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Judicial Activism: Courts of the People, By the People and For the People

By Digbijoy Banerjee


Abstract:

Judicial activism is an ideology adopted from the activist approach of Courts in the USA in 1947. Judicial activism involves taking positive actions to secure enforcement of the fundamental rights. Since the Emergency days it has been in India. Article 13 read with Articles 32 and Article 226 of the Indian Constitution gives the power of judicial review to the higher judiciary to declare, any legislative, executive or administrative action, void if it is in contravention of the Constitution, perceived as an achievement in liberalizing access to justice and giving relief to disadvantaged groups, because of the efforts of V R Krishna Ayer & P N Bhagwati, JJ. The power of judicial review is a basic structure of the Indian Constitution and it has been exemplary in various landmark cases and judgements like that of the 1979 Hussainara Khatoon[1] case for speedy trial, the 1967 Golak Nath[2] case for amending ability of Constitution, the 1973 Keshavananda Bharati[3] Case for defining the basic structure of the Constitution, the 2002 Murli Deora[4] PIL case for ban on smoking in public places, etc. However, the over-abuse of Judicial Activism which is also known as Judicial Overreach and Judicial Restraint respectively, must be put in check for the functioning of good constitutional machinery of the Statehood. While judicial activism talks about courts taking on a proactive role in ensuring and protecting citizens’ rights, judicial restraint encourages the judiciary to limit the exercise of their power, and Judicial Overreach is when judicial activism crosses its limit.

Introduction:

Under the Indian Constitution, the State is under the prime obligation to safeguard justice, liberty, equality and fraternity in the country[5]. The state is under the commitment to looking after the individuals’ fundamental rights and implementing the Directive Principles of State Policy. To restrain the State from dodging its responsibilities, the Indian Constitution has conferred inherent powers, of reviewing the State’s action, on the courts. In this context, the Indian judiciary has been considered the guardian and protector of the Indian Constitution.

As defined by the Black’s Law Dictionary[6]: “a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent”.

The expression judicial activism have been coined by the American historian Arthur M. Schlesinger, Jr., in Fortune [7]1947 article. Although the term is used quite frequently in describing a judicial decision or philosophy, its use can cause misperception, because it can bear several meanings, and even if speakers approve on which sense is envisioned, they will normally not reach agreement on whether it properly defines a particular conclusion.

Constitutional Authority of Indian Supreme Court and High Court:

The power of judicial review is a basic structure of the Indian Constitution as stated in the case of L. Chandra Kumar v. Union of India, (1997) 3 S.C.C. 261. Article 32 assurances an essential right in India: the capacity for any individual to directly request the Supreme Court to enforce their fundamental rights as defined in the Constitution. Increasingly, the Supreme Court has interpreted Article 32 in a very liberal manner in many cases to enforce fundamental rights even against private entities performing public functions.

In the case of Fertilizer Corporation Kamgar Union v. Union of India[8] , the apex court held that the power of the Supreme Court under Article 32 is an integral part of the basic structure of the Indian Constitution “because it is meaningless to confer fundamental rights without providing an effective remedy for their enforcement, if and when they are violated.” It cannot be suspended even during an emergency. An appropriate writ/order under Article 32 for the enforcement of Articles 17, 23 and 24 can be passed against a private individual also as it was stated in People’s Union for Democratic Rights v Union of India[9]. Article 226 of the Indian Constitution gives power to the High Courts to issue any appropriate order or writ for the enforcement of fundamental rights and other legal rights.

In this context, the jurisdiction of the High Court under Article 226 seems wider than the jurisdiction of the Supreme Court under Article 32. Both Articles 32 and 226 are the basic structure of the Indian Constitution. The High Court through Article 227 and the Supreme Court through Article 136 exercises supervisory controlling power over the subordinate courts, special courts and tribunals. In Pritam Singh v. The State[10], the Supreme Court said that wide discretionary power under Article 136 should be exercised sparingly and in exceptional cases only.

Again, curative petition or Public Interest Litigations (PIL) has been devised by the higher judiciary to prevent abuse of process or to cure gross miscarriage of justice and maintainable in case of principles of natural justice violation. The apex court in the Rupa Hura judgment in 2002[11] said that the Bench considering curative petitions should have the three top judges of the Supreme Court.

In Vishaka v. State of Rajasthan[12], the Supreme Court held that the protection of women from sexual offences in their respective workplaces was missing and needed guidelines and rules to be laid down, which is achieved through the verdict of this instant case as per exercise of power in Article 32 and also deemed as Judge made legislation powers of Article 141. However, the Parliament had the power to replace such directions and did such by introducing the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

In many cases, the Supreme Court exercised its epistolary jurisdiction as decided in Sunil Batra v. Delhi Administration[13], and took suo-moto actions on mere postal letters disclosing the human rights violations in society. The Court said that the technicalities cannot stop the court from protecting the civil liberties of the individual human rights violations, which published in the newspapers, were taken into judicial consideration. The Supreme Court recognized the fundamental right to education for children. In Bandhua Mukti Morcha v. Union of India[14], the Supreme Court held that the right to education is implicit in and flows from the right to life guaranteed under Article 21.

One of the landmark cases relating to public interest litigation was the Hussainara Khatoon[15] case. A series of articles exposing the plight of under-trial prisoners who already served maximum sentences in the State of Bihar was published in a prominent newspaper. A writ petition drawing the Court’s attention to the issue was filed by an advocate. While accepting it as public interest involved, the Supreme Court held that the right to a speedy trial is a fundamental right under Article 21 of the Indian Constitution. The court directed the State to provide free legal facilities to those under trial so that they could get bail or final release.

 

 

Judicial activism or judicial Overreach:

In many places, the Parliament has accused the judiciary on the ground of judicial intervention and said that the judiciary overreaches its constitutional power. The Supreme Court’s judgements on the National Eligibility-cum-Entrance Test (NEET) i.e., one test for medical courses admission, reorganisation in Board for the Control of Cricket in India (BCCI), appointment of the judges’ post, etc. have been considered as the judicial intervention by the government. 

On May 11, 2016, the Hon’ble Supreme Court of India in Swaraj Abhiyan-(I) v. Union of India & Ors.[16], directed the Ministry of Agriculture in the Union of India to update and revise the Drought Management Manual. The Union government with a time span of three months was directed to set up a National Disaster Mitigation Fund. Nevertheless, the then Finance Minister, Arun Jaitley expressed the difficulty of creating a third fund outside the National Disaster Response Fund and the State Disaster Response Fund, keeping in view that the Appropriation Bill is being passed. He also raised concerns about India’s budget-making being subject to judicial review[17].

Recently, on 16 October 2015 the Constitution Bench of Supreme Court in the Supreme Court Advocates-on-Record-Association v. Union of India[18], in a majority of 4:1 declared the National Judicial Appointments Commission (NJAC) Act and the Constitutional Amendment unconstitutional as violating judicial independence. The Court said that the existing collegium system relating to the appointment and transfer of judges would again become “operative.” However, it is submitted that the NJAC decision should not be read as if the judiciary has crossed its threshold. The Supreme Court is open to a comprehensive discussion regarding the current collegium system and seeks its modernization.

Without dispute is the acknowledgement that the judiciary must engage in self-regulation, exercising restraint on its powers when deemed necessary. In the case of Divisional Manager, Aravali Golf Course v. Chander Haas[19], the Supreme Court observed that importance of judges understanding their boundaries and not overstepping into the realm of governance followed by a need for judges to exercise modesty and humility, rather than behaving like Emperors, to maintain balance of the separation of various organs of government.

Conclusion:

The Supreme Court's powers are extensive in safeguarding citizens' constitutional rights, allowing for an activist approach similar to American courts. It can issue directives to the state, even requiring active measures to ensure the enforcement of fundamental rights, a role assigned to the judiciary under the Constitution. They have to exercise their judicial powers to protect the fundamental rights and liberties of citizens of the country.

Judicial activism and self-restraint are facets of that courageous creativity and pragmatic wisdom. One should, however, understand, that this exercise of authority of the judiciary is not for vain glory but it is in the discharge of its constitutional obligation. Otherwise, the judiciary will become crippled which in turn will cripple democracy. 

The Supreme Court's role in sensitising the Central Investigating authorities to discharge their legal obligations in various scams cases and if various judgments ranging from the need for a Uniform Civil Code, pollution control, preservation of historical monuments like the Taj Mahal, cleaning and keeping the big cities more hygienic, directing removal of encroachments, interim compensation to rape victims, protecting working women from sexual harassment etc. attracted praise.

References:

Jaswal, Prof. Dr. Nishtha, Singh, Dr. Lakhwinder, (2017). Judicial Activism in India. Retrieved from Bharati Law Review Published in Articles section of manupatra.com: https://docs.manupatra.in/newsline/articles/Upload/0BD8AAF5-4031-484F-AB92-2B84EFE0ABCA.pdf

Pandey, Dr. J. N., (2020). Indian Constitutional Law (57th Edn.). Central Law Agency Allahabad/Prayagraj

 

 

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[1] Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar, Patna 1979 AIR 1369

[2] Golak Nath v. State Of Punjab 1967 AIR 1643, 1967 SCR (2) 762

[3] Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225; AIR 1973 SC 1461

[4] Murli S. Deora v. Union of India AIR 2002 SC 40

[5] The Constitution of India, 1950, the Preamble

[6] Judicial Activism, Black's Law Dictionary, Thomson Reuters (4th ed. 1968).

[7] Fortune is an American global business magazine headquartered in New York City. It is published by Fortune Media Group Holdings, a global business media company. The publication was founded by Henry Luce in 1929.

[8] A.I.R. 1981 S.C. 344

[9] (1982) 3 S.C.C. 235 

[10] A.I.R. 1950 S.C. 169

[11] Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 S.C.C. 388

[12] A.I.R. 1997 S.C. 3011

[13] (1978) 4 S.C.C. 494

[14] A.I.R. 1984 S.C. 802

[15] Hussainara Khatoon (I) v. State of Bihar (1980) 1 S.C.C. 81

[16] In the Supreme Court of India, Civil Original Jurisdiction, Writ Petition (CIVIL) NO.  857 of 2015, decided on        May     11,       2016,   available at <http://supremecourtofindia.nic.in/FileServer/2016-05-11_1462945782.pdf> accessed on September 10, 2016

[17] Five cases of judicial activism that have put govt. in a spot, Business Standard, BS Web Team, Mumbai May 17, 2016, available at http://www.businessstandard.com/article/current-affairs/five-cases-of-judicial-activism-that-hasput-govt-in-a-spot-116051700587_1.html, accessed on September 10, 2016

[18] in the Supreme Court of India, Civil Original Jurisdiction, Writ Petition (Civil) No. 13 of 2015, http://supremecourtofindia.nic.in/FileServer/2015-10-16_1444997560.pdf>

[19] (2008) 1 S.C.C. 683                           

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