"Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role."
-Judge John G Roberts Jr. in the opening remarks to his own confirmation hearings as the Chief Justice of the United State Supreme Court.
"What we must have — what our legal system demands — is a fair and unbiased umpire, one who calls the game according to the existing rules and does so competently and honestly every day... Activism is when a judge allows his personal views on a policy issue to infect his judgment."
- Senator Jeff Sessions, Republican of Alabama, in his introductory remarks during Judge Roberts' confrimation hearings
Imagine a cricket umpire declaring a batsman not out despite being plumb in front because of three bad leg before decisions suffered by the same batsman in previous matches. Or re-calling a batsman who has left the field on being declared out, because of a late realization that he may not have edged the ball to the keeper. Or referring a leg before decision to the third umpire in a match where referral is restricted only to run outs and stumpings. In each case, the umpire has clearly over-stepped the rule book, though he (and like in judiciary, umpires are predominantly "he"!) will claim that he was only correcting a perceived injustice. Through these decisions, the umpire has clearly declared how cricket "ought to be played"!
These metaphorical remarks outlining the role of American judiciary, assume significance in India in the light of the expansive role judiciary has assumed over the past few decades under the cloak of "judicial activism". Since the advent of Public Interest Litigations (PIL) through the landmark decision in the Ratlam Municipality Vs Vardhichand case, judges have dramatically widened the scope of jurisprudence to creatively interpret and thereby lay down law. They have often invoked their "personal beliefs and biases" to set precedents and create law on a myriad of issues.
For a deeply complex society with entrenched vestiges of social polarization, judges who "bring all their life experiences to the bench" are a powerful source of both social good and social bad. But there is something deeply disquieting about the latter, especially since one of the most fundamanetal tenets of criminal jurisprudence reads, "Even if ten criminals are acquitted, one good man should not be convicted."
The issue is at the forefront of the huge controversy generated in the US following the nomination of Judge Sonia Sotomayor to the US Supreme Court. Judge Sotomayor’s public statements about the kind of empathy she brings to the bench as a Latina (she has Puerto Rican descent) have already elicited objections to what some view as an admitted bias.
The fundamental questions therefore are - should judges be like "umpires" or be be "umpires plus"?; should "judicial restraint" take precedence over "judicial activism"?
Follow the NYT debate on this here.