in the next section of the paper. Legal aid was
very close to his heart and was appointed as the chairman of the Legal Aid Committee and
the Gujarat Judicial Reforms Committee. He was a faculty member in the Universities of
Bombay, Baroda and Gujarat as he was very keen in the widespread of legal education as
well. Lastly, he was also a member of the United Nations Human Rights Committee. Thus
during his death in 2017, he was given the title of the “Stalwart of the Indian Legal
Fraternity” by Prime Minister Narendra Modi. The next section of this paper would
specifically deal with the principles invoked by the judges especially Justice Bhagwati in
interpreting the Constitution.

3. INCEPTION OF JUDICIAL ACTIVISM

3.1. PUBLIC INTEREST LITIGATION:

The word Public Interest Litigation was propounded by Late Justice P.N. Bhagwati, Late
Justice

V.N. Krishna Iyer, though only Justice P.N. Bhagwati is conferred upon with the title of the
father of the public interest litigation movement. A public interest litigation is a writ petition
that can be filed either under Article 32 or Article 226 of the Indian Constitution. Earlier,
especially before 1975, the Court would not allow a petition to be admitted unless the
aggrieved, (or his legal representatives if the aggrieved is dead) himself or herself has filed
the case. But public interest litigation relaxed the principle of locus standi ( authority/
capacity/ interest in filing a case) and stated that any person can file public interest litigation
only against the government in lieu of the injustice committed on a large section of the

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society. These writs can also be in the form of letters, post cards, etc as well. The person
filing this case (not necessarily the aggrieved) has to prove sufficient interest in the particular
concern. For eg. Journalists, activists though the same has to be decided in the facts and
circumstances of the case. Though the inception of public interest litigation promotes access
to justice, but on the same hand, it is also misused by the virtue of people filing frivolous
writs.

3.1.1. CASE LAWS:

The concept of PIL was initially introduced in the United States and in India, the same was
initially addressed in the case of S.P. Gupta Vs. Union of India2362. Ths case was decided by a
7 judge Bench headed by Justice Bhagwati in the year 1982. In this case, a group of
advocates in the Bombay High Court filed a collective writ challenging the circular issued by
then Law Minster which stated that most of the judges would be appointed by the Central
Executive and only a smaller portion by the judiciary themselves. As a result of this, the
judiciary would then loose its significance and hence the writ. One of the issues that sprung
up was whether this group of advocates possessed a sufficient interest in the filing of this
particular writ. Justice Bhagwati had answered the same in the affirmative and stated that
public interest litigation should be adopted by India as this would help even the unprivileged
sections of the society to have an access to the legal system, thereby promoting the welfare of
the people.

Another landmark judgment with regard to the conception of public interest litigation
was in the case of Hussainara Khatoon Vs. State of Bihar2363. A petition was filed by an
Indian lawyer named Pushpa Kapila Hingorani stating about the condition of the prisoners in
the Bihar jail whose cases were pending before the Court since a long time. Hussainara was
one among the six women prisoners and hence the name of the case. Justice Bhagwati
admitted this petition and stated that the prisoners are entitled to free legal aid and fast
hearing. Hence after this case and continuous efforts being put forth by Hingorani, as many
as 40,000 prisoners were released and Hingorani was also given the title of Public Interest
Litigations.
2362
Supra . 19
2363
1979 SCR (3) 532

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The case of Bandhua Mukti Morcha Vs. Union Of India2364, was a landmark decision
with respect to child labour exploitation in India. Bandhua Mukti Morcha is a non
governmental organisation headed by Swami Agnivesh with a view to eradicate bonded
labour in the country. In the state of Uttar Pradesh, many children, even those below the age
of 14 years were employed as laborers in the carpet industry. Thus they filed a public interest
litigation and the same was presided over by a 3 judge Bench. Justice Bhagwati admitted the
claim in this case, and that this practice violated Article 24 of the Indian Constitution, several
Directive rinciples of State Policy and instructed that these child labourers below the age f of
14 years should be given proper nutrition, healthcare and education. This instruction then
culminated as Article 21 A in the Indian Constitution which talks about the Right to
Education to children below the age of 14 years.

3.2. ARTICLE 14 – INCLUSION OF ARBIRARINESS:

Article 14 provides for equality before the law and equal protection of laws. It ensures equal
protection of laws subject to a reasonable classification. It states that only equals can be
treated equally and not otherwise. So, in order to ensure equality, a reasonable classification
has to be made to bring in all the equals at the same pedestal for application of laws on them.
Initially, only these two dimensions were a part of article 14. However it evolved in the future
and the same has been discussed below.

3.2.1. CASE LAWS:

A new dimension to article 14 was added by Justice Bhagwati in the case f E.P.Royappa Vs.
State of Tamil Nadu2365. The petitioner in this case is a civil servant in a cadre in Tamil Nadu.
He was initially appointed to the post of Chief Secretary to the state and had commenced
working on that particular post. Later, he was appointed as the Deputy Chairman of the State

2364
(1997) 10 SCC 549
2365
1974 SCR (2) 348

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Planning Commission and the same was approved by the Chief Minister of the state. He,
therefore left the post and started working for the Planning Commission. Later,he was
transferred to another post in which he was appointed as the Special Duty Officer to the Slaes
Tax Department. But he did not join the services. The other two posts also were on the same
grade as the post of the Chief Secretary. The post of the Chief Secretary was then given to his
junior and hence the petitioner filed a claim under Article 14 and Article 16 of the
Constitution. The Court admitted the claim of the petitioner and Justice Bhagwati stated that
arbitrariness is an antithesis to equality and the same should be taken into account under
Article 14, apart from equality before the law and equal protection of laws. But since in this
case, the petitioner was not able to prove a malafide intention on the part of the state, his
petition was dismissed, however , a new dimension of arbitrariness was included by the
judges whicle deciding this case.

3.3. ARTICLE 21-HUMAN DIGNITY:

Article 21 of the Indian Constitution guarantees personal liberty to the individuals not only
the citizens of the country but also the foreigners. Article 21 has a broad connotation and it
encompasses the rights to livelihood, healthcare, privacy etc and the same has been
broadened by the virtue of judicial activism and public interest litigation. A good
interpretation of Article 21 has also been laid down in the case of Maneka Gandhi.

3.3.1. CASE LAWS:

In the case of Francis Corallie Mullin Vs. The Administrator, Union Territory of Delhi2366
and others, a British national was caught under section 3 of the COFEPOSA Act and detained
in Tihar Jail. She had a daughter aged 5 years, other family members and her own lawyer was
permitted to visit her only on rare occasions as per the Prison Authorities Act. Thus she
challenged the same on the grounds of violation of Article 21 of the Indian Constitution. The
writ petition was filed under Article 32 of the Constitution and was presided over by a 3

2366
1981 SCR (2) 516

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judge Bench. Justice Bhagwati stated that even under detention, the fundamental rights of a
person stays intact. He also stated that the right to life enshrined under Article 21 is not
limited to mere animal existence but means much more than just physical survival. The Court
then lays down certain guidelines with regards to the rights of the accused detained under
preventive detention laws.

3.4. THE GOLDEN TRIANGLE:

Article 21 has been a topic of debate right from the inception. Though the Article expressly
mentions only about the right to life and personal liberty but it encompasses the maximum
number of other rights in comparison with other fundamental rights. Earlier, this Article was
interpreted in a very strict and restrictive manner in the case of A.K. Gopalan Vs. State of
Madras2367. In this case, Gopalan was detained under a preventive detention law. In lieu of
the same, Gopalan had had filed a writ petition under Article 32 of the Indian Constitution.
He challenged his detention on the grounds of violation of his fundamental rights under
Article 21, 14 and 19 of the Indian Constitution. This matter was admitted in the Supreme
Court and was headed by a six judge Bench.

The Court stated that since Article 21 only envisaged “procedure established by law” and not
“due process of law”, even if the procedure seems to be arbitrary, the preventive detention
law would still hold as a valid piece of law under Article 21 of the Indian Constitution. The
Court also stated that multiple fundamental rights cannot be invoked and connected to claim
for violation of fundamental rights. Each and every fundamental right has an existence of its
own and are mutualy exclusive of each other. However a dissent was given by Justice Faiz
Ali who was of the view that even the procedure established by law has to be reasonable in
nature. This case opened a doorway to a flurry of other cases and led to the inception of the
principle of “Golden Triangle” which essentially comprises of Articles 14, 19 and 21.

3.4.1. CASE LAWS:

2367
AIR 1950 SC 27

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The concept of the Golden Triangle came into light one of the most landmark judgments
given by Justice Bhagwati. Prior to this case, right to travel2368 was considered to be a part of
Article 21 of the Constitution. It was this case which led to the enactment of the Passports
Act, 1967 as well. Now in the case of Maneka Gandhi Vs. Union of India2369, the petitioner’s
passport was impounded and the reasons for such impoundment was also not mentioned by
the Passport authorities in the interest of the general public. The petitioner then moved a writ
petition before the Supreme Court under Article 21 of the Constitution. She stated that the act
of impounding her passport without mentioning any valid reasons before doing so under
section 10 of the Passport Act is violative of the principles of natural justice and has infringed
her personal liberty, her right to travel under Article 21, arbitrariness on the part of the
Passport authorities under Article 14 and infringement of right to freedom of movement
under Article 19 (1)(g) of the Constitution.

The Court had admitted this case and the same was presided over by a 7 judge Bench and the
majority opinion was given Justice P.N.Bhagwati. The Court firstly overruled the judgement
of A.K. Gopalan Vs. State of Madras and stated that the “procedure established by law”
under Article 21 has to be just, fair and reasonable in accordance with the principles of
natural justice. It also stated that a Article 14,19 and 21 can be invoked together because the
common thread which runs through all these three articles are the principles of natural justice
and all the fundamental rights are not mutually exclusive or an isolated chapter in itself. They
are all collectively dependant on each other However the Court did not set aside section 10 of
the Passports Act and stated that as far as much as possible, the reasons for impounding a
person’s passport should be mentioned. Hence relief was granted to the petitioner and the
concept of the golden triangle came into the picture.

3.5. SUBSTANTIVE DUE PROCESS IN LAW:

2368
Satwant Singh Sawhney vs D. Ramarathnam,(1967) 3 S.C.R. 525
2369
1978 SCR (2) 621

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While drafting Article 21 of the Indian Constitution, a lot of debate was going with regard to
the inclusion of phrases “due process of law” or “procedure established by law”. B.N. Rau,
constitutional adviser to the Constituent Assembly also met American Justice Felix
Frankfutter, with regard to the same dilemma. In America, “due process of law” was a part of
their Constitution. However, subsequent to the visit to Justice Felix Frankfutter, not only,
B.N. Rau, but the other Indian drafters were also of the view that “due process of law” seems
to be a vague and ambiguous term which will bestow a lot of autonomy on the judiciary.
Hence the phrase “procedure established by law “ became a part of our Constitution.
However, in the judgements given by Justice Bhagwati, he managed to trace the essence of
fairness and justice within the procedure, thereby interpreting it as due process of law and the
same has been discussed below.

3.5.1. CASE LAWS:

After the ruling in Maneka Gandhi Vs. Union of India2370, the principles of fairness and
justness was traced within the “procedure established by law”. We all know that law can be
of two types: procedural and substantive. Accordingly, due process also can be divided into
two: procedural and substantive due process. Procedural due process means the deprivation
of life, liberty and property should be in accordance with the procedure established by law.
Substantive due process means that this deprivation should be in accordance with the
principles of justness, fairness and reasonableness. With regard to the same, the case of
Bachan Singh Vs. State of Punjab2371 is relevant for our discussion. In this case, the
constitutionality of death penalty as a punishment under section 302 of the Indian Penal Code
was challenged under Article 19 and 21 of the Constitution.

A 5 judge Bench presided over this case and in majority upheld the constitutionality of
section 302 of the Indian Penal Code with a prerogative that this punishment should be given
only in the rarest of rare occasions. Justice Bhagwati dissented and stated that ‘the concept of
reasonableness runs through the entire fabric of the Constitution’ , and also “every facet of

2370
See supra 28
2371
1982 SC 1325

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the law which deprives a person of life or personal liberty would therefore, have to stand the
test of reasonableness, fairness and justice in order to be outside the inhibition of Article
21”.2372 This was one of the finest dissents in the history of the Supreme Court of India and
continues to be so till date.

3.6. THE HARMONIOUS CONSTRUCTION:

The debate between the with regard to the enforceability of Directive Principles of State
Policy (hereinafter DPSPs)over the Fundamental Rights was going on as a tussle between the
executive and the judiciary. Initially, in the case of Champakam Dorarirajan Vs. State of
Madras2373, the Court stated that since the fundamental rights are sacrosanct rights to an
individual and enforceable but the DPSPs are not, hence the fundamental rights would gain
superiority over the DPSPs and the latter has to conform and run subsidiary to the chapter of
fundamental rights. In the case of I.C.Golaknath Vs. State of Punjab2374, the 11 judge Bench
again stated the same thing which resulted in the 24th Amendment which amended Article 13
and 368 of the Constitution. By the virtue of this amendment, the parliament was bestowed
with the power to amend any part of the Constitution including the fundamental rights and
also the term law in section 13 does not encompass any amendment to the Constitution. The
same dilemma was envisaged in the case of Keshavananda Bharti Vs. State of Kerala2375, in
which the 12 judge Bench laid down the doctrine of basic structure which was there in the
Constitution in itself. Therefore, by laying down the basic structure, the Court protected the
fundamental rights to be amended. The above mentioned trajectory lays down the tussle
between the executive and the judiciary which culminated in the case mentioned below.

3.6.1. CASE LAWS:

2372
See supra 30
2373
AIR 1951 SC 226
2374
(1967)2 S.C.R. 762
2375
AIR 1973 SC 1461

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The case on pint which solves the tussle between the executive and the judiciary with respect
to DPSPs and fundamental rights was the case of Minerva Mills Vs. Union of India2376.
Minerva Mills is the petitioner in this case and the same was occupied by the government as
it was not performing well. They carried this out on the basis of The Sick Textile Industries
Act, 1974 for the greater public interest. Aggrieved by the same, the petitioner filed a writ
petition under Article 32 of the India Constitution stating that the state, by the virtue of
implementing the DPSPs cannot disregard the violation of the fundamental rights as the
people whose industries are occupied have no legal remedy as per the 42nd amendment of the
Constitution which states that any enactment which is a part of the nineth schedule is outside
the purview of judicial review. Thus Court with a majority of 4:1 stated that since the
provisions of this Act violates basic structure doctrine, the same should be struck down.

In his dissent Justice Bhagwati did uphold the unconstitutionality of the provisions of
the Act and also wrote a beautiful point with regard to the competitiveness of the DPSPs and
the fundamental rights. He stated that the doctrine of harmonious construction should be
applied and both the Fundamental Rights and the DPSPs should be balance as far as possible.
He also draws an analogy that the DPSPs and the Fundamental Rights are the two wheels of a
chariot and the snapping of one would lead to the destruction of the chariot. It is a twin
formula which needs to go hand in hand for the betterment of the nation.

CONCLUSION

Throughout the course of the paper, the author has tried to establish the importance of judge
made law and has utilized the trajectory of development of the judiciary in India and America
to prove the same. All the three wings (legislature, executive and judiciary) should be
bestowed with equal amount of powers in such a manner that neither of them overpowers the
other. In this paper, special focus had been laid down on Late Justice P.N. Bhagwati and the
various principles laid down by him in the wake of judicial activism. He also gained the
reputation in India of being a great dissenter similar to Late Justice Oliver Wendell Holmes.
Both these judges have provided a tonic of judicial activism vis-a-vis legal realism to the
judiciary as a whole. The same can be utilized by the future judges to provide everyone with
access to justice.

2376
AIR 1980 SC 1789

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