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Judicial Activism

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By Mahalakshmi Pavani, Senior Advocate

1. SEPARATION OF POWERS – MEANING

The Montesquieun principle of ‘separation of powers’ elucidates that each wing of the State would operate in its own respective sphere- with specific duties, obligations and roles assigned to them.

2. SEPARATION OF POWER – IN UNITED KINGDOM

SUPERIORITY OF PARLIAMENT

In U.K., the Parliament is considered to be Supreme and if I can add, even Infallible. It is because the Courts in U.K. are bound to not just follow the law laid down by Parliament, as in every other jurisdiction in the modern world, but they are also to preserve, protect, respect, uphold and never bypass and delegitimize (by way to judicial adjudication) the will and intention of Parliament. The Courts in U.K. have full authority and power to set aside, quash, deoperationalize, decriminalize and discard any bye law made by anybody, organization- public and private but they can never strike down a legislation made by the Parliament.

Mahalakshmi Pavani, Senior Advocate, Supreme Court and Senior Executive Member, Supreme Court Bar Association.

VIEW OF UK JUDICIARY ON ‘SUPERIORITY OF PARLIAMENT’

Lord Latham (C.J.) was one if the first judges to adopt an unconventional view in Australian Communist Party V. Commonwealth (1950) 83 CLR 1, he said and I quote: “…That it is sometimes said that legal questions before the HC should be determined upon sociological grounds- political, social or economic. I can understand Courts being directed (as in Russia and Germany in recent years) to determine questions in accordance with the interests of a particular political party. There the Court is provided with a political standard. But, such a proposition as, that the recent banking case should have beendetermined on political ground and the Court was wrong in adopting an attitude of detachment from all political considerations appears to me merely to ask the Court to vote again upon an issue upon which Parliament had already voted or could be asked to vote and to determine whether the nationalisaton of banks would be a good thing or bad thing from the community….”

3. SEPARATION OF POWERS – IN INDIAN CONTEXT

The present laws of our country which emanate through the fountainhead of the Constitution, even though have no clear worded reference to principles such as such as Republicanism, separation of powers, Federalism, secularism, the intention of the Constituent Assembly in respect of the same can be inferred and understood after reading the text of our Constitution- which really is a delicately crafted, and thinkingly drafted after large scale of analysis, debate and discussion. Although the concept of separation of powers have not been written in the Constitution, the Constitution defines, delineates and demarcates the roles, responsibilities, function of the President, Prime Minister, Members of Parliament, The Judiciary (both Higher & Lower), both the houses of Parliament. Ordinarily the roles of each wing would have to be adhered to strictly by the respective wing by performance of their duties keeping in mind their boundaries and limitations and with continuous vigil that in such exercise of their power ostensibly in the arena they do not encroach upon the powers, roles, duties to be performed by other wings of the State which are equally endowed with them.

4. JUDICIAL DEPARTURE FROM SEPARATION OF POWERS AND INTO JUDICIAL ACTIVISM

The Indian system is one of checks and balances which basically means that a constitutional wrong of Parliament can be overturned by the Superior Courts- this is basically to curb the menace of abuse ofpower and preventing institutional domination. This act of checks and balances of the powers and functions of Legislature and Executive by the Judiciary is essentially the concept of judicial activism. It departs from the principles of separation of powers and encroaches upon the spheres of other wings of the State to the extent necessary to preserve the basic tenets of the Constitution of India and not out of judicial whims and fancies. The main proponents in giving birth to this unique dispensation of a new kind of justice- they were Justices V.R. Krishna Iyer, P.N. Bhagwati, D.A. Desai & O. Chinnappa Reddy.

5. JUDICIAL ACTIVISM – MEANING

The term “Judicial Activism” was first coined in 1947 by Arthur Schlesinger Jr., an American historian and educator.  To my mind, judicial activism in the Indian context is the result of legislative and executive inaction coupled with excessive inefficiency. Such an approach is only used as a last straw on the camel’s back, it is not supposed to be a routine activity but it is to be as a function which if not performed beyond a reasonable period of time by either the Legislature and Executive would affects the public at large.

Prof. Upendra Baxi, an academic genius, who has virtually taught and trained virtually all of the top-most senior advocates and a bevy of Supreme Court Judges (sitting and retired) has noted in an article the qualities of an activist judge. What he says is quite pert and cannot be elucidated with any more clarity. He states and I quote:“An activist Judge comes into being when she chooses to conscientiously disregard the Five Commandments. The qualifier is important. The aspect of conscientiousness is concerned with the source of legitimation of judicial power. An activist judge does not always look to legitimation from the holders of executive powers, or of economic power; she rather looks at social legitimation from the deprived, the disadvantaged and the dispossessed groups of society. And that choice is critical. Once made, such judges remain activist during the moment of rule of law as well as the reign of terror. And it is the articulation of these grounds of this conscientious choice which enables one to distinguish from Judicial adventurism from authentic Judicial activism”

I do feel that the Courts feel almost uncomfortable with the increasing divide between the rich and the poor and with the unimaginable opening up of the economy and with yesterday’s technology become irrelevant today, the Court feels constrained to bring about some semblance of equity and it would never say it ever respecting convention and judicial discipline- but as a practitioner I feel that the Court is exasperated with the unwillingness of the Government to serve the people and administer socialist reforms to bring economic equity amongst the poor.

THEY ONLY INVOKE their extraordinary powers to fulfill the glorious golden words of the Preamble of our Constitution.

6. JUDICIAL ACTIVISM – ANALYSIS IN INDIAN CONTEXT

IS JUDICIAL “ACTIVISM” A CORRECT TERM?

Having said the above, in my view an activist outlook of judiciary (even in instances such as explained above) will be a misnomer unless and until it dwells itself in an area which has been completely & expressly prohibited by the Constitution of India (For Ex- the Courts although can cancel the election of a candidate based on grounds specified in RP Act 1951 but the Court cannot unseat a member from either house from either State Legislature or Parliament- the removal has to be done in accordance with the Rules of the respective houses). Again, our constitution is very different unlike the unwritten Constitution of U.K. or the pithy yet interpretative American Constitution; ours is indeed unique and quixotic from the point of view of seeking a judicial redress- Article 32 and Article 226 break the barriers open to the Hon’ble Supreme Court of India and the High Courts respectively for enforcement of a citizen’s fundamental right and it is to be noted thatArticle 32 itself is a fundamental right- which means that India has a fundamental right of accessing the SC & HC’s for redress of their fundamental rights !!!  It is for this that Babasaheb Ambedkar called Article 32 the ‘heart and soul’ of the Constitution. It indeed becomes a one of a kind legal system which implies again a different approach to questions of law and citizens’ right to receive efficacious remedy against State Action from the most overburdened yet most active pillar of State. Judicial Activism is thus the consequence of Legislative dereliction and Executive apathy.

FEATURES AND PRINCIPLES OF JUDICIAL ACTIVISM

This so called pejoratively used term ‘Judicial Activism’ had its roots really in judicial sensitivity and provided for a judicial metamorphoses-by breaking away from the procedural logjams and the black & white technicalities of law, the Court reshaped and redefined ‘Equality’ and brought in the concept of Substantive Equality or Equitable equality (which directly entails treating unequals equally). It created the Epistolary Jurisdiction which means that it started treating letters written by destitutes and convicts to Judges as Petitions!

It coined a new class of litigation called the Public Interest Litigation- the intention of which was entirely purely citizen oriented and a compassionate form of justice. The introduction of PIL in India was facilitated by the relaxation of procedural rules of ‘locus standi’. In Guruvayur Devaswom Managing Committee v. C.K. Rajan, (2003) 7 SCC 546, the Supreme Court laid down inter- alia the following principles in regard to PIL: 

  • The Court in exercise of powers under Articles 32 and 226 of the Constitution can entertain a petition filed by any interested person in the welfare of the people who are in a disadvantaged position and thus not in a position to knock the doors of the Court.
  • When the issues of public importance, enforcement of the fundamental rights of large number of people vis-à-vis the constitutional duties and functions of the State are raised, the court treat a letter or a telegram as a PIL. In such cases, the court relaxes the procedural laws and also the law relating to pleadings. 
  • Whenever injustice is meted out to a large number of people, the court will not hesitate to step in to invoke Articles 14 and 21 of the Constitution of India as well as the International Conventions on Human Rights which provide for a reasonable and fair trial.
  • When the Court is prima facie satisfied about violation of any constitutional right of a group of people belonging to the disadvantaged category, it may not allow the State or the Government from raising the question as to the maintainability of the petition. 

EXAMPLES OF FRUITFUL PILs:

  • a) Vineet Narain and others vs Union of India (1997) 4 SCC 778

QUESTION: Should not the CBI be insulated from executive interference?

HELD: Vineet Narain case laid out several steps to curb political influence in the functioning of the CBI. It also laid out similar guidance for the Enforcement Directorate. In issuing such guidelines, the Supreme Court referred to its precedent in the Vishaka case.

  • b) Vishakha and others vs State of Rajasthan (1997) AIR 1997 SC 301

QUESTION: How an incident involving sexual harassment at the workplace should be dealt with by an employer?

HELD: Vishakha case is one of the first instances where the judiciary tried to fill the vacuum left by the Legislature and Executive. It dealt with the issue of sexual harassment in the workplace. The Supreme Court laid out the Vishaka guidelines to curb sexual harassment of women at the workplace. Building on these guidelines, the Parliament passed the sexual harassment at workplace (Prevention, Prohibition and Redressal) Act, 2013, which seeks to safeguard women from harassment at their place of work.

  • c) Lily Thomas vs Union of India and others (2013)3 SCC (CIV) 678

QUESTION: Should not criminals be kept away from politics? Should not MPs, and MLAs be disqualified on the date of a criminal conviction?

HELD: Lily Thomas judgment was aimed at freeing the political setup from criminal elements. The Supreme Court held subsection (4) of Section 8 of the Representation of Peoples Act is ultra vires the Constitution.

  • d) Justice K. S. Puttaswamy (Retd.) and another vs Union of India and others (2017)ONLINE SC 996

QUESTION: Is ‘Right to Privacy’ a fundamental right? HELD: Puttaswamy case dealt with the question of whether privacy is a constitutionally protected value under the Indian Constitution. It held that ‘right to privacy’ emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution. By holding ‘Right to Privacy’ as a fundamental right, the court overruled its earlier judgments in M.P. Sharma case and Kharak Singh case. The Supreme Court relied on this ruling to declare Section 377 of the IPC unconstitutional inNavtej Singh Johar case; decriminalise adultery in Joseph Shine case; and in Indian Young Lawyers Association case which dealt with the entry of women into the Sabarimala temple in Kerala.

  • e) M.C. Mehta And Anr vs Union Of India & Ors (1987) AIR 1086, (1987) SCR (1) 819

QUESTION: Whether the rule of Absolute Liability or Ryland v Fletcher is to be followed?

HELD: The Court while placing reliance upon Bandhua Mukti Morcha v. Union of India (1984) AIR 802, 1984 SCR (2) 67, stated that “Article 32 does not merely confer power on this Court to issue direction, order or writ for enforcement of the fundamental rights but it also lays a constitutional obligation on this Court to protect the fundamental rights of the people and for that purpose this Court has all incidental and ancillary powers including the power to forge new remedies and fashion new strategies designed to enforce the fundamental rights. It is in realisation of this constitutional obligation that this Court has, in the past, innovated new methods and strategies for the purpose of securing enforcement of the fundamental rights, particularly in the case of the poor and the disadvantaged who are denied their basic human rights and to whom freedom and liberty have no meaning.”

The Court held that liability of an enterprise engaged in a hazardous and inherently dangerous industry for occurrence of accident is strict and absolute and the Quantum of compensation is payable for the harm caused.

The court also performed the function of an extra parliamentary body by insisting that the concept of absolute liability be used and thus set a precedent for future cases to come.

  • f) Naga People’s Movement of Human Rights v Union of India (1998)2 SCC 109

QUESTION: Whether Armed Forces (Special Powers) Act, 1958 (as amended) enacted by the Parliament constitutionally valid or an exercise of colorable legislation?

HELD: The Court upheld the constitutionality of the AFSPA, but gave certain cautions in the form of ‘dos and don’ts’ by the armed forces chief. The dos and don’ts are a range of duties, such as: a person should not be kept in custody for a period longer than required and should be handed over to the nearest police station; no force should be used on a person arrested, except if he is trying to escape; third-degree methods, which are methods which cause pain and suffering should not be used against those arrested or under suspicion to extract information or confessions out of them; only the armed forces should  arrest a person; the armed forces should not carry out any form of interrogation. These are just one of the many guidelines.

  • g) Nandini Sundar v. State of Chhattisgarh (2011) 13 SCC 46

QUESTION: Whether tribal are entitled to rehabilitation due to naxalite violence and if yes, whether there is a difference between “victims of conflict” and “victims of violence” for the purposes of rehabilitation?

HELD: The State Government was directed to file a comprehensive affidavit duly stating the details of the action plan for disbanding/ winding up of these relief camps so that the tribals living in these camps go back to their respective villages. It was also clarified that that “victims of violence” and “victims of conflict” are equally entitled to rehabilitation.

  • h) Jeeja Ghosh & Anr vs Union Of India & Ors (2016) 7 SCC 761

QUESTION: Whether a private air carrier by deboarding a passenger suffering from cerebral palsy violated her constitutional rights?

HELD: The Court held that whereas it is not in dispute that the Pilot as well as the crew members of the airlines are supposed to ensure the safety of all passengers and a decision can be taken to deboard a particular passenger in the larger interest and safety of co- passengers, such a situation did not exist in the case of Jeeja Ghosh. In fact, the manner in which she was treated proves the assertion of Shapiro as correct and justified that “non-disableds do not understand the disabled ones. Private carrier was directed to pay compensation of Rs. 10 lakhs for harassment, discrimination and illegal deboarding of the passenger. The Court reiterated that rights of a disabled person are to be treated as human rights having its root in Article 21 of the Indian Constitution.

  • i) PUCL vs Union of India and Others (Writ Petition [Civil] 196 of 2001)

QUESTION: Whether the stock of foodgrains lying in the warehouses of Food Corporation of India when millions in the

country go hungry constitute a legal injury and if yes, what can be done to remedify it?

HELD: The Court held that the right to food is a justiciable, reviewable, expandable, legally enforceable, constitutional and thus inviolable. The November 28, 2001 interim order commanded state governments and union territories “to implement the Mid-Day Meal Scheme by providing every child in every Government and Government assisted Primary Schools with a prepared mid-day meal with a minimum content of 300 calories and 8-12 grams of protein each day of school for a minimum of 200 days” and mandated that “those Governments providing dry rations instead of cooked meals must within three months start providing cooked meals in all Government and Government aided Primary Schools.”

  • j) Raja Ram Pal V. Hon’ble Speaker, Lok Sabha, (2007) 3 SCC 184

The Judiciary by way of its oversight has ensured that transparency is public life shall be maintained. The Court held that judicial review of the decisions made by the Governor are allowed under certain conditions. What does this judgment do? It prevents arbitrariness and capriciousness in decision making processes of high functionaries whose powers apparently appear to be flowing from wide discretion without any accompanying accountability. This would ordinarily give unfettered powers to the Executive which may through the auspices of the Governor act in a unneutral fashion and even mala fide.

The right to life was given creative and expansive interpretations which have indeed formed the core of many subsequent legislations and poverty alleviation schemes. A few of examples whereof would be:

  • In Satwant Singh V. D. Ramarathnam, APO, (1967) 3 SCR 525– The right to go abroad was recognized. (followed in Menaka Gandhi by a Constitution Bench)
  • Sunil Batra V. Delhi Admn. (1978) 4 SCC 494– Right against solitary confinement of prisoners.
  • Charles Sobraj V. Supdt. Central Jail (1978) 4 SCC 104– Right against bar fetters.
  • Prem Shankar Shukla v. Delhi Admn., (1980) 3 SCC 526– The Right against handcuffing.
  • M.H. Hoskot V. State of Maharashtra, (1978) 3 SCC 544– Right to Legal Aid
  • Francis Coralie Mullinv. Administrator, Union Territory of Delhi, (1981) 1 SCC 608– Every offending action to human dignity is deprivation of life under Art. 21.
  • Hussainara Khatoon & Ors. V. Home Secretary, State of Bihar, (1980) 1 SCC 81– Right to speedy trial.
  • T.V. Vatheeswaran v. State of T.N., (1983) 2 SCC 68– Right against delayed execution (upheld in Nalini’s case)
  • Joginder Kumar V. State of U.P.(1994) 4 SCC 260– The right to legal representation during criminal investigation and the right to be informed on grounds of arrest & to be communicated  the same to one family member of the arrestee.
  • Olga Tellis V. Bombay Municipality Corpn. (1985) 3 SCC 545– Right of livelihood; municipality was injuncted from removing pavement dwellers.
  • AG of India V. Lachma Devi, (1989) Supp (1) SCC 264– Right against public hanging.
  • Parmananda Katara V. UOI (1989) 4 SCC 286 – Right to doctors assistance (emboldened by VP Shantha’s Case which held right to health and medico assistance as fundamental right)
  • Ramila Maidan Incident, In re (2012) 5 SCC 1 Right to sleep recognized as a fundamental right.

PRACTICAL DIFFICULTIES FOR JUDGES IN ADJUDICATING PILs

Whilst adjudicating upon the questions arising in PILs, judges face fears that have their roots in practical difficulties. Upendra Baxi presented a typology of fears which are generated by judicial activism. He observes: “The facts entail invocation of a wide range of fears. The invocation is designed to bring into a nervous rationality among India’s most conscientious justices”. He described the following types of fears:

  • Ideological fears: Are they usurping powers of the legislature, the executive or of other autonomous institutions in a civil society?
  • Epistemic fears: Do they have enough knowledge in economic matters of a Manmohan Singh, in scientific matters of the Czars of the atomic energy establishment, the captains of the Council of Scientific and Industrial Research, and so on?
  • Management fears: Are they doing justice by adding this kind of litigation work load to a situation of staggering growth of arrears?
  • Legitimation fears: Are not they causing depletion of their symbolic and instrumental authority by passing orders in public interest litigation which the executive may bypass or ignore? Would not the people’s faith in judiciary, a democratic recourse, be thus eroded?
  • Democratic fears: Is a profusion of public interest litigation nurturing democracy or depleting its potential for the future?
  • Biographic fears: What would be my place in national affairs after superannuation if I overdo this kind of litigation?

Such fears can come in the pathway of efficacious dispensation of justice.

Criticism

The present trends are observing filing PIL’s which is wholly motivated and has become ‘Private Interest Litigation’ or ‘Publicity Interest Litigation’ or ‘Political Interest Litigation’. I urge my fellow colleagues at the Bar to play an active role in annihilating this trend.  In this regard, it may be relevant to highlight the judgment of the Hon’ble Supreme Court in State of Uttaranchal v. Balwant Singh Chaufal & Ors. (2010) 3 SCC 402 wherein the Hon’ble SC laid down certain guidelines with respect to PILs, viz.

  • Courts must encourage genuine and bonafide PILs and effectively discourage and curb the PILs filed for extraneous considerations;
  • Instead of every individual judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives.
  • The courts should prima facie verify the credentials of the petitioner before entertaining a PIL.
  • The court should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL.
  • The court should be fully satisfied that substantial public interest is involved before entertaining the petition.
  • The court should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions.
  • The courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation. (8) The court should also ensure that the petitions filed by busy bodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations.

CONCLUSION

Our venerable Courts have done quite a laudable yet thankless job with adjectives such as ‘activist’ ‘adventurism’ ‘overarching’ ‘dominating’ hurled at it by a few discontent individuals who have been in power for too long and feel betrayed by the orders of the judiciary that compel them to enforce its orders because they while remaining in power have not shown the wisdom, courage, quickness or eagerness to act when they had the opportunity. However, criticism of the Court is the most effortless especially when the legislators and ministers have collectively failed to show the courage to act for a variety of vested interest (vote bank, appeasement politics, bureaucratic lags). But, I can safely say that the Judiciary when it acts due to compelling inaction, it only keeps one thing in the mind- the paramount welfare of the citizens- which needs to tapered down to meet & match the standards of the rule of law, procedure established by law, non- discrimination and non- arbitrariness.

The ultimate objective of judicial review (I refuse to call it Judicial Activism) is that to bring in parity in society, to rule in favour of the less privileged keeping in mind established principles of law. The ultimate objective is to facilitate development, growth, to balance the scales of Justice in favour of those who cannot formally approach the Court due to penury or monetary disability and who would seriously prejudiced- so much so as to destabilize their lives and for the same reason judicial intervention does a service to millions of those who cannot ever dream of accessing justice. That is the reason, I think, our profession is called a service and not a business, it is called a service because one single order of the Higher Courts has the capacity to make a full 180 degree change in the conditions of people or atleast it acts as driving deterrent to the authorities to act fast and swiftly to not incur judicial wrath by the way of contempt.

There are stray occasions of the judiciary going overboard but to that I would only say that the other institutions falter much more and maybe deliberately, the judiciary is our last bastion and in my last 30 years of practice I have not experienced any activism per se, it is only an approach of robustly acting in a dire situation when the others are peacefully in their slumber.

The Author is a Senior Advocate, Supreme Court and Senior Executive Member, Supreme Court Bar Association.

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