Democracy and judicial imperialism

The recent stinging observation of the Supreme Court[i] that judges behaved like emperors, created confusion in the judiciary on hearing of public interest litigations. The controversy was, however, put to rest by Chief Justice (of India) Justice K. G. Balakrishnan who decided to frame guidelines for entertaining such litigations. But the guidelines are yet to be laid down in black and white. The allegations of judicial imperialism have been raised in the past as well, but the cries have grown shriller of late. This is due to several factors. First is the turf war between the judiciary and the legislature and executive. The legislature and the executive, rightly or wrongly, perceive judicial activism[ii] as judicial imperialism. Second is the perceived lack of accountability in judiciary and lack of questionability of judicial actions. This impression has gained ground as at times hard contempt decisions are slapped on well-meaning individuals speaking for public welfare.
During the last year and a half, the turf war between the judiciary and legislature have become fiercer with the legislature and the executive alleging that the judiciary is intruding in their space. The apex court, on its part did nothing in this period to make matters easier. In fact, the Supreme Court while scrutinising the Centres decision on OBC quota issue held that laws put in the Ninth Schedule[iii] of the Constitution for blanket protection were not beyond judicial scrutiny. Further, the Supreme Court also stayed the implementation of the Central law on 27 per cent quota for Other Backward Classes in Central Educational Institutions by an interim order[iv]. Members of Parliament raised the issue of former Chief Justice Y K Sabharwal''s orders on the sealing of illegal premises in the capital and alleged that they smacked of favouritism. While the spat with legislators was on, the executive was on collision with the judiciary when on more than one occasion it questioned the apex court for over-stepping into its domain in forest matters by accusing it of interfering with the constitution of Forest Advisory Body and seeking to scrap its Central Empowered Committee[v]. The apex courts decision to hear the petition against the Tamil Nadu governments call for bandh in the state in protest against the orders on Rama Setu, took everyone by surprise. Political parties, especially the Left parties have been equally vociferous against the Court decisions[vi], more so after the famous judgement of the Court against Tamil Nadu government employees wherein the court said that bandhs are illegal.
Having said this, there is no taking back from the judiciary the commendable work it has done especially in empowering the underprivileged and the weak; bringing issues like sustainable development, environment protection, rights of slum dwellers to the fore; widening the ambit of fundamental rights provided under Part III of the Constitution to include, inter alia, right to safe drinking water, right to wholesome environment as part of Article 21 of the Constitution and above all steadfastly guarding our hard-earned freedom from executive and legislative tyranny.
SEPARATION OF POWERS
The judiciary, legislature and executive are three vital organs in the body of democracy. All the three components have their own detached but inter allied functions through the doctrine of separation of powers.[vii] Like most modern democracies/governments, , India too follows the doctrine of separation of power.[viii] Indias founding fathers wanted India to be a democracy with powers and duties for the three main organs of the government clearly etched out so that no organ transgresses the powers of the other(s). In India, we have the Parliament, the Union Cabinet and the Supreme Court at the Union level to discharge the functions of the legislature, the executive and the judiciary respectively. The Constitution of India, the highest law of the land lays out the powers and duties of these three organs. The legislative has the powers to enact/make the law, the executive to enforce the law so laid and the judiciary to interpret the law.
But the jurisdictional area of these organs at times gets blurred. The blurring effect, as I would call it, is most visible in the judicial arena when the judges are forced[ix] to decide upon a purely administrative or legislative effect. One of the reasons for this may be the fact that the executive, more often than not, is from the majority group in the Parliament and the executive and the legislature are mostly the same individuals or at least belonging to the same political dispensation. Therefore, any transgression, actual or alleged/perceived, by the judiciary is viewed with suspicion.
The main function of judiciary is to interpret the law as enacted by the legislature. Though it is the legislature, which makes the Law, the Judgments rendered by the Supreme Court and High Courts give the Law a concrete shape, which the people, understand better as the Law. Hence, there is immense importance of the decision making process. A Constitutional Bench of the Supreme Court of India said that the State should secure the proper operation of legal system and proper opportunity to get justice, which shall be its Fundamental Obligation as per Article 39A of Constitution of India[x].
Further, it is an established principle of jurisprudence and also of International Law that every State should provide an effective framework of remedies to redress human rights grievances or violations. And that the administration of justice, including law enforcement and prosecutorial agencies and, especially an independent judiciary and legal profession in full conformity with applicable standards contained in international human rights instruments, are essential to the full and non-discriminatory realization of human rights and indispensable to the processes of democracy and sustainable development.
India has an independent judiciary. Indian Judiciary, which is the most powerful judiciary in the world and next only to that of USA[xi], continues to command respect and credibility of the masses despite delays and deficiencies, and thus there is a serious obligation cast upon it to secure that credibility, because the Judiciary is the only constitutional hope that a person can look to for help when his/her human rights are jeopardized. It is needless to say that for realization of human rights, vibrant democratic machinery with rule of law is essential. That is possible only when judiciary and legal profession shines with its integrity and gains efficiency besides being independent and immune from ordinary influences such as inducement and bribery.
Further, the Constitutional machinery can run smoothly only when the three vital organs act intra vires theirs powers and do not try to usurp each others authority. That is to say, judicial activism should never turn into judicial over-activism. This is necessary to maintain harmony and coordination among the organs.
JUDICIAL ACTIVISM
The advocates for judicial activism contend that it arose because the other organs failed to keep up with the hopes and aspirations of the people for a better quality of life. One of the major motives for which Indians struggled to shape India into an independent nation was the acquisition of various rights in order to do away with the exploitative environment in which they had been living throughout the centuries. Freedom was not seen as an end in itself but as a means to achieve an end; the end being to free India through a new Constitution, to feed the starving millions, to clothe the naked masses, and to give every Indian the fullest opportunity to develop himself according to his capacity.
In its bid to accomplish the above said motive, Indian Government has been enacting various legislations[xii] for achieving the cherished goals of our founding fathers.[xiii] But the wide gap could no be narrowed. The growing gap between expectation and reality, promise and performance, enactment and implementation has been causing disenchantment of the underdogs who seem to be developing a feeling of helplessness and alienation. Despite several pompous legislative declarations and pontific executive pronouncements, the Governments, Central as well as State, have been unable to tackle the problems of the underprivileged strata of the society, as their condition went on worsening. Ultimately, the marginalised masses of the people opted for the judicial therapeutics to heal the ailing democracy. And the advocates for judicial activism contend that judicial activism was necessary in the above stated circumstance and it continues to be so as the Governments have been largely unsuccessful in fulfilling the cherished goals of the Constitution. Therefore, in response, the judiciary, leaving behind its traditional moderate role has had to adopt an active role. And, with new spirit and support of the masses,[xiv] the advocates contend not only has this third wing interpreted the existing legislation in such a way as to ensure the maximum of human freedom, but has galvanized the other two wings too to act for the noble cause of public good. Justice Krishna Iyer had once observed, every judge is an activist either on the forward gear or the reverse.
It is no secret that the judiciary enjoys a much higher degree of credibility than the political class. The concept of judicial activism and public interest litigation are connected. Public Interest litigation (PIL) has become citizens favorite tool to fight an inefficient and unresponsive government. To its credit, at least in some cases, the Supreme Court judgments have advanced citizen rights and strengthened constitutional protections for the common man. The changing stance of the judiciary has often been termed as activism on the part of the judiciary or Judicial activism. Viewed from various perspectives, this metamorphosis, in the functioning of the judiciary has invited varied reactions ranging from exuberance to caution to pessimism. Some political pundits described it as judicial over-activism. Some other political as well as legal scholars have raised the question that the judiciary has usurped powers in the guise of public interest. Many others feel that the judiciary, by its activism and intervention, is actually preventing the executive from going astray. Instances abound of resort to the judicial process because of the failure or inaction of the designated authority to discharge its legal obligation. Absence of any remedy in that situation would drive the aggrieved to resort to some extra-legal remedy leading to the negation of the rule of law, unless the judiciary intervened. More often, it is the judicial intervention in such situations that causes the apprehension of judicial ascendancy disturbing the delicate balance of separation of powers.
But the problem with judicial activism is that there a very fine line dividing activism and imperialism. Further, unlike for the legislature and the executive, there are no checks and balances in place for the judiciary if in case it strays[xv] from the constitutional mandate.
DEMOCRACY, JUDICIAL ACTIVISM AND JUDICIAL IMPERIALISM
Democracy means a government by the people wherein the people have a voice in the exercise of power, typically trough elected representatives whereas imperialism means a policy of extending a countrys (or even an independent bodys) power and influence through colonization, use of other means and/or any other means[xvi]. These two terms are nearly antonyms of each other. Where democracy speaks of giving voice to even the weakest of all in the society, imperialism is all about usurping of this right by whatever means possible, including force. Judicial imperialism connotes, in negative terms, the usurpation of authority of the legislative and executive by the judiciary. That is, taking over of functions by the judiciary which are in legislative/executive domain. Judicial imperialism can also be defined as judicial-over activism. There is no place for imperialism of any kind in a democracy.
India is the worlds largest democracy. Also ours is the worlds largest written Constitution, which guarantees a set of fundamental rights to every citizen[xvii]. Any person can directly approach the Supreme Court or the High Courts at the State level for enforcement of their fundamental rights under Article 32[xviii] and Article 226[xix] of the Constitution respectively. Under the Indian Constitution, the Supreme Court and high courts can be approached in case of a violation of fundamental rights.
The genesis of judicial activism[xx] lies in the evolution of public interest litigation. Public Interest Litigation[xxi] or Social Interest Litigation as the name suggests are litigation wherein any public spirited person can file a petition before the Supreme Court or the High Court in case of infringement of fundamental rights of any other person or class of persons[xxii], subject to certain conditions[xxiii]. Public Interest Litigations are a creation of the Courts. The Constitution nowhere defines them. Even the procedure for them has been evolved by the courts themselves.[xxiv] The term Judicial activism does not find any mention in the Constitution, it is not defined anywhere but is widely talked about in all sections of society, NGOs and bureaucrats. Keshvanand Bharati v. Kesala, Minerva Mills v. Union of India, Indira Gandhi v. Raj Naraian and S.P. Gupta v. Union of India are a few landmark cases that highlight judicial activism.
In India, judicial activism PILs and have gone hand in hand. The courts while deciding PILs, in order to further the cherished goals of the founding fathers, have departed from strict adherence to the procedure and many a times have moved beyond being just an adjudicator. In innumerable cases, the Courts under the veil of PIL have taken suo motu action or acted on even letters[xxv]. There have been several cases decided by the Honble Supreme Court as a Constitutional Court while entertaining PILs, which have transformed the jurisprudence of the Indian Legal System.[xxvi] Moreover, the Mandal agitation and the Mandir controversy came under some degree of control only when the Supreme Court took control of the issue. Therefore, to a large extend the Judiciary has indeed maintained the check and balance, an element indispensable in a democratic country.
However, the problem starts when instead of directing the authorities concerned to perform their duties, Courts start doing it themselves by what is called judicial enactments or by inadvertently performing executive tasks. Recent pronouncements of the Delhi High Court are a case in point.[xxvii] Moreover, the Courts in the recent past have been entertaining petitions that are more than often camouflaged as PIL but in actual are nothing more than attempt to bypass the regular procedure and often gain predominance. As said earlier, it is the Courts which interpret the law and give it a concrete shape for the people to understand better. Therefore, any attempt to bypass the regular legislative and executive processes/procedure can have a negative effect on the constitutional scheme of things envisaged by the framers.
Recently, a Bench of the Supreme Court comprising of Justice A.K. Mathur and Justice Markandya Jatjusaid in Government of Andhra Pradesh v. Lakshmi[xxviii], came down heavily on judicial activism warning judges that they muse exercise restraint or else the politicians may curtail their powers. The court gravely observed -If there is a law, judges can certainly enforce it, but judges cannot create a law and seek to enforce it. They further reiterated that, Judges must know their limits and must not try to run the government. They must have modesty and humility, not behave as emperors. There is broad separation of powers under the Constitution and that no organ of the State- the Legislature, the Executive and the Judiciary should encroach into each others domain. The Honble Judges also said that they were compelled to make these statements because they were repeatedly coming across case where judges are unjustly trying to perform legislative or executive functions.
Further, a democracy requires that the people are governed as per the wishes of the people. For this purpose elections are held, representatives of the people are elected by adult franchise who ultimately form the legislature and also the government (executive). In a Parliamentary democracy every act of the State Government is accountable to its people through State Legislature which itself is an additional factor which keeps the State Government under check not to act arbitrarily or unreasonably. Also the citizens are free to approach the Courts in case any of the organs act arbitrarily or ultra vires their powers. The Courts have been quick to rein in tyranny or possible tyranny by the other constitutional bodies. For e.g. in Raja Ram Pal v. The Hon''ble Speaker, Lok Sabha and Ors (cash-for-query scam case)[xxix], the Honble Supreme Court said that matters concerning Parliamentary proceedings in spite of being limited and restricted to judicial review are subject to judicial scrutiny on breach of other constitutional provisions But there is no such check on the courts. More often than not, the fear of contempt proceedings prevents individuals from criticising the conduct of some judges. Critics feel threat of contempt has insulated the judiciary even further from any semblance of accountability.
Further, in the same case the Court also observed that the Courts cannot enact laws as they are not the elected representatives of the people nor do they have the requisite professional staff or information for the same. The Honble Court said Unlike legislatures, they are not representative bodies reflecting a wide range of social interest. Lacking a professional staff of trained investigators, they must rely for data almost exclusively upon the partisan advocates who appear before them. Inadequate or misleading information invites unsound decisions. If courts are to rely upon social science data as facts, they must recognize that such data are often tentative at best, subject to varying interpretations, and questionable on methodological grounds. Moreover, since social science findings and conclusions are likely to change with continuing research, they may require a system of ongoing policy reviews as new or better data become available. Is the judiciary capable of performing this function of supervision and adjustment traditionally provided by the legislative and administrative processes? Finally, what kind of citizens will such a system of judicial activism produce -a system that trains us to look not to ourselves for the solution of our problems, but to the most elite among elites: nine Judges governing our lives without political or judicial accountability? Surely this is neither democracy nor the rule of law.
CONCLUSION
It is clear from the above that the concept of judicial independence is deeply ingrained in our constitutional scheme and Article 50[xxx] illuminates it. And that in order to maintain harmony, the judiciary must not transgress the domain of other wings. But it is easier said that done as there is a thin line separating judicial activism and judicial imperialism. According to Justice J.S. Verma, judicial intervention is legitimate when it comes within the scope of permissible judicial review. The thin dividing line demarcating appropriate and inappropriate judicial intervention is drawn on the basis of functions allocated to the different branches by the Constitution. In the borderline cases, a legal question at the core determines the need for judicial intervention. Purely political questions and policy matters not involving decision of a core legal issue are outside the domain of judiciary.
Under our constitutional scheme, the judiciary has been assigned the onerous task of safeguarding the fundamental rights of our citizens and of upholding the rule of law. Since the Courts are entrusted the duty to uphold the Constitution and the laws, it very often comes in conflict with the State when it tries to enforce its orders by exacting obedience from recalcitrant or indifferent State agencies. Therefore, it is but natural that the judiciary may at times ruffle the feathers of the executive and/or legislature. A healthy system of check and balances is desirable in a democracy, more so, in a pluralistic democracy like ours. But the problem starts when the wings take on a collision path. Recently there have been shrill cries from various quarters, including the highest executive and legislative offices of the country over judicial over-activism due to the Courts judgements on purely administrative matters[xxxi]. The answers for the same are not easy to give. Perhaps the recent outburst of the Supreme Court[xxxii] against judicial activism holds the answer to these questions.
Judicial intervention is legitimate in administrative area when it comes within the scope of permissible judicial review[xxxiii]. The thin dividing line demarcating appropriate and inappropriate judicial intervention is drawn on the basis of functions allocated to the different branches by the Constitution. In the borderline cases, a legal question at the core determines the need for judicial intervention. Purely political questions and policy matters not involving decision of a core legal issue are outside the domain of judiciary.[xxxiv],[xxxv]
In S.P Gupta v. UOI[xxxvi], the Supreme Court said that the concern of the judiciary must be to faithfully interpret the Constitutional provisions according to its true scope and intent because that alone can enhance public confidence in the judicial system. Lord Keith of Kinkel has said in Duport Steel Ltd. v. Sirs and Ors that the one public interest which the courts of law are properly entitled to treat as their concern is the standing of and the degree of respect commended by the judicial system. Further, Lord Scarman in the same case quoted at page 551 of the Reporter has advised thus:
Great judges are in their different ways judicial activists. But the Constitution''s separation of powers, or more accurately functions, must be observed if judicial independence is not to be put at risk. For, if people and Parliament come to think that the judicial power is to be confined by nothing other than the judge''s sense of what is right (off as Selden put it by the length of the Chancellor''s foot), confidence in the judicial system it becoming replaced by fear of it becoming uncertain and arbitrary in its application. Society will then be ready for Parliament to cut the power of the judges. Their power to do justice will become more restricted by law than it need be, or is today.
It will not be out of place to quote Mr. Justice Dr. A. S. Anand, former Chief Justice of India while delivering the Justice Krishna Rao memorial lecture at the National Law School at Bangalore. He said: .......The courts must not shy away from discharging their constitutional obligations to protect and enforce human rights. While acting within the bound of law they must always rise to the occasion as guardians of the Constitution, criticism of judicial activism notwithstanding. At the same time, he also observed that while expounding and expanding the law, judicial enthusiasm and judicial restraint are two sides of the same coin and a judge should always see that judicial activism does not become judicial adventurism and lead a judge going in pursuits of his own notions of justice and beauty. Supporting the judiciarys role in intervening wherever its support was needed to get certain directives implemented for the public good, the Honourable Justice said, ..Intervention in such areas is because of the peoples perception that judicial interventions is perhaps the only feasible correctional remedy available.
(The author is a student at BMS College of Law in Bangalore, and has expressed gratitude towards Prof. T Venkatdasappa for guidance.)
[i] By a two-Judge Bench of the Supreme Court in State of Andhra Pradesh v. Lakshmi decided on 28-02-2008.
[ii] This judicial activism at times, this author very respectfully and humbly submits, gives the impression of being judicial over-activism.
[iii] The Ninth Schedule contains a list of those Acts which are exempted under Article 31-B from coming under the purview of Article 31-A.
Article 31-A reads as follows:
31-A. Saving of laws providing for acquisition of estates, etc.(1) Notwithstanding anything contained in article 13, no law providing for
(a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or
(b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or
(c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or
(d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or
(e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence,
shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19:
Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent:
Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.
(2) In this article,
(a) the expression estate shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include
(i) any jagir, inam or muafi or other similar grant and in the States of Tamil Nadu and Kerala, any jajman right;
(ii) any land held under ryotwari settlement;
(iii) any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans;
(b) the expression rights, in relation to an estate, shall include any rights vesting in a proprietor, sub-proprietor, under-proprietor, tenure-holder, raiyat, under-raiyat or other intermediary and any rights or privileges in respect of land revenue.
Article 31-B reads as follows:
31-B. Validation of certain Acts and Regulations.Without prejudice to the generality of the provisions contained in article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or Tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.
[iv] This controversy has been finally set to rest, atleast legally for the time being by the Supreme Court by its recent judgement on a PIL. In this recent decision given in Ashok Kumar v. Union of India, a Five-Judge Bench of the Supreme Court has finally passed the Judgement upholding the Central Act on 27% OBC quota in Higher Education Institutions across the Country subject to exclusion of creamy layer from such reservation.
[v] It was constituted by the Supreme Court to monitor illegal felling of trees in Reserved forests. It is a creation of the Supreme Court.
[vi] The People''s Democracy (Weekly Organ of the Communist Party of India (Marxist) Vol. XXXI No. 08February 25, 2007 in an article Judicial Activism or Tyranny said .Thus in a monarchy the judge really exercises the delegated functions of the king, and for this he requires dignity and majesty as a King must have, to get obedience from his subjects. The situation becomes totally different in a democracy in which it is the people, and not the king, who are supreme. Here the judges get authority delegated to them by the people, and not by a king. Hence in a democracy there is no need for judges to vindicate their authority or display majesty or pomp. Their authority will come from public confidence based on their own conduct, their integrity, impartiality, learning and simplicity. No other vindication is required in a democracy and there is no need for them to display majesty and authority.
[vii] French Thinker Montesquieu propounded the theory of separation of powers in his famous work Spirit of Laws and it has been accepted by most of the modern Constitutions including ours. According to this theory, the three wings of a government-the legislature, executive and the judiciary should be separate from each other. It envisages non interference by the legislature, judiciary and the executive into the domains reserved for each other.
[viii] Here, it would be pertinent to quote Mr. Justice J. S Verma. According to him- ..In India, the doctrine of separation of powers is not adopted in its absolute rigidity, but the essence of that doctrine with the doctrine of constitutional limitation and trust implicit in the scheme was duly recognised in the Delhi Laws case, AIR 1951 SC 332. Separation of judiciary from the executive is mandated in article 50 of the Constitution, with the independence of judiciary as a necessary corollary: Chandra Mohan v. State of U.P., AIR 1966 SC 1987. Later, the doctrine of separation of powers was elevated to the status of a basic feature of the Constitution in Indira Gandhi v. Raj Narain, AIR 1975 SC 2299, wherein it was observed, thus: ... the exercise by the legislature of what is purely and indubitably a judicial function is impossible to sustain in the context even of our co-operative federalism which contains no rigid distribution of powers but which provides a system of salutary checks and balance. (Quoted from the article ON THE RECORD by Mr. Justice J. S. VERMA, Former Chief Justice of India, published in the Indian Express Newspaper (Online) dated Friday, April 06, 2007 )
[ix] Say, while hearing a PIL petition before it. The Courts cannot abrogate from their Constitutional duty by not deciding upon it.
[x] Kartar Singh v. State of Punjab (1994) 3 SCC 569
[xi] T.R Andhyarujina, Judicial Accountability: Indias Methods and Experience, Judges and Judicial Accountability, Cyrus Das, K Chandra, 2004, pp 101-130
[xii] Anti-Untouchability laws with penal sanctions, legislations for equality for women in matrimony, adoption, succession, workplaces, law for compulsory education legislation against bonded labour, nationalization of various industries, anti- corruption laws.
[xiii] The goals which the founding fathers of our Constitution wanted to achieve have been outlined in the Preamble to the Constitution. The Preamble reads as follows:
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
[xiv] Briefly, this can be stated as the main reason behind the PIL movement of the 80s and 90s.
[xv] The only check is of impeachment of judges. But as experience has shown, it is a cumbersome process and seldom been used.
[xvi] Concise Oxford Dictionary, Tenth Edn., Oxford University Press 1999
[xvii] Articles 14 and 21 are applicable to non-citizen residents also.
[xviii] Article 32 reads as follows-
Remedies for enforcement of rights conferred by this Part.(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.
[xix][xix] Article 226. Power of High Courts to issue certain writs.(1) Notwithstanding anything in article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard,
makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.
(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32.
[xx] The term judicial activism is explained in Blacks law Dictionary, Sixty Edition, [Centennial Edition (1891-1991)] thus, Judicial philosophy which motives judges to depart from strict adherence to judicial precedent in favour of progressive and new social policies which are not always consistent with the restraint expected of appellate Judges. It is commonly marked by decisions calling for social engineering and occasionally these decisions represent intrusions in the legislative and executive matters. Justice V. R. Krishana Iyer, the greatest activist Judge, India has so far seen, feels, judicial activism is a device to accomplish the cherished goal of social justice. According to him,
After all, social justice is achieved not by lawlessness process, but legally tuned affirmative action, activist justicing and benign interpretation within the parameters of Corpus Juris. (In Search of Social Justice, page.8)
[xxi] In Blacks Law Dictionary (Sixth Edn.), public interest is defined as follows:
Public Interest- something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interests shared which may be generally in affairs of local, State or national Government..
The idea of public interest litigation came from actio poularis of Roman Jurisprudence which allowed Courts access to every citizen in matters of public wrong.
[xxii] In S.P. Gupta v. Union of India, (1981 IndLaw SC 599) the Supreme Court by a Seven-judge judgement firmly established the rule regarding public interest litigation. The Court held that any member of the public having sufficient interest can approach for enforcing constitutional or legal rights of other persons and redressal of a common grievance.
[xxiii] The conditions and requirements of a litigation to be termed as Public Interest Litigation was evolved by the Courts. A Public Interest Litigation can be filed when the following conditions are fulfilled: - There must be a public injury and public wrong caused by the wrongful act or omission of the state or public authority - It is for the enforcement of basic human rights of weaker sections of the community who are downtrodden, ignorant and whose fundamental and constitutional rights have been infringed.- It must not be frivolous litigation by persons having vested interests.
[xxiv] The Supreme Court in Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161, 185, said that within the domain of PIL the courts can supplement the procedure by evolving its own rule in this area, but this supplemental procedure/rule must confirm at all stages to the principles of natural justice and other accepted procedural norms characteristic of judicial proceedings. In Peoples Union for Democratic Rights v. Union of India (AIR 1982 SC 1473), a letter was treated as a writ petition by the Supreme Court.
[xxv] Peoples Union for Democratic Rights v. Union of India. The Supreme Court treated a letter as a writ petition. The case related to the miserable condition of construction labourers engaged in ASIAD village construction.
[xxvi] E.g.: S.P.Gupta v. Union of India (Judges Transfer case), Peoples Union for Democratic Rights v. Union of India (Asiad case), D.S. Nakara v. Union of India, M.C. Mehta v. Union of India (Ganga Pollution case), M.C. Mehta v. Union of India (Tanneries case), , M.C. Mehta v. Union of India (Taj Trapezium case), Vishaka v. Union of India, etc.
[xxvii] Demolition order against illegal buildings (the Court established the office of Court Commissioner to monitor illegal building. However, the Court Commissioners office and the MCD are on a collision course with the Corporation dubbing the Office as parallel administration), Policy for nursery admissions; Order for phasing out of Blue Line buses in the Capital, Order regarding misuse of ambulances (The Court said that private hospitals should provide more ambulances), Order regarding monkey menace (The court ordered the Civic Authorities to shift the monkeys to a secluded area called Bhatti Mines.)
[xxviii] SC 2008 280
[xxix] JT2007(2)SC1, (2007)3SCC184
[xxx] Article 50 reads as follows:
50. Separation of judiciary from executive.The State shall take steps to separate the judiciary from the executive in the public services of the State.
[xxxi] Supra. (e.g. land regularisation in Delhi)
[xxxii] In State of Andhra Pradesh v. Laxmi, Supra
[xxxiii] Broadly speaking, administrative action is subject to judicial review on three grounds, namely (i) illegality (ii) irrationality and (iii) procedural impropriety.
[xxxiv] Quoted from the article ON THE RECORD by Mr. Justice J. S. VERMA, Former Chief Justice of India, published in the Indian Express Newspaper (Online) dated Friday, April 06, 2007
[xxxv] In the above mentioned article, the learned Justice has also advocated the use of the test laid down by the US courts in Baker v. Carr. The learned Judge has expressed his opinion thus- .. The US Supreme Court laid down a pragmatic test in Baker v. Carr, 369 US 186 (1962) for judicial intervention in matters with a political hue, apart from those expressly allocated to another branch. It held that the controversy before the court must have a justiciable cause of action and should not suffer from a lack of judicially discoverable and manageable standards for resolving it. This is a pre-requisite for judicial intervention. Otherwise, the policy of judicial hands-off should govern, because such a matter is required to be dealt with by another branch. The position under the Indian Constitution is similar. I had taken the same restricted view in my separate opinion relating to judicial review of a proclamation under article 356 of the Constitution in SR Bommai v. Union of India, AIR 1994 SC 1918, dissociating from the wider view taken in the majority opinion.
[xxxvi]AIR 1994 SC 268, JT 1993(5) SC 497, (1993) 4 SCC 441, [1993] Supp 2 SCR 659
Kavita Jitani
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