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Submitted to: Dr. Shailendra Nigam



For the past several decades, the Indian Judiciary has played a pivotal role not only in safeguarding the fundamental rights of citizens of India, but by creative interpretation of laws as well because of which we have witnessed various landmark decisions. In a country plagued by political incompetency and lethargisity of executives, Judiciary has increased its purview by getting involved in law making and interpretation process. By doing so, the Supreme Court has passed landmark judgments in topics ranging from fundamental rights, political elections, environment, corruption to reservation given to backward cast, Taj Corridor case, 2G scam and distribution of food grains to citizens below poverty line. With growing ineptness of government to tackle some of the prevailing issues, it is only time for the Indian Judiciary to adopt Judicial Activism in its full form.

Judicial dispute settlement appeals for a variety of reasons. First is the presumed impartiality of the arbitrator who decides the dispute. Second is the accessibility to justice and the opportunity given to complaining parties to put forward their claims. The impartial judge presiding over a matter brought before him by persons to whom he owes no other obligation than to render to each their just deserts, is guided by certain rules by which he must abide. He must first be conscious of the duty to decide the matter before him within the limits of his jurisdiction and not encroach on the power of others. He must comply with all relevant legal provisions, laws, bylaws, codes, and legal principles, the rules of interpretation of which are also relevant to the determination of the matter. To travel beyond the boundaries of these determinants is to engage in a willful and deliberate disregard for his limitations, and an abuse of the exercise of his judicial powers. In organized civil society, and in democratic governments in particular, although the judge is called to do justice, he receives no credit if in attempting to do justice he encroaches upon the powers of others. Theses „others‟ are those who make laws for the society, also known as legislators, and those who take the decisions on running the society, i.e. executives. Deference to the powers of other arms of government is not the only limitation on the contemporary judge. A judge must not allow personal prejudice, bias or even personal experience irrespective of relevance, to influence and reflect in his judgement. In angloAmerican legal jurisprudence there is further deference to be made by a judge, to any applicable decisions of other judges before him. He is also expected to defer to the decisions of courts higher in the hierarchy. The latin maxim stare decisis non quieta et movere, (to stand by decisions and not to disturb settled matters) binds judges in these legal systems to abide by past decisions, a concept which provides for certainty and predictability in judicial interpretation. Although civil legal systems are without the background of common law in which context this star decisis principle evolved, civil law judges are not wont to proceed with complete disregard for relevant past decisions in determining present cases. However, there may arise new circumstances, disputes involving issues that have never been considered before, and ambiguous legal provisions. Can the judge then delve into his powers of rule interpretation, dig deep into his vast milieu of experience, apply his keen knowledge of legal philosophy, or rely on his personal convictions to reach a decision? Legal scholars and jurists respond in negative. This would be „Judicial Activism‟, for to do any of this is for a judge to impose his personal preferences in his decisions to such extent as to ultimately negate the law as a body of rules to guide conduct. But what is „Judicial Activism‟? Before that we need to ask what is the role of a judge? Is it to merely to interpret the law as it exists or to make laws? While the conservatives suggests that making laws is the function of legislation and enacting them is of executive, the judiciary should not encroach on the power of other pillars of democracy and instead interpret the existing laws. But the liberals conclude that

though Judges should give judgements without and prior prejudices, sometimes circumstances do call for the judges to interpret laws creatively so as to preserve the fundamental rights of citizens. Lord Reid considered that in a democratic society the legitimacy of judicial lawmaking had to be faced. He did notagree with Lord Radcliff's solution of publicly denying one's creativity while privately exercising it-what he called the facade approach. He asserted in a famous address, "We must accept the fact that for better or worse judges do make law and tackle the question how do they approach the task and how should they approach it." Lord Denning also remonstrated that judges cannot afford to be timorous souls. They cannot remain impotent, incapable and sterile in the face of injustice. The has prevailed in your country where a frank and ruthless analysis of the judicial function and its lawmaking potential have been acknowledged and recognized. It is no doubt true that a judge has to interpret the law according to the words used by the legislature. But as pointed out by Justice Holmes, a word is not a crystal, transparent and unchanged. It is a skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used. It is for the judge to give meaning to what the legislature has said and it is this process of interpretation which constitutes the most creative and thrilling function of a judge. Plato posed the problem 2,000 years ago: Is it more advantageous to be subject to the best men or the best laws? He answers by saying that laws are by definition general rules and generality falters before complexities of life. Laws' generality and rigidity are at best a makeshift, far inferior to the discretion of the philosopher king whose pure wisdom will render real justice by giving each man his due. Aristotle was, however, in favor of the rule of the law. He said, "He who bids the law's rule bids God and reason rule, but he who bids man's rule adds the element of the beast, for desire is a wild beast and passion perverts the minds of rulers even though they be the best of men." Yet Aristotle and Plato knew that law cannot anticipate the endless permutations of circumstance and situation. There is bound to be a gap between the generalities of law and the specifics of life. This gap in our system of administration of justice is filled by the judge. In entrusting this task to the judge we have synthesized the wisdom of Plato and Aristotle. It is here that the judge takes part in the process of lawmaking. Lawmaking is an inherent and inevitable part of the judicial process. The judge infuses life and blood into the dry skeleton provided by the legislature and creates a living organism appropriate and adequate to meet the needs of the society. By thus making and molding the law he takes part in the work of creation. The judge is not a mimic. Greatness of the bench lies in creativity. It is for this reason that when a law comes before a judge he has to invest it with meaning and content. According to Mr. Justice A. H. Ahmadi, the former Chief Justice of India, judicial activism is a necessary adjunct of the judicial function because the protection of public interest, as opposed to private interest, is the main concern. Courts cannot interpret a statute, much less a constitution, in a mechanistic manner. In the case of a statute, a court must determine the actual intent of the authors. In the case of a constitution, a court must sustain the constitution‟s relevance to changing social, and political scenarios. In the words of Justice Benjamin Cardozo, a court must

give to the words of a constitution “a continuity of life and expression.” An apex court, besides deciding the law that binds all courts subordinate to it, also must make “vocal and audible” the ideals that otherwise might remain silent. The original intentions of the founding fathers do not bind a constitutional court. Rather, the court is free to interpret the constitution in terms of what the framers would have intended under the circumstances that exist at the time of such interpretation. In the absence of such judicial activism, a constitution would become stultified and devoid of the inner strength necessary to survive and provide normative order for the changing times. People‟s understanding of judicial activism depends on their conception of the proper role of a constitutional court in a democracy. Those who conceive the role of a constitutional court narrowly, as restricted to mere application of the pre-existing legal rules to the given situation, tend to equate even a liberal or dynamic interpretation of a statute with activism. Those who conceive a wider role for a constitutional court, expecting it to both provide meaning to various open textured expressions in a written constitution and apply new meaning as required by the changing times, usually consider judicial activism not as an aberration, but as a normal judicial function.

Unlike the United States Constitution, the Indian Constitution expressly provides for judicial review in Article 13, clause (1), that says that all laws that were in force in the territory of India immediately before the adoption of the Constitution, in so far as they are inconsistent with the provisions containing the fundamental rights, shall, to the extent of such inconsistency, be void. Clause (2) of that article further says that the states shall not make any law that takes away or abridges any of the fundamental rights, and any law made in contravention of the aforementioned mandate shall, to the extent of the contravention, be void. The Constitution also divides the legislative power between the centre and the states and forbids either of them to encroach upon the power of the other. The courts decide whether a legislature or an executive has acted in excess of its powers or in contradiction to any of the constitutional restrictions on its power. Some members of the Constituent Assembly criticized the Constitution for being a potential lawyers‟ paradise. Others, like Dr. B. R. Ambedkar, defended the provisions of judicial review as being necessary. According to Dr. Ambedkar, the provisions for judicial review, in particular the writ jurisdiction that gave quick relief against the abridgment of fundamental rights, constituted the heart of the Constitution; the very soul of it. The National Movement for Independence favored a constitutional bill of rights that would act as a bulwark against state authoritarianism and assuage the fears of the religious minorities. The Nehru Committee, which gave its report on Fundamental Rights in 1928, strongly recommended that the future constitution of India contain a declaration of fundamental rights. The British

government, however, rejected the Indian demand and did not incorporate a declaration of fundamental rights in the Government of India Act of 1935. The British Simon Commission rejected the proposal for a declaration of fundamental rights based on the traditional British distrust of such declarations. Interestingly, the draft submitted by Mr. Atlee to the Committee recommended incorporation of a declaration of fundamental rights. Mr. Atlee later became the prime minister of England during Indian independence. Professor Ramswami suggested36 that precise framing of the declaration would avoid large-scale invalidation of the laws by the courts.
Judicial Activism from 1950 to 1975

The supreme Court of India began as a positivist court and strictly followed the traditions of the British courts. In A.K. Gopalan v. State of Madras the Court declined an invitation made on behalf of the petitioner, Mr. Gopalan, a communist leader who had been detained under a law of preventive detention, to read the provisions of the Constitution liberally so as to give effect to the spirit of the Constitution rather than remaining in the confines of its text. The Court gave a narrow construction to words such as “personal liberty” and “procedure established by legitimated law” contained in Article 21 of the Constitution. In matters of personal liberty as well as regulation of the economy, the Court observed judicial restraint and legitimated the actions of the government. These were the days of the welfare state and the Court was supposed to legitimize the expanded sphere of the State and its powers. The Court and Parliament clashed only on the scope of the right to property. Parliament wanted to usher in a radical programme of changes in property relations and the Court had adopted the policy of interpreting the right to property expansively so as to impede such program. Since the Constitution allowed Parliament to amend the constitution, a decision of the Court could be circumvented. Since the Constitution could be amended by a majority vote of two-thirds of the members present and voting and an absolute majority of the total membership in each house of Parliament, and the ruling party could easily muster such majority, the Court‟s decisions could not obstruct the property rights reforms. While on the topic of the right to property the Court was humbled, it had started interpretin g other provisions of the Constitution more meaningfully so as to expand the rights of the people. In 1962 in Sakal Newspapers (Private) Ltd. India, it held that a law which prescribed the number of pages, price and space for advertisement of a newspaper violated the freedom of the press, which was included in freedom of speech guaranteed by Article 19(1)(a) of the Constitution. The Court held that unlike any other business which could be regulated in the interest of the general public as provided by Clause (6) of Article 19, the press could be restricted only on the specific grounds given in clause (2) of that Article, such as the sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation, or incitement to an offence. The Court thus inferred the doctrine of preferred freedoms from the subtle distinction between Clauses (2) and (6) of

Article 19. Similarly, the Court held that affirmative action programs in favor of discriminated classes of people enjoined by Clause (4) of Article 15 had to complement, and not contradict, the general provision contained in Article 15(1), which forbade discrimination on grounds such as religion, race, caste, sex or place of birth. Reserved seats in educational institutions or jobs in government service could be reserved for discriminated classes without eliminating the right to equality. Therefore discriminated status should not be determined on the basis of caste alone, though it could be one of the factors for such a determination, and the total number of seats or jobs reserved should not exceed more than half of the total number of seats or jobs available. This was judicial activism during the sixties. During the late sixties, the Court seems to have become bolder, and it soon challenged Parliament‟s power to amend the Constitution. This brought about a major confrontation between the Court and Parliament. In 1967, the Court, by a thin majority of 6-5, held in Golaknath v. Punjab that Parliament could not amend the Constitution to take away or abridge fundamental rights. This decision was severely criticized. Parliament retaliated by passing the Twenty-Fourth Amendment which explicitly stated that Parliament was not limited in its power of constitutional amendment. When that amendment was challenged, the Court, sitting in its largest strength of 13 judges held in Kesavanand Bharati v. Kerala that although Parliament could amend every provision of the Constitution, it could not alter the basic structure of the Constitution. This decision seemed most unsustainable and contrary to the theory of judicial review. It seemed to wrestle supremacy to a non-elected court and against the elected Parliament. However, during the 1975 emergency, the ruling party passed such draconian amendments with the help of its brute majority and absence of any political opposition that the limitation upon Parliament‟s power of constitutional amendment acquired legitimacy. The Supreme Court struck down in Indira Gandhi v. Raj Narain a constitutional amendment which sought to validate the election of the Prime Minister, earlier set aside by the Allahabad High Court on some technical ground deemed destructive of the basic structure of the Constitution. Could the power of constitutional amendment, which is legislative in nature, be used for settling a dispute between two private parties regarding an election? This was a manifest example of the possibility of abuse of such power if given without any limits. That decision conferred legitimacy on the basic structure doctrine. That doctrine is posited on the hypothesis that the power of constitutional amendment could not be equal to the power of making a constitution. The power of constitutional amendment could not be used for repealing the entire constitution. The identity of the original constitution must remain in tact. This doctrine imposes a restriction on the power of the majority and is in that sense a counter majoritarian check on democracy in the interest of democracy. That power made the Indian Supreme Court the most powerful apex court in the world. It also made it a political institution because the ultimate determination of a basic structure was bound to be a political judgment. II. POST-EMERGENCY ACTIVISM: FUNDAMENTAL RIGHTS

The post emergency period (1977-98) is known as the period of judicial activism because it was during this period that the Court‟s jurisprudence blossomed with doctrinal creativity and processual innovations. Activism, however, can easily transcend the borders of judicial review and turn into populism and excessivism. Activism is populism when doctrinal effervescence transands the institutional capacity of the judiciary to translate the doctrine into reality, and it is excessivism when a court undertakes responsibilities normally discharged by other co-ordinate organs of the government. Before the Court embarked upon activism, it had to overcome the negative image that it had acquired from its decision in A.D.M. Jabalpur v. Shivakant Shukla.
A. The Fundamental Rights Case: Judicial Surrender

Although the Supreme Court of India became the most powerful apex court due to its power to invalidate even a constitutional amendment, its institutional weakness was ultimately revealed through its decision in A. D. M. Jabalpur.46 Article 352 of the Constitution provides for the proclamation of an emergency by the President “if he is satisfied that a grave emergency exists whereby the security of India or any part of the territory of India is threatened, whether by war or external aggression or internal disturbance.” This was the third proclamation made under Article 352 made since the commencement of the Constitution. The two previous proclamations were in response to wars with China in 1962 and Pakistan in 1971. Proclamations of emergency made under Article 352 suspend the fundamental rights guaranteed by Article 19: freedom of speech and expression; freedom to assemble peacefully without arms; freedom to form associations; freedom to move within the territory of India; freedom to reside and settle in any part of the territory of India; freedom to acquire, hold, and dispose of property; and freedom to practice any profession, or to carry on any occupation, trade or business. Any law made in derogation of those rights and any executive action taken under such a law is valid until the proclamation of emergency is revoked. The President has the power to suspend the right to move any court for the enforcement of any fundamental rights during their suspension. During the 1975 emergency, the President issued an order under Article 359 of the Constitution suspending the right to move any court to enforce the fundamental rights guaranteed by Articles 14, 21 and 22 of the Constitution. In Makhan Singh v. Punjab, which arose out of a similar order issued by the President during the first emergency declared in 1962, the Court held that while one could not assert his right to life or personal liberty guaranteed by Article 21 of the Constitution, one could ask the Court to examine whether an order was ultra vires or whether the authority acted mala fide. However, the 1975 emergency and the 1962 emergency differed greatly. Under the 1962 emergency, maximum care was taken to cause minimum abridgement of personal liberties. Alternatively, under the 1975 emergency, maximum care was taken to ensure that no vestige of liberty survived. The Attorney General, Niren De, argued that during a

proclaimed emergency, even if the executive killed a person or imprisoned a person, it would not invite the Court to examine the validity of such actions. What did the suspension of the right to move any court for the enforcement of the fundamental right to life and liberty guaranteed by Article 21 mean? Did the rule that the executive could not take away an individual‟s liberty unless the law authorized such a taking of liberty emanate from Article 21? Or did it exist independently of that Article as a basic principle or rule of law? The respondents in Makham Singh wanted the Court to examine whether the acts of detention were in accordance with the provisions of the Maintenance of Internal Security Act (MISA) under which they had been ordered. After suspension of the right given by Article 21, did “liberty” in the Hohfeldian sense survive under Article 372 of the Constitution? Was “liberty” of an individual not anterior to Article 21 of the Constitution?. Even courts in colonial India gave protection to liberty by insisting that the executive must act according to law. Was the liberty that Indian citizens possessed different from the liberty in English constitutional law, where supremacy of Parliament is a constitutional axiom? The questions posed were whether persons were detained according to law, whether the law authorizing the detention was valid, and whether the executive had applied its mindor whether it had acted mala fide. The court considered these questions in appeals filed against the decisions of the seven High Courts—Allahabad, Bombay, Delhi, Karnataka, M. P., Punjab and Rajasthan—in which Attorney General Niren De had argued to reject the petitions in limine. In the Supreme Court, the Attorney General argued that the Court may grant relief only if the order of detention was bad on its face. It would be facially invalid if it was passed by a person not authorized to pass it or was passed for a purpose outside those mentioned in the MISA. The majority held, 4-1, that no court could examine the actions of the executive. The four majority Justices who upheld the government‟s power eventually became the Chief Justices of India. The dissenter, Justice Khanna, paid the price for his judgment when he was superseded by a junior Justice and not appointed Chief Justice. The decision in the Jabalpur case was severely criticized. Even the judges following the black letter law tradition would not have rendered such a decision. The black letter law always gives maximum protection to individual liberty through various common law statutory interpretation devices. The English courts have always applied a rule of strict interpretation to statutes that impinged on individual liberties. When two interpretations are possible, the courts prefer the interpretation most favorable to the citizen. In Jabalpur, the Supreme Court held that the basic principle of law, that people could not be divested of their liberties unless they committed a breach of the law, did not survive the proclamation of emergency. The Supreme Court had struck down a constitutional amendment as

against the basic structure of the Constitution in the Prime Minister Election Case56 just a few months before Jabalpur. The Court did not consider the respondents‟ argument that the above principle of law, part of the basic structure of the Constitution, could not be whittled down through Presidential orders issued under Article 359 of the Constitution. If the Court could void a constitutional amendment contrary to the basic structure of the Constitution, why could it not void an order of the President issued under Article 359 of the Constitution that resulted in the elimination of one of the most basic features of the Constitution? It was strange that the argument of fear, accepted in Kesavanand Bharati and realized in the Prime Minister Election Case, could not be invoked against the order of the President suspending access to courts for the enforcement of the rule of law. The complaisancy of the judges was obvious.
B. The End of Emergency and Elections

In 1977, Prime Minister Indira Gandhi advised the President to dissolve the Lok Sabha and hold new elections. All of the non- Congress political parties, except for the Communist parties and some regional parties, formed a single political party called the Janata Party to fight the election. As a result, the Congress party lost heavily and even Prime Minister Indira Gandhi was defeated in her own constituency. Since the Janata party was a conglomeration of various parties with contradictory ideologies and interests, it was bound to be short lived and, in fact, it ended within two years. However, during the short period of its rule, the Janata party amended the Constitution by expunging those draconian elements added to the Constitution in 1976 by the Forty Second Amendment.60 In 1978, the Forty-Fourth Amendment changed the emergency in the following ways: (1) it substituted the words “armed rebellion” in place of the words “internal disturbance” in clause one of Article 352 to make the promulgation of emergency more difficult; (2) in Article 359, which enabled the President to suspend the right to move any court in respect to the fundamental rights as mentioned by him in his order, the words “except Articles 20 and 21” were added in order to preserve the rights given by those Articles The Supreme Court realized that its decision in the Jabalpur cost it the social esteem that it enjoyed. Although in the Prime Minister Election Case, it managed to satisfy both the constituencies of the government and the people, it failed to satisfy the people‟s constituency in Jabalpur.
C. Post-Emergency Activism: Atonement for the Past or Self -Legitimization for the Future?

Post emergency judicial activism grew out of the realization that narrow construction of Constitutional provisions like Article 21 in A. K. Gopalan v. State of Madras63 was contradic ting the Court‟s liberal stance in the basic structure cases.64 If the Court had envisioned a more positive role for itself in Indian democracy through the basic structure doctrine, it could no longer continue to adopt a positivistic role while interpreting other provisions of the Constitution. Although the Indian judiciary was considered impartial and principled, its jurisprudence was

essentially for property owners, princes, political leaders and, at the most, civil servants. The political opposition had also not been very sanguine of the Court‟s jurisprudence. From Gopalan to ShivKant Shukla , the dissenters had not received its sympathetic consideration. The legal positivism of the Court helped the political establishment over the political dissenters and the property owners over the economic reformers. The small man could not afford the luxury of the Court‟s judicial review. The Court must have obviously realized that in the Indian democracy, high public esteem alone enabled the Court to withstand the intolerance of a hegemonic executive. During the emergency the Court had learned that it could not stand up against the executive on its own during the emergency. For the common people, the Court was an elitist institution which supported the political establishment. The Court‟s fight with Parliament over right to property appeared to the common people to be a mock fight between an elitist court and a majoritarian legislature. The Court is, after all, a weak institution. Post-emergency judicial activism was probably inspired by the Court‟s realization that its elitist social image would not make it strong enough to withstand the future onslaught of a powerful political establishment. Therefore consciously or unconsciously, the Court began moving in the direction of the people. I would not, however, share Professor Baxi‟s optimism that the Court, for the first time, became the Court for the Indians, because even now the Court continues to be inaccessible to a large number of Indians and justice remains elusive to many because of its delays, expense and formalism. Nonetheless, in relative terms, the Court became much more accessible and its doctrinal law more people -oriented. For this, the Court adopted two strategies: (1) it reinterpreted the provisions for fundamental rights in a more liberal manner in order to maximize the rights of the people, particularly the disadvantaged; and (2) it facilitated access to the courts by relaxing its technical rules of locus standi, entertaining letter petitions or acting suo moto, and developing pro-active public law technology for the enforcement of human rights.
D. Article 21: Life, Liberty, and Due Process of Law

Article 21 of the Constitution was bound to be the first on the Supreme Court‟s agenda because its restrictive interpretation in Gopalan67 and its total demise in Jabalpur68 made the important fundamental right to life and liberty entirely dependent on the sweet will of the parliamentary majority. The Constituent Assembly had purposely rejected the expression “due process of law,” which was the source of judicial activism in the United States, and instead adopted a more specific expression: “procedure established by law.” The Supreme Court of India had interpreted these words very narrowly in Gopalan. Article 21 of the Constitution says that “no person shall be deprived of his life or personal liberty except according to procedure established by law.” In Gopalan, the Supreme Court held that the words “personal liberty” meant only freedom from arbitrary arrest and that the words “procedure established by law” meant such procedure as was prescribed by any statute. Article 19, which guaranteed the seven fundamental rights, included the right to move freely within the territory of

India. The State may impose reasonable restrictions upon that right “in the interests of the general public or for the protection of the interests of the Scheduled tribes.” Some argued that where people were detained under a law of preventive detention, their rights to move within the territory of India guaranteed by Article 19(1)(d) was restricted; therefore, the state should prove that the law of preventive detention was a reasonable restriction upon freedom in the interests of the general public as required by clause five of Article 19. The Court, however, held that only free persons had rights given by Article 19. Unless the state arrested a person for making a speech, holding an assembly, forming an association, or for entering a territory, the arrest had to be according to law and the validity of such arrest or detention could only be examined with reference to the person‟s right to personal liberty guaranteed by Article 21, and not with reference to any of the rights guaranteed by Article 19. The Court distinguished direct restrictions on any of the seven rights guaranteed by Article 19 and indirect restrictions on those rights consequent upon detention. Detention for preventing a person from exercising any of the freedoms guaranteed by Article 19(1) constituted a direct restriction on those freedoms, but detention for preventing the person from causing breach of public order or subverting the security of the state caused an indirect restriction on those freedoms. For example, if a person is detained for theft or murder, the law authorizing detention (the Indian Penal Code) need not be examined from the standpoint of Article 19; however, if a person is detained for committing sedition or obscenity, the detention must also be valid under Article 19. In the first case, the denial of liberty results in a restriction on the freedoms guaranteed by Article 19, however, in the second case, the denial of freedoms results in the denial of liberty.

As in any constitutional democracy, the Supreme Court‟s primary role is to interpret the Indian Constitution. However, as in the United States, the line between interpretation of law and making laws often gets blurred in Supreme Court rulings. The “basic structure” doctrine, articulated by the Indian Supreme Court in the landmark Kesavananda case, more about which later, means that that the Court can nullify any legislation that it thinks runs counter to the fundamental principles of the Constitution. This seeks to place the Court as the final arbiter of the Constitution. A leading legal scholar, Upendra Baxi, has this to say about the Indian courts: “The question is not any longer whether or not judges make law. Rather the questions are: what kind of law, how much of it, in what manner, within which selfimposed limits and to what willed results and with what tolerable accumulation of unintended results, may the judge make law?” During the first decade and a half of the Supreme Court‟s existence, it is estimated to have struck down 128 pieces of legislation. Of the first 45 amendments to the Constitution, about half were aimed at curbing the judiciary. Hence, Baxi describes the Indian Supreme Court as “probably the only court in the history of humankind to have asserted the power of judicial review over

amendments to the Constitution.” Relations between the judiciary and the other two branches have been exceptionally bumpy in the last few years. It even led the mild-mannered prime minister of India, Manmohan Singh, to complain in April last year that “the dividing line between judicial activism and judicial overreach is a thin one . . . A takeover of the functions of another organ may, at times, become a case of over-reach.” In the post-Emergency era, the courts would significantly expand their scope of operation through the Public Interest Litigation (PIL) revolution from the 1980s. Chief Justice P. N. Bhagwati, who was one of the prime movers behind the idea of PILs, said in a historic judgment in Bandhua Mukti Morcha v Union of India: “Public interest litigation is not in the nature of adversity litigation but it is a challenge and opportunity to the Government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social and economic justice, which is the signature tune of our Constitution.” In the PIL cases, the Court has allowed a wide range of matters to be heard. Letters addressed to the Court are entertained as PILs so long as they meet guidelines. The guidelines, as listed by the Supreme Court, cover a wide range of issues. As clause 8 of the Court‟s guidelines says, petitions “pertaining to environmental pollution, disturbance of ecological balance, drugs, food adulteration, maintenance of heritage and culture, antiques, forest and wild life and other matters of public importance” would be admitted. On the one hand, this has made access to the courts easier; on the other it has enabled the courts to dramatically expand their powers. The Court‟s PIL initiatives have allowed judges to force widespread policy changes and implementation in a host of areas. Many of these initiatives have been welcomed by the public and a media fed up with a slow moving and messy political process. Indeed, the Court‟s interventions have quite often provided for quick and beneficial remedies. For instance, in the celebrated Visakha case31 in 1997, the Supreme Court defined sexual harassment and issued several directions to prevent harassment of women in the workplace. Again, to cite a few instances, the Court has given relief to bonded labor, ensured implementation of midday meals in schools and cleaned up the air in New Delhi.

A Fine Balance
Judicial activism, which is at the heart of the recurrent battles between the judiciary and the other branches, raises profound questions about the role of a judiciary in a democracy that is marked by glaring contradictions in all spheres of life. The judges themselves are well aware of this. In the judgment by Justices Mathur and Katju, referred to earlier, the Court observed,

“If the legislature or the executive are not functioning properly it is for the people to correct the defects by exercising their franchise properly in the next elections and voting for candidates who will fulfill their expectations, or by other lawful methods e.g. peaceful demonstrations. The remedy is not in the judiciary taking over the legislative or executive functions, because that will not only violate the delicate balance of power enshrined in the constitution, but also the judiciary has neither the experience nor the resources to perform these functions.” In another ruling in 2008, Justice Katju raised questions about the impact of PILs: “PIL which was initially created as a useful judicial tool to help the poor and the weaker sections of society who could not afford to come to the courts, has in course of time, largely developed into an uncontrollable Frankenstein and a nuisance which is threatening to choke the dockets of superior courts obstructing the hearing of genuine and regular cases which have been waiting to be taken up for years together.” This also highlights how much the judiciary is stretched in tackling an ever-increasing backlog of cases. CJI K. G. Balakrishnan has recently pointed out that there are 3.65 million pending cases in the high courts and another 24.8 million cases in the lower courts. One of the reasons for the mountain of cases is the absurdly low number of judges for a population of 1.1 billion litigious Indians. India‟s population-to-judge ratio is one of the lowest in the world. While the United States and the United Kingdom have about 100 to 150 judges for every million of its population, India has a mere ten judges for every million people. The huge backlog of cases threatens to seriously affect the functioning of courts as well as impact the rule of law in India. The Supreme Court has now realized its proper role in a welfare state and it is using this new strategy not only for helping the poor by enforcing their fundamental rights of persons but for the transformation of the whole society as the ordered and crime free society. The Supreme Court‟s pivotal role in making up for the lethargy of the legislative and inefficiency of the executive is commendable. Those who opposed the growing judicial activism of the higher courts do not realize that it has proved a boon for the common man. Judicial activism has set right a number of wrongs committed by the states.

Protection against inhuman treatment
In Sunil Batra versus Delhi Administration- it has been held that the writ of habeas corpus can be issued not only for relating a persona from illegal detention but also protecting prisoners from inhuman and barbarous treatment.

In Veena Sethi versus state of Bihar the court was informed through a letter that some prisoners, who were insane at the time of trial but subsequently declared sane were not released due to inaction of state authorities and had to remain in jail from 20 to 30 years. The court directed that they be released forthwith.

Child Welfare
In Laxmikant Pandey versus Union of lndia" Writ petition was filed on the basis of a letter complaining of malpractices indulged in by several organization and voluntary agencies engaged in the work of offering Indian children in adoption to foreign parents. It was alleged that in the guise of adoption Indian children of tender age were not only exposed to the long dreadful journey to distant foreign countries at greater risk to their lives but in case they survive they were not provided only shelter and relief homes in course of time they become beggars or prostitutes for want of proper care. J. Bhagwati laid down principles and norms which should be followed in determining whether a child should be allowed to the adopted by foreign parents with the object of ensuring the welfare of the child his lordship directed the government and various agencies dealing with the matter to follow these principles in such cases as it is their constitutional obligation under Article 15(3) and 39(C) and (f) ensure the welfare of the child. In M.C. Mehta versus state of Tamil Nadu5 it has been held that the children cannot be employed in match factories which are directly connected with the. manufacturing process as .it is a hazardous employment within the meaning of employment of children Act 1938. They can, however, be employment packing process but it should be done in are away from the place of manufacture to avoid exposure to- accident. Every children must be insured for a sum of Rs. 15,000/- and premium to be paid by employer a condition of service.

Protection of Ecology and Environmental Pollution
Supreme Court ordered the closure of certain limestone quarries on the ground that these were serious deficiencies regarding safety and hazards, In them. The court had appointed a committee for the purpose of inspecting certain limestone quarries. The committee had suggested the closure of certain categories of stone quarries having regard to adverse impact of mining operations therein. Large scale pollution was caused by limestone quarries adversely affecting the safety and health of the living in the area. In Shri Ram food and fertilizer case the Supreme Court directed the company manufacturing hazardous and lethal chemicals and gases posing danger to health and life of workmen and people living In its neighborhood, to take all necessary safety measures before reopening the plant. There was a leakage of chlorine gas from the plant resulting in death of one person and causing hardships to-work as and residents of the locality.

Professional Ethics and Medical men
In Parmanand Katara versus Union of India the Supreme Court has held that it is a paramount obligation of every medical (private or government) to give medical aid to every injured citizen brought for treatment immediately without waiting for procedural formalities to be completed in order to avoid negligent death.

Power to Commute Death Sentence into Life Imprisonment
In Harbans Singh versus State of U.P.17 it was held that under Article 32 very wide power has been conferred on the Supreme Court for due and proper administration of justice. This inherent power is to be exercised in extraordinary situations in the large interests of administration and for prevention of manifiest injustice. 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.

Rape of working women-guidelines for rehabilitation and compensation
In a significant judgement in Vishakha versus state of Rajasthan the Supreme Court has laid down exhaustive guidelines for preventive sexual harassment of working women in place of their work until alegislation is enacted for this purpose. The court held that it is the duty of the employer or other responsible person in work place and other institutions, whether public or private to prevent sexual harassment of working women.

Corruption in public life and PIL
The PIL has proved to be a strong and potent weapon in the hand of the court enabling it to unearth many scams and corruption cases in public life and to punish the guilty involved in those scans. Howala scam, uria scam, fodder scam in Bihar, St. Kit's scam, Ayurvedic Medicines scam' and illegal Allotment of government Houses and petrol pumps have come to light through the public interest litigation, certain social organisations and public spirited individuals filed a writ petitions in the Supreme Court and High Courts by way of public interest litigation requesting court to inquire and punish those who are found guilty of by passing laws of the country and misusing their official positions in public life.

Directions to make CBI independent and efficient
In a significant judgement in Vineet Narayan versus Union of India court has issued directions to make the CBI independent agency so that it may function more effectively and investigate

crimes and corruptions at hiqh places in public life which poses a serious threat to the integrity, security and economy of the nation and to take necessary measure to prosecute the guilty. The matter was brought before the court by way of a public interest litigation under Article 32 of the constitution. It was contended that the government agencies, like the CBI and the revenue authorities has failed to perform their duties and legal obligations in as much as they has failed to investigate matters arising out of the seizure of the "Jain diaries" and to prosecute all persons who were found to have committed an offence.

Custodial Death
In Nilabati Bahere versus state of Orissa 22 the Supreme Court has laid down the principle on which compensation is to be awarded by the court under Article 32 and 226 to the victim of state action. The object to award compensation in public law proceedings under Article 32 and 226 is Different from compensation in private tort law proceeding. Award of compensation in proceeding under Article 32 and 226 is a remedy available as a defense in private law in an action based on tort. The purpose of public law is not only to civilize that they live under a legal system which aims to protect their interests and preserve their rights. The payment of cornpensation in such cases to provide relief by way of "monetary amends" for wrong done due to breach of public duty of not protecting the fundamental rights of the citizen.

Amidst the political incompetency of tackling the social issues prevailing in the society right now, the judiciary has emerged as the last hope to common man. In a remarkable judgment delivered in 2007 by a two-judge bench of the Supreme Court, Justices A. K. Mathur and Markanday Katju deviated from the case before them and pronounced: “Recently, the Courts have apparently, if not clearly, strayed into the executive domain or in matters of policy. For instance, the orders passed by the High Court in recent times dealt with subjects ranging from nursery admissions, unauthorized schools, criteria for free seats in schools, supply of drinking water in schools, number of free beds in hospitals on public land, requirements for establishing a world class burns ward in the hospital, the kind of air Delhites breathe, begging in public, the use of sub-ways, the nature of buses we board, the legality of constructions in Delhi, identifying the buildings to be demolished, the size of speedbreakers on Delhi roads, auto-rickshaw over-charging, growing frequency of road accidents and enhancing of fines etc.” Time and again the Indian courts have come to rescue the common man whenever his fundamental rights have been infringed upon. With changing times and changing political landscape the Indian Judiciary has to adapt itself to tackle array of issues. Now the Indian courts

are closing scrutinizing the work of investigating authorities like police and CBI by making individual panels.

1. Aravali Golf Club v Chander Hass, Appeal (civil) 5732 of 2007. The case was about gardeners in the employment of Haryana Tourism Corporation performing the duties of tractor drivers. 2. AIR 1973 SC 1461 3. Upendra Baxi, Courage, Craft and Contention: The Indian Supreme Court in the Eighties (Bombay: N. M. Tripathi Ltd., 1985), p. 3. 4. Aravali Golf Club v. Chander Hass, Appeal (civil) 5732 of 2007 5. Common Cause v. Union of India (2008). 6. C.A.D. Vol. 7. 700. 7. C.A.D. Vol. 7. 953. See B. SHIVA RAO, THE FRAMING OF INDIA‟S CONSTITUTION 311 (N.M. Tripathi ed., 1968) [hereinafter SHIVA RAO]. 8. SHIVA RAO, supra note 32, at 173. 9. Report of the Joint Committee on Indian Constitutional Reform, part I, para. 366 (1934) (H. M. Stationary Office, London). 10. RAMASWAMI, FUNDAMENTAL RIGHTS (1946). Sir Maurice Gwyer, the Chief Justice of the Federal Court of India, agreed with the author‟s view in the Forward to Ramaswami‟s book. 10. A.I.R. 1950 S.C. 27. 11. INDIA CONST. art. 368. 12. A.I.R. 1962 S.C. 305 13. Balaji v. Mysore, A.I.R. 1963 S.C. 649. 14. A.I.R. 1967 S.C. 1643.

15. A.I.R. 1973 S.C. 1461. 16. A.I.R. 1975 S.C. 2299.

17. See Ronald Dworkin, TAKING RIGHTS SERIOUSLY (Gerald Dvekworth & Co. 1977). 18. A.I.R. 1976 S.C. 1207. 19. See Makhan Singh, A.I.R. 1964 S.C. at 381. 20. See, e.g., SEERVAI, supra note 3; UPENDRA BAXI, THE INDIAN SUPREME COURT AND POLITICS 79-120 (1980). 21. Indira Nehru Gandhi v. Raj Narain, A.I.R. 1975 S.C. 2299. 22. A.D.M. Jabalpur, A.J.R. 1976 S.C. at 1349. 23. S.P. Sathe, Judicial Activism: The Indian Experience, 6 Wash. U. J. L. & Pol‟y 029 (2001)

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