JUDICIAL LEGISLATION- MYTH vs REALITY

(N Vijayaraghavan)

-------------

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)