KEEPING THE SPIRIT OF THE COMMON

LAW ALIVE*
Justice M. N. Venkatachaliah**
Western law has two great systems, the civil law and the common
law. The system of civil law comprises a number of national or local laws, each
of which has, at its core, a civil code based largely on Roman law. The com-
mon law is not contained in a code but is continually distilled from the stream
of a large number of cases decided by the courts of law, at first exclusively in
England but later in other parts of the Commonwealth and the USA. This judge-
made law is again divided into two parts, which bear the technical names of
‘common law’ and ‘equity’, both of which are from time to time modified by
local or national legislation.

Even centuries of Roman rule over Britain could not significantly

change or give flavour to Britain or its people. The Roman occupation left
“little permanent mark on the civilization and character of the island.”1

I. COMMON LAW – ITS SPIRIT

The common law has its origins in customs, which evolve into
rules of conduct and the process of their enforcement creates legal rules.2 The
common law is not an expression connoting some specific idea. It is a whole,
complex judicial system evolved over the centuries in England, showing great
penchant for migration to other parts of the globe. Initially the term was used for
the laws and customs that were applied by the royal courts, which had emerged
after the Norman conquest and progressively replaced local laws and customs
applied by sundry local courts.3 As the decisions of these courts came to be
recorded and published, a practice developed whereby past decisions would be
cited in argument before the courts and would be regarded as having persuasive
value or even binding authority.

The common law is judge-made law, the continuing development

of which is an integral part of the constitutional function of the judiciary. “The
common law is a living system of law reacting to new events and new ideals
and so capable of providing citizens with a system of practical justice relevant
*
This paper was orginally delivered as a speech by the author at a session of the Informal
Discussion Group at NUJS on March 31, 2012.
**
25th Chief Justice of India (1993-94) and Chairman, National Commission to Review the
Working of the Constituttion.
1
J.B. Bury, The Cambridge Medieval History Vol. I 370 (1911).
2
Theodore Frank, Thomas Plucknett, A Concise History of the Common Law 342 (2007).
3
S.H Bailey & M.J Gunn, Smith and Bailey on the Modern English Legal System 4 (1991).
292 NUJS LAW REVIEW 5 NUJS L. R ev. 291 (2012)

to the times in which they live”.4 “Judicial development of the common law
comprises the reasoned application of established Common Law principles in
current social conditions”.5 Rigidity in the operation of a legal system is a sign
of weakness, not strength and it deprives the system of necessary elasticity.
Flexibility is the prime virtue of common law. The genius of common law lies
in its capacity for evolution and adaptability, as well as its resilience to cope
with the demands of the times. This may be said to represent the spirit of the
common law.

II. DISTINCTIVE FEATURES OF THE COMMON

LAW
Sir Frederick Pollock has pointed out that English laws grew in
rugged exclusiveness, disdaining fellowship with the mere polished learning of
the civilians.6 The main areas of differences, or rather of shifts of emphasis are
(1) the law making power of the judges; (2) the value and force of precedents;
(3) the content of the inquisitorial element in jurisdiction; and (4) the concept
of inherent power of the court and other traditional techniques of procedure.
That the decisions of superior courts are a source of law in their own right is the
single largest distinctive feature of the common law system.

III. PRECEDENTS AND INHERENT

JURISDICTION
There is a marked difference between the institution of case law
in England and the continental idea of precedents. The continental concept of
precedent is a rule of practice established by a series or group of cases, in con-
trast to the binding authority of an individual case. The other distinction is the
characteristic adversarial character of the common law system.

One difference of great importance is the extraordinary concept

in the common law tradition called “the inherent jurisdiction of the court.”7
There is no equivalent to this peculiar English concept of judicial power in any
European system.8 The overriding feature of the inherent jurisdiction of the
court is that it is part of procedural law, mainly civil but also criminal, but not a
part of substantive law. It is normally exercisable by the superior courts of law
and to a limited extent by inferior courts, but not by tribunals.9 It is not derived
from any statute or rule of law, but from the very nature of the court as a court

4
Kleinwort Benson v. Lincoln City Council, (1999) 2 A.C. 349, per Lord Goff.
5
Id.
6
Sir Frederick Pollock & Bart, Oxford Lectures and Other Discourses 47 (1890).
7
Sir Jack Isaac H ai Jacob, The Fabric of English Civil Justice 60 (1987).
8
Id., 60.
9
Id., 60.

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 COMMON LAW 293

of law.10 The superior court is entitled to determine for itself questions about its
jurisdiction. This is an aspect of the inherent power of the court. Inherent juris-
diction is the foundation on which the edifice of the common law is built. The
power of superior courts as courts of record to punish for contempt flows from
this concept. “Contempt of Court is undoubtedly one of the great contributions
the common law has made to the civilized behaviour of a large part of the world
beyond the continent of Europe where the institution is unknown”.11

IV. TRANSITION TO THE MODERN ERA – SIR

EDWARD COKE
The 16th century in England was a century of transition from me-
dieval to the modern. It saw many great changes in all branches of private law.
“It is not one of the least of the advantages of the system of common law that
it enables lawyers to adapt to a new environment.”12 Sir Edward Coke in his
commentary on Littleton described the law of England as the golden metwand,
whereby all men’s causes are justly and evenly measured. Indeed, Littleton’s
work was a masterpiece. ‘Coke on Littleton’ was a masterpiece on a master-
piece. Coke’s writings were recognized in his own days by Bacon. “Had it not
been for Sir Edward Coke’s reports … the law by this time had almost been like
a ship without a ballast.”13 Coke’s work was a fitting culmination of a process
that had commenced in the 12th century. The establishment of the rule of law
was mainly due to Coke’s insistence on the supremacy of the common law.14
Its acceptance by later generations of lawyers as a fundamental principle of
English law was due to the manner in which he had stated and enforced them in
his writings.15 The rule of law is the greatest gift of the common law.

Many other countries are now the inheritors of the common law
system; they are not only proud of their inheritance, but even take pride in their
preference. Common law broadly denotes rules derived from decisions of the
superior courts, in contrast to those derived from statute. In all countries that
have inherited the English legal system, the common law is the foundation of
all laws and legal systems.16 The development of law in all common law coun-
tries is by codification, whether as a written Constitution or any other law – the

10
Id., 60.
11
Francis Mann, Contempt of Courts in the House of Lords and the European Court of Human
Rights, 95 Law Quarterly R eview 348 (1989).
12
Wason v. Walter, L.R. 4 Q.B. 73.
13
A non, The Legal observer, Or, Journal of jurisprudence Vol. 6 436 (1833).
14
William Holdsworth, Some M akers of English Law 131 (1938).
15
Id., 132.
16
Quebec R esearch Centre of Private and Comparative Law, Private Law Dictionary and
Bilingual Lexicons 72 (1991): “Legal system of England and of those countries which have
received English law, as opposed to other legal systems, especially those evolved from Roman
law”.

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basic elements of which are common law concepts as modified by indigenous

ideas where necessary.

V. JUDICIAL CREATIVITY
Learned Hand says that our common law is an instance of a com-
bination of custom and its successive adaptations.17 Judges receive it and profess
to treat it as authoritative, while gently moulding it to fit changed ideas. Indeed
the whole of it has been fabricated in this way like a coral reef, the symmetry
of whose eventual structure the artificers have no intimation as they labour.18
“It is a structure indubitably made by the hands of generations of judges, each
professing to be a pupil, yet each in fact a builder who has contributed his few
bricks and his little mortar, often under the illusion that he has added nothing…
[A judge] must preserve his authority by clothing himself in the majesty of an
overshadowing past, but he must discover some composition with the dominant
trends of his time – at all hazards he must maintain that tolerable continuity
without which the society dissolves...”.19

There is an impression that judicial activism in the common law

tradition in the sense it is now understood has been a phenomenon in the second
half of the 20th century. But Prof. Wade points out that it has only “rekindled
old fires.”20 Creativity – judicial creativity is a hallmark of common law. For
instance, speaking of judicial creativity, the doctrine of ‘Lost Grant’ was itself
the result of judicial creativeness in common law. Bryant v. Foot21 sets out the
judicial ingenuity and innovation involved in the fiction of the ‘Lost Grant’ in
the following words:

“The Judges set their ingenuity to work, by fictions and pre-

sumption to atone for the supineness of the legislature and to
amend, so far as in them lay, the law, which I cannot but think
they were bound to administer as they found it. They first
laid down the somewhat startling rule the rule that from the
usage of a lifetime the presumption arose that a similar usage
had existed from a remote antiquity. Next, as it could not but
happen that in the case of many private rights, especially in
that of easements which had a more recent origin, such a pre-
sumption was impossible, judicial astuteness to support pos-
session and enjoyment, which the law ought to have invested

17
Learned Hand, Is There a Common Will, 28(1) Michigan Law R eview 46 (1929).
18
Id.
19
Learned Hand, Mr. Justice Cardozo, 39(1) Columbia Law R eview 9 (1939).
20
Mr. Justice M. N. Venkatachaliah, Chief Justice of India, M.C. Bhandari Memorial Lecture
Indian Judges as Law makers: Some Glimpses of the Past, (1995) 1 SCC (Jour) 1.
21
(1867) LR 2 QB 161.

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 COMMON LAW 295

with the character of rights, had recourse to the questionable

theory of lost grants.

Juries were first told that from user, during living memory, or
even during twenty years, they might presume a lost grant or
deed; next they were recommended to make such a presump-
tion; and lastly, as the final consummation of judicial legisla-
tion, it was held that a jury should be told, not only that they
might, but also that they were bound to presume the existence
of such a lost grant, although neither Judge nor jury, nor any-
one else, had the shadow of a belief that any such instrument
had ever really existed.”22

Judicial law-making is a broad feature of the common law legacy.

“There was never a more sterile controversy” said Lord Radcliffe, “than that
upon the question whether a judge makes law. Of course he does. How can he
help it?”23 And Lord Reid said: “There was a time when it was thought almost
indecent to suggest that judges make the law. They only declare it… But we do
not believe in fairy tales any more.”24

“The raison d’etre for judicial law-making is said to be that by

its very nature the law is a laggard. It does not search out as do science and
medicine. It merely reacts, post-facto, to social needs and demands and is never
abreast of the needs of the times.” The adaptability of the common law is said
to be the answer to the inadequacy of the tardy pace of reformatory legislation.
Judicial law making is seen as the effective system. It proves to be an ameliora-
tive substitute.

It is said that judge-made law must be within narrow and clearly

defined limits. But the trouble is that those who make the law themselves claim
the right to set those limits. Prof. Jaffe asks, “By what warrant and in what
sense, is the judiciary authorized to make law? What, if any, are the effective
limits upon the exercise of judicial power? What problems flow from its being
an ad hoc decisional process? Can the judiciary be trusted to move in the right
direction?”25

Jaffe also said that the English common law had suffered a meno-
pause; but Lord Edmund Davies made a vigorous protest. He said, “If there
ever was a menopause in judicial law-making, all I can say is that it must have

22
Id.
23
Lord R adcliffe, Not in Feather Beds 215 (1968).
24
Lord Reid, The Judge as Lawmaker, 12 J. Soc’y Pub. Tchrs. L. 22 (1972-1973).
25
L. L. Jaffe, English and A merican Judges as Lawmakers 35 (1969).

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been of truly remarkable kind. For not only it is over and done with, but concep-
tion has assuredly been resumed and is clearly proceeding at a brisk pace”.26

Concepts of common law have enriched and helped the growth of

both public law and private law.

VI. COMMON LAW FOUNDATIONS OF

JUDICIAL REVIEW
The concepts of judicial review and unconstitutional statutes may
be said to owe their origin to common law. Constitutionalism i.e., limited gov-
ernment under a fundamental law, has its religious roots in the idea of divine
law, its philosophical roots in the idea of natural law, its specifically Anglo-
Saxon legal roots in the common law tradition and its institutional roots in the
idea of the balanced state. It emphasizes the conception of a written constitu-
tion as ‘higher law’27 to be interpreted ultimately not by natural or common
reason but by those versed in the ‘artificial reason of the law’.28

That the power of judicial review essentially has its roots in com-
mon law is reflected in the famous dictum of Chief Justice Coke in Dr. Bonham’s
case.29 It was said that the common law would control Acts of Parliament and
the court could declare an Act of Parliament void if it was against common right
and reason or repugnant or impossible to be performed.30 This was before the
glorious Bloodless Revolution, which established the supremacy of Parliament.
It is significant that Coke himself did not follow this view later and has not
mentioned Bonham’s case in his Institutes. This, however, had immense influ-
ence across the ocean in America where it found fertile ground with a written
constitution, leading to the review role of the Supreme Court with the concept
of a fundamental higher law i.e., the Constitution as a restraint on both execu-
tive and legislature.31

26
Venkatachaliah, supra note 20.
27
Thomas Grey, Do We Have An Unwritten Constitution, 27 Stan L. R ev. 703 (1974-75): “For
the generation that framed the Constitution, the concept of a “higher law,” protecting “natural
rights,” and taking precedence over ordinary positive law as a matter of political obligation,
was widely shared and deeply felt. An essential element of American constitutionalism was
the reduction to written form-and hence to positive law- of some of the principles of natural
rights”.
28
Edward Coke, Conference between King James I. and the Judges of England (1612) 12 Rep.
63: “To which it was answered by me that true it was, that God had endowed his Majesty with
excellent science, and great endowments of na-ture ; but his Majesty was not learned in the
laws of his realm of England, and causes which concern the life, or inheritance, or goods, or
fortunes of his subjects, are not to be decided by natural reason, but by the artificial reason
and judgment of law, which law is an art which requires long study and experience before that
a man can attain to the cognizance of it”.
29
Thomas Bonham v. College of Physicians, (1938) 54 L.Q.R. 543.
30
Id.
31
Grey, supra note 27.

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 COMMON LAW 297

In 1798 in Calder v. Bull,32 Justice Samuel Chase drew support

from the principles of a higher law and judicial review to enforce limitations
outside the written constitution (extra constitutional limitations) on legislative
power. He declared, “an Act of the legislature contrary to the great first prin-
ciples of the social compact cannot be considered to be rightful exercise of
the legislative authority… the general principles of law and reason and forbid
them.”33 Then in 1803, Chief Justice Marshall said in Marbury v. Madison,34
“It is the duty of courts when confronted with a conflict between an act (i.e.,
a statute) of the mere agents of the people (i.e., of the ordinary legislature) and
the act of the people themselves (to wit, the Constitution) to prefer the latter.”

Marshall was not and never claimed to be the originator of the

doctrine. In 1973, Spencer Roane, a great judge of the Virginia court said
in Kamper v. Hawkin,35 “If the legislature may infringe this Constitution (of
Virginia), it is no longer fixed … and the liberties of the people are wholly at
the mercy of the legislature.”

Edwin Corwin, in his paper, ‘The Higher Law Background of

American Constitutional Law’,36 to which all later writers are indebted and
in his lecture, ‘The Debt of American Constitutional Law to Natural Law
Concepts’,37 explains the great contribution of the common law tradition to the
ultimate development of judicial review in America. The dictum in Bonham’s
case38 became, in Corwin’s words, “the most important single source of the
notion of judicial review.”39 The principle is that all laws are to be tested on the
touchstone of a higher law which in earlier times was the natural law and the
common law, and whose role today is ordinarily filled by a constitutional docu-
ment. The idea of judicial review is anterior to a written constitution.

VII. IMPRESS OF THE COMMON LAW ON

CONSTITUTIONAL LAW
The greatest impress of English common law upon the American
constitution was upon the Bill of Rights, which trace their origin to the Magna
Carta. Notwithstanding some difference in perspective, the common objective
between the English common law rights and liberties and the American Bill of
Rights is that both were intended as bulwarks against arbitrary powers and the
32
3 US 386 (1798).
33
Id.
34
5 US 137 (1803).
35
1 Va Cas 22 (1793).
36
Edward S Corwin, The Higher Law Background of American Constitutional Law, 42 H arvard
L.R. 149 (1928-29).
37
Edward S Corwin, The Debt of American Constitutional Law to Natural Law Concepts, 42
Notre Dame Law 258 (1949-50) .
38
Bonham, supra note 29.
39
Corwin, supra note 36, 379.

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American courts did not forget their common law inheritance in interpreting
and giving content to the constitutional guarantees and rights. As Chief Justice
Taft observed in Grossman,40 “The language of the (American) Constitution
cannot be interpreted except by reference to the common law and to British in-
stitutions … the statesmen and lawyers of the Convention, when they put their
conclusions into the form of a fundamental law, expressed them in terms of
the common law, confident that they would be shortly and easily understood.”

Common law is an aid to constitutional interpretation; it is a tool

to bring the legal order in tune with the constitutional philosophy and is the
vehicle for translating constitutional phrase into reality. For instance, the prin-
ciples of natural justice are based on common law maxims and doctrines; so
also the presumption of innocence and immunity from self-incrimination. To
quote Lord Morris, “natural justice, it has been said, is fair play in action nor do
we wait for directives from Parliament. The Common Law has abundant riches:
there may we find what Bytes J. called the ‘justice of the common law.”41

The common law has humanized the law. Be it in the field of

public law or criminal law, common law concepts have their influence. That
the punishment should be commensurate with the offence – the proportionality
doctrine – finds its earliest echoes in the Magna Carta (1215) and the Bill of
Rights (1689). Also based on this principle, the Privy Council recently invali-
dated a mandatory death sentence, in a case from the Bahamas.42 Our Supreme
Court invalidated a similar provision (Indian Penal Code, §303) in 1983 draw-
ing support from Art. 21 of the Constitution.43

VIII. ADAPTABILITY, APPLICATION AND

DEVELOPMENT IN OTHER AREAS
Great judges who have developed common law have displayed a
perceptive sense of legal history and responded to the felt needs of times. As
Lord Roskill said, “what direction should this development now take? ... The
answer is … to follow that route which is most consonant with the current needs
of the society and which will be seen to be sensible and will pragmatically
thereafter be easy to apply … the Law Lords will continue to be the targets for
those academic lawyers who will seek intellectual perfection rather than im-
perfect pragmatism. But much of the common law and virtually all the criminal
law … is a blunt instrument by means of which human beings are governed
and subject to which they are required to live and blunt instruments are rarely

40
Ex Parte Grossman, 267 US 87 (1925).
41
Wiseman v. Borneman, 1971 A.C. 297.
42
Bowe v. The Queen, 2006 UKPC 10 (P.C.) (Bahamas).
43
Mithu v. State of Punjab, (1983) 2 SCC 277.

July - September, 2012

 COMMON LAW 299

perfect intellectually or otherwise. By definition they operate bluntly and not

sharply.”44

One of the reasons why Justice Cardozo was rated among the
greatest judges, despite his short tenure of six years in the Supreme Court, was
his great faith in the potential of common law to adapt itself and meet the chal-
lenges of the growing times and changing needs of society. Lord Denning used
the process of development of common law to great effect. The tort of spoilt
holiday was one of his innovations.45 Then again, a three hundred year old
English common law rule, that in law, a husband is incapable of the offence of
rape on a wife during the subsistence of the marriage changed in the very case
to which the changed rule was applied.46

Cases where the concept of ‘strict liability’ and ‘reasonable care

to one’s neighbour’ are enunciated are instances of judicial law making. So
also is the practice of the court examining the reasonableness of the terms of a
contract even though it may interfere with the freedom of contract. The concept
that the Crown can do no wrong has been effectively answered judges cannot
enforce the law against the Crown as the monarch because the monarch can do
no wrong, but the judges enforce the law against Crown as the executive and
against the individuals who, from time to time, represent the Crown.

One sterling example in India is Justice Mahmood who, in 1981,

enunciated the essentials of natural justice and the consequences of its non-
observance. In a dissenting opinion in a full bench case, he held that a criminal
appeal under §420 of the Code of Civil Procedure against conviction could not
be decided without hearing the imprisoned accused in person if he was unrep-
resented by a lawyer because without that requirement the appeal could not be
treated as heard.47 Justice Vivian Bose in the Nagpur High Court held that a
forest officer was engaged in a commercial activity of the State and the defence
of sovereign immunity was not available in a case of tort committed by him;48
that uninterrupted settled possession of even less than 12 years was a defence to
protect possession, except against a true owner;49 and the signature on a docu-
ment being admitted or proved, the burden shifts to the signatory to avoid the
consequences of the document, because no one is known to append his signa-
ture to a document without agreeing to be bound by it.50 In the Supreme Court,
he was the first to hold that any action which is not ‘reasonable, just and fair’

44
Lord Roskill, Presidential Address to Bentham Club at University College of London: Law
Lords, Reactionaries or Reformers (February 29, 1984).
45
Jarvis v. Swan Tours Ltd., 1973 Q.B. 233.
46
R v. R, (1992) 1 A.C. 599.
47
Queen Empress v. Phopi, ILR XIII All. 171.
48
Secretary of State v. Sheoramjee, AIR 1952 Nag 213.
49
Pannalal Bhagirath Marwadi v. Bhaiyalal Bindraban Pardes Teli, AIR 1937 Nag 281.
50
Dalchand Mulchand v. Hasanbi, AIR 1938 Nag 152.

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is violative of Art. 14 and that the plea of ‘act of state’ is not avoidable against
its own citizens.51

The Ratlam Municipality case52 offers a shining example of how

the existing legal provisions were made meaningful and put to effective use by
judicial innovation. Payment of compensation for torts by public authorities is
again a striking innovation.

Another great contribution of common law and an instance of its

creativity and resilience is the evolution of ‘the reasonable man’. The com-
mon law of England has been laboriously built about a mythical figure – the
figure of ‘the reasonable man’. He is an ideal, a standard, the embodiment of
all those qualities, which we demand of a good citizen. The standard of the
reasonable man has come to stay as the accepted standard to pass judicial scru-
tiny. Whether it is in the field of contract or tort or in the public law domain,
‘reasonableness’ and the ‘reasonable man’ occur frequently and play a vital
role. For instance, in the case of negligence, the court examines whether there
was reasonable care i.e., whether the course of action is one that a reasonable
prudent man would have taken. Then again, in matters like obscenity and defa-
mation what is to be seen is whether the sensitivities of a reasonable man would
be offended. In judging the unconscionability of the terms of a contract, it is
the standard of the reasonable man that is applied. In a broad sense, the various
significations of ‘reasonable conduct’ might be described as the behaviour of
the ordinary person in any particular event or transaction. This, of course, is
an abstraction. Lord Bowen visualized the reasonable man as “the man on the
Clapham omnibus”.53 The reasonable man is a fiction – he is the personification
of the court and the jury’s social judgment. He is the personification of public
opinion on a legal issue. In an illuminating passage, Lord Radcliffe said that
before ‘the reasonable man’ enters the stage, the actual parties would become
disembodied spirits and from their ashes there rises like a phoenix the figure
of the fair and reasonable man who really is the anthropomorphic conception
of justice and that is the figurative role of the court itself.54 “It is an idea to help
judges and juries locate an accessible, unbiased standard.”55

In the days to come, with cataclysmic changes taking place in

the world, the quest for truth and justice will become more courageous and the
role of the court more sophisticated and complicated. ‘The reasonable man’ of
the future will present the judge who is to enact him on the stage more elusive
than ever.

51
State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75.
52
Municipal Council, Ratlam v. Vardhichand, AIR 1980 SC 1622.
53
Tichborne v. Lushington in the Court of Common Pleas Westminster from May 10 to July 7,
1871.
54
Davis Contractors Ltd. v. Fareham Urban District Council, (1956) UKHL 3.
55
Id.

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 COMMON LAW 301

The doctrine of prospective overruling has taken root in some

of the common law countries. People generally conduct their affairs based on
their understanding of the law. The retrospective effect of a change of law can
have disruptive and seemingly unfair consequences. Prospective overruling is
a judicial tool fashioned to mitigate the adverse consequences. The doctrine
was first evolved and applied in the USA – Great Northern Rly. Co. v. Sunburst
Oil & Ref. Co.,56 Linkletter,57 and Chevron Oil Co.58 In India, it was first ap-
plied in Golak Nath,59 confining it to constitutional cases and to be applied
only by the Apex Court. Reference may also be made to India Cement Ltd.,60
Orissa Cement Ltd.61 and the recent case of P.V. George v. State of Kerala.62 In
England, the doctrine has been invoked in a well reasoned, illuminating and el-
egantly written judgment in Re Spectrum Plus.63 The doctrine has been applied
by Luxembourg and Strasbourg Courts also.64

Another doctrine evolved in constitutional adjudication in India

is the basic structure theory. It was held in Kesavananda Bharati65 that while
the power of amendment under Art. 368 is plenary and no provision is immune
from amendment, it does not include the power to abrogate the Constitution
or amend its basic structure, features or framework. It was the responsible re-
sponse of an anxious activist court to the working of the Constitution for the
first three decades. If the doctrine is not accepted and applied, the tumultuous
tides of democratic majoritarianism may engulf and deluge the entire system.
Basu stated in his commentary that “the doctrine of basic features had been in-
vented by the Supreme Court in order to shield the Constitution from frequent
and multiple amendments by a majoritarian Government”.66 The doctrine is
now invoked and applied in other jurisdictions also.

IX. HERITAGE
The common law is a great heritage and treasure. It is a potent
weapon in the hands of wise judges. As in the past, the judges today would
have to display a sense of proper perception and a fine balance between vari-
ous conflicting interests and competing claims. They would have to carry the
law forward wisely and steadily in the right direction. All this requires a great

56
287 US 358 (1932).
57
Linkletter v. Waller, 381 US (1965).
58
Chevron Oil CO. v. Huson , 404 US 97 (1971).
59
I.C. Golaknath v. State of Punjab, AIR 1967 SC 1643.
60
India Cement Ltd. v. State of Tamil Nadu, (1990) 1 SCC 12.
61
Orissa Cement Ltd. v. State of Orissa, (1991) Supp (1) SCC 430.
62
(2007) 3 SCC 557.
63
Re Spectrum Plus, 2005 UKHL 41.
64
Sionaidh Douglas-Scott, A Tale Of Two Courts: Luxembourg, Strasbourg And The Growing
European Human Rights Acquis, 43 Common Market Law Review 629, 641 (2006).
65
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
66
D. D. Basu, Commentary on The Constitution of India, 210-11 (1970).

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amount of knowledge and sagacity, as also patience. A passage from Basu’s

Tagore Law Lectures appears apposite in this context:67

“… How powerful and, therefore, onerous is the engine of

Judicial Review at the hands of Judges of superior Courts
and what depth of knowledge and faith in constitutionalism
is indispensable for working that engine … We cannot but
emphasize the importance of proper personnel for the suc-
cess of Judicial Review… If without any skill in the laws a
judge will boldly venture to decide a question upon which the
welfare and subsistence may depend, where, if he chances
to judge wrong, he does an injury of the most alarming na-
ture, an injury without possibility of redress. It may be added
that in the sphere of constitutional law uninitiated decisions
are likely… to bring… loss of confidence in Judicial Review,
nay, in the Constitution itself, upon which rests the life and
breath of the Nation.”

The judge should know his limitations and the limitations of the
judicial process and that the law cannot offer relief from ‘the heart ache and
thousand natural shocks that flesh is heir to’. The attitude of judicial humility
is not an abdication of judicial power, but it is a true understanding and due
observance of its limits. As Chief Justice Aharon Barak said, a judge’s job
requires balancing different values, “it requires balancing between the prin-
ciple of majority rule and the values which even the majority may not under-
mine; between the needs of the collective and individual rights; between the
rights of one individual and those of another. A judge must protect and maintain
this delicate balance, something which requires some measure of activism and
some measure of self-restraint”.68

The exercise is delicate and challenging and calls for vision and
statesmanship.

X. EPILOGUE
Dr. Radhakrishnan once remarked that it takes centuries to
make a little history and centuries of history to make a tradition. Tradition,
said Carlyle, is an enormous magnifier. But traditions are not like instant cof-
fee. They would have to be imbibed and cherished by each generation. Today,
we are the inheritors and guardians of common law traditions. And we may
say with Learned Hand, “let us look up to the great edifice which our forefa-
thers have built, of which we are now guardians and the craftsmen. Though

67
D. D. Basu, Tagore Law Lectures (1972).
68
A haron Barak, The Judge in A Democracy 281 (2006).

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 COMMON LAW 303

severally we may perhaps be paltry and inconsequent, for the present it is we

who are charged with its maintenance and growth. Descended to us, in some
sort moulded by our hands, passed on to the future with reverence and with
pride, we at once its servants and its masters, renew our fealty to the Law.”

Equipped with these qualities and moulded in these traditions the

common law and lawyers can legitimately claim a place in the sun.

“… There is one way in this country in which all men are

created equal – there is one human institution that makes a
pauper the equal of a Rockfeller, the stupid man the equal
of an Einstein and the ignorant man the equal of any college
President. That institution is a court.”69

69
H arper Lee, To K ill A Mockingbird (1960).

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