Post on 27-Apr-2023
JUDICIAL LEGISLATION- MYTH vs REALITY
(N Vijayaraghavan)
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OBERGEFELL ET AL. v. HODGES, DIRECTOR, OHIO
DEPARTMENT OF HEALTH, ET AL. No. 14–556. Argued April
28, 2015—Decided June 26, 2015* Decided by the US
Supreme Court, is an unbelievable verdict. It is
impossible to conceive of a parallel. Not entirely for
the substance of the verdict, where by a 5:4 majority
Supreme Court has ‘legislated’ (as a super legislature
in the felicitous language of dear Scalia) that all
50 States of the US shall have to licence same sex
marriages as legal. Hitherto, some States had their own
law and there was a clamorous debate, since at least
2003, that same sex marriage must be legalized
Federally. There were protest marches, seminars,
debates, discussions to persuade States to concede the
demand. Many States had acceded , some had declined.
The democratic process of building ‘public opinion’ for
and against, was on and it was for ‘We the People’ of
America to decide. But The Nine chose or to be
politically correct, the majority five Justices
Anthony Kennedy, Ruth Bader Ginsburg, Stephen Bryer,
Sonia Sotomayor and Elena Kagan willed it otherwise.
The majority took away the ‘right to decide’ from the
people and arrogated it to themselves as the three
judges in dissent , Chief Justice Roberts, Justices
Antonin Scalia and Samuel Alito put it. People were
silenced and how!
Judiciary vs We the People
“Supporters of same-sex marriage have achieved
considerable success persuading their fellow citizens—
through the democratic process—to adopt their view. That
ends today. Five lawyers have closed the debate and
enacted their own vision of marriage as a matter of
constitutional law. Stealing this issue from the people will
for many cast a cloud over same-sex marriage, making a
dramatic social change that much more difficult to accept.
The majority today neglects that restrained conception of
the judicial role. It seizes for itself a question the
Constitution leaves to the people, at a time when the
people are engaged in a vibrant debate on that question.
And it answers that question based not on neutral
principles of constitutional law, but on its own
“understanding of what freedom is and must become.””
Chief Justice Roberts.
“.the Court ends this debate, in an opinion lacking even a
thin veneer of law. Buried beneath the mummeries and
straining-to-be-memorable passages of the opinion is a
candid and startling assertion: No matter what it was the
People ratified, the Fourteenth Amendment protects those
rights that the Judiciary, in its “reasoned judgment,” thinks
the Fourteenth Amendment ought to protect.13 That is so
because “[t]he generations that wrote and ratified the Bill
of Rights and the Fourteenth Amendment did not presume
to know the extent of freedom in all of its dimensions””
Justice Antonin Scalia.
JUDGE MADE LAW
Just a day before this verdict, the US Supreme
Court had by a 6:3 verdict, with Chief Justice Roberts
writing for the majority upheld the Obama Healthcare
plan, and Scalia had vociferously dissented that the
majority was playing ‘favourites’ with their laws and
was ‘re writing legislation’ which they had no
business or power to. And in this verdict, Chief
Justice Roberts himself leads the dissent which talks
of ‘self-restraint’ and need for ‘unelected Judges
not to set the Policy “ for the nation. What is one to
make of Law and Courts? Forget the informed and
legally trained, the ordinary citizen would be clearly
confused and confounded as to who runs the nation. The
elected representatives or the unelected Judges. Very
serious constitutional issues arise. These questions
resonate for us too, in fact a lot more, because We
do not have just Nine Judges who sit and decide every
case, but 26 who sit and decide many hundreds of
cases, all the time.
The critical question that emerges is Whether
Judges do Make Law? The simple answers would be Yes
and No. Please clarify. Judges camouflage their
outputs to make law, under the pretext, ‘We are only
interpreting and laying down the law and surely not
making law”. We have come a long way, please. Do not
pull such fast ones anymore. Your own Brethren on the
Bench, who are far more qualified than us and know you
better as well, have let the cat out of the bag long
ago. So be it. Judges do make Law. That has got the
goat of John Roberts, Scalia and Alito , more than
anything else, for a ‘new fundamental right has been
created and read into the fourteenth amendment’ of the
US Constitution relating to Equal Protection clause.
Scalia is simply at his devastating best and his
criticism is no holds barred, which not even a learned
professor of law would imagine was possible against a
majority verdict of the US Supreme Court. The language
borders on vituperative prose. Stylistically,
Stunning.
.”This is a naked judicial claim to legislative—indeed,
super-legislative—power; a claim fundamentally at odds
with our system of government. Except as limited by a
constitutional prohibition agreed to by the People, the
States are free to adopt whatever laws they like, even
those that offend the esteemed Justices’ “reasoned
judgment.” A system of government that makes the People
subordinate to a committee of nine unelected…””
Excuse me. Is anything new being told to us, for
the first, as it were, in June,2015? Sorry, it is old
hat. It is just that the judges feign ignorance or
play footsie as they please and take us for a ride.
The academic debate on whether Judges do make Law needs
to be buried for good as Judges have themselves done
so, for long, and the more erudite ones at that.
What Sir Francis Bacon said in the early Seventeenth
century:
"Judges ought to remember that their office is ... to
interpret law, and not to make law”
was quietly modified in Marbury v. Madison by Chief
Justice Marshall in the 18th century, yet
euphemistically,
"It is emphatically the province and duty of the judicial
department to say what the law is. Those who apply the
rule to particular cases, must of necessity expound and
interpret that rule.... A law repugnant to the Constitution is
void; ... Courts as well as other departments are bound by
that instrument."
Then Justice Cardozo quietly let the cat out
of the bag in his Magnum Opus The Nature of the Judicial
Process,
"He (the judge) legislates only between gaps. He fills the open
spaces in the law. How far he may go without travelling beyond
the walls of the interstices cannot be staked out for him on a
chart. He must learn it for himself as he gains the sense of
fitness and proportion that comes with years of habitude in the
performance of an art." Still had reservations to
concede fully.
Cardoso goes on to hide the licence of the
judges in brilliant prose.
"The judge, even when he is free, is still not wholly
free. He is not to innovate at pleasure. He is not a knight-
errant 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 'the
primordial necessity of order in the social life'. Wide
enough in all conscience is the field of discretion that
remains."
Yet the Judges are unwilling to admit the
transgressions. They are loathe to do it for they are
after all ‘unelected’ and not accountable to the
people directly. Justice Frankfurter joined the debate
but still is unyielding as he cautions his community
with this wise counsel:
"It is not easy to stand aloof and allow want of wisdom to
prevail, to disregard one's own strongly held view of what
is wise in the conduct of affairs. But it is not the business of
this Court to pronounce policy. It must observe a fastidious
regard for limitations on its own power, and this precludes
the Court's giving effect to its own notions of what is wise
or politic. That self-restraint is of the essence in the
observation of the judicial oath, for the Constitution has
not authorised the justices to sit in judgment on the
wisdom of what Congress and the executive branch do...."
Then, it takes Lord Reid to say it all in black
and white, in 1972, :
"There was a time when it was thought almost indecent to
suggest that judges make law - they only declare it. Those
with a taste for fairy tales seem to have thought that in
some Aladdin's cave there is hidden the Common Law in all
its splendour and that on a judge's appointment there
descends on him knowledge of the magic words Open
Sesame. Bad decisions are given when the judge muddles
the password and the wrong door opens. But we do not
believe in fairy tales any more."
Lord Reid sounded a note of caution that when
judges act as law-makers, they should
"have regard to common sense, legal principle and public
policy in that order". and needed "to know how ordinary
people ... think and live.... You must have mixed with all kinds of
people and got to know them.... If we are to remain a democratic
people those who try to be guided by public opinion must go to
the grass root”
Justice Michael Kirby, Australia, a long time friend
of India was emboldened to concede :
"The judges and the legal profession have .... been less than
fully frank about the brilliant interaction which our system
of law permits between the stable, unelected, continuing
elements of government (in the Courts....) and the
democratic, creative but sometimes timorous and often
unreliable elements of the temporary changing scene of
political government (represented in Parliament and in the
Ministry). Out of the interaction between these branches of
Government one hopes that a harmony will emerge.
Ordinarily it does."
As for Indian jurisprudence, it is no secret that
Judges do make law and while Chief Justice Ahmadi would
say “In practice, however, U.S. Judges do far more than legislate
interstitially.”, the truth of the matter is that Supreme
Court of India and Constitutional Courts ‘do legislate
with gay abandon’. None better to quote than Chief
Justice P.N.Bhagwati.
“There is a myth strongly nurtured by the Anglo-Saxon tradition and
propagated by many jurists that judges do not make law, they
merely interpret the law. Law is there, existing and immanent, and
judges merely find it. The law making function does not belong to
them but it belongs to the legislature and judges merely reflect
what the legislature has said. This the phonographic theory of the
judicial function. This theory I am afraid hides the true nature of the
judicial process . it has been deliberately constructed in order to
isolate judges against vulnerability to public criticism, and to
preserve their image of neutrality, which is regarded as necessary for
enhancing their credibility. It also helps judges to escape
accountability for what they decide, because they can always plead
helplessness ( even fi the alw they declare is unjust) by saying that it
is the law made by the legislature and they have no choice but to
give effect to it. It only natural that judges should wish to exercise
power but not be accountable to any one for such exercise. It is also
natural for them to indulge in the fiction that they are merely
carrying out the intention of the legislature or discovering the
immanent something called the law”. “
In his My Tryst with Justice –Chapter III .Does
one need further confessional affirmation from the
pulpit, as it were ?
Let us therefore call the bluff that Constitutional
Courts do not make Law, even if our legislators are
rather lax. At times, the Supreme Court of India even
‘promulgates Ordinances’ as in the Judges 2 and 3
cases, Vishaka, T S Subramanian, et al. One does not
question or challenge the wisdom of the top court
indulging in this exercise except that they should be
open about it rather than camouflage their intentions
or indulgences. The grouse of the academician would be
that the Supreme Court chooses to ‘legislate’ when they
take a fancy, possibly driven by their personal
philosophies, but choose to play ‘hands-off’ when it
matters, as in the decision in Manoj Narula vs. Union
of India. The Supreme Court refrained from going the
whole hog. It restrained itself while saying “Thus, while
interpreting Art.75(1), definitely a disqualification cannot be added.
However, it can always be legitimately expected, regard being had to
the role of Minister in Council of Ministers and keeping in view the
sanctity of oath he takes, the Prime Minister while living up to the
trust reposed in him, would consider not choosing a person with
criminal antecedents against whom charges have been framed for
heinous and serious criminal offences or charges of corruption to
become a Minister of the Council of Ministers. This is the
Constitutional expectation from the prime Minister. Rest has to be left
to the wisdom of Prime Minister. We say nothing more, nothing less.”
And then in the last para of the judgment Justice
Cyriac Joseph would add to the sermon, “ Hence, I am of the
firm view, that the Prime Minister and the Chief Minister of the State,
who themselves have taken oath to bear true faith and allegiance to
the Constitution of India to discharge their duties faithfully and
conscientiously will be well advised to consider avoiding in the
Council of Ministers, against whom charges have been framed by a
criminal court in respect of offences involving moral turpitude”.
They are ‘sayings and moral teachings and central tenets for
disciples to pursue and achieve perfection’. They are not the
‘Commandments’, breach of which would entail penal
consequences. The oracle has spoken on 27th Aug 2014,
but yet the Constitutional Bench has held back. It has
‘refused to add to the ‘disqualification’ to Art.
75(1)- that would have taken the Sermon beyond the
expectation , to reality. Justice Dipak Mishra has
spoken for himself and 2 other Judges, while Justice
Madan Lokur and Justice Cyriac Joseph have added to the
legal literature. A very learned and erudite
dissertation, it turns out, an unanimous one too. But,
at the end of the day, it turns out to be Sermon on the
Mount and no more than that , leaving it to the ‘powers
that be’ to search their conscience on the crucible of
constitutional morality and constitutional propriety.
The Lords have refrained from ‘making law’. They have
doffed their hats to the ‘ separation of powers’ and
not infringed, by leaning on ‘independent judiciary’
as ‘licence to legislate’. Why? Why did they do it? Or
not do it? Did they have to do what they have done ?
Or gone beyond and ‘legislated’? Have they always been
so reticent? Are there no precedents to the contrary?
Has Supreme Court always been so ‘disciplined’ and
textbookish and not mounted the judicial activism,
unruly horse, of the public policy genre? What has
impelled them to get off the horse midway and leave it
to the ‘better sense of the legislatures and
politicians’? Should they have done it? Can’t they have
gone beyond and ‘made law’ for there is total
abdication of accountabilities by the ‘ruling class’,
no matter that Modi’s dispensation is new to the
throne, with power at the Centre?. One strongly feels
that the top court ought to have gone beyond the Sermon
on the Mount and ‘legislated’ for all practical
purposes that charge-sheeted politicians ought not to
hold office of profit or Cabinet positions at the State
and Central levels, even if the statute permitted them
to contest, win and assume such positions? Why?
Because the cynical citizen is yearning for it and
knows not where to go and Constitution is for the
people, by the people and of the people. Supreme Court
need not have thrown its hands up and said “ This
is taboo domain, where we shall not tread and therefore
shall visit the polity only with a Sermon on the Mount’
and wait for public opinion to take over and
legislators to decide on the changes necessary. How one
wishes the Supreme Court was true to itself being
hands on, in this instance also. The political spectrum
may have been cleansed even if the elected
representatives were reluctant to take the plunge.
This tantamounts to selective forays. The US
Supreme court too is not above such practices. That
is what infuriates Scalia no end. In the garb of
‘legislating interstitially’, the US Supreme Court was
creating ‘new rights’ and denuding the power of the
people to decide on such public policies. To give it a
constitutional twist by hanging it on Due Process and
Equal Protection pegs/clauses, is the ultimate.
Obergefell was nothing but policy making.
ObamaHealthcare was nothing but ‘legislative re
writing’ to uphold the law. Just the Collegium decision
of the Supreme Court, to arrogate to itself the power
to appoint Judges, would suffice to demonstrate the
truth, in Indian context. Such ‘super legislative’
characterstic assumed by US Supreme Court is galling
for Scalia. He is no wonder lyrically scathing when
he says
“This is a naked judicial claim to legislative—indeed, super-
legislative—power; a claim fundamentally at odds with our
system of government. Except as limited by a
constitutional prohibition agreed to by the People, the
States are free to adopt whatever laws they like, even
those that offend the esteemed Justices’ “reasoned
judgment.” A system of government that makes the People
subordinate to a committee of nine unelected…” In
practice, however, U.S. Judges do far more than legislate
interstitially”.
The dissenting opinions of Chief Justice Roberts,
Justices Antonin Scalia and Samuel Alito have told
it like it is that ‘Judges do make law and not merely
interpret the Law’. It equally applies to the British
jurisprudence and more to us also. Let us no more play
footsie with those who say “Law making is exclusively
in Legislative domain”. It is not and Legislators
beware.
PUBLIC OPINION AND POLICY MAKING
Are courts influenced by public opinion? Do Judges
contest in popularity stakes? Do they conduct a Gallup
poll to zero on the public pulse? Would they like
their opinions to be received well? Are they conscious
of the public criticism? These are questions that have
dogged us for long and will continue to . “You stay
focused on what you’re supposed to do. All that other stuff is just
noise.”- said Justice Clarence Thomas- who claims that
he did not even read newspapers and the idiot box was
out of bounds. But truth is far from it. Tomes have
been written on the Judges wanting to ‘hear music’
about their opinions. They claim not to be swayed,
influenced or impacted by ‘the noise’. But come
sensitive decisions relating to human rights or
affecting policy decisions, public opinion does appear
to matter. Admittedly, the Judges have no tools or
devices to guage public opinion on live issues in
public debate and inevitably therefore have to go by
the same tools, you and I have , the media and polls,
surveys et al. It is impossible to conceive that the
Judges lived a claustrophobic existence so much so that
media cacophony and survey findings were not in their
earshot. Forget it. It is too dumb to digest.
The Judges do go to the bench with all the
‘baggage’ of the past. It is impossible to shed the
baggage or personal and political philosophies
overnight. The manner of their appointment or the
appointers give it away. In the legitimacy stakes
therefore, it is the Judgement that speaks out loud and
public opinion (‘”public opinion’ is understood as the
views of majority members of society held at a given
time on specific issues in society”) does get
reflected. There is no way or place to hide when the
words capture the personal and political philosophies
and give it away like nothing else does,Yes, let us
accept this truism too. That Public opinion does matter
and the Judges do have their ears to the ground and no
matter what they may say in being able to ‘shut it
out’, it does seep into their judgments.
In Aveek Sarkar v State of West Bengal
dt.23/12/2014, going into the meaning and important of
‘obscenity’ in the context of Sec,292 of IPC, the
Supreme Court recalled “…. The world, is now able to
tolerate much more than formerly, having coming
indurate by literature of different sorts. The attitude
is not yet settled…..” This is what this Court has said
in the year 1965. Ranjit D. Udeshi v. State of
Maharashtra AIR 1965 SC 881.Above mentioned principle
has been reiterated in Samaresh Bose v. Amal Mitra
(1985) 4 SCC 289 by laying emphasis on contemporary
social values and general attitude of ordinary reader.
Again in 2010, the principle of contemporary community
standards and social values have been reiterated in S.
Khushboo V. Kanniammal (2010) 5 SCC 600.” Community
standards and social values are inextricably tied to
public opinion. Public Interest Litigation and
Judicial Activism are inextricably tied to public
opinion and it would be naïve to suggest otherwise.
WHO IS THE RULER?
In a democracy, it is the voter who has the last
word. He votes in his representative. If the voter
wants a change, he votes for a change. Issues are
raised and debated and Policy changes come about when
dispensations change, based on the people’s vote. It is
the elected legislature that gets to make the law
and change it too. It is the Executive that implements
the law. The Judiciary is only meant to interpret the
law. But goes on to ‘make the law’ too. It is
universally agreed that ‘Judiciary is dependent on the
Executive’ in a democracy to ‘implement its decisions’
for ‘ Judiciary lacks the Sword and the purse’.
Therefore, the Judiciary always exercises self
restraint and separation of powers is recognized and
respected. But, when the Judiciary over reaches to
legislate, what happens. You do not need any
clairvoyant to give the dreadful answers. A couple of
respected Judges, in dissent, in the samesex case
verdict itself , have the answers.
Read what Chief Justice Roberts has to say on the
Judiciary overstepping its limits
“That respect flows from the perception—and reality—that
we exercise humility and restraint in deciding cases
according to the Constitution and law. The role of the Court
envisioned by the majority today, however, is anything but
humble or restrained. Over and over, the majority exalts
the role of the judiciary in delivering social change. In the
majority’s telling, it is the courts, not the people, who are
responsible for making “new dimensions of freedom . . .
apparent to new generations,” for providing “formal
discourse” on social issues, and for ensuring “neutral
discussions, without scornful or disparaging commentary.”
“As a plurality of this Court explained just last year, “It is
demeaning to the democratic process to presume that
voters are not capable of deciding an issue of this
sensitivity on decent and rational grounds.” Schuette v.
BAMN, 572 U. S.(2014).
The Court’s accumulation of power does not occur in a
vacuum. It comes at the expense of the people. And they
know it. Here and abroad, people are in the midst of a
serious and thoughtful public debate on the issue of
samesex marriage. They see voters carefully considering
samesex marriage, casting ballots in favor or opposed, and
sometimes changing their minds. They see political leaders
similarly reexamining their positions, and either reversing
course or explaining adherence to old convictions
confirmed anew. They see governments and businesses
modifying policies and practices with respect to same-sex
couples, and participating actively in the civic discourse.
They see countries overseas democratically accepting
profound social change, or declining to do so. This
deliberative process is making people take seriously
questions that they may not have even regarded as
questions before. When decisions are reached through
democratic means, some people will inevitably be
disappointed with the results. But those whose views do
not prevail at least know that they have had their say, and
accordingly are—in the tradition of our political culture—
reconciled to the result of a fair and honest debate. In
addition, they can gear up to raise the issue later, hoping
to persuade enough on the winning side to think again.
“That is exactly how our system of government is supposed
to work.” Post, at 2–3 (SCALIA, J., dissenting).
Indeed, however heartened the proponents of same-sex
marriage might be on this day, it is worth acknowledging
what they have lost, and lost forever: the opportunity to
win the true acceptance that comes from persuading their
fellow citizens of the justice of their cause. And they lose
this just when the winds of change were freshening at their
backs.
It is one thing for the majority to conclude that the
Constitution protects a right to same-sex marriage; it is
something else to portray everyone who does not share the
majority’s “better informed understanding” as bigoted.
In the face of all this, a much different view of the Court’s
role is possible. That view is more modest and restrained. It
is more skeptical that the legal abilities of judges also
reflect insight into moral and philosophical issues. It is
more sensitive to the fact that judges are unelected and
unaccountable, and that the legitimacy of their power
depends on confining it to the exercise of legal judgment.
It is more attuned to the lessons of history, and what it has
meant for the country and Court when Justices have
exceeded their proper bounds. And it is less pretentious
than to suppose that while people around the world have
viewed an institution in a particular way for thousands of
years, the present generation and the present Court are
the ones chosen to burst the bonds of that history and
tradition. * * * If you are among the many Americans—of
whatever sexual orientation—who favor expanding same-
sex marriage, by all means celebrate today’s decision.
Celebrate the achievement of a desired goal. Celebrate the
opportunity for a new expression of commitment to a
partner. Celebrate the availability of new benefits. But do
not celebrate the Constitution. It had nothing to do with it.
I respectfully dssent.- Chief Justice Roberts.
But the last word, as always, shall rest with
the best. Who can put it better than Justice
Scalia? He is brilliant when it comes to capturing
intent in content. He is pugnaciously pungent and
never minces words. But the substance of his
indictment can never be ignored. He hits hard but
with wordy tools. And when he hits hard, it hurts,
for he is trying to uphold the prestige and vestige
of a noble institution. He cries in anguish when he
bemoans that The Nine were assuming roles which
they were not competent or authorized to handle.
Justice Scalia at his scathing best is Trumper and
Bradman- aesthetics and impact- rolled into
one..How can elected Judges displace the elected
representatives on policy formulation for the
entire nation and when the Constitution was silent?
Are The Nine even representative of the diversity
that is needed to grapple with the policy change?
Absolutely astounding critique on his majority
brother judges’ usurpation of the power to Rule.
No wonder, a Republican Presidential candidate
called the 5:4 verdict, a ‘Judicial Tyranny. His
affiliation aside, the phrase seems so apt.
“Take, for example, this Court, which consists of only nine
men and women, all of them successful lawyers18 who
studied at Harvard or Yale Law School. Four of the nine are
natives of New York City. Eight of them grew up in east-
and west-coast States. Only one hails from the vast
expanse in-between. Not a single Southwesterner or even,
to tell the truth, a genuine Westerner (California does not
count). Not a single evangelical Christian (a group that
comprises about one quarter of Americans19), or even a
Protestant of any denomination. The strikingly
unrepresentative character of the body voting on today’s
social upheaval would be irrelevant if they were
functioning as judges, answering the legal question
whether the American people had ever ratified a
constitutional provision that was understood to proscribe
the traditional definition of marriage. But of course the
Justices in today’s majority are not voting on that basis;
they say they are not. And to allow the policy question of
same-sex marriage to be considered and resolved by a
select, patrician, highly unrepresentative panel of nine is to
violate a principle even more fundamental than no
taxation without representation: no social transformation
without representation”.
Scalia is not done yet/ He has reserves to exhaust.
He seems to have reserved it for the last punch. A real
potent punch and which dissent is bound to resonate all
through the political America when it goes to the
hustings. It would and should resonate among
independent judiciaries in any free country. Scalia has
woven a Constitutionally sublime fabric which is
incomparable in the annals of any democratic ethos of
dissent and which shall shine as a beacon in the
choice of language to liquidate his brothers/sisters
in majority, of venality.
“Hubris is sometimes defined as o’erweening pride; and
pride, we know, goeth before a fall. The Judiciary is the
“least dangerous” of the federal branches because it has
“neither Force nor Will, but merely judgment; and must
ultimately depend upon the aid of the executive arm” and
the States, “even for the efficacy of its judgments.”26 With
each decision of ours that takes from the People a question
properly left to them—with each decision that is
unabashedly based not on law, but on the “reasoned
judgment” of a bare majority of this Court—we move one
step closer to being reminded of our impotence.”
Just as in the Obamacare verdict, in this Samesex
verdict too, it is the dissent that outstandingly
outshines the majority opinion and wins it, not only
for the literary audience, but for the academically
inclined too. Let us for all times to come, in any
democratically inclined judicial dispensation admit
and agree that the Judges do make Law and Judges do
make Policies and so long as the Legislators abdicate
their responsibilities, it would be so, Let us shed our
pretences. We the people have no other choice until
those We elect realize the strength behind the throne.
In the meanwhile, a million thanks to the two majority
verdicts, for without it, we would not have had the
benefit of these overpowering dissents. Scalia has led
the charge, as a true blue conservative, but he is yet
not, even wounded. The rage, the dissenters have
displayed, is not impotent , for they have warned
the ‘usurpers’ in the Judiciary, of the Judiciary’s
inherent impotence, for the system could hit back once
and once would be enough, if they stick to this
overreach and transgression routine, A sure lesson for
our Supreme Court due to pronounce on the NJAC
challenge.
(Author is a practicing advocate of the Madras HighCourt &
can be reached atvijayaraghavan.nv@gmail.com)