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Judicial Activism in India

Dr. Manoj Malik
The Judicaial activism is the cumulative product of power of Judicial Review and Public Interest Litigation or PIL.  Judicial review implies the powers of the courts to declare invalid those laws framed by the legislature and those order of the executive which go against the provisions of the Constitution. Since the Constitution is the fundamental law of land the courts are given power of judicial review to protect the provisions of Constitution from the encroachment by the excutive and legislature. The PIL is a new initiative of the Indian  judiciary to ensure that the government actively performs the function of public interest assigned to it under the law. Judicial activism  also refers to “judicial rulings that are suspected of being based on personal opinion rather than on existing law. It is sometimes used as an antonm of judicial restraint.”1 The idea and practice of  PIL of  was given a practical shape in 1982 by the then C.J.I. of India, Justice P.N. Bhagwati. Under the PIL, the norms of traditional justice, particularly, doctrine of standing or ‘Locus Standi’ has been liberalized. The principle of Locus Standi means that only the aggrieved and affected person can approach the court in any matter. However, under the PIL, a third party, which is not affected by the action or wrong, may directly approach the court if such wrong or action involves the violation of public interest. The basic idea behind such liberalization in the principle of locus standi is to overcome the difficulty in enforcing issues of public interest. Usually, no party would take the matters of public interst to the court as it involves cost and many hassles. Also, there is a possibility that those who are affected by the violation of public interest may not have the capacity of   opportunity to move the courts. For example, in case of the practice of bonded labour and child labour, the affected labourers are not capable of approaching the court but public interest is undermined by such practices. Thus PIL may be described as an off shoot of the broad notion of social justice. Any member of the public can maintain an application for appropriate direction’ (S.P. Gupta Vs. Union of India, SC 1982). Another flexibility introduced in the PIL is the permission to file a case through a plain application to court instead of filling a writ through a lawyer. PIL is essentially a cooperative or collaborative effort on the part of the petitioner, the state or the public authority and the courts to secure observance of the constitutional or legal rights, benefits and privileges conferred upon the vulnerable sections of the community and to reach social justice to them’ (People’sUnion of Democratic Rights Vs. Union of India SC 1982). Though some of the basic tenets of jurisprudence have been relaxed in case of PIL., yet it has to be conducted and resorted to under the following parameters.2  The issues involved should be of public nature. The PIL is not allowed to settle personal intersts or disputes. The person moving to a court under PIL should have bonafide intention to protect public interest. It should not be resorted to hamper of delay a governmental or  administrative action. The case may be filed by way of a letter of representation instead of regular petition.The grievance involved should arise from the government responsibility affecting the legal or constitutional rights of people. If a particular wrong is not a government liablility, the PIL cannot be maintained.The court may take an action suo moto in a particular case of wrong under the PIL. Judicial activism is not an extra-legal or extra-constitutional powers of the court, but merely a proactive exercise of its legal and constitutional powers. The fundamental goal of the Constitution, as described in its premble, is to secure to the people of India “Justice, Social, Economic and Political; Liberty of thought belief, faith and worship, and equality of status and opportunity. ” In order to achieve these goals, the constitution provides for the three organs of  the government-legislature, executive and judiciary, with distinct functions of each. However, the three organs of govt. in a large measure has faild to implement in letter and spirit various laws, policies and programmes due to various reasons. This has resulted in the infringement of liberty and rights of people, denial of justice to weaker sections and undermining of larger public interest. Both the PIL and judicial Activism in India are the product of continuous undermining of public interest and social justice due to irresponsible behaviour of executive and its administrative organs.  It is in the background of poor implementation of laws, policies and programmes, resulting in the violation o rights and justice to the people and undermining of public interest, that idea and practice of judicial activism emerged in india in 1980s.  PIL was thus an instrument devised by the courts to reach out directly to the public, and take cognizance though the litigant may not be the victim. “Suo Motu” cognizance allows the courts to take up such cases on its own. The trend has been supported as well criticized. Gardiner Harris sums this up as.3  India’s Judges have sweeping powers and a long history of judicial activism that would be all but unimaginable in the United States. In recent years, Judges required Delhi’s   auto-rickshaws to convert to natural gas to help cut down on pollution. closed much of the country’s ironore-mining industry to cut down on corruption and ruled that politicians facing criminal charges could not seek re-election. Indeed, India’s Supreme Court and Parliament have openly battled for decades, with Parliament passing multiple constitutional amendments to respond to various Supreme Court rulings. All such rulings carry the force of Article 39A of the Constitution of India, although before and during the Emergency the judiciary desisted from “wide and elastic” interpretations, termed Austinian, because Directive Principles of State Policy are non-justiciable; This despite the  constitutional  provisions for judicial review and B R Ambedkar arguing in the Constituent Assembly Debates that “judicial review, particularly writ jurisdiction, could provide quick relief against abridgment or Fundamental Rights and ought to be at the heart of the Constitution.4 Fundamental Rights as enshrined in the Constitution have been subjected to wide review, and have now been said to encompass a right to privacy, right to livelihood and right to education, among others. The ‘basic structure’ of the Constitution has been mandated by the Supreme Court not to be alterable,  notwithstanding the powers of the Legislature under Article 368. This was recognized, and deemed not applicable by the High Court of Singapore in Teo Soh Lung v. Minister fo r Home Affairs. Recent examples quoted include the order to Dehi Government to convert the Auto rickshaw to CNG, a move believed to have reduced Delhi’s erstwhile acute smog problem (it is now argued to be back)5 and contrasted with Beijing’s.6 The judicial activism is much broader in scope in comparison to PIL. If IPL involves flexibility in judicial procedures to vindicate the cause of public interest, the judicial activism encompasses the individual rights and justice. The PIL denotes the liberalized legal procedure and practices forthe protection of public interest, the judicial activism signifies a resultant orientation and behaviour of courts broadening their roles and function in a manner which touches the domain of functions of other organs of the government. Beginning since 1980s, along with the PIL,  the judiciary in India displayed tendency to encourage and entertain  various appeals under the wid meaning of Fundamental Rights and started issuing direction to the government agencies from cleaning the street garbage and checking environmental pollution to prevent corruption and frame common civil code. Due to unconventional nature of such directions of judiciary, the tendency of judicial activism has been of then described in  prerogative sense. However, the tendency of judicial activism should not be confused with the notion of judicial review, which is a power of the court to declare any law as null and void if it violates the provisions of the Constitution. The genesis of judicial review finds place in the provisions of Article 13 of the Constitution. Again, the direction of the courts to investigating agencies to probe the cases of judicial activism. It is case where directions are issued to uphold the rule of law. Also, the judicial activism should not be confused with a case where court issues direction to a government authority which has overstepped its limit of authority. In india, there are three major aspects of judicial activism followed by indian judiciary. The first aspect of judicial activism in India is the exercise of powers by the courts to review the existing the legislation and constitutional amendments enacted or passed by the legislature. This sometimes brings courts in direct confrontation with the legislature, which is empowered to enact lawsand amend the constitution. For example, in Keshvanand Bharti case, 1973, the Supreme Court invented the principle of ‘Basic Structure’ which caps the power of Parliament to alter of amend certain features of the Constitution. In 2007, the    Supreme Court has broadened the scope of judicial review to assume the power to review the legislative acts included in the 9th schedule of the Constitution. The 9th Schedule shall be immune from the jurisdiction of courts. However, the court argues that the principle of  judicial review continues to be a basic feature of the Constitution and the acts included in the 9th Schedule after the order of the Keshvanand Bharti case (1973) may be reviewed by the courts. The second aspect of judicial activism is concerned with the orders and directions issud by the courts to the government authorities for protecting fundamental and other rights of  citizens and for the fulfilment of a course of public interest. All the cases coming under the PIL are covered under this aspect of judicial activism. The famous cases, where the court has issued direction under PIL are: Agra protection Home case, Bihar(Bhagalpur) under trial  criminal case, the case of Bombay pavement dwellers, Sunil Batra Vs. Delhi Administration, case of construction workers of Tilonia (RAjasthan), Bandhua Mukti Morcha Vs. Union of India, Asiad workers case, people’s Union for Democratic Rights Vs. Union of India etc.The Third major aspect of judicial activism in india is the field of liberal interpretation o fundamental rights, particularly right to equality (Art-14), right to freedom (Art-19) and right to life and personal liberty (Art-21). The courts have used discretion to expand the scope of these rights with changing circumstances. There is scope for a judge to read his personal philosophy into the provisions. The power of interpretation sometimes has the effect of undermining the powers of government. Similar is the case with government decisions giving primacy to Fundamental Rights whereas the Parliament resolving to given primacy to certain Directive Principles of State Policy over the Fundamental Rights. In July 2013, the Supreme Court struck down sub-section (4) of Section 8 of the    Representation of the People Act, 1951 as ultra vires the Constitution. The section protects convicted legislators against disqualification on the ground of pendency of appeal against their conviction in the higher courts. NOTA was introduced in India following the Supreme Court directive in the People’ Union for Civil Liberties Vs. Union of India judgment passed in 2013. Thus, India became the 14th country to institute negative voting. In October, 2015 the constitution Bench of the Supreme Court declared National      Judicial Commission (NJC) unconstitutional as it violates Basic Structure of Constitution of India. The NJC was created under 99th Constitutional Amendment under Article 124. The court found that the provision of NJC violated the independence of judiciary, which is a basic feature of the Constitution. Again in another judgement on 22 august, 2017, the Suprem Court declared the practice of Triple Talaq as unconstitutional on the ground of violation of right to equality of MuslimWomen. In February 2018, the apex court of India made it obligatory for candidatesin elections to reveal the source of their incomes and that of their spouses and dependent children, apart from their share of interest if any in government contracts. In    September, 2018, The Supreme Court declared Section 377 as illegal an unconstitutional. The Section treated homosexuality as a crime. There are many other cases, where courts have given directives to the government to implement the un-implemented provisions of law or reviewed the legislation passedby the legislature. This has brought the judiciary in direct confrontation with the legislature in india. The practice of judicial activism in India for the last three decades or so has generated heated debate with respect to its merits and demerits. The people in general and civil society groups find it very much needed and healthy development for strengthening the democratic process. However, on the other hand, political leader, executive’s mimbers and some legal experts find it as an aberration to healthy functioning of constitutional democracy in india. Both positive and negative points of judicial activism in india are as follows.7The practices of judical activism is supported on the basis of following points :Due to judical activism and public interest litigation, the interests of those vulnerable  sections like bonded labour, child labour, prisoners etc. have been safeguarded by the court, which could not have the opportunity and capacity to approach the judiciary. The practice of judicial activism proves to be useful to check the misuse of rule of law by an authoritarian parliamentary government as happened during emergency. It also checks the abuse of public authority for self interest by high functionaries. The Supreme Court    imposed a fine of  Rs. 50 lakh on the former Union Petroleum Minister, Capt. Satish Sharma for abusing his discretionary power in the allotment of gas agencies and petrol pumps.The judicial activism has come as a healthy reminder to the inept administration and executive for its failure to discharge the responsibility, assigned under the constitution, to implement the laws, programmes and policies in an effective manner. The court by the progressive interpretation of rights of the citizens in the changing    democratic process has done a yeoman’s service not only for the protection of citizens’ rights by apathy or misuse of authority by government authorities but also for progressively  changing the domain of fundamental rights in india in tune with the changing nature of  humanright and democracy in the present context. Under the practice of judicaial activism, the judiciary has become more bold and  forthcoming to uncover the corrupt practices in the administrative process. A case in point is Jain Hawala case, or corrupt and criminal practices by legislature and candidates in elections.Demarits of Judicial activism are :- Some other jurists like N.A. Palkhiwala have criticized the judicial review as it violates the celebrated principle of separation of powers. The people should know that even judiciary cannot teransgress its limitation in a democratic set-up. Justice B.P. Jeevan Reddy a former judge of the Supreme Court has stated that on some occasions the courts have overstepped their limits. For example, order directing the construction of roads and bridges, the order seeking to lay a time-table for running of trains or orders seeking beautification of a railway station etc. faff in this category. The voice of judicial restraint, a Supreme Court Bench    consisting of Justice Markanday Katju and A.K. Mathur, in a judgement dated Dec. 10, 2007 asked the courts not to take over the functions of the legislature of executive. The bench said that the Jugdambikapal Case of 1998 involving the U.P Legislature Assembly, the Jharkhand Assembly case 2005 and ban on the interview of the children in nursing schools of Delhi, 2007, are the glaring examples of deviation from the clearly provided constitutional scheme of separation of powers. If there is a law, judges can certainly enforce it but judges cannot create a law and seek to enforces it. The fear has been expressed due to the fact that the judiciary checks the misuse of powers by the two organs of the government, but there is no effective mechanism which checks the abuse of judicial authority. This closely involves the question of judicial accountability and responsibility. In the name of independence of judiciary, it may function in a irresponsible manner, Though, the code of self imposed ethics for judges was adopted at the annual conferenc of the Chief Justices held in New Delhi in Dec. 1999, the demand for the establishmentof an Independent National Judicial Commission for the appointment and removal of judges still persists. In a democratic set-up, the judiciary should also be held accountableand responsible for the authority, the exercise. Judicial restraint requires the judiciary not to take over the functions of the executive and the legislature. The balance among the three organs of government is also required for the efficient functioning of the government as the judiciary has neither the expertise nor the resources to perform these functions. The judicial restraint not only protects the delicate balance between the three organs of the government but also ensures the maintenance of independence of judiciary. Institutional balance and boundaries have to be intrinsically respected by all.  Under the practice of judicial activism, the judiciary has propounded various new principles like ‘Basic Structure’,  Prospective overruling, unremunerated fundamental rights etc. This would add to confusion and uncertainty in the application of the provisions of the written Constitution. There is no knowing how far such novel doctrines may be extended, for the final say in the matter rests with the Supreme Court itself. It would generate bitterness between the Legislature and the judiciary if either of them seeks to checkmate the other by means of amendment or judicial activism. Ajit Prakash Shah former chief justice of the Delhi High Court is of the view “Over a year after an unprecedented press conference by senior judges flagged the challenges opacity and lack of accountability remain pressing concerns.”8 But in some cases where judicial     activism has tried to create a law or lay down public policy, the judiciary has encroached upon the proper domain of the executive and the legislature. It is true that judicial activism has proved a timely warning against the apathy, infficiency and ineptness of the executive and the legistature; it has protected the interest and rights of ordinary people particularly of weaker sections, has lent focus on the neglected areas of public inteerst and has attempts a progessive interpretation of the legal provisions as per the need of the changing times. The courts can enforce a policy or law if it is laid down by the legistature or executive but it cannot invent the same. over all judicial activism has done a great service to society. The great contribution judicial activism in India has been to provide a safety valve and a hop that justice is not beyond reach.Refrences :-1. Wolfe Christopher, Judicial Activism, Rowman & Littlefield Publisher, (1997), Inc. ISBN 0-8476-8531-4.2. ARUNODYA BAJPAI, Changing Nature of PIL and Judicial Activism in India, Pratiyogita Darpan, April 2019, RNI NO. UP ENG/06/17031.3. Harris Gardiner, “India’s Supreme Court Restores an 1861 Law Banning Gay Sex” The New York Times, December 11, 2013.4. Sing, Satbir. “Where did the revolution go, The Supreme Court of India & Socio-economics rights since the end of Emergency Rule”- via Neha Lalchandani, TNN(2012-11-03),  “Delhi enveloped in smog, back to pre-CNG leels”. The Times of India. Retrieved 2013-12-21.6. “Beijing like Delhi, goes the CNG way, Investment News and Commentary from Emerging Markets in Asia”. Retrieved 2013-12-21.7. ARUNODYA BAJPAI, Changing Nature of PIL and Judicial Activism in India, Pratiyogita Darpan, April 2019, RNI NO. UP ENG/06/17031.8. Shah Ajit Prakash, Former Chief Justice of the Delhi High Court, All is still not well in court, The Indian Express, February 12,2019.

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