Directors' Duty to Act Bona Fide in the Interest of the Company

Abstract

The Company and Directors'Duties 451 the majority to implement the socialist aspirations of the Constitution it is also in the public interest litigation tradition. A note on a single case is not an appropriate context for a full-fledged discussion of judicial activism. However, it would seem right to bear in mind differences of legal culture, rather than assume that the English debate can simply be transported to India and remain valid. The legislatures of developing countries are very often ineffectual; in other words, it cannot be assumed that what the judges will not do Parliament will do and the will of the people will be implemented. True, the situation in India is rather better than in many African countries where lawyers' law legislation is a rarity indeed. But even in India it can take a long time for legislative proposals to reach the statute book. This of course does not mean that the judges automatically become endowed with the vision to know what the will of the people would be if only it were to be legislated! What it does perhaps mean is that it is not always true to say: "If Parliament had meant this they would have done it." This case demonstrates, however, that the "activist" sections of the Indian judiciary are not simply holding themselves out as doing what Parliament would have done if only it had had the time. Above both the judges and Parliament looms the Constitution. And the very existence of a constitution sets some bounds to the law, and gives to the judiciary an enhanced role. But the Indian Constitution goes further than setting bounds; it contains positive mandates. The judiciary, conscious of the shortcomings of the legislative process, have very often set themselves the task of trying to carry out the constitutional mandates, within the limits of the judicial role-and those limits are far wider than the English judiciary could conceive. Chinnappa Reddy J observed extrajudicially , "it is not the Judiciary, but the Parliament and the Executive that have failed the people". 95 The Ramakrishnan case is an example, minor perhaps in its likely individual impact, but still interesting, of the judiciary responding, as Chinnappa Reddy J went on to put it, "to the call of progress". 96 JILL COTTRELL