JUDICIAL ACTIVISM:
The
predominant approach of the Indian Judiciary was positivist, to interpret the
Constitution literally and to apply it more or less the same restrictive canons
of interpretation as are usually applied to the interpretation of ordinary
statutes. This approach emanates from the basic traditional theory that a judge
does not create law but merely declares the law and judicially the principle
was laid down in these words: “In interpreting the provisions of our
Constitution, we should go by the plain words used by the Constitution Makers.
The General rules of Construction in the General Clauses Act also apply to the
Constitution and interpretation of legislative enactments. The Judicial
Activism is the process by which the courts checks whether a law is valid or
not and a law to be valid must conform with the Constitutional norms. The
Constitutionality of a statute arises from various constitutional violations
like:
1) Violation of the scheme of
distribution of powers between the Centre and the States;
2) Infringement of a Fundamental Rights;
3) Violation of other Constitutional
restrictions / limitations.
A statute which is not within the
scope of legislative authority or which offends any of the provisions of
Constitutional restriction or prohibition is said to be unconstitutional and
hence void. To struck down a statute from the statute books, the main
importance is given to its Constitutionality tests and it is validity under the
eyes of law and a onerous burden is placed on the Courts because a Statute is
enacted by elected members which are the required aspirations of the people.
DYNAMIC APPROACH OF JUDICIAL ACTIVISM:
The Supreme Court has now realized
its proper role in a Welfare State, and it is using this new strategy not only
or helping the poor by enforcing their fundamental rights of a persons but for
the transformation of the whole society as an ordered and crime free society
and the role of individuals and group of people in participating the government
day to day issues and checks all the activities of the concerned authorities
like Central Investigating Authorities to discharge their legal obligations in
the various scams cases, need for enactment of Uniform Civil Code, Pollution
Control, Preservation of historical monument like Taj Mahal, cleaning and
keeping the big cities more hygienic, ban of smoking in public places, removal
of encroachments, interim compensation to rape victims, speedy trial, legal aid
to all prisoners and economically backward people, puncturing the ego of Chief
Election Commissioner T.N.Seshan and senior Karnataka IAS officer, Vasudevan
are the notable approach by the Courts. Thus the filing of Writ Petitions and
Public Interest Litigations are the two eyes of the Courts which guards the
Constitution from all kind of encroachments and this is the dynamic approach of
Activism
RULE OF LOCUS STANDI – LIBERALISED:
The
traditional rule of Locus Standi is that a petition under Article.32 or
Article.226 can only be filed by a person whose fundamental right is infringed
has now been considerably relaxed by the Supreme Court in its recent rulings
and the present scenario is that the Court now permits Public Interest Litigations
or Social Interest Litigations, PIL or SIL, at the instance of ‘public spirited
citizens’ for the enforcement of Constitutional and Statutory rights of any
person or group of persons who because of their poverty or socially or
economically disadvantaged position are unable to approach the Court for
relief.
A.B.S.K. Sangh (Rly) Vs. Union of
The
Supreme Court held that the Akhil Bhartiya Soshil Karmachari Sangh (Rly),
though an unregistered association could maintain a writ petition under Art.32
for the redressal of a common grievance. Access to justice through ‘class
actions’, ‘public interest litigation’ and ‘representative proceedings’ is the
present Constitutional jurisprudence and it further held that the individual acting
pro bono publico can readily bring a PIL action before the Court of law by even
writing a letter to the Court regarding the infringement of a group or any
individual person.
PIL GUIDELINES AND ABUSES:
The
Supreme Court has laid down the guidelines that it is the duty of the Court to
decide from case to case and upon the facts and circumstances of the case, the
person approaching the Court by way of Writ or PIL for relief has “sufficient
interest” and has not acted with malafide or political motives and not come to
court with clean hands and it came to conclusion that any member of the public
having sufficient interest can maintain an action for judicial redress for
public injury arising from breach of public duty or from violation of some
provisions of the Constitution or the law and seeks enforcement of such public
duty and observance of such constitutional or legal provisions and it is
absolutely necessary for maintaining the rule of law and thereby realization of
the Constitutional objectives. The scope of Locus Standi is thereby liberalized
but this rule of law must not be misused by vested interests and it is again
the duty of the Court not to allow the remedy to be abused.
Janatal Dal Vs. H.S.Chowdhari, AIR
1992 4 SCC 653:
In
the Bofors Gun Purchase Scam, the CBI registered a case against 3 named and 11
unnamed accused and it moved an application before the special judge to issue a
letter of rogatory to
APEX COURT RULING: The Supreme Court held that the
Liberal approach of the Rule of Locus Standi is misused by the petitioner in
this case and thus the Supreme Court agreed with the first part of the ruling
and quashed the second part of the order of the High Court.
Krishnaswami Vs. Union of
The
Petitioners filed a PIL under Art.32 of the Constitution for quashing the
motion given to the speaker by 108 members of ninth lok sabha for initiating
proceedings for the removal from office of Mr.Justice V.Ramaswami of the
Supreme Court against whom there were allegations of financial irregualarities
and they further prayed to quash the Inquiry Commission under the Judges
(Inquiry) Act, 1968 as it is unconstitutional. The Supreme Court held by 4-1
majority that the petitioners have no locus standi to file this petition as
they have no public purpose for filing this petition.
Bandhu Mukti Morcha Vs.
Union of
The petitioners, an
organisation through a letter to the Supreme Court informed about their survey
in Faridabad District stone quarries at Harayana and found that the labours in
that quarry were in inhuman and intolerable conditions and many of them were
bonded labours and the petitioners prayed that a writ be issued for proper
implementation of the constitution towards the bonded labours in that stone
quarry. The Supreme Court has observed that the right to live with human
dignity is enshrined in Art.21 which derives its life breath from the Directive
Principle and the petitioner organisation is moving the Court for social cause
and thus they have locus standi to pray a relief for those labours. In this
case to secure the release of bonded labour and free them from exploitation was
held to be valid and the courts also insisted for proper rehabilitation after
release of bonded labourers and thereby safeguarded their fundamental rights.
Mohanlal Sharma Vs. State of
The petitioner sent a telegram to
the court alleging that his son was
murdered by the police in the police
lock up and the telegram was treated as a writ petition by the Court and the
case was directed to be referred to C.B.I. for a complete and thorough and
detailed investigation as the locus standi principle is liberalized to a level
to treat a letter as a writ petition.
VARIETIES OF JURISTIC AND JUDICIAL ACTIVISM:
The
Supreme Court’s pivotal role in making up for the lethargy of the Legislature
and the inefficiency of the executive is commendable. Those who oppose to the
growing judicial activism of higher courts do not know the value and boon of
its importance and thus the Judicial Activism has set right a number of wrongs committed
by the States in the following cases:
BAN ON SMOKING IN PUBLIC PLACES:
Murali S.Deora Vs. Union of
The
Congress leader Murali S.Deora filed a PIL in the Supreme Court seeking orders
for banning smoking in public places and the Supreme Court seeing the ill
effects of smoking held that public smoking is banned and it directed all
States and Union Territories to immediately issue orders banning the smoking in
public and this ruling of the Court is to boost the public health. Thus the
Center has introduced an Anti Smoking Bill in the parliament and it is being
implemented in many parts of the Country but not effective at present.
PROTECTION AGAINST INHUMAN TREATMENT:
Sunil Batra Vs. Union of
The
Supreme Court on hearing the Petitioner about the inhuman and barbarous
treatment made by the Jail authorities towards the prisoners of the Jail and
they were not in a position to reach the Court and thus the issuance of writ of
habeas corpus is prayed. The Court held that the rights of prisoner either
under the constitution or under other laws are violated the writ power of the
court can run and should run to rescue them and the dynamic role of judicial
remedies imports the same vitality and utility of liberty even within the
jails. Thus the writ is issued and guidelines are laid down by the apex court
to be followed in jails.
CHILD WELFARE:
Sheela Barse Vs. Union of
The Supreme Court in this
case has directed to release all children below the age of 16 years from jails in
pursuance of Art.39 (f) but instead it also exhorted the States to set up
remand homes and juvenile courts and the court held that the Child is a
national asset and the State shall ensure fullest development of its
personality and it directed Rs.10,000/- to be paid to social worker for her
cause to highlight the problem of child’s tortures and the provisions of
Children Act.
Vishal Jeet Vs. Union of
A public interest litigation writ petition emphasizing
the malady of child prostitution was filed before the Supreme
Court and the Court expressed its anguish on the pitiable condition of child
prostitutes and it also referred the constitutional provisions such as Art.23,
35(a)(ii), 39(a), (e) and (f) and issued several directions urging upon the
various governments to take further remedial action in this matter and it also
emphasized upon severe and speedy enforcement of juvenile laws such as Immoral
Traffic (Prevention) Act, 1956 by the State.
PROTECTION OF ECOLOGY AND
ENVIRONMENT:
M.C.Metha Vs. Union of
The Supreme Court in this
case has ordered for closure of tanneries at Jajmau near
Similarly in other case,
the same petitioner prayed for closure of nearby industries in
Rural Litigation and
Entitlement Kendra Vs. State of
The Supreme Court on reading Arts.21, 47, 48A and 51A (g) together
ordered for the closure of certain lime stone quarries on ground of safety and
hazardous deficiency exists there and they has taken an active interest in the
protection of the environment and many questions pertaining to environment and
ecology problems have been brought before the Court of Law by way of Public
Interest Litigations and the right to live in clean environment has been
brought and given status as one of the fundamental right available to all the
citizens and it is made enforceable under Art.32 and 226 by Courts. It is clear
that under Art.51 (g), the Courts imposed a fundamental duty on every citizen
to protect and preserve environment and to check Air, Water and Noise
pollutions and to inform the state and to stop such pollutions effectively.
PROFESSIONAL ETHICS:
Ramesh Vs. Union of
The
Petitioner practicing advocate of High Court filed a public interest litigation
under Art.32 to issue a writ of prohibition restraining the respondents, the
Director General of Doordarshan, New Delhi from telecasting or screening the
serial titled ‘Tamas’ written by Sri Bhisam Sahni, which clearly depicts as to
how the partition of India took place and how the communal violence was
generated by fundamentalists in both the communities and he argued that the
Art.25 is disturbed by this serial. The Court held that there is no violation
of Art.25 instead it teaches a good lesson to the people of India that such
things should not be repeated again in future and the communal atmosphere is
kept clean and unpolluted by the courts and the petitioner is right in his act
of drawing the attention of the courts in this case and it is a social cause
and thus the petitioner has a locus standi.
HANDICAPPED TO BE GIVEN
JOB OPPORTUNITIES:
National Federation of
Blind Vs. U.P.S.C., AIR 1993 2 SCC 411:
The Supreme Court has held that the visually handicapped
blind and partially blind are eligible to compete and write civil services
examination in the categories of group ‘A’ and ‘B’ posts which are suitable for
the handicapped in Braille Script or with the help of a Scribe. The Court gave
this description on the representative petition filed by the National
Federation of Blind. The Court declared that visually handicapped constitute a
significant section of our society and as such it is necessary to encourage
their participants in every walk of life.
SUPREME COURT AS
PROTECTOR AND GUARANTOR:
Nixon M. Joseph Vs. Union
of
A Writ Petition in the nature of Public Interest
Litigation bearing a question on independence of judiciary has been raised in Kerala High Court. The writ petition sought a ban on the retired
High Court and Supreme Court Judges from contesting elections to the
legislatures and accepting appointments as commissions of inquiry. The argument
made was that it compromised their independence. The High Court emphasized
Art.50 which states that the bedrock of the constitution is the principle of
independence of the judiciary which can effectively combat corruption and
nepotism in high places. “In fact it occupies an exalted position in the minds
of the people as the saviour of democracy” and the High Court has emphasized
that the principle of judicial propriety assumes vital importance and in the
best interest of an independent judiciary and it being a matter of national concern
and thus alone it can act as a protector and guarantor of Fundamental Rights of
the Constitution.
POWER TO COMMUTE DEATH
SENTENCE INTO LIFE IMPRISONMENT:
Harbans Singh Vs. State
of
The Supreme Court held that under Article.32 very wide powers
has been conferred on the Supreme Court for due and proper administration of
justice and this inherent power is to be exercised in extraordinary situations
in the large interests of administration and for prevention of manifest
injustice. Accordingly, the Court commuted the death sentence of the petitioner
into the imprisonment for life on the ground that one of his co-accused’s
sentences was commuted by the Court. The Court recommended that the President
should normally exercise his power under Art.72 to commute the death sentence
because he has considered petitioner’s mercy petition and rejected it and if he
fails to do justice in a particular case. Under Art.32, the Supreme Court has
the power to commute death sentence into life imprisonment if there is undue
delay in execution of sentence of death. However, for this, no period can be
fixed for making the sentence of death to be changed into life imprisonment.
The Court will examine the nature of delay in the light of all circumstances of
the case and then decide whether death sentence should be carried out or
altered into life imprisonment.
PROTECTION OF DIGNITY AND
HONOUR OF COURTS:
The Supreme Court for the first time sent 5 police
officers including an I.P.S. officer to jail as they were found guilty for
committing criminal contempt by a
ADEQUATE MEDICAL SERIVES:
Paschim Banga Khet
Mazdoor Samity Vs. State of
The Supreme Court has
observed that it is the paramount medical aid to every injured citizen brought
for treatment immediately without waiting for procedural formalities to be
completed in order to avoid negligent death and it is the constitutional
obligation of the State to provide adequate medical services to the people as
enshrined in Art.47. The Petitioner is a human right activist and he also
appended to the article published in Hindustan Times, a report about “Law helps
the injured to die” and the Supreme Court took this writ petition as it is a
valid one in the public interest and held that this right which has a status of
fundamental right is culled out from Art.47 together with Art.21 and stated
that in a welfare state, the primary duty of the Government is to secure the
welfare of the people by running hospitals and health centres and providing
medical care.
PAYMENT OF LIVING WAGES:
All India Reserve Bank
Employees Vs. Reserve Bank, AIR 1966 SC 305, 317: (1966) 1 SCR 25:
The Supreme Court in this
Public Interest Litigation has observed that the political aim is living wage for all
workers, in actual practice, this ideal has eluded our efforts so far and that
our general wage structure has at best reached the lower level of ‘fair wage’
and a ‘fair wage’ is a mean between ‘living wage’ and ‘minimum wage’ and the
living and fair wages have to be fixed keeping in view the capacity of the
industry to pay. Fixing of minimum wages under the Minimum Wages Act has been
characterized as “just and first step” in the direction of fulfilling the
mandate of Art.43 and in course of time, the State has taken more steps to
implement that minimum wages mandate.
FREE LEGAL AID:
Suk Das Vs. Union
The Supreme Court in this
Public Interest Litigation filed by the social activist has held that Art.39A read with Art.21
states that free legal assistance at state cost has been raised to the status
of a fundamental right of a person accused of an offence which may involve
jeopardy to his life or personal liberty and the Presiding Judge has been
obligated by the State to inform the accused that he can obtain free legal
service at the cost of the state if he is unable to engage a lawyer because of
his indigence.
H.M.Hoskot Vs. State of
The Supreme Court has
held that
the “legal aid” and “speedy trial” concepts enshrined in directive principle of
state policy are fundamental right available to all prisoners under Art.21 and
it is also available to all citizens during judicial proceedings in a court of
law and can be enforced by courts as one of the fundamental right available to
every citizens by way of writ proceedings
SPEEDY TRIAL AND EQUAL
JUSTICE:
Hussainara Khatoon Vs.
Home Secretary, State of
The Supreme Court by this
Public Interest Litigation has held that the State is under a duty to provide a lawyer
to a poor person and it must pay to the lawyer his fee as fixed by the courts
and the “Free legal aid” and “equal justice” and “speedy trial” enshrined in
Art.39-A has held to be a Fundamental Right and thereby cast a duty on the
State to secure that the operation of legal system promotes justice, on the basis
of equal opportunities and further mandates to provide free legal aid in any
way – by legislation or otherwise so that justice is not denied to any citizen
by reason of economic or other disabilities. It means justice according to law.
PAVEMENT DWELLERS CASE:
Olga Tellis Vs. Bombay
Municipal Corporation, AIR 1986 SC 194:
The Supreme Court in this
case considered the Public Interest Litigation filed by the petitioner and held
that the
directive principles are fundamental in the governance of the country and hence
they must therefore be regarded as equally fundamental to the understanding and
interpretation of the meaning and content of Fundamental Rights and the Right
to Shelter of pavement dwellers and their occupational rights was given a
status of Right to livelihood available to all citizens as one of the
fundamental right in this landmark case law.
RAPE ON WORKING WOMEN:
Vishaka Vs. State of
The Supreme Court in this
Public Interest Litigation filed by non-governmental organisation has formulated effective measures and exhaustive guidelines to
check the evil of sexual harassment of working women at all work places until legislation
is enacted for this purpose and to guarantee gender equality of right to work
with human dignity as enshrined in Arts. 14, 15, 19(1) (g) and 21 of the
Constitution and thereby safeguards against sexual harassment implicit therein.
The Courts by reading the Directive Principle enshrined in Art.51(c), brought
the international norms and measures under Art.21 and made it as a fundamental
right and held that the Court has the power under Article.32 to lay such
guidelines for effective enforcement of fundamental rights.
POWER TO AWARD
COMPENSATION:
Rudal Shah Vs. State of
The Supreme Court awarded Rs.30,000/- as compensation to
the petitioner who had to remain in jail for 14 years because of the
irresponsible conduct of the State authorities and in this Petition under
Art.32 of the Constitution, the Supreme Court laid down that the power of the
court to grant such remedial relief may include the power to award compensation
in appropriate cases and in this case the court exercised its power to award
compensation.
CORRUPTION IN PUBLIC LIFE
AND PIL:
The Supreme Court and the High Court by way of Public
Interest Litigation have thrown light to those scams like Hawala Scam, Uria Scam, Fooder
Scam in
DIRECTIONS TO CBI AND
OTHERS:
Vineet Narain Vs. Union
of
The petitioner by way of
Public Interest Litigation brought before the Court that the government
agencies like the CBI, revenue authorities has failed to perform their duties
in investigating the crimes and corruptions at high places in pubic life and
the Supreme Court hearing the petition issued directions to make the CBI,
Central Bureau of Investigation; CVC, Central Vigilance Commission, Enforcement
Directorate and Nodal Agency are the independent agencies and hence they are in
a position to function effectively against corruption and scams.
CUSTODIAL DEATH:
Nilabati Behara Vs. State
of
The Supreme Court has laid down the principle on which
compensation is to be awarded by the Court under Arts.32 and 226 to the victim
of State action. The object to award compensation in public law proceedings
under Arts.32 and 226 is different from compensation in private tort law
proceedings. Award of compensation in proceeding under Arts.32 and 226 is a
remedy available in public law based on strict liability for contravention of
fundamental rights to which the principle of sovereign immunity. In this case
the Supreme Court has held that due to the custodial death of the person
directed the State to pay Rs.1,50,000/- as compensation to the deceased mother
and a further sum of Rs.10,000/- as costs and the court further clarified that
this will not affect the petitioner right to claim compensation in other
proceedings by the Court.
GUIDELINE FOR EXERCISE OF RIGHTS UNDER ARTICLE 32:
P.N.Kumar Vs. Municipal
Corporation of
The two judges Bench of the Supreme Court held that the
Citizens should not come to the Court directly for enforcement of their
fundamental rights but they should first seek directly for the enforcement of
their fundamental rights, but they should first seek remedy in the High Courts
and then if the parties are dissatisfied with the judgment of the High Court,
they can approach the Supreme Court by way of Appeal.
The following guidelines
were made by the
1.
The scope of Art.226 is wider than Art.32
2.
The parties to seek relief from High Court then they should come
to Supreme Court
3.
The High Court has eminent judges, good bar and it has its own
tradition.
4.
The Supreme Court has no time to decide cases pending therein
5.
The time consumed by Supreme Court will be considerably minimized.
6.
The dignity, majesty and efficiency of the High Courts are
protected.
DISTINCTION BETWEEN ARTICLES.32 & 226:
Romesh Thappar Vs. State
of
The Supreme Court in this
case has clearly explained the difference between the two articles namely
Art.32 and 226. Articl.32 can be exercised for the enforcement of fundamental
rights only as per the constitutional provisions as an important part of the
basic structure of the Constitution because it is meaningless to confer the
fundamental rights without providing an effective remedy for their enforcement
when they are violated whereas the Article.226 can be exercised not only for
the enforcement of fundamental rights only but for “any other purpose”. Hence the power of the High Court is wider
than the power conferred by Article.32 on the Supreme Court.
RESTRICTIONS OF JUDICIAL ACTIVISM:
1. Article.33 is an exception to the judicial activism. This
article states that the parliament to restrict or abrogate law fundamental
rights applicable to members of armed forces and maintenance of public order
and persons in connection with the tele communication system of any force,
bureau or organisation and in bureau or other organisation for purposes of
intelligence.
2. The Judicial Activism and the enforcement of fundamental
rights are restricted when the Martial Law is in force to maintain restoration
of public order and law in any area of the Country. (A.D.M. Jabalpur Vs. ShivKant
Shukla Case popularly known as Habeas Corpus Case)
3. Resjudicata: This
concept is a rule of public policy that there should be finality of decisions
by Courts of Competent jurisdiction and the same question which is heard and
decided on merits cannot be allowed to be reopened
Lallubhai Vs. Union of
The Supreme Court enunciating the principle of Res
Judicata in this case held that the matter heard and decided by the High Court
under Art.226 then the writ under Art.32 is barred by the rule of Res judicata
and could not be entertained. The exception to this rule is this rule of res
judicate does not apply to Writ of Habeas Corpus.
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