We are examining the concept of judicial activism in the light of three areas, they are: interpretation of ordinary statutes, interpretation of the constitution and Public Interest Litigation (PIL), which is subject matter of raging debate in the country. It also deals with its effect on the “Doctrine of Separation of Power” in the light of recent case laws. Further, it throws a light on the impact which may have on the democracy of the country if it is continually violative of very fundamental ‘Doctrine of Separation of Power’
INTRODUCTION – THE ROLE OF THE JUDICIARY
The concept of judicial activism which is another name for innovative interpretation was not of the recent past. It took birth in 1804 when chief justice Marshall, one of the greatest judges of the English-oratory world, decided Marbury v. Madison,
In todays context the concept of Judicial Activism has become the Centre of a huge debate. Activism being a one word constitutes many worlds. It is a philosophy of judicial decision-making whereby judges allow their personal views about public policies, among other issues, to make their decisions with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent.
The first question which must be answered is what the role of the judiciary is. An answer to this question may be found in the case of Indira Gandhi v. Raj Narain, It was held that the main role of the judiciary is to make sure that the legislature and the executive stay within the limits prescribed by the Constitution, interpret the Constitution, and apply the law as interpreted to fact situations which might arise.
If this case is read with the argument given by S.P. Sathe’s for judicial activism, it can be pointed out that the main role of the judiciary is based on the two models of judicial review.First one is technocratic model in which judges act merely as technocrats, and holds an action invalid if it is ultra vires the Constitution. In the second model it interprets the provision of the Constitution liberally and keeps the Constitution alive through dynamic interpretations. These interpretations are the heart of judicial review; and judicial review, so as to say, is essentially a matter of interpretation. In this way the model of judicial review took the incarnation of judicial creativity which brought out the phenomenon of judicial activism itself. Recent experiences shows that judicial review has its practice best in advanced, middle-class societies steadfastly committed to the idea of limited government.
Other phase of the role of judiciary in justice on the basis of judicial activism as Ganjenragadkar has stated: “Another ingredient of judicial process flows from the facts that the goddess of justice is reported to be blind. On most court buildings you see the statute of the goddess of justice holding the balance of justice in her hands. Blind, in this context, does not mean that the goddess does not see. It means that she is oblivious to the respective status of the parties, whether they are rich or poor, whether they are important or unimportant, whether they are ministers or ordinary citizen and whether they are Hindus, Muslims, Christians, Jews.”
Some examples based on decisions of the judiciary may clarify this further. In the case of Bandhua Mukti Morcha v. Union of India, the court discussed in detail Article 32, and what the word ‘appropriate’ in it meant. While doing so the court made it clear that what mattered were the spirit of the text and not just the literal interpretation of the text.
A similar trend can be seen in another case of M.C. Mehta v. Kamal Nath, where the Supreme Court imposed a fine on a motel for polluting a river basin and justified the imposition of the fine by stating that it was within the power of the Supreme Court under Article 32 to do the same as pollution of any element such as water which constituted ‘life’ violated the fundamental right under Article 21 of the Indian Constitution.
It is interesting to note however, that although in these cases the judiciary was not acting strictly within the limits placed in earlier cases, it took care to make it clear that it was merely pursuing the ‘realization of the constitutional objectives’, which clearly shows its interference in other organs of the state. Hence, these are the vital decisions that have conceptualized judicial activism which were enunciated by the judges in order to bring about social change.
The concept of judicial activism which is another name for innovative interpretation was not of the recent past. It took birth in 1804 when chief justice Marshall, one of the greatest judges of the English-oratory world, decided Marbury v. Madison,
In todays context the concept of Judicial Activism has become the Centre of a huge debate. Activism being a one word constitutes many worlds. It is a philosophy of judicial decision-making whereby judges allow their personal views about public policies, among other issues, to make their decisions with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent.
The first question which must be answered is what the role of the judiciary is. An answer to this question may be found in the case of Indira Gandhi v. Raj Narain, It was held that the main role of the judiciary is to make sure that the legislature and the executive stay within the limits prescribed by the Constitution, interpret the Constitution, and apply the law as interpreted to fact situations which might arise.
If this case is read with the argument given by S.P. Sathe’s for judicial activism, it can be pointed out that the main role of the judiciary is based on the two models of judicial review.First one is technocratic model in which judges act merely as technocrats, and holds an action invalid if it is ultra vires the Constitution. In the second model it interprets the provision of the Constitution liberally and keeps the Constitution alive through dynamic interpretations. These interpretations are the heart of judicial review; and judicial review, so as to say, is essentially a matter of interpretation. In this way the model of judicial review took the incarnation of judicial creativity which brought out the phenomenon of judicial activism itself. Recent experiences shows that judicial review has its practice best in advanced, middle-class societies steadfastly committed to the idea of limited government.
Other phase of the role of judiciary in justice on the basis of judicial activism as Ganjenragadkar has stated: “Another ingredient of judicial process flows from the facts that the goddess of justice is reported to be blind. On most court buildings you see the statute of the goddess of justice holding the balance of justice in her hands. Blind, in this context, does not mean that the goddess does not see. It means that she is oblivious to the respective status of the parties, whether they are rich or poor, whether they are important or unimportant, whether they are ministers or ordinary citizen and whether they are Hindus, Muslims, Christians, Jews.”
Some examples based on decisions of the judiciary may clarify this further. In the case of Bandhua Mukti Morcha v. Union of India, the court discussed in detail Article 32, and what the word ‘appropriate’ in it meant. While doing so the court made it clear that what mattered were the spirit of the text and not just the literal interpretation of the text.
A similar trend can be seen in another case of M.C. Mehta v. Kamal Nath, where the Supreme Court imposed a fine on a motel for polluting a river basin and justified the imposition of the fine by stating that it was within the power of the Supreme Court under Article 32 to do the same as pollution of any element such as water which constituted ‘life’ violated the fundamental right under Article 21 of the Indian Constitution.
It is interesting to note however, that although in these cases the judiciary was not acting strictly within the limits placed in earlier cases, it took care to make it clear that it was merely pursuing the ‘realization of the constitutional objectives’, which clearly shows its interference in other organs of the state. Hence, these are the vital decisions that have conceptualized judicial activism which were enunciated by the judges in order to bring about social change.
AN OVERVIEW OF JUDICIAL ACTIVISM:
Speaking at a recent symposium, Judge Frank Easterbrook opened with an ostensibly safe sentence; every one scorns judicial activism, that notoriously slippery term. Yet even this observation cannot go unqualified. Most would agree that judicial activism is indeed slippery. But some scholars have suggested that in some contents, it is not always a bad thing. This is the problem: one can scarcely make an observation about judicial activism today without appending definitions, provisions, and qualifications.
Broadly stated, the judicial activism covers three areas: interpretation of ordinary statutes, interpretation of the constitution and what is commonly known as Public Interest Litigation (PIL), which is subject matter of raging debate in the country. Some analysts like Upendra Baxi prefer to call it the Social Action Litigation (SAL). He noted that, ‘The activism of SAL historically arose first in some High Courts, although the caste-view of judiciary in India has so far forbidden explicit recognition of this fact.
Study of Judicial Activism in India can never be completed unless Public Interest Litigation is included in it. It is a kind of constitutional adjudication in pursuit of constitutional justice, promoting the concept of Welfare State.
The concept of this principle can be justified on the ground that as the power of the bureaucracy is expanding so it is inevitable that corresponding judicial power should also expand. In this kind of litigation, the petitioner seeks to enforce or prevent a breach of general public law. The concept of PIL on the basis of judicial activism was explained by the court in the case of S.P. Gupta v. Union of India, and held that where a legal wrong or legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right, and if he is helplessness, or in socially or economically disadvantaged position, not able to approach the court for relief, then any member of the public can maintain an application for an appropriate direction, order or writ under article 32 or 226 of the Indian Constitution.
In 1973 by a thin majority of 7:6 the Supreme Court in Keshavananda Bharati v. State of Kerala, affirmed that the power to amend does not extend to destroying or abrogating the basic structure of the Constitution. This was a revolutionary concept and perhaps without a parallel anywhere in the world.
The celebrated case of the Munciapl Council, Ratlam v. Vardhichand, which is considered as a flagship of judicial activism, the Supreme Court directed that the municipality ‘shall within six months construct the Sufficient number of public latrines for the use of men and women separately, provide water supply and scavenging service morning and evening so as to ensure sanitation.
Under PIL, the scope of the writ of mandamus has also increased to a great extent, because it has been issued to compel the government to do what was within its discretion, and not to do what was not. It thus allowed for an infringement into policy matters to a certain extent.
The Supreme Court had also resorted to ‘Judicial Legislation’in many of the cases by invoking Article 142 of the Constitution, which empowers the court to give any direction for rendering complete justice implementing the same. In the case of Visakha v. State of Rajasthan, numbers of guidelines were issued by the Supreme Court to prevent ‘sexual harassment at work place’. Further, it was held that the primary responsibility of the legislature and the executive is to ensure such safety and dignity through appropriate legislation, and the creation of a mechanism for its enforcement in an accurate way.
Similarly in the case of Common Cause v. Union of India, Supreme Court had issued guidelines as to how blood transfusion could be made free from hazards. In Laxmikant Pandey v. Union of India, the Supreme Court gave directions as to what procedures should be followed and what precautions should be taken while allowing Indian children to be adopted by foreign adoptive parents. Here Justice Bhagwati laid down an entire scheme for regulating inter-country adoptions and intra-country adoptions.
In the case of Ashok Kumar Pandey v. State of West Bengal, Supreme Court stressed on the Misuse of public interest litigation and held that public interest litigation must be used with great care and circumspection. The judiciary has to be exceedingly careful to see that no ugly private malice, vested interest or seeking publicity lurks behind the splendid veil of public interest. It should be used as an effective weapon in the armoury of law for delivering ‘social justice’ to citizens. The striking brand name of public interest litigation should not be used for guarded products of mischief.
In the case of Rajiv Ranjan Singh Lalan v. Union of India, Supreme Court reiterated the principle and held that even if a case that is brought before a Court by a public interest litigant may be genuine, the Court has to decline its examination on the request of a person who is not a public interest litigant and whose bona fides are in doubt, because a trust cannot be placed by the Court on a mala fide applicant in a public interest litigation. The Courts has to take great care while exercising jurisdiction and deciding public interest litigation. The rationale for this can be stated that wide jurisdiction should not become a source of abuse of process of law by disgruntled litigant. Such careful exercise is also needed to ensure that the litigation is genuine and not goaded by extraneous considerations. Further, it imposes an obligation upon the litigant to disclose true facts and approach the Court with clean hands.
Further in the case of Shivanand Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills and Ors, held that“While exercising power under Article 136 of the Constitution, Court not only acts as a Court of law but also as a Court of equity and hence the power exercised by this Court under Article 136 must sub serve the cause of justice.”
In the case of University of Kerala v. Council, Principals', Colleges, Kerala and Ors., Supreme Court stressed on the continually violation of separation of power and explained elaborately the scope and functions of the different organs of the State under the Constitution, the validity of judicial legislation and its permissibility, its limits. Moreover, it ejaculated the validity of judicial activism and the need for judicial restraint, etc. Further, the Court observed that it is not possible for this Court (Supreme Court) or any other Court to give any direction for amending the Act or the statutory rules. It is the Parliament that amends the Act and the Rules.
In the case of Bajaj Hindustan Ltd. v. Sir Shadi Lal Enterprises Ltd. and Anr., it was held that "Courts shall not pass orders beyond its jurisdiction, unless expressly mentioned in relevant statutory provisions."
Further in the case of V.K. Naswa v. Home Secretary, Union of India (UOI) and Ors., Court held that the court can neither legislate nor issue a direction to the Legislature to enact in a particular manner.
Hence, these were several incidents where court itself had to contemplate about the problem of continually violation of separation of power and hyper judicial activism.
Speaking at a recent symposium, Judge Frank Easterbrook opened with an ostensibly safe sentence; every one scorns judicial activism, that notoriously slippery term. Yet even this observation cannot go unqualified. Most would agree that judicial activism is indeed slippery. But some scholars have suggested that in some contents, it is not always a bad thing. This is the problem: one can scarcely make an observation about judicial activism today without appending definitions, provisions, and qualifications.
Broadly stated, the judicial activism covers three areas: interpretation of ordinary statutes, interpretation of the constitution and what is commonly known as Public Interest Litigation (PIL), which is subject matter of raging debate in the country. Some analysts like Upendra Baxi prefer to call it the Social Action Litigation (SAL). He noted that, ‘The activism of SAL historically arose first in some High Courts, although the caste-view of judiciary in India has so far forbidden explicit recognition of this fact.
Study of Judicial Activism in India can never be completed unless Public Interest Litigation is included in it. It is a kind of constitutional adjudication in pursuit of constitutional justice, promoting the concept of Welfare State.
The concept of this principle can be justified on the ground that as the power of the bureaucracy is expanding so it is inevitable that corresponding judicial power should also expand. In this kind of litigation, the petitioner seeks to enforce or prevent a breach of general public law. The concept of PIL on the basis of judicial activism was explained by the court in the case of S.P. Gupta v. Union of India, and held that where a legal wrong or legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right, and if he is helplessness, or in socially or economically disadvantaged position, not able to approach the court for relief, then any member of the public can maintain an application for an appropriate direction, order or writ under article 32 or 226 of the Indian Constitution.
In 1973 by a thin majority of 7:6 the Supreme Court in Keshavananda Bharati v. State of Kerala, affirmed that the power to amend does not extend to destroying or abrogating the basic structure of the Constitution. This was a revolutionary concept and perhaps without a parallel anywhere in the world.
The celebrated case of the Munciapl Council, Ratlam v. Vardhichand, which is considered as a flagship of judicial activism, the Supreme Court directed that the municipality ‘shall within six months construct the Sufficient number of public latrines for the use of men and women separately, provide water supply and scavenging service morning and evening so as to ensure sanitation.
Under PIL, the scope of the writ of mandamus has also increased to a great extent, because it has been issued to compel the government to do what was within its discretion, and not to do what was not. It thus allowed for an infringement into policy matters to a certain extent.
The Supreme Court had also resorted to ‘Judicial Legislation’in many of the cases by invoking Article 142 of the Constitution, which empowers the court to give any direction for rendering complete justice implementing the same. In the case of Visakha v. State of Rajasthan, numbers of guidelines were issued by the Supreme Court to prevent ‘sexual harassment at work place’. Further, it was held that the primary responsibility of the legislature and the executive is to ensure such safety and dignity through appropriate legislation, and the creation of a mechanism for its enforcement in an accurate way.
Similarly in the case of Common Cause v. Union of India, Supreme Court had issued guidelines as to how blood transfusion could be made free from hazards. In Laxmikant Pandey v. Union of India, the Supreme Court gave directions as to what procedures should be followed and what precautions should be taken while allowing Indian children to be adopted by foreign adoptive parents. Here Justice Bhagwati laid down an entire scheme for regulating inter-country adoptions and intra-country adoptions.
In the case of Ashok Kumar Pandey v. State of West Bengal, Supreme Court stressed on the Misuse of public interest litigation and held that public interest litigation must be used with great care and circumspection. The judiciary has to be exceedingly careful to see that no ugly private malice, vested interest or seeking publicity lurks behind the splendid veil of public interest. It should be used as an effective weapon in the armoury of law for delivering ‘social justice’ to citizens. The striking brand name of public interest litigation should not be used for guarded products of mischief.
In the case of Rajiv Ranjan Singh Lalan v. Union of India, Supreme Court reiterated the principle and held that even if a case that is brought before a Court by a public interest litigant may be genuine, the Court has to decline its examination on the request of a person who is not a public interest litigant and whose bona fides are in doubt, because a trust cannot be placed by the Court on a mala fide applicant in a public interest litigation. The Courts has to take great care while exercising jurisdiction and deciding public interest litigation. The rationale for this can be stated that wide jurisdiction should not become a source of abuse of process of law by disgruntled litigant. Such careful exercise is also needed to ensure that the litigation is genuine and not goaded by extraneous considerations. Further, it imposes an obligation upon the litigant to disclose true facts and approach the Court with clean hands.
Further in the case of Shivanand Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills and Ors, held that“While exercising power under Article 136 of the Constitution, Court not only acts as a Court of law but also as a Court of equity and hence the power exercised by this Court under Article 136 must sub serve the cause of justice.”
In the case of University of Kerala v. Council, Principals', Colleges, Kerala and Ors., Supreme Court stressed on the continually violation of separation of power and explained elaborately the scope and functions of the different organs of the State under the Constitution, the validity of judicial legislation and its permissibility, its limits. Moreover, it ejaculated the validity of judicial activism and the need for judicial restraint, etc. Further, the Court observed that it is not possible for this Court (Supreme Court) or any other Court to give any direction for amending the Act or the statutory rules. It is the Parliament that amends the Act and the Rules.
In the case of Bajaj Hindustan Ltd. v. Sir Shadi Lal Enterprises Ltd. and Anr., it was held that "Courts shall not pass orders beyond its jurisdiction, unless expressly mentioned in relevant statutory provisions."
Further in the case of V.K. Naswa v. Home Secretary, Union of India (UOI) and Ors., Court held that the court can neither legislate nor issue a direction to the Legislature to enact in a particular manner.
Hence, these were several incidents where court itself had to contemplate about the problem of continually violation of separation of power and hyper judicial activism.
LEGITIMACY OF JUDICIAL ACTIVISM:
To make sense of legitimacy claims that abound in constitutional debates, it is essential to identify the criteria to which these claims appeals. Most recurrent disputes about judicial legitimacy involve judicial powers to recognize rights that are not relatively controversially defensible by reference to the constitution’s language and its original understanding.
The realist school of jurisprudence exploded the myth that the judges merely declared the pre-existing law or interpreted it and asserted that the judge made the law, or new law is created by the judiciary. The Supreme Court of India often described as most powerful in the world. It only makes the law, as understood in the sense of realist jurisprudence, but actually has started ‘legislating’ exactly in the way in which a legislature legislates. While doing so it transcended the limits of the judicial function which is envisaged to be kept separate and distinct from legislature and executive. This becomes triply offensive for the Doctrine of Separation of Power.
The Supreme Court in Delhi Laws case observed that the separation of powers is the essence of the Constitution. Further in the case of Ram Jawaya Kapoor v. State of Punjabit had also accepted the fact there cannot be any absolute rigidity in their separation of powers, nonetheless it was raised to the status of basic structure of the constitution in Indira Gandhi v.Raj Narain, The same was reiterated in the case of Keshavanada Bharti v. Union of India, The Court elevated this feature of separation of powers to the basic structure of the Constitution.
But then again in the case of Bhim Singh v. Union of India and Ors., Supreme Court stated that the separation of power enshrined under Indian constitution is not rigid and overlap of few functions are not unconstitutional being violative of separation of power.
Further in the case of State of Maharashtra v. Farook Mahammed Kashim Maphar, it was held that in order to protect civil liberties, fundamental rights specifically article 21, Supreme Court and High Court can exercise power ‘Sparingly’, ‘cautiously’ and in ‘exceptional situations’.
On this basis legitimacy of an action as a concept embraces three things within its fold.
Firstly it must be legally valid.
Secondly there must be a widely shared feeling among the people that they have a duty to obey the law.
Thirdly there must be actual obedience of the law by a large number of people.
So in this way the decisions of the court actually shadow the last two above-mentioned conditions of legitimacy and they go pear-shaped to satisfy the first condition because the judiciary by passing the decisions of this sort is doing nothing but acting in violation of the constitutional mandate i.e. of separation of powers.
To make sense of legitimacy claims that abound in constitutional debates, it is essential to identify the criteria to which these claims appeals. Most recurrent disputes about judicial legitimacy involve judicial powers to recognize rights that are not relatively controversially defensible by reference to the constitution’s language and its original understanding.
The realist school of jurisprudence exploded the myth that the judges merely declared the pre-existing law or interpreted it and asserted that the judge made the law, or new law is created by the judiciary. The Supreme Court of India often described as most powerful in the world. It only makes the law, as understood in the sense of realist jurisprudence, but actually has started ‘legislating’ exactly in the way in which a legislature legislates. While doing so it transcended the limits of the judicial function which is envisaged to be kept separate and distinct from legislature and executive. This becomes triply offensive for the Doctrine of Separation of Power.
The Supreme Court in Delhi Laws case observed that the separation of powers is the essence of the Constitution. Further in the case of Ram Jawaya Kapoor v. State of Punjabit had also accepted the fact there cannot be any absolute rigidity in their separation of powers, nonetheless it was raised to the status of basic structure of the constitution in Indira Gandhi v.Raj Narain, The same was reiterated in the case of Keshavanada Bharti v. Union of India, The Court elevated this feature of separation of powers to the basic structure of the Constitution.
But then again in the case of Bhim Singh v. Union of India and Ors., Supreme Court stated that the separation of power enshrined under Indian constitution is not rigid and overlap of few functions are not unconstitutional being violative of separation of power.
Further in the case of State of Maharashtra v. Farook Mahammed Kashim Maphar, it was held that in order to protect civil liberties, fundamental rights specifically article 21, Supreme Court and High Court can exercise power ‘Sparingly’, ‘cautiously’ and in ‘exceptional situations’.
On this basis legitimacy of an action as a concept embraces three things within its fold.
Firstly it must be legally valid.
Secondly there must be a widely shared feeling among the people that they have a duty to obey the law.
Thirdly there must be actual obedience of the law by a large number of people.
So in this way the decisions of the court actually shadow the last two above-mentioned conditions of legitimacy and they go pear-shaped to satisfy the first condition because the judiciary by passing the decisions of this sort is doing nothing but acting in violation of the constitutional mandate i.e. of separation of powers.
No comments:
Post a Comment