Judicial Activism: A Vigorous Campaign to Bring Justice BY Prashant Tripathi &  Slesha Sukriti

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Author: Prashant Tripathi*

B.A., LL.B(Hons) IV Year

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Co- Author: Slesha Sukriti**

B.A., LL.B(Hons) V Year

Seedling School of Law & Governance

Jaipur National University, Jaipur.

 

Introduction:

According to Collins English Dictionary activism is “a policy of taking direct and often militant action to achieve an end, esp. a political or social one”. Webster’s New Twentieth Century Dictionary defines activism as “the doctrine or policy of being active or doing things with decision”. Another dictionary meaning is “policy of vigorous action”. In the light of these meaning judicial activism would denote a judiciary in which Judges discharge their functions in a vigorous and decisive manner to achieve an end.[1]

The concept of judicial activism which is another name for innovative interpretation was not if the recent past; it was born in 1804 when Chief Justice Marshall decided Marbury v. Madison[2]. Justice Marshall observed that the Constitution was the fundamental and paramount law of the nation and “it is for the court to say what the law is”. He held that a law repugnant to the Constitution is void and that the Courts as well as other departments are bound by that instrument.[3] If there was conflict between a law made by the Congress and the provisions in the Constitution, it was the duty of the court to enforce the Constitution and ignore the law. The twin concepts of judicial review and judicial activism were thus born.[4]

Another important development in judicial activism in the United States was noticed in the first and second Brown Cases, when the court, under the leadership of Chief Justice Earl Warren, disallowed racial segregation in public schools and extended that prohibition to all public facilities.[5]

A classic instance of judicial activism is the Judgement of the US Supreme Court in Griswold v. Connecticut[6], popularly known as Contraceptive case. There was a law in the State of Connecticut which made the use of the contraceptives a criminal offence. Under the Statute the police could barge into the sacred precincts of marital bedrooms to search for tell- tale signs of used condoms. The law was challenged on the ground that it breached the right of privacy. Privacy is not expressly mentioned in the US Bill of Rights, However, the US Supreme Court deduced the right of privacy on the reasoning that various guarantees in the Bill of Rights creates zones of privacy.

Another striking instance of the judicial activism is rule about giving reasons for a decision even when the statute does not expressly so provide. In 1992 the Master of the Rolls, Lord Donaldson, invoked the common law to require tribunals to give reasons for their decisions. Subsequently in 1999 the Privy Council opined that although there was no express obligation in the statute or in the rules to give reasons, such an obligation may nevertheless be found to exist by operation of the common law and as a matter of fairness. Giving a reason satisfies a basic requirement of fairness and natural justice because the person who is adversely affected must know why his application has been rejected or the reason why his license or permit has been cancelled.[7]

The Supreme Court of the Republic of Ireland has also adopted the judicial technique of spelling out fundamental rights which are not expressly mentioned in the Irish Constitution on the basis that there are rights which are anterior to and are not solely derived from the Constitution. The Supreme Court of Canada has also deduced fundamental rights which are not expressly mentioned in the Charter.[8]

Judicial Activism in India:

Judicial activism was made possible in India, thanks to PIL (Public Interest Litigation). Generally speaking before the Court takes a matter for adjudication, it must be satisfied that the petitioner has the locus standi to maintain the action. PIL, a manifestation of Judicial activism, has introduced a new dimension regarding judiciary’s involvement in public administration.

Public interest litigation acquired a new dimension – namely that of ‘epistolary jurisdiction’ with the decision in the case of Sunil Batra v. Delhi Administration,[9] It was initiated by a letter that was written by a prisoner lodged in jail to a Judge of the Supreme Court. The prisoner complained of a brutal assault committed by a Head Warder on another prisoner. The Court treated that letter as a writ petition, and, while issuing various directions, opined that:

“…technicalities and legal niceties are no impediment to the court entertaining even an informal communication as a proceeding for habeas corpus if the basic facts are found”.

One of the earliest cases of public interest litigation was reported as Hussainara Khatoon (I) v. State of Bihar.[10] This case was concerned with a series of articles published in a prominent newspaper – the Indian Express which exposed the plight of undertrial prisoners in the state of Bihar. A writ petition was filed by an advocate drawing the Court’s attention to the deplorable plight of these prisoners. Many of them had been in jail for longer periods than the maximum permissible sentences for the offences they had been charged with. The Supreme Court accepted the locus standi of the advocate to maintain the writ petition. Thereafter, a series of cases followed in which the Court gave directions through which the ‘right to speedy trial’ was deemed to be an integral and an essential part of the protection of life and personal liberty.

A five- member bench of the Andhra Pradesh High Court in D. Satyanarayana v. N. T Rama Rao[11] has gone to the extent of laying down the proposition that the executive is accountable to the public through the instrumentality of the judiciary.

In another matter, a journalist, Ms. Sheela Barse[12], took up the plight of women prisoners who were confined in the police jails in the city of Bombay. She asserted that they were victims of custodial violence. The Court took cognizance of the matter and directions were issued to the Director of College of Social Work, Bombay. He was ordered to visit the Bombay Central Jail and conduct interviews of various women prisoners in order to ascertain whether they had been subjected to torture or ill-treatment. He was asked to submit a report to the Court in this regard. Based on his findings, the Court issued directions such as the detention of female prisoners only in designated female lock-ups guarded by female constables and that accused females could be interrogated only in the presence of a female police official.

The sanctity of locus standi and the procedural complexities are totally side- tracked in the causes brought before the courts through PIL. In the beginning, the application of PIL was confined only to improving the lot if the disadvantaged sections of the society who by reason of their poverty and ignorance were not in a position to seek justice from the courts and, therefore, any member of the Public was permitted to maintain an application for appropriate directions.[13]

  1. C Golak Nath v. State of Punjab[14] is also an example of judicial activism. In this case the Apex Court held that the fundamental rights as enshrined in Part III of the Constitution are immutable and so beyond the reach of the amendatory process. The doctrine of “prospective overruling” was invoked by the Supreme Court to avoid unsettling matters which attained finality because of the earlier amendments of the Constitution. The Supreme Court also declared that in future, Indian Parliament has no power to amend any of the provisions of Part III of Constitution.

Kesavananda Bharti[15] had given a quietus to the controversy as to the immutability of any of the provisions of the Constitution. By a majority of seven against six, the Court held that under Article 368 of the Constitution, Parliament has undoubted power to amend any provision in the Constitution but the amendatory power does not extend to alter the basic structure or framework of the Constitution.

“The law, which is the resulting product, is not found, but made” and “the process being legislative demands the legislator’s wisdom”.[16] If the legislature and the Executive are not sufficiently active, then judicial wisdom including judicial law- making may be the only remedy. And even when our modern Legislatures, so preoccupied with multifarious non- legislative activities, choose to be active, their hurried legislation made ad hic to meet immediate problems or to suit immediate necessities very often result in “lawless science of our law” and to rescue law from such lawlessness of law and make it promote the welfare of  the people by securing and protecting, as effectively as possible, a Social Order in which justice, social, economic and political, shall inform all the institutions of the national life, judicial activism including judicial law – making becomes a dire necessity. To deny such activities on the apprehension that on occasion it might be abused or become retroactive, would amount almost to chopping off the head to prevent headache.[17]

The Constitution of India does not specifically guarantee freedom of press as a fundamental right. In several decisions of the Supreme Court from 1950 onwards freedom of press has been held to be implicit in the guarantee of freedom of speech and expression. Freedom of press, one of the pillars of democracy, has thus acquired the status of a fundamental right. [18]

Our Supreme Court has deduced other fundamental rights which are not expressly mentioned in the Constitution. For example, the right to privacy[19], the right to travel abroad[20], the right to education[21], etc.

The vexed question is can the judiciary make a law where none exists even though there is a crying need for it. It is argued that the remedy lies with Parliament or State Legislatures and not in judicial law- making and that the judiciary cannot usurp the functions of the Parliament and the legislatures. This argument though not without substance fails to notice that in our country experience has demonstrated that it is vain to invoke Parliament or the Legislatures. This is evident from the fact that measures have hardly been taken for years to remedy several social evils.[22]

Consider the case of Vishaka[23] in which the Supreme Court was confronted with the persistent and pervasive problem of sexual harassment in the workplace. There was no legislation dealing with this evil which particularly infringed the rights of women. The Court after referring to various international covenants and taking note of the absence of domestic law occupying the field issued several directions. These directions included definition of sexual harassment, the preventive steps that can be taken, the disciplinary action and criminal proceedings that may be adopted for sexual harassment. The Court also devised a complaints mechanism and a complaints committee. The Court emphasised that these directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field.

Criticism about Judicial Activism:

A common criticism we hear about judicial activism is that in the name of interpreting the provisions of the Constitution and legislative enactments, the judiciary often rewrites them without explicitly stating so and in this process; some of the personal opinions of the judges metamorphose into legal principles and constitutional values. One other facet of this line of criticism is that in the name of judicial activism, the theory of separation of powers is overthrown and the judiciary is undermining the authority of the legislature and the executive by encroaching upon the spheres reserved for them.

The directions given by the Supreme Court[24] to the Speaker of the Jharkhand Assembly in 2005, directing the Speaker how to proceed and asking for a video recording of the proceedings went a bit too far and have been severely criticised.

Opponents of judicial activism argue that activist judges make laws, not just interpret them.  The issue, they claim, does not centre on whether social problems need to be solved, but on whether the courts should involved them in such problem solving.  By making decisions about how to run prisons or schools the courts assume responsibilities that belong exclusively to the legislative and executive branches of government.

Critics of judicial activism worry that court decisions that so freely “interpret” the meaning of the Constitution will undermine public confidence in and respect for the courts.  One legal scholar says, “At some point, a decision will be rendered where both the Congress and President simply say NO.”

In addition, critics point out that federal judges are not elected, they are appointed for life terms.  As a result, when judges begin making policy decisions about social or political changes society should make, they become “unelected legislators.”  Consequently, the people lose control of the right to govern themselves.

Further, unlike legislatures, courts are not supposed to be open to influence from interest groups.  Thus, the courts may not hear different points of view on complex social issues.  By contrast, in legislatures, elected officials are responsive to such interests.

Judicial creativity even when it takes the form of judicial activism should not result in rewriting of the Constitution or any legislative enactments. Reconciliation of the permanent values embodied in the Constitution with the transitional and changing requirements of the society must not result in undermining the integrity of the Constitution. Any attempt leading to such a consequence would destroy the very structure of the Constitutional institutions.

Conclusion:

To deny judicial activism to the Judges would be to deny justice to the people since it is the most powerful weapon in the hands of the Judiciary to deliver justice, when the other organs fail to do the needful. Following Tagore, who said that if we shut our doors to prevent entry of untruths, truths would also be shut out thereby, it is said that if the Judges shut the doors against judicial activism and judicial law- making on the apprehension that these might on occasions cause injustice, then they would also shut out thereby the ushering in of a new order of justice. [25]

Conscious of the primordial fact the Constitution is the Supreme document, the mechanism under which laws must be made and governance of the country carried on, the judiciary must play its activist role. No constitutional value propounded by the judiciary should run counter to any explicitly stated constitutional obligations or rights. In the name of doing justice and taking shelter under institutional self-righteousness, the judiciary cannot act in a manner disturbing the delicate balance between the three wings of the State. [26]

Needless to emphasise that the strategy of PIL must be used by the courts carefully, prudently and with discrimination because any discriminate use of it would bring it into contempt both from the public and the government .Therefore, the correct approach of the court in PIL cases should be a judicious mix of restraint and activism determined by the dictates of existing realities. Any misuse of this strategy must be strongly discouraged by the courts.

It is for this reason that the Apex court in BALCO Employees’ Union v/s Union of India[27] clearly held that administrative powers cannot be challenged in PIL unless there is a violation of Art 21 of the constitution and persons adversely affected are unable to approach the court. This limits the power of the court and the initiative of a busybody. Furthermore the Apex court in order to check the misuse of PIL has laid down several guidelines in case of State of Uttranchal v. Balwant Singh Chufal[28] and others which are as under:

  1. The courts must encourage genuine and bonafide PIL and effectively discourage and curb PIL filed for extraneous considerations.
  2. Instead of every individual Judge devising his own procedure for dealing with PIL, it is appropriate for each High Court to properly formulate rules for encouraging genuine PIL and discouraging PIL filed with oblique motives.
  3. The courts should be prima facie verifying the credentials of the petitioner before entertaining a PIL.
  4. The court should be prima facie satisfied regarding the correctness of contents of the petition before entertaining a PIL.
  5. The courts should be fully satisfied that substantial public interest is involved before entertaining the petition.
  6. The court should ensure that petition which involves larger public interest, gravity and urgency must be given priority over other petitions.
  7. The courts before entertaining PIL should ensure that 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 PIL.
  8. The courts should also ensure that petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and petition filed for extraneous considerations.

Fidelity to a political or social philosophy not discernible from the constitutional objectives in the discharge of judicial functions is not judicial activism; it is subversion of the Constitution. Any judicial act which is politically suspect, morally indefensible and constitutionally illegitimate must be curbed. Judicial activism characterised by moderation and self-restraint is bound to restore the faith of the people in the efficacy of the democratic institutions which alone, in turn, will activate the executive and the legislature to function effectively under the vigilant eye of the judiciary as ordained by the Constitution.[29]

Ideally, of course, the Court should be like Baby Bear: It should get everything just right, engaging in activism when, and only when, “We the People” act in ways that we will later consider shameful or regrettable. But that perfection is impossible, and so we must choose between a Court that views its role narrowly and a Court that views its role broadly, between a more deferential Court and a more activist Court. Both kinds of Court will sometimes be controversial, and both will make mistakes. But history teaches us that the cases in which a deferential Court fails to invalidate governmental acts are worse. Only a Court inclined toward activism will vigilantly avoid such cases, and hence we need more judicial activism

……………………………………………………………………………………………………………

[1] Soli J. Sorabjee, Judicial Activsm- Boon or Bane?, Nani Palkhivala Memorial Law Lecture- Bombay- 11.1.2008.

[2] Marbury v. Madison, 2 L Ed 60 (1803).

[3] Ibid.

[4] Justice M.N. Rao, Judicial Activism, (1997) 8 SCC J-1.

[5] Brown v. Board of Education, 347 US 483 (1954) and 349 US 294 (1955).

[6] 381 US 479, 510 : 14 L Ed. 2d 511 (1965).

[7] Soli J. Sorabjee, Judicial Activsm- Boon or Bane?, Nani Palkhivala Memorial Law Lecture- Bombay- 11.1.2008.

[8] Soli J. Sorabjee, Judicial Activsm- Boon or Bane?, Nani Palkhivala Memorial Law Lecture- Bombay- 11.1.2008.

[9] Sunil Batra v. Delhi Administration, (1978) 4 SCC 494.

[10] (1980) 1 SCC 81.

[11] (1998) 1 ALT 178.

[12] Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96.

[13] Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161.

[14] I. C Golak Nath v. State of Punjab, AIR 1967 SC 1643.

[15] Kesvananda Bharti v. State of Kerala, AIR 1973 SC 1461.

[16] Cardozo, The Nature of the Judicial Process, p. 115.

[17] Mr. Justice A. M Bhattacharjee, Judicial Activism and the World Judges’ Conference, (1984) 3 SCC J-1.

[18] Soli J. Sorabjee, Judicial Activsm- Boon or Bane?, Nani Palkhivala Memorial Law Lecture- Bombay- 11.1.2008.

[19] Govind v. State of Madhya Pradesh, AIR 1975 SC 1378; Peoples Union for Civil Liberties v. Union of India, AIR 1997 SC 568.

[20] Satwant Singh Sawhney v. D. Ramrathna, AIR 1967 SC 1836.

[21] Environmental and Consumer Protection Foundation v. Delhi Administration, (2011) 7 SCC 57.

[22] Soli J. Sorabjee, Judicial Activsm- Boon or Bane?, Nani Palkhivala Memorial Law Lecture- Bombay- 11.1.2008.

[23] Vishaka v. State of Rajasthan, (1997) 6 SCC 241

[24] Anil Kumar Jha v. Union of India, (2005) 3 SCC 150.

[25] Mr. Justice A. M Bhattacharjee, Judicial Activism and the World Judges’ Conference, (1984) 3 SCC J-1.

[26] Justice M.N. Rao, Judicial Activism, (1997) 8 SCC J-1.

[27] BALCO Employees’ Union v/s Union of India, (2002) 2 SCC 333.

[28] Uttranchal v. Balwant Singh Chufal, (2010)3 SCC 402.

[29] Ibid.

 

 

 

 

 

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Disclaimer:

This Article was prepared or accomplished by Prashant Tripathi & Slesha Sukriti in his personal capacity. The opinions expressed in this article are the author’s own and do not reflect the view of the LawOF.in

The Contents of this Website are informative only and for the benefit of the general public. Even though every care has been taken to ensure the correctness of information and procedure, the www.lawof.in is not responsible for any inadvertent errors and the same may please be brought to the notice through e-mail: info@lawof.in The LawOF do not own any responsibility for the views expressed by the Author in the Article and for the errors, if any, in the information contained in the LawOF and the author shall be solely responsible for the same.

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