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GURU GOBIND SINGH


INDRAPRASTHA UNIVERSITY

SOCIAL JUSTICE BENCH OF SUPREME


COURT: A NEW DEVELOPMENT

UNIVERSITY SCHOOL OF LAW AND LEGAL


STUDIES

SUBMITTED BY
MOHIT LATHWAL SUBMITTED TO:
03116503512 MR. M.SAKTHIVEL
(Assistant Professor)
BBA LL.B., USLLS, GGSIPU
10th Semester
DECLRATION

I hereby declare that this dissertation titled “Social Justice Bench of Supreme Court: A New
Development” is a record of bonafide research carried out by me under the supervision and
guidance of Assistant Professor Mr. M.Sakthivel , USLLS and that it has not previously
formed the basis for the award of any degree, diploma title or recognition in this or any other
university.

Mohit Lathwal

03116503512

BBA LL.B.,

10th Semester

[i]
CERTIFICATE

th
I have the pleasure to certify that Mohit Lathwal , 03116503512, a student of 10 Semester,
BBA LL.B., University School of Law and Legal Studies, New Delhi has pursued his
research work and prepared the present dissertation titled “Social Justice Bench of Supreme
Court: A New Development ” under my supervision and guidance. To the best of my
knowledge, the dissertation is the result of his own research. This is being submitted to
GGSIP University for the Degree of Bachelor of Law in partial fulfillment of the
requirements of the said Degree.

Mr. M.Sakthivel
(Assistant Professor)
USLLS
GGSIPU
Dwarka, Sec 16C,
New Delhi 110078

[ii]
Table of Contents

Contents
Ch.
No. Pg.
Introduction 1-4

Statement of problem 4

Hypotheses 5

Scope of research 5

Aims and objectives of research 6

Research methodology 6

Chapter 1 7-19

Evolution of Public Interest Litigation

1.1 The conventional rule of locus standi 7

1.2 Liberalization of the rule of locus standi 8-11

1.3 The concept of Public Interest Litigtion 11-18

1.4 Subjects of Public Interest Litigation 18-19

Chapter 2 20-61

THE ROLE OF THE SUPREME COURT IN PROVIDING SOCIAL JUSTICE

2.1 Rights of the Transgenders and Bisexuals 20

2.1.1 The Naz Foundation case 20-24

2..1.2 Naz Foundation case and the Transgenders case- A Distinction 24-25

2.2 The right to maintenance of Muslim divorced women 25-29

2.3 Problems of prisoners and undertrials 29

2.3.1 Right to free legal aid 29-33

2.3.2 Right to speedy trial 33


[iii]
2.4 Protection of child rights 33-

2.4.1 Attitude of the Supreme Court towards the evil of Child Labour 34-36

2.4.2 Sexual Abuse of Children 37

2.4.3 Child Trafficking 37-40

2.4.4 Rape of a Minor 40

2.4.5 Child Delinquency and Neglected Children of Juvenile 41

2.4.6 Other cases relating to child rights 41-43

2.5 Rights of Bonded Labourers 43-48

2.6 Backward classes and their protection 49-50

2.7 Abolition of Untouchability 50-51

2.8 Upholding the dignity of women 51-56

2.9 Right to Food 56-59

2.10 Other specific instances 59-61

Chapter 3 62-75

Is the Supreme Court transgressing the doctrine of separation of powers?

3.1 Doctrine of Separation of Powers 62-64

3.2 Judicial Activism of the Supreme Court of India 64-67

3.3 Article 32 and Article 142 Jurisprudence 67-71

3.4 Other Examples Where the Court Issued Guidelines 71

3.5 The Bounds of the Supreme Court's Activism 71-72

3.6 Has the Supreme Court in its activism failed to respect the Constitution? 72-75

Chapter 4 76-80

[iv]
Compliance of Directives

Conclusion and Suggestions 81-84

Bibliography 85

[v]
Table of Cases

S. No. Case Citation

1. Minerva Mills Ltd. & Ors vs Union Of India & Ors 1981 SCR (1) 206

2. All India Statutory Corporation v. United Labour Union AIR 1997 SC 645

3. M.H.Hoskot v. State of Maharashtra AIR 1978 SC 1548

4. KesavanandaBharati v. State of Kerala AIR 1973 SC 1461

5. Union of India v. Sankalchand A.I.R. 1977 S.C. 2328

6. PUDR vs. UOI AIR 1982 SC 1473

7. S. P. Gupta v. Union of India AIR 1982 SC 149

8. Guruvayur Devaswom Managing Commit. vs. [J.T. 2003 (7) S.C. 312]
C.K. Rajan and Ors
9. Indian Banks’ Association, Bombay and ors vs. Appeal (civil) 4655 of 20
M/s Devkala Consultancy Service and Ors.
10. M.C. Mehta v. State of Tamil Nadu AIR 1997 SC 699

11. Hussainara Khatoon v. Bihar A.I.R. 1979 S.C. 1360

12. Bandhua Mukti Morcha v. Union of India A.I.R. 1984 S.C. 802

13. Sunil Batra v. Delhi Administration A.I.R. 1978 S.C. 1675

14. Kadra Pahadiya v. State of Bihar A.I.R. 1981 S.C. 939

15. Sudipt Mazumdar v. State of M. P (1983) 2 S.C.C. 258

16. Azad Riksha Pullers Union v. Punjab A.I.R. 1981 S.C. 14

17. Olga Tellis v. Bombay Municipal Corporation A.I.R. 1986 S.C. 180

18. Munna v. State of U.P A.I.R. 1982 S.C. 806

19. Gaurav Jain v. Union of India, A.I.R. 1997 S.C. 3021

[vi]
20. Dr. Upendra Baxi v. State of U.P (1983) 2 S.C.C. 308

21. Naz Foundation v. Govt. of NCT of Delhi WP(C) No.7455/2001


In Delhi HC
22. State of West Bengal v Anwar Ali Sarkar AIR 1952 SC 191

23. Suresh Kumar Koushal and another v Civil Appeal No.109


NAZ Foundation and Others 2013 in Supreme Co
India
24. Nalsa v. UOI Writ Petition (Civil) N
of 2012 in Supreme Cour
25. Ahmed khan vs. Shab Bano 1985 SCR (3) 844

26. Danial Latifi v. Union of India (2001) 7 SCC 740

27. Badshah vs. Urmila Badhah Godse (2014) 1 SCC 188

28. Powell v. Alabama 287 U.S. 45 (1932)

29. M.H. Hoskot v, State of Maharshtra AIR 1978 SC 1548

30. Suk Das v. Union Territory of Arunachal Pradesh (1986) 25 SCC 401

31. Khatri v. State of Bihar II (1981) 1 SCC 635

32. Veena Sethi v. State of Bihar AIR 1983 SC 339

33. Salal Hydro-Project vs. State of Jammu and Kashmir AIR 1984 SC 177

34. L.K. Pandey vs. Union of India (1984) 2 SCC 244

35. Vishal Jeet vs. Union of India 1990 AIR 1412

36. Court on Its Own Motion vs. Government of Delhi, NCT W.P.(C) 7687/2010

37. Bachpan Bachao Andolan vs. Union of India and Others 2011 5 SCC 1

38. Sheela Barse vs. Union of India AIR 1986 SC 1773

39. Mohini Jain vs. State of Karnataka AIR 1992 SC 1858

40. Shabnam Hashmi Vs. Union Of India & Ors WRIT PETITION (C
NO. 470 OF 2005
41. Dr. Subramanian Swamy and others v. Raju and others AIR 2014 SC 1649

[vii]
42. Neeraja Choudhary v. State of M.P AIR 1984 SC 1099

43. Sanjit Roy vs. State of Rajsthan AIR 1983 SC 328

44. Deena vs. Union of India AIR 1983 SC 1155

45. State of Madras v. Champakam Dorairajan AIR 1951 SC 226

46. Indra Sawhney v. Union of India AIR 1993 SC 477

47. State of Kerala v. N.M. Thomas 1976 SCR (1) 906

48. N. Adithayan v. Travancore Devaswom Board & Ors., (2002) 8 SCC 106

49. C.B. Muthamma v. Union of India (1979) 4 SCC 260

50. Air India v. Nargesh Mirza AIR 1981 SC 1829

51. Sarla Mudgal v. Union of India AIR 1995 SC 1531

52. Neeru Mathur v. LIC AIR 1992 SC 392

53. Jolly George Verghese v. Bank of Cochin AIR 1980 SC 470

54. Madhu Kishwar v. State of Bihar 1994 5 SCC 704

55. Javed Abidi v. Union of India AIR 1999 SC 512

56. Kamalabhai Jethamal v. State of Maharashtra AIR 1962 SC 1189

57. Chandra Bhavan Boarding and Lodging, Bangalore v. St AIR 1970 SC 2042
Mysore
58. Samtha v. State of A.P. (1997) 8 SCC 191

59. H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia AIR 1971 SC 530
Bahadur of Gwalior, & Ors. v. Union of India and Anr
60. State of Bihar v. Bal Mukund Shah (2000) 4 SCC 640

61. Rai Sahib Ram Jawaya Kapur & Ors. v. The State of Punjab AIR 1955 SC 549

62. L. C. Golak Nath & Ors. v. State of Punjab AIR 1967 SC 1643

63. State of West Bengal & Ors. v. Committee for AIR 2010 SC 1476
protection of Democratic Rights, West Bengal & Ors.

[viii]
64. S. P. Gupta v. Union of India AIR 1982 SC 149

65. Kumari Mathuri Patil & Anr. v. Addl. Commissioner, (1994) 6 SCC 241
Development & Ors.
66. Dayaram v. Sudhir Batham & Ors. (2012) 1 SCC 333

67. Nand Kishore v. State of Punjab (1995) 6 SCC 614

68. Vishaka & Ors. v. State of Rajasthan & Ors. AIR 1997 SC 3011

69. Laker Airways (1977 (2) WLR 234 at 26

70. Supreme Court Bar Association v. Union of India AIR 1998 SC 1895

71. Kalyan Chandra Sarkar v. Rajesh Ranjan AIR 2005 SC 972

72. L. K. Pandey v. Union of India & Anr AIR 1986 SC 272

73. D. K. Basu v. State of West Bengal AIR 1997 SC 610

74. Ramamurthy v. State of Karnataka AIR 1997 SC 1739.

75. Aravali Golf Club v. Chander Hass (2008) 1 SCC 683

76. Jagdabika Pal vs. Union of India AIR 1998 SC 58

77. Mukesh Advani v. State of Madhya Pradesh (1985) 3 SCC 162

78. Kishen v. State of Orissa A.I.R. 1989 S.C. 677

79. Air India Cabin Crew Association v. AIR 2004 SC 187


Yeshaswinee Merchant
80. Associate Banks Officers Association v. State Bank of India AIR 1998 SC 32

81. Delhi Domestic Working Women’s Forum v. Union of India (1995) 1 SCC 14

82. Bodhisattwa Gautam v. Subhra Chakraborty, AIR 1996 SC 922

83. State of Maharashtra v. Madhukar Narayan Mandikar AIR 1991 SC 207

84. Dattatraya v. State of Bombay AIR 1952 SC 181

85. Municipal Corporation of Delhi v. AIR 2000 SC 1274


Female Workers (Muster Roll)

[ix]
List of Abbreviations

S. No. Abbreviations Full Form

1. AIR All India Reporter

2. SCC Supreme Court Cases

3. CJ Chief Justice

4. i.e. Idest (that is)

5. Ibid Ibidem (in the same place)

6. SCR Supreme Court Reporter

7. SC Supreme Court

8. HC High Court

9. IPC Indian Penal Code

10. CrPC Criminal Procedure Code

11. V. Versus

12. SAL Social Action Litigation

[x]
[ix]
[ix]
INTRODUCTION

The Indian Constitution guarantees justice to all. ‘Justice’ means a harmonisation of


interests between the individuals and the society. The framers of our Constitution have given
1
precedence to Justice over other concepts of liberty, equality and fraternity in the Preamble .
‘Justice’ as incorporated in the Preamble has a wider connotation. It is not merely an
administration of legal justice by courts; it is something more. It envisages a three
dimensional justice:
i. Social justice
ii. Political justice
iii. Economic justice

Social justice has been given precedence over economic and political justice
2
whereas economic justice precedes political justice in the Preamble . In the words of Pt.
Jawahar Lal Nehru, “Social justice has always exercised an appeal to sensitive persons. The
basic attraction of Marxism for millions of people was not its attempt at scientific theory but
3
its passion for social justice.” Social justice implies an equality of treatment of the citizens
irrespective of their social status. Articles 14, 15, and 38 particularly bring forth this goal.
Articles 23 to 43 contain provisions for humane conditions of work, maternity relief leisure,
promotion of economic interests of backward classes, minimum wages, banning of forced
labour etc. which are all directed towards social justice.

It is one of the most cherished ideals of a man that he be dealt fairly and with
justice, while its absence causes him anguish which in turn leads to social unrest. A person
who has been wronged seeks justice but at the same time the wrong-doer also expects that he
will be given a fair trial and will not be prejudiced. This flows directly from Article 21 of the
Constitution:
“No person shall be deprived of his life or personal liberty except according to
procedure established by law.”
To quote Justice Brenan of United States Supreme Court,

1 Minerva Mills Ltd. & Ors v. Union Of India & Ors, 1981 SCR (1) 206
2 All India Statutory Corporation v. United Labour Union, AIR 1997 SC 645
3 K.G.Balakrishnan “Constitutional Control Praxis In The Present Day ”, on 15th August, 2008 at
Brazilian Supreme Court

[1]
“Nothing rankles more in human heart than a brooding sense of injustice "Nothing
rankles more in the human heart than a brooding sense of injustice. Illness we can put up
with. But injustice makes us want to pull things down. When only the rich can enjoy the law,
as a doubtful luxury, and the poor, who need it most, cannot have it because its expense puts
it beyond their reach, the threat to the continued existence of free democracy is not
imaginary but very real, because democracy's very life depends upon making the machinery
of justice so effective that every citizen shall believe in and benefit by its impartiality and
4
fairness. ”.

It is the responsibility of all three organs of the State viz. the Legislature, the
Executive and the Judiciary to ensure justice to the people. Justice is a vague concept as it is
too vast to be encompassed by one mind and in its vastness it includes both the attainment of
that which is just and the philosophy of what is just. For our discussion it is relevant to focus
on the former aspect of justice i.e. attainment of that which is just and that too from a
sociological viewpoint.

In a modern state the responsibility of protecting the Fundamental Rights


guaranteed by the Constitution and the basic human rights is entrusted to the judiciary. The
Constitution of India entrusts this responsibility to the higher judiciary i.e. the Supreme
Court and the High Courts. The Supreme Court of India is widely acclaimed in for its
activism in protecting the Fundamental Rights of the citizens. At a time when other
institutions of the State are suffering from a major trust deficit the Supreme Court is
generally viewed with great admiration for its reputation of independence and credibility.
The preamble of the Constitution of India envisages the objectives of the framers of the
Constitution to establish a new Socio-Economic order where it is the duty of the State to
ensure Social, Economic and Political Justice for everyone and where there will be equality
6
of status and opportunity for all. The mandate of this basic objective of the Constitution is
that the three organs of the State function in harmony to secure the ultimate goal of
“securing the dignity of the individual and unity and integrity of the Nation.”

4 M.H.Hoskot v. State of Maharashtra, AIR 1978 SC 1548


5 Report of Survey (1954),51,Public Administration in India

[2]
The framers of our Constitution consciously emphasized the importance of social
justice in the newly independent nation. Dr. B.R. Ambedkar, one of the principal framers of
the Constitution of India and our first Union Law Minister, stated the following on the floor
th
of the Constituent Assembly on 25 November, 1949:
“On the 26th January, 1950, we are going to enter upon into a life of contradictions.
In politics we will have equality and in social and economic life we will have inequality. In
politics we will be recognizing the principle of one man one vote and one vote one value. In
our social and economic life, we shall by reason of our social and economic structure,
continue to deny the principle of one man one value. How long shall we continue to deny
equality in our social and economic life? If we continue to deny it for long, we will do so
only by putting our political democracy in peril. We must remove this contradiction at the
earliest possible moment else those who suffer from inequality will blow up the structure of
7
democracy which this Constituent Assembly has so laboriously built up.”

Pandit Jawaharlal Nehru, India’s first Prime Minister, embodied the essence of this
goal in the following words to the Constituent Assembly:
“The first task of this Assembly is to free India through a new Constitution, to feed
the starving people and to clothe the naked masses and to give every Indian the fullest
8
opportunity to develop himself according to his capacity”.

Judiciary in every country has an obligation and a Constitutional role to protect


Human Rights of citizens and ensure justice for all if other organs of the government have
failed to do so. As per the mandate of the Constitution of India, this function is assigned to
9
the superior judiciary namely, the Supreme Court of India and the High courts. The
Supreme Court of India is perhaps one of the most active courts when it comes to the matter
of protection of basic Human Rights and this in turn has helped it to ensure social justice for
10
the weaker sections of the society . It has a great reputation of independence and credibility
all over the world. The judiciary must adopt a creative and purposive approach in the

7
Lecture by: JUSTICE K.G. BALAKRISHNAN, Constitutional Control Praxis in The Present Day;
Delivered on 15th August, 2008 at the Brazilian Supreme Court
8
CONSTITUENT ASSEMBLY OF INDIA - VOLUME II; Available at
http://parliamentofindia.nic.in/ls/debates/vol2p3.htm; Last visited on 14-03-2018
9 Article 32 and Article 226 of the Constitution empower the Supreme Court and the High Courts
respectively to issue writs
10 Justice T. Mathivanan, Judge, Madras High Court, Legal Aid- Issues, Challenges and Solutions

[3]
interpretation of Fundamental Rights and Directive Principles of State Policy embodied in
the Constitution with a view to advancing Human Rights jurisprudence and to fulfil the goals
of the Preamble. The promotion and distribution of social justice is contingent upon a strong
and an independent judiciary. The major contributions of the Supreme Court in the
furtherance of social justice have been twofold:
(1) The substantive expansion of the concept of Fundamental Rights under Article 21 of the
Constitution, and
(2) The procedural innovation of Public Interest Litigation.

Statement of the problem

The yearning for justice is as old as the humankind. The Constitution of India in its
Preamble has assured the people a three dimensional justice including social justice. New
Oxford American Dictionary defines social justice as "justice in terms of the distribution of
wealth, opportunities, and privileges within a society".

11
Since the Kesavnanda judgment the Supreme Court has paid a great deal of
attention towards the challenge of securing ‘justice for all’, i.e., for the rich and poor, over-
privileged and under-privileged, disadvantaged and vulnerable, exploited and excluded alike.
It did so by creating a uniquely Indian breed of public interest litigation, which was given
12
the nomenclature ‘social action litigation’ (‘SAL’) by noted jurist, Upendra Baxi.
After a thoughtful and balanced assessment of the early years of SAL in India, Professor
Baxi concluded that as a result of SAL, the Supreme Court had evolved from being the
13
Supreme Court of India into a Supreme Court for Indians—all Indians alike.

Undertrials as well as convicted prisoners, women facing sexual harassment at


workplace, women in protective custody, children in juvenile institutions, bonded and
migrant labourers, persons belonging to the LGBT (lesbian, bisexual, gay, transgender)
community, unorganized labourers, victims of bonded labour, untouchables and scheduled

11
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461
12
Baxi Upendra (1985) "Taking Suffering Seriously: Social Action Litigation in the Supreme Court of
India," Third World Legal Studies:Vol. 4,
13
Ibid

[4]
tribes, landless peasants, women forced into prostitution, slum-dwellers and pavement
dwellers, families of victims of extra judicial executions – all these socially disadvantaged
groups now approach the Supreme Court seeking justice. The Hon’ble Chief Justice of India
H L Dattu recently ordered the constitution of a Special Bench titled as "Social Justice
Bench" to deal specially with the matters relating to society and its members, to secure
social justice, one of the ideals of the Indian Constitution.

This study analyses the role of the Supreme Court in providing social justice, one of
the goals enshrined in the Preamble, to the disadvantaged sections of the society who have
for a long time been denied justice.

Hypotheses

The study proposes to test the following hypotheses:

1) Article 21 is the umbrella provision that guides the Supreme Court in


providing social justice.
2) Various judgments of the Supreme Court have succeeded to some extent in
securing social justice to the disadvantaged sections of the society.
3) The Supreme Court is playing an important and effective role in protecting
the Fundamental Rights of the weaker sections of the society.
4) In its attempts to ensure social justice for all the Supreme Court has not
violated the Doctrine of Separation of Powers.

Scope of Research

1) To critically analyse the views of the Supreme Court in cases relating to


Article 21.

2) To identify the legal principles that has guided the Supreme Court in deciding
the cases involving violation of basic Human Rights and Right to Life enshrined in
Article 21 of the disadvantaged sections of the society.
[5]
3) To assess the challenges faced by the Supreme Court in implementing its
decisions.

4) To check for consistency in the attitude of the Supreme Court in cases


relating to social justice.

Aims and objectives of research

1) To assess the responsibility and role of the Supreme Court in ensuring social
justice to the disadvantaged sections.
2) To understand the attitude of the Supreme Court towards the concept social
justice.
3) The need for the recently formed Social Justice Bench of the Supreme Court.

Research Methodology

The present study is purely doctrinal and is based on secondary sources of data. The research
problem being theoretical in nature though practical in its application requires no primary
source of data. Large amount of literature is available on the issue in hand. Sources of data to
be used in the research include law library, law journals, newspaper reports, case laws,
reports of Law Commission, reports of the Supreme Court.
[6]
CHAPTER 1

EVOLUTION OF PUBLIC INTEREST LITIGATION

1.1 The conventional rule of locus standi

One of the important methods by which courts saved themselves from spurious or
vicarious litigation was by determining whether the person who petitioned the Court had
14
locus standi to do so . So, who has the locus standi? Litigants must show that they are
adversely affected by the impugned action or that their rights have been violated. Further, the
issue raised must be a justiciable issue; an issue capable of resolution through the judicial
process. This rule of private law adjudication is also applicable to public law adjudication. In
case of a person being detained illegally it may happen that the person held in such illegal
detention is not in a position to move the court and therefore a stranger or the next friend is
given locus standi to move the court for such a writ. Such a stranger or next friend may
trigger the judicial process after showing that the impugned action or law resulted in denial
15
of a person’s liberty.

The rule of locus standi is based on sound policy. However, it presupposes that
people are conscious of their rights and have the resources to fight against the violations of
those rights. Even in England, the rule of locus standi has widened to allow persons with
“sufficient interest” to challenge the government action. When the rules of locus standi,
conceived for a more efficient functioning of the judicial process, inhibited genuine claims
16
from reaching the courts, exceptions to the rule became necessary . According to S. A. de
Smith:
All developed legal systems have had to face the problems of adjusting conflicts
between two aspects of the public interest the desirability of encouraging individual
citizens to participate actively in the enforcement of the law, and the undesirability of
encouraging the professional litigant and the meddlesome interloper to invoke the
jurisdiction of the courts in matters that do not concern him.

14 S. P. Sathe, Judicial Activism: The Indian Experience, 6 Wash. U. J. L. & Pol’y 029
(2001), http://openscholarship.wustl.edu/law_journal_law_policy/vol6/iss1/3
15 India v. Sankalchand, A.I.R. 1977 S.C. 2328
16 Supra 14

[7]
If public duties are to be enforced, and the public interest subserved by the
enforcement of such public duties is to be protected, public-spirited persons or organizations
must be allowed to move the courts and act in furtherance of the group interest even though
they may not be directly injured in their own rights or interests.

1.2 Liberalization of the rule of locus standi

Though the Constitution of India guarantees equal rights to all citizens, irrespective
17
of race, gender, religion, and other considerations, and the "directive principles of state
policy" as stated in the Constitution obligate the Government to provide to all citizens a
18
minimum standard of living, the promise has not been fulfilled . The greater majority of the
Indian people have no assurance of two nutritious meals a day, safety of employment, safe
and clean housing, or such level of education as would make it possible for them to
understand their constitutional rights and obligations. Indian newspapers abound in stories of
the exploitation – by landlords, factory owners, businessmen, and the state's own
functionaries, such as police and revenue officials - of children, women, villagers, the poor,
and the working class.

Though India's higher courts and, in particular, the Supreme Court have often been
sensitive to the grim social realities, and have on occasion given relief to the oppressed, the
poor do not have the capacity to represent themselves, or to take advantage of progressive
legislation. In 1982, the Supreme Court conceded that unusual measures were warranted to
enable people the full realization of not merely their civil and political rights, but the
enjoyment of economic, social, and cultural rights, and in its far- reaching decision in the
19
case of People's Union for Democratic Rights vs. Union of India , it recognized that a
third party could directly petition, whether through a letter or other means, the Court and
seek its intervention in a matter where another party's fundamental rights were being
violated. In this case, adverting to the Constitutional prohibition on "begar", or forced labor
and traffic in human beings, PUDR submitted that workers contracted to build the large
sports complex at the Asian Game Village in Delhi were being exploited. PUDR asked the

17 Article 14 of the Constitution guarantees Right to Equality


18Unlike Fundamental Rights, Directive Principles of State Policy are not justiciable rather merely
directive in nature.
19 AIR 1982 SC 1473

[8]
Court to recognize that "begar" was far more than compelling someone to work against his
or her will, and that work under exploitative and grotesquely humiliating conditions, or work
that was not even compensated by prescribed minimum wages, was violative of fundamental
20
rights. As the Supreme Court noted:
“The rule of law does not mean that the protection of the law must be available only
to a fortunate few or that the law should be allowed to be prostituted by the vested interests
for protecting and upholding the status quo under the guise of enforcement of their civil and
political rights. The poor too have civil and political rights and rule of law is meant for them
also, though today it exists only on paper and not in reality. If the sugar barons and the
alcohol kings have the fundamental right to carry on their business and to fatten their purses
by exploiting the consuming public, have the charmers belonging to the lowest strata of
21
society no fundamental right to earn an honest living through their sweat and toil?

Thus the court was willing to acknowledge that it had a mandate to advance the
rights of the disadvantaged and poor, though this might be at the behest of individuals or
groups who themselves claimed no disability. Such litigation, termed Public Interest
Litigation or Social Action Litigation by its foremost advocate, Professor Upendra Baxi, has
22
given the court "epistolary jurisdiction".
The Supreme Court of India is the protector and guarantor of the fundamental rights
of the people of India, the majority of whom are ignorant and poor. The liberalization of the
23
rule of locus standi arose from the following considerations:
(1) to enable the Court to reach the poor and disadvantaged sections of society who are
denied their rights and entitlements;
(2) to enable individuals or groups of people to raise matters of common concern arising
from dishonest or inefficient governance; and
(3) to increase public participation in the process of constitutional adjudication.

According to the jurisprudence of Article 32 of the Constitution of India, “The right


to move the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by this part is guaranteed”. Ordinarily, only the aggrieved party has the right to

20 Ibid
21 Ibid
22 Baxi, Upendra (1985) "Taking Suffering Seriously: Social Action Litigation in the Supreme
Court of India" Third World Legal Studies: Vol. 4, Article 6.
23 Baxi, supra 21

[9]
24
seek redress under Article 32 . In 1981 Justice P. N. Bhagwati in .S. P. Gupta v. Union of
25
India , articulated the concept of PIL as follows, “Where a legal wrong or a legal injury is
caused to a person or to a determinate class of persons by reason of violation of any
constitutional or legal right or any burden is imposed in contravention of any constitutional
or legal provision or without authority of law or any such legal wrong or legal injury or
illegal burden is threatened and such person or determinate class of persons by reasons of
poverty, helplessness or disability or socially or economically disadvantaged position unable
to approach the court for relief, any member of public can maintain an application for an
appropriate direction, order or writ in the High Court under Article 226 and in case any
breach of fundamental rights of such persons or determinate class of persons, in this court
under Article 32 seeking judicial redress for the legal wrong or legal injury caused to such
26
person or determinate class of persons.”

The rule of locus standi have been relaxed and a person acting bonafide and having
sufficient interest in the proceeding of Public Interest Litigation will alone have a locus
standi and can approach the court to wipe out violation of fundamental rights and genuine
infraction of statutory provisions, but not for personal gain or private profit or political
27
motive or any oblique consideration .

The Supreme Court in Indian Banks’ Association, Bombay and ors v. M/s
28
Devkala Consultancy Service and Ors., held that “In an appropriate case, where the
petitioner might have moved a court in her private interest and for redressal of the personal
grievance, the court in furtherance of Public Interest may treat it a necessity to enquire into
the state of affairs of the subject of litigation in the interest of justice. Thus a private interest
case can also be treated as public interest case”.

29
In Guruvayur Devaswom Managing Commit. And Anr. v. C.K. Rajan and Ors ,
the Supreme Court held, “The Courts exercising their power of judicial review found to its
dismay that the poorest of the poor, depraved, the illiterate, the urban and rural unorganized
labour sector, women, children, handicapped by 'ignorance, indigence and

24 Rule of locus standi


25 AIR 1982 SC 149
26 Ibid
27 M.C. Mehta v. State of Tamil Nadu, AIR 1997 SC 699
28 Appeal (civil) 4655 of 2000
29 J.T. 2003 (7) S.C. 312

[10]
illiteracy' and other down trodden have either no access to justice or had been denied justice.
A new branch of proceedings known as 'Social Interest Litigation' or 'Public Interest
Litigation' was evolved with a view to render complete justice to the aforementioned classes
of persona. It expanded its wings in course of time. The Courts in pro bono public granted
relief to the inmates of the prisons, provided legal aid, directed speedy trial, maintenance of
human dignity and covered several other areas. Representative actions, pro bono publico and
test litigations were entertained in keeping with the current accent on justice to the common
man and a necessary disincentive to those who wish to by pass the, real issues on the merits
by suspect reliance on peripheral procedural shortcomings… Pro bono publico constituted a
30
significant state in the present day judicial system.

They, however, provided the dockets with much greater responsibility for rendering
the concept of justice available to the disadvantaged sections of the society. Public interest
litigation has come to stay and its necessity cannot be overemphasized. The courts evolved a
jurisprudence of compassion. Procedural propriety was to move over giving place to
substantive concerns of the deprivation of rights. The rule of locus standi was diluted. The
Court in place of disinterested and dispassionate adjudicator became active participant in the
31
dispensation of justice”.

1.3 The concept of Public Interest Litigtion

The term public interest litigation is used in the United States, but public interest
32
litigation in India differs from the American public interest litigation in substantial ways .
Baxi pointed out that the American public interest litigation was funded by government and
private foundations and its focus was not so much on state repression or government
lawlessness as on public participation in governmental decision making. He therefore
insisted that the Indian phenomenon described as PIL should be described as social action
33
litigation (SAL) . PIL is different from the normal writ jurisdiction litigation in the
following aspects:

30 Dr. Subra Maniyam A, “Judicial Activism : A Panacea for achieving Socio Economic Goals"
Nov. Journal AIR 2001 Vol 88
“ 31 Baxi, Supra 21
32 Clark D. Cunningham, Public Interest Litigation in Indian Supreme Court: A Study in the
Light of American Experience”, 29 J. INDIAN L. INST. 494 (1987).
33 Baxi, Supra 21

[11]
(1) the courts allow informality of procedure by entertaining letters written to
judges or the court as petitions, or take cognizance of matters on their own (suo
moto) and substitute inquisitorial processes in place of the adversary processes
wherever necessary for the disposal of a matter;

(2) the rules of locus standi, meaning the rules regarding the eligibility of a
person to invoke the jurisdiction of the courts, are relaxed; and

(3) new reliefs and remedies are developed to do justice.

34
In Sunil Batra v. Delhi Administration, the Court responded to a letter written by Sunil
Batra, a prison inmate, drawing attention to the miserable lot of a fellow prisoner who was
subjected to unbearable physical torture by the prison authorities. Batra scribbled the letter
on a piece of paper and sent it to Justice Krishna Iyer of the Supreme Court. Justice Iyer
responded to the letter, and from his response emerged the first judicial discourse on
prisoners’ rights.

On the other hand, while dealing with a petition filed by Advocate Kapila Hingorani
regarding inordinately long periods of pre-trial detention suffered by some accused
criminals, Justice Bhagwati obtained information about a large number of other people
suffering from similarly long detention periods. These periods sometimes far exceeded the
longest amount of imprisonment prescribed as punishment for the charged offense. Justice
35
Bhagwati addressed the issue of pre-trial detention in Hussainara Khatoon v. Bihar. The
Court held that the right to a speedy trial was covered under the procedure established by
Article 21 of the Constitution and gave directions to courts and the governments regarding
how to expedite trials.

Since then, several prisoners have written letters to individual judges, who in turn
inquired into the matter. Because such prisoners rarely possess legal expertise, the facts in
the letters require verification. Commissioners may be appointed to investigate the facts on
behalf of the prisoners and submit reports to the Court. Such innovations in procedures were

34 A.I.R. 1978 S.C. 1675


35 A.I.R. 1979 S.C. 1360

[12]
36
justified by Justice Bhagwati in Bandhua Mukti Morcha v. India. First, Justice Bhagwati
explained the liberal rule of standing that the Court had articulated:
There is no limitation in the words of clause (1) of Article 32 that the fundamental
right which is sought to be enforced by moving the Supreme Court should be one
belonging to the person who moves the Supreme Court nor does it say that the
37
Supreme Court should be moved only by a particular kind of proceeding.

Justice Bhagwati observed that wherever there was a violation of a fundamental right,
any person could move the Supreme Court for the enforcement of such fundamental right.
This was, however, qualified by the Court:
Of course, the Court would not, in exercise of its discretion, intervene at the instance
of a meddlesome interloper or busybody and would ordinarily insist that only a person
38
whose fundamental right is violated should be allowed to approach the Court.

Although this was the rule, exceptions were needed when actual victims required
exceptions because they lacked either the knowledge of their rights or the resources for
approaching the Court and some public-minded person or social action group moved the
Court on their behalf. The Court could not close its doors to genuine complainants of
violations of rights in order to keep “a meddlesome interloper” or a “busy body” out.
Victims of oppression or exploitation may not be in a position to come to court on their own.
They may be ignorant of their rights and ignorant of the remedy provided against denial of
their rights. Therefore, another person motivated by altruistic considerations may approach
39
the Court on behalf of the victim.

How does such an altruistic person move the Court? The Court said that he could do so
by writing a letter “because it would not be right or fair to expect a person acting pro bono
publico to incur expenses out of his own pocket for going to a lawyer and preparing a
40
regular writ petition for being filed.” Thus, the Court seems to have been influenced not

36 A.I.R. 1984 S.C. 802


37 Id. at 813.
38 Id. at 251
39 S.P. Sathe supra 14
40 Id. at 814

[13]
only by the desire to provide access to underprivileged persons but also to de-professionalize
41
the system of justice. Two reforms were undertaken :

(1)to allow a public –minded person to move the court on behalf of the victims of
injustice who are poor, illiterate, or socially and educationally underprivileged; and

(2) to allow activation of the Court through a letter instead of a formal petition drafted by a
lawyer. Public interest litigation was therefore seen as an instrument of bringing justice to
the doorstep of the poor and less fortunate people.

Justice Bhagwati said in P.U. D.R. v. India :

We wish to point out with all the emphasis at our command that public interest
litigation which is a strategic arm of the legal aid movement and which is
intended to bring justice within the reach of the poor masses, who constitute
the low visibility area of humanity is a totally different kind of litigation from
the ordinary traditional litigation which is essentially of an adversarial
character where there is a dispute between two litigating parties, one making
claim or seeking relief against the other and that other opposing such claim or
resisting such relief. Public interest litigation is brought before the Court not
for the purpose of enforcing the rights of one individual against another as
happens in the case of ordinary litigation, but is intended to promote and
vindicate public interest which demands that violations of constitutional or
legal rights of large number of people who are poor, ignorant or in a socially or
economically disadvantaged position should not go unnoticed and
42
unredressed.

The Court observed that the court systems do not exist to serve only the rich, but also to
serve the poor. It was only the privileged who had, so far, held the key to the doors of justice.
For the first time, the “portals of the Court are being thrown open to the poor and the
43 44
downtrodden.” In Bandhua Mukti Morcha v. Union of India , Justice Bhagwati pointed out
that Article 32, Clause (2) required the Court to enforce the fundamental rights through

41
Dr. Justice B.S. Chauhan, “The legislative aspect of judiciary: judicial activism and judicial
restraint”
42 P.U.D.R. v. India, A.I.R. 1982
43 Ibid
44 A.I.R. 1984 S.C.

[14]
“appropriate proceedings,” proceedings that meet the ends of justice. Justice Bhagwati
further stated how the procedural innovations that the Court adopted made justice more
meaningful. He said:
It is not at all obligatory that an adversarial procedure, where each party
produces his own evidence tested by cross examination by the other side and
the judge sits like an umpire and decides the case only on the basis of such
material as may be produced before him by both parties, must be followed in
a proceedings under article 32 for enforcement of fundamental right. It may
be noted that there is nothing sacrosanct about the adversarial procedure.

45
On letter petitions as well as locus standi, R.S. Pathak in Bandhua Mukti Morcha
forcefully addressed another viewpoint. Regarding letter petitions, he said:
I see grave danger inherent in a practice where a mere letter is entertained as
a petition from a person whose antecedents and status are unknown or so
uncertain that no sense of responsibility can, without anything more, be
attributed to the communication. There is good reason for the insistence on a
document being set out in a form, or accompanied by evidence, indicating
that the allegations made in it are made with a sense of responsibility by a
person who has taken due care and caution to verify those allegations before
46
making them.

Justice Pathak was apprehensive that an unverified communication received by the Court
through the post might have been employed mala fide, as an instrument of coercion or
blackmail against a person who holds a position of honor and respect in society. He warned
that the Court’s judicial process should not be abused, and that it is necessary to follow
formalities that ensure the extraordinary remedy provided by the Constitution is not used to
serve private partisan interests.

Justice Sen said in his concurring judgment that letters should be addressed to the
Court. The Court seldom entertained anonymous letters. In most cases the petitioner was a
47 48
known social activist - Sunil Batra or Vasudha Dhagamwar - or an organization -

45 Ibid
46 Ibid
47 A.I.R. 1978 S.C. 1675
48 Kadra Pahadiya v. Bihar, A.I.R. 1981 S.C. 939

[15]
49 50
Bandhua Mukti Morcha or the Peoples Union for Democratic Rights . Further, Justice
Sen said that letters should be addressed only to the Court generally and not to a specific
judge. The practice of letters being addressed to individual judges was criticized. Letter
petitions became rare and the Court appointed lawyers as amicus curie and asked them to
draft a regular petition based on the letter. As a result, letters to individual judges also
became rare. Questions regarding the validity of such informal procedures were referred
from a two-judge bench comprised of Justice S.M. Fazl Ali and Ventkatramiah, to a larger
51
bench for consideration. The larger bench, however, never addressed the matter, perhaps
because those questions had become academic.

When the Justices spoke against the adversary procedure, they did not foresee that
any evidence would be believed without giving the opposing party an opportunity to
52
respond. To that extent, the adversary procedure could not be eliminated . However, what
the courts expected from the respondent, which was the state in most of the cases, was that
instead of taking an adversarial position and merely denying the allegation, the respondent
should help the court to find the truth. The litigation was not against the respondent but
against the illegalities committed on its behalf. The state would benefit from such judicial
inquiries because the state would know what it was lacking in administration and would be
53
able to improve performance. In this sense Justice Bhagwati said, in P.U.D.R. v. India,
that it was not an adversarial proceeding:
Public interest litigation, as we conceive it is essentially a cooperative or
collaborative effort on the part of the petitioner, the State or public authority
and the court to secure observance of the constitutional or legal rights,
benefits and privileges conferred upon the vulnerable sections of the
community and to reach social justice to them. The State or public authority
against whom public interest litigation is brought should be as much
interested in ensuring basic human rights, constitutional as well as legal, to

49 Bandhua Mukti Morcha, A.I.R. 1984 S.C. at 802


50 P.U.D.R., A.I.R. 1982 S.C. at 1473
51 Sudipt Mazumdar v. State of M. P., (1983) 2 S.C.C. 258.
52 Desai, A., H. and Muralidhar, S. (2000) “Public Interest Litigation: Potential and Problems”. In
Kirpal, B., N. (2000) (ed.),”Supreme but not Infallible- Essays in Honour of the Supreme Court of
India”. Oxford University Press
53 A.I.R. 1982 S.C. 1473

[16]
those who are in a socially and economically disadvantaged position, as the
54
petitioner who brings the public interest litigation before the court.

Further, the commissioners’ reports are open to cross-examination by the


respondents. They help the Court form a prima facie opinion. The Supreme Court is careful
55
to appoint responsible persons as commissioners. In public interest litigation, the Court has
not intended the judges to take a neutral position as in adversary litigation, but to examine
complaints of violations of human rights, subversion of the rule of law, or disregard of
environment with greater care and through a proactive inquiry. They need not wait for the
petitioner to prove everything letting the respondent take recourse to mere denials as is done
in the adversary proceedings, but can order investigations and employ inquisitorial methods
for finding the truth.

A good example of such cooperative or collaborative effort is the decision in Azad


56
Riksha Pullers Union v. Punjab. The Punjab Cycle Riksha, or Regulation of Rikshaws
Act of 1975, provided that licenses to ply rikshaws could be given only to those owners who
run the rikshaws. Licenses could not be given to those who owned the rikshaw but rented
them to other persons. This Act threatened the unemployment of a number of rikshaw pullers
who did not own their rikshaws, and threatened to leave many rikshaws owned by the
nondriving owners idle. The Act was challenged on the ground that it would affect the right
to carry on any trade, business, or occupation guaranteed by Article 19(1)(g) of the
Constitution. Justice Iyer, instead of striking down the law, provided a scheme whereby the
rikshaw pullers could obtain loans from the Punjab National Bank to acquire the rikshaws.
The plan provided for the repayment of the loan over a period of time. The intention of the
legislature to abolish the practice of renting the rikshaws from the owners was achieved
without causing any suffering to the rikshaw pullers.

The liberal rule of locus standi helped the social action groups come to court on
behalf of the underprivileged sections of society. Groups like Peoples Union For Civil
Liberties, Peoples Union for Democratic Rights, Bandhua Mukti Morcha, Akhil Bharatiya
Shoshit Karmachari Sangh, Banwasi Sewa Ashram and the Common Cause (a registered
society), and individuals like M.C. Mehta, Sheela Barse, Sivsagar Tiwari Upendra Baxi had

54 P.U.D.R vs. UOI ,A.I.R. 1982 S.C


55 Bandhua Mukti Morcha, A.I.R. 1984 S.C. 816
56 Azad Riksha Pullers Union v. Punjab, A.I.R. 1981 S.C. 14

[17]
standing to move the Court on behalf of underprivileged people. Similarly, victims such as
57 58 59 60
pre-trial prisoners, prison inmates, unorganized labor, bonded labor, pavement
61 62 63
dwellers, children prosecuted under the Juvenile Justice Act, children of prostitutes,
64
and women in protective custody received the Court’s attention. Public interest litigation
of the late 1970s and the early 1980s was dominated by petitions on behalf of oppressed
people denied their human rights. The Court’s liberal interpretation of Article 21 of the
Constitution included human rights within the scope of the fundamental rights guaranteed by
the Constitution. The liberal rules of access from which public interest litigation emanated
enabled the courts to reach victims of injustice, who had until then been invisible. The
procedural activism complemented the substantive activism previously surveyed in this
Article.

1.4 Subjects of Public Interest Litigation

Public Interest Litigation is meant for enforcement of fundamental and other legal
rights of the people who are poor, weak, ignorant of legal redressed system or otherwise in a
disadvantageous position, due to their social or economic background. Such litigation can be
initiated only for redressal of a public injury, enforcement of a public duty or vindicating
interest of public nature. It is necessary that the petition is not filed for personal gain or
private motive or for other extraneous consideration and is filed bona fide in public interest.

65
There are three basic requirements to file the public interest litigation. They are:-
1. Personal Injury
2. Causation
3. Redressability

57 Hussaina Khatoon v. Bihar, A.I.R. 1979 S.C. 1360


58 Sunil Batra, A.I.R. 1978 S.C. at 1675
59 P.U.D.R., A.I.R. 1982 S.C. 1473
60 Bandhua Mukti Morcha, A.I.R. 1984 S.C. 803
61 Olga Tellis v. Bombay Municipal Corporation, A.I.R. 1986 S.C. 180
62 Munna v. State of U.P., A.I.R. 1982 S.C. 806
63 Gaurav Jain v. India, A.I.R. 1997 S.C. 3021
64 Dr. Upendra Baxi v. U.P., (1983) 2 S.C.C. 308
65 Justice K.G. Balakrishnan, Former Chief Justice of India , “Growth of Public Interest
Litigation in India”; Addressed at Singapore Academy of Law, Fifteenth Annual Lecture on October
8, 2008

[18]
1. Injury: - The plaintiff must have suffered or imminently will suffer injury- an invasion of
a legally protected interest that is concrete and particularized. The injury must be actual or
imminent, distinct and palpable, not abstract. This injury could be economic as well as non-
66
economic.

2. Causation: - There must be a casual connection between the injury and the conduct
complained of, so that injury is fairly traceable to the challenged action of the defendant and
67
not the result of the independent action of some third party who is not before the court.

3. Redressability: - It must be likely, as opposed to merely speculative, that a favourable


court decision will redress the injury. Prudential Limitations of Locus Standi: - Additionally
there are three major prudential limitations or judicially created standing principles. Those
68
principles were widened depending on the circumstances.

66 Ibid
67 Ibid
68
Ibid

[19]
CHAPTER 2

THE ROLE OF THE SUPREME COURT IN PROVIDING SOCIAL JUSTICE

2.1 Rights of the Transgenders and Bisexuals

DEFINITION
The term ‘transgender’ has been derived from the Latin word ‘trans’ and the English word

‘gender’. Different sorts of individuals come under this category. No particular form of
sexual orientation is meant through the term transgender. The way they behave and act
differs from the ‘normative’ gender role of men and women. Leading a life as a transgender
is far from easy because such people can be neither categorized as male nor female and this
deviation is “unacceptable” to society’s vast majority. Trying to make out a dignified living
is even worse.

2.1.1 The Naz Foundation case

69
In the historic case of Naz Foundation v. Govt. of NCT of Delhi a two-judge Bench of
the Delhi High Court applying the Doctrine of Severability held Sec. 377 of Indian penal
code unconstitutional, insofar it criminalises consensual sexual acts of adults in private,
being violative of Articles 21, 14 and 15 of the Constitution. The court further clarified that
the provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal
sex and penile non-vaginal sex involving minors. It would be relevant to quote Para 113 of
the judgment;
“…The impugned provision in Section 377 IPC criminalises the acts of
sexual minorities particularly men who have sex with men and gay men. It
disproportionately impacts them solely on the basis of their sexual
orientation. The provision runs counter to the constitutional values and the
notion of human dignity which is considered to be the cornerstone of our
Constitution. Section 377 IPC in its application to sexual acts of consenting
adults in privacy discriminates a section of people solely on the ground of
their sexual orientation which is analogous to prohibited ground of sex. A
provision of law branding one section of people as criminal based wholly on

69
WP(C) No.7455/2001 (2 July 2009)

[20]
the State’s moral disapproval of that class goes counter to the equality
guaranteed under Articles 14 and 15 under any standard of review.”

At this point it would be relevant to test Sec. 377 of IPC on the basis of the Theory of
Reasonable Classification propounded by Das, J. in State of West Bengal v Anwar Ali
70 71
Sarkar . Sec 377 makes a classification on the following grounds :
i. Those persons who would be indulging in sexual intercourse against the order
of nature, and
ii. Those persons who do not indulge in such activities.

The object of the impugned provision according to the Union of India is to punish the
people falling under the former class so as to protect women and children, prevent the spread
of HIV/AIDS and enforce societal morality against homosexuality. What is so difficult to
understand is the lack of any rationale nexus between the object sought to be achieved and
the classification made unless one proceeds on the assumption that homosexuals are a threat
to women and children; destroy the moral fabric of the society which itself is a subjective
concept and so ambiguous that it can never be concretely defined; are the major cause of
spread of HIV/AIDS. The last argument lacks any scientific evidence and is rather based on
wild assumptions- homosexuals are as much a cause for the spread of HIV/AIDS as any
other person who indulges in unprotected sex. In Para 92 of the judgment the Delhi High
72
Court stated as follows:
“According to Union of India, the stated object of Section 377 IPC is to
protect women and children, prevent the spread of HIV/AIDS and enforce
societal morality against homosexuality. It is clear that Section 377 IPC,
whatever its present pragmatic application, was not enacted keeping in mind
instances of child sexual abuse or to fill the lacuna in a rape law. It was based
on a conception of sexual morality specific to Victorian era drawing on
notions of carnality and sinfulness. In any way, the legislative object of
protecting women and children has no bearing in regard to consensual sexual
acts between adults in private. The second legislative purpose elucidated is
that Section 377 IPC serves the cause of public health by criminalising the
homosexual behaviour. As already held, this purported legislative purpose is

70 AIR 1952 SC 191


71 Dr. J.N. Pandey, Constitutional Law of India (52nd Edition)
72 Supra 69

[21]
in complete contrast to the averments in NACO's affidavit. NACO has
specifically stated that enforcement of Section 377 IPC adversely contributes
to pushing the infliction underground, make risky sexual practices go
unnoticed and unaddressed. Section 377 IPC thus hampers HIV/AIDS
prevention efforts. Lastly, as held earlier, it is not within the constitutional
competence of the State to invade the privacy of citizens lives or regulate
conduct to which the citizen alone is concerned solely on the basis of public
morals. The criminalisation of private sexual relations between consenting
adults absent any evidence of serious harm deems the provision's objective
both arbitrary and unreasonable. The state interest “must be legitimate and
relevant” for the legislation to be non-arbitrary and must be proportionate
towards achieving the state interest. If the objective is irrational, unjust and
unfair, necessarily classification will have to be held as unreasonable. The
nature of the provision of Section 377 IPC and its purpose is to criminalise
private conduct of consenting adults which causes no harm to anyone else. It
has no other purpose than to criminalise conduct which fails to conform with
the moral or religious views of a section of society. The discrimination
severely affects the rights and interests of homosexuals and deeply impairs
73
their dignity.”

The court also spoke about the theme of ‘inclusiveness’ which is underlined in the

Constitution and is deeply seated in the Indian society. It is relevant to quote Para 130 of the
judgment in this regard:
“If there is one constitutional tenet that can be said to be underlying theme of
the Indian Constitution, it is that of ‘inclusiveness’. This Court believes that
Indian Constitution reflects this value deeply ingrained in Indian society,
nurtured over several generations… Where society can display inclusiveness
and understanding, such persons can be assured of a life of dignity and non-
discrimination. This was the ‘spirit behind the Resolution’ of which Nehru
spoke so passionately.

The law regulates relationships between people. It prescribes patterns of


behaviour. It reflects the values of the society. The role of the court is to

73
Supra 69

[22]
understand the purpose of law in society and to help the law achieve its
purpose. Law of a society is a living organism. It is based on a given factual
and social reality that is constantly changing. Sometimes change in law
precedes social change and is even intended to stimulate it. In most cases,
however, a change in law is the result of a change in social reality. Indeed,
when the social reality changes the law must change too. Just as change in
social reality is the law of life, responsiveness to social reality is the life of
the law. It can be said that the history of law is the history of adapting the law
to society’s changing needs.”

But this well-reasoned decision of the Delhi High Court which was widely acclaimed
for recognizing the rights of the long-marginalized homosexuals in the country was
overruled by the Supreme Court in Suresh Kumar Koushal and another v NAZ
74
Foundation and Others . The Supreme Court rejected the argument that Sec. 377, insofar
as it criminalises the same-sec intercourse between consenting adults, violates their
fundamental rights under Articles 14 and 15. For this purpose it is pertinent to quote Para 42
of the judgment:
“Those who indulge in carnal intercourse in the ordinary course and those
who indulge in carnal intercourse against the order of nature constitute
different classes and the people falling in the later category cannot claim that
Section 377 suffers from the vice of arbitrariness and irrational classification.
What Section 377 does is merely to define the particular offence and
prescribe punishment for the same which can be awarded if in the trial
conducted in accordance with the provisions of the Code of Criminal
Procedure and other statutes of the same family the person is found guilty.
Therefore, the High Court was not right in declaring Section 377 IPC ultra
75
vires Articles 14 and 15 of the Constitution.”

It seems as if the Supreme Court did not make any classification of persons but rather
of sexual acts i.e. carnal intercourse against the order of nature and carnal intercourse in
accordance with nature. The object of the provision i.e. to protect women and children,
prevent the spread of HIV/AIDS and enforce societal morality against homosexuality as

74
Suresh Kumar Koushal and another v. NAZ Foundation and others, Civil Appeal No.10972 of 2013
in Supreme Court of India
75
Ibid

[23]
stated by the Union of India before the Delhi High Court has no rational nexus to the
76
classification made by Sec. 377 as has been so clearly determined by the Delhi High Court.
Furthermore, public morality can never be a reasonable ground to discriminate against
someone and deprive them of their Fundamental Right to Equality which in turn leads to a
deprivation of Right to Life guaranteed by Article 21.

It is also pertinent to quote para 43 of the judgment:

“While reading down Section 377 IPC, the Division Bench of the High Court
overlooked that a miniscule fraction of the country’s population constitute
lesbians, gays, bisexuals or transgenders and in last more than 150 years less
than 200 persons have been prosecuted (as per the reported orders) for
committing offence under Section 377 IPC and this cannot be made sound
basis for declaring that section ultra vires the provisions of Articles 14, 15 and
77
21 of the Constitution.”

On a careful perusal of the above paragraph one cannot help but think that the
Supreme Court adopted the ‘Utilitarian’ approach of Jeremy Bentham to law- greatest
78
happiness of the ‘greatest number’ and in the process denied justice to millions of people
because it viewed the moral compass of the majority to be of more importance than the
sacred provision of Article 21.

2.1.2 Naz Foundation case and the Transgenders case- A Distinction

79
In National Legal Services Authority v. Union of India , the Supreme Court declared
that Hijras, Eunuchs, apart from binary gender, be treated as “third gender” for the purpose
of safeguarding their rights under Part III of the Constitution and the laws made by the
Parliament and the State Legislature. The court also upheld the right of Transgender persons
to to decide their self-identified and directed the Centre and the State Governments to grant
legal recognition of their gender identity such as male, female or as third gender. In the light

76 refer to Para 92 of the impugned judgment which has been referred above
77 Ibid
78 Dias R.M.W. : Jurisprudence (5th edition. 1985) Indian Reprint 1994 p. 340
79 WRIT PETITION (CIVIL) NO.400 OF 2012

[24]
of this judgment it becomes evidently clear that Sec. 377 is constitutionally invalid, insofar
as it violates Articles 14 and 15, as persons belonging to the communities of Hijras, Eunuchs
and Transgender engage in carnal intercourse against the order of nature as it discriminates
only on the basis of sex.

80 81
In view of Nalsa v. UOI the obvious flaws of the Koushal stand exposed. If the
former is rightly decided then the latter is wrong.

82
The time is ripe for the Koushal judgment to be referred for a decision by a
Constitution Bench of the Supreme Court to set the law straight so that justice can finally be
done to those millions of people belonging to the LGBT community who are subjected to
abuse and discrimination on a daily basis merely because society perceives their sexuality as
immoral and unnatural. Fundamental Rights can never be made subject to the morality of the
society which is a flickering concept as it depends upon the pre-conceived notions of the
people in a particular era. What was immoral yesterday may not be immoral today and what
is immoral today may not be immoral tomorrow. Nothing illustrates this better than the
medieval concepts of Sati, prohibition on remarriage of widows, child marriage etc. which
were practised to curtail the freedom of women as an independent woman was generally
viewed as an immoral woman during the era in which these practises were followed. But
today women are at par with men in every aspect of the society. What is to say that
recognizing the basic human rights of the persons belonging to the LGBT community would
not have such a positive impact on them as well. It is high time that the Supreme Court takes
a more humane approach towards LGBTs and recognizes their rights.

2.2 The right to maintenance of Muslim divorced women

83
In the Shah Bano case the Supreme Court had to decide that whether a Muslim wife on
divorce is entitled to maintenance u/s125 of Criminal Procedure Code. The main questions
that arose before the Supreme Court in this case were:
1) Whether section 125 CrPC is applicable to Muslim wives.

80 Writ Petition (Civil) No. 400 of 2012


81 Supra 74
82 Ibid
83
Ahmed Khan v. Shah Bano Begum and ors, 1985 SCR (3) 844

[25]
2) Whether the liability of the husband to pay maintenance to the divorced wife
is limited to the period of ‘iddat’.
3) Whether there is any conflict between the provisions of section 125 and that
of the Muslim Personal Law on the liability of the Muslim husband to provide for the
maintenance of his divorced wife.

A five judge Constituent Bench of the Supreme Court headed by Chief Justice Y.V.
Chandrachud delivering a historic judgment held as follows:

1) Maintenance and dower are two distinct concepts. The right to maintenance upon
divorce arises only upon the marriage being terminated by divorce whereas the right to
dower at the very inception of marriage. Thus from the point of origin the two are
different. Also the purpose of dower is a mark of respect to the wife as it creates a
security also acts as a hindrance upon the husband’s power of divorce. Thus dower has a
constructive role in the marriage and on the other hand the question of maintenance on
divorce arises only after the marriage comes to an end. Thus these two are not the same
and payment of dower would not amount to payment of maintenance.
2) Section 125 of Criminal procedure Code, 1973 provides a speedier method of
obtaining maintenance. It being a secular provision it makes no difference to what
religion the neglected wife, child or parents belong to. A Muslim wife cannot be deprived
of its benefit as that would be violative of her Right to Equality enshrined in Article 14
of the
Constitution. The word “wife” as used in Sec. 125 includes a Muslim wife as well.

3) Under Sec. 125 Cr.P.C. maintenance is awarded after divorce until the wife remarries
and therefore, a Muslim wife also will get her maintenance u/s 125 Cr.P.C. until she
remarries. On the one hand the Muslim Personal Law does not prohibit the giving of
maintenance after the iddat period and on the other hand Sec.125 enables a Magistrate to
award maintenance until her remarriage. Sec. 125 being a social legislation its aim being
social justice is aimed at preventing vagrancy and destitution and therefore, a liberal and
purposive interpretation shall be given to it. Thus, when a provision which is non-
prohibitive is juxtaposed to an enabling provision, the enabling provision shall be
adopted. That is the moral edict of the law and morality cannot be clubbed with religion.
4) There is no conflict between the provisions of Section 125 and those of muslim
Personal

Law on the question of a Muslim husband’s obligation to provide maintenance for his
divorced wife who is unable to maintain herself. The Holy Quran imposes an obligation
[26]
on the Muslim husband to make provision for or to provide maintenance to the divorced
wife if she is not able to maintain herself.

This judgment of the Supreme Court provided a glimmer of hope to millions of


Muslim wives who had been divorced and abandoned by their husbands but at the same time
it stirred up heated debates in the country as some orthodox Muslims viewed this judgment
as an encroachment upon the Muslim Personal Law. To nullify the effect of this judgment,
Muslim Women (Protection of Rights on Divorce) Act was passed in 1986.

Sec. 5 Option to be governed by the provisions of Section 125 to 128 of Act 2 of

1974. -If, on the date of the first hearing of the application under subsection (2) of
Section 3, a divorced woman and her former husband declare, by affidavit or any
other declaration in writing in such form as may be prescribed, either jointly or
separately, that they would prefer to be governed by the provisions of Sections 125 to
128 of the Code of Criminal Procedure, 1973 (2 of 1974); and file such affidavit or
declaration in the Court hearing the application, the Magistrate shall dispose of such
application accordingly.

Sec. 5 of the Act makes it amply clear that a Muslim wife cannot file a petition u/s
125 Cr.P.C. without the consent of the husband and her application for maintenance will lie
under this Act.

Section 3(1) of the Act lays down that “Notwithstanding anything contained in any
other law for the time being in force, a divorced woman shall be entitled to-
(a) a reasonable and fair provision and maintenance to be made and paid to her
within the iddat period by her former husband;

The intention of the legislature in incorporating the words “within the iddat period”
in the above clause was to do away with the decision of the Supreme Court in Shah Bano
case by limiting the liability of a Muslim husband to pay maintenance to her wife on divorce
only till the iddat period. The constitutional validy of this 1986 Act was challenged before
84
the Supreme Court in Danial Latifi v. Union of India as by depriving the Muslim women

84
(2001) 7 SCC 740

[27]
from the applicability of the provisions of Section 125 Cr.P.C. it discriminates against them
and is violative of Article 14 and 21 of the Constitution.

A five judge Constituent Bench sat to hear the dispute and the judgment was
delivered by S. Rajendra Babu J. which may be summarised as follows:

1) The purpose of Sec. 125 Cr.P.C. as well as the 1986 Act is to prevent
vagrancy and destitution i.e. it has a social purpose.

2) In the matters of maintenance of Muslim women upon divorce there cannot


be a discriminatory approach and she has to be given the same rights as that of
other women i.e. her right to maintenance should also continue until she gets
remarried.

3) A restrictive interpretation of the 1986 Act and in particular of Sec. 3(1)(a)


would result into a defeat of the very purpose of the Act viz. maintenance of
Muslim women on divorce.

4) When two interpretations are possible with respect to a provision and a


restrictive interpretation i.e. a rigid approach would defeat the very purpose of the
Act then the rule of interpretation requires that a liberal interpretation shall be
followed so as to serve the purpose of the Act. It was held that in the present case a
literal interpretation of Sec. 3(1)(a) would render the provision unconstitutional as
that would be violative of of Article 14 of the Constitution. However, in the light of
larger purpose of social justice which is implicit in the Act it would be improper to
take that approach and make the Act as unconstitutional. Thus, the word “within” in
Sec. 3(1)(a) should be read as “on or before” and not as “not beyond”. Thus, even
under the 1986 Act a Muslim divorced woman can obtain maintenance until she
gets remarried. The only requirement is that the husband has to make the
arrangements for reasonable and fair provision and maintenance before the iddat
period expires. Otherwise the wife can obtain the maintenance through a civil suit
filed under the 1986 Act and she is entitled to maintenance for the entire period
until she gets remarried. The court as the interpreter of law is supposed to supply
[28]
omissions, correct uncertainities, and harmonise results with justice through a method
85
of free decision- libre recherché scientifique i.e. “free scientific research”.

By giving the above interpretation the Supreme Court brought the right of Muslim
divorced women to obtain maintenance in line with Sec. 125 Cr.P.C. and has thus, saved the
Act from being declared unconstitutional which was the proper thing to do keeping in mind
the benevolent provisions of the Act and its larger purpose of achieving social justice by
preventing vagrancy and destitution in those women who are divorced by their husbands on
frivolous grounds and have no means to fetch for themselves.

The Supreme Court did not declare Sec. 5 to be unconstitutional as in the 1986 Act
also a divorced wife would get maintenance until she gets remarried and moreover, the
proceedings under the 1986 Act are conducted before the same Magistrate who would
conduct the proceedings u/s 125 Cr.P.C. he would be conscious of the fact that it is a social
legislation and hence under this Act also he will conduct the proceedings in a speedier
manner. Moreover, in the 1986 act the provisions related to proceedings of maintenance are
better than Sec. 125 Cr.P.C. as it also provides for maintenance from realtives and State
86 87
Wakf Board , the period of disposal of application for interim maintenance is one month
whereas it two months.

It would not be an overstatement to say that it was solely due to the efforts of the
Supreme Court and the humane approach adopted by it in dealing with cases of maintenance
of Muslim divorced women that ended the injustice meted out to them.

88
In Danial Latifi the court also observed that “it may look ironical that the
enactment intended to reverse the decision in Shah Bano case actually codifies the very
rationale contained therein”.

85 Badshah vs. Urmila Badhah Godse, (2014) 1 SCC 188


86 Sec 4, The Muslim Women (Protection of Rights on Divorce) Act, 1986
87 Sec 4(3)(b), The Muslim Women(Protection of Rights on Divorce)
Act,1986 88(2001) 7 SCC 740

[29]
2.3 Problems of prisoners and undertrials

2.3.1 Right to free legal aid

Free legal aid to the poor is an essential element of fair trial procedure for securing justice to
all on the basis of equal opportunity for defence. The prime obligation to provide free legal
aid to the poor, indigent and marginalized is of the State and it is their right guaranteed
under the Constitution of India to demand and avail. The philosophy of legal aid as an
inalienable element of fairness is evident from the famous words of M r. Justice Brennan's:
"Nothing rankles more in the human heart than a brooding sense of injustice.
Illness we can put up with. But injustice makes us want to pull things down.
When only the rich can enjoy the law, as a doubtful luxury, and the poor, who
need it most, cannot have it because its expense puts it beyond their reach, the
threat to the continued existence of free democracy is not imaginary but very
real, because democracy's very life depends upon making the machinery of
justice so effective that every citizen shall believe in and benefit by its
89
impartiality and fairness.”

A defendant's need for a lawyer is nowhere better stated than in the moving words of
90
Mr. Justice Sutherland in Powell v. Alabama :
“The right to be heard would be, in many cases, of little avail if it did not
comprehend the right to be heard by counsel. Even the intelligent and
educated layman has small and sometimes no skill in the science of law. If
charged with crime, he is incapable, generally, of determining for himself
whether the indictment is good or bad. He is unfamiliar with the rules of
evidence. Left without the aid of counsel, he may be put on trial without a
proper charge, and convicted upon incompetent evidence, or evidence
irrelevant to the issue or otherwise inadmissible. He lacks both the skill and
knowledge adequately to prepare his defense, even though he have a perfect
one. He requires the guiding hand of counsel at every step in the proceedings
against him. Without it, though he be not guilty, he faces the danger of
conviction because he does not know how to establish his innocence.”

89 M.H.Hoskot v. State of Maharashtra, AIR 1978 SC 1548


90 https://www.law.cornell.edu/supremecourt/text/372/335; Last visited on 11-4-2018

[30]
91
In M.H. Hoskot v, State of Maharshtra the Supreme Court held that ‘a single
right of appeal’ on facts, where the conviction is fraught with long loss of liberty, is basic to
civilised jurisprudence. The Court observed that “one component of fair procedure is natural
justice”. Every step that makes the right of appeal fruitful is obligatory and every action or
inaction which stifles it is unfair and a direct attack on Article 21. There are two ingredients
of the right of appeal:

1) Service of a copy of judgment to the prisoner in time to enable him to file an


appeal, and
2) Provision of free legal service to a prisoner who is indigent or otherwise
disabled from securing legal assistance.

These are State responsibilities under Article 21. Any Jailor who by indifference or
vendetta, withholds thwarts the Court process violates Article 21 of the detune. The Court
held that by denying the detune a right to appeal the State makes his further detention illegal.
It was suggested that the jail manuals should be updated and should include this mandate
and the State make a copy of the judgment available to the prisoner. Regarding the right to
free legal aid, Krishna Iyer, J., declared, “This is the State’s duty and not Government’s
charity”. If a prisoner is unable to exercise his fundamental and statutory right including
special leave to appeal for ant of legal assistance, there is implicit in the court, under Article
142 of the Constitution, read with Article 21 and 39A, the power to assign counsel to the
prisoner provided he does not object to the lawyer named by the court. Equally is the
implication that the State which sets the law in motion is obliged to pay for the lawyer’s fees
as well.

The right to free legal aid and speedy trial are guaranteed fundamental right under
Article 21. Article 39A provides “equal justice” and “free legal aid”. It means justice
according to law. In a democratic polity, governed by rule of law, it should be a primary
concern of the State to have a proper and efficient legal system. The crucial words are “to
provide free legal aid by suitable legislation or by schemes” or “in any other way” so that
opportunities for securing justice are not denied to any citizen by reason of economic or
other disabilities.

91
AIR 1978 SC 1548

[31]
92
In Suk Das v. Union Territory of Arunachal Pradesh, the Supreme Court held
that failure to provide free legal aid to an accused who is unable to afford legal assistance at
the Sate cost, unless refused by the accused, would vitiate trial. He need not apply for the
same. Free legal aid at the State cost is a fundamental right of an accused and this right is
implicit in the requirement of a reasonable, fair and just procedure prescribed by Article 21.
This right cannot be denied to him on the ground that he has not applied for the same. The
Magistrate is under an obligation to infor the accused of this right and inquire whether he
wishes to be represented at State’s cost, unless he has refused to take advantage of it. In this
case the appellant was tried and sentenced to two years imprisonment u/s 506 r/w Sec. 31,
IPC. He was not represented at trial by any lawyer by reason of his inability to afford legal
representation. The High Court held that the trial was not vitiated since no application for
legal aid was made by the accused and the State is under no obligation to suo motto provide
legal aid to accused persons. On appeal the Supreme Court set aside the conviction on the
ground that he was not provided legal aid at trial which was violative of Article 21 of the
Constitution.

93
In Veena Sethi v. State of Bihar, the Free Legal Aid Committee, Hazaribagh
brought to the notice of the Court through a letter about the illegal detention of certain
prisoners in the Hazaribagh jail for two to three decades without any legal justification. At
the time of their detention the prisoners were declared insane but afterward they became
sane but in spite of that due to the inaction and indifference of the authorities to release them
they had been languishing in jail for 20 to 37 years. Treating the letter as a PIL the Court
held that the prisoners remained in jails without any lawful authority and due to no fault of
theirs but because of callous and lethargic attitude of the authorities and are therefore,
entitled to be released forthwith.

94
In Khatri v. State of Bihar II (Bhagalpur blinding case), the Supreme Court again
reiterated that the state governments cannot avoid their constitutional obligation to provide
free legal service to the poor accused by pleading financial or administrative inability. A trial
held without offering legal aid to an indigent accused at state cost will be vitiated and
conviction will be set aside. Providing free legal service to the poor and the needy is an
essential element to any reasonable, fair and just procedure. It was also held that the

92 (1986) 25 SCC 401


93 AIR 1983 SC 339
94 (1981) 1 SCC 635

[32]
provision of legal aid is fundamental to ensuring access to courts. This right of the indigent
arises from the moment he is first produced before a magistrate. It is at this stage that the
accused gets his first opportunity to apply for bail and obtain his release as also to resist
remand to police or jail custody and so the accused needs competent legal advice and
representation at this stage. The accused can also claim free legal aid after he has been
sentenced by a court but is entitled to appeal against the verdict. The Court further
emphasized that it is the legal obligation of the magistrate or judge before whom the accused
is produced to inform him that if he is unable to engage a lawyer on account of poverty or
indigence, he is entitled to obtain free legal services at the cost of the state. The Court took
the view that the right to free legal aid would be illusory for the indigent accused unless the
trial judge informs him of such a right.

2.3.2 Right to speedy trial

95
The Supreme Court in Hussainara Khatoon v. State of Bihar held that Speedy trial is of
the essence of criminal justice and, therefore, delay in trial by itself constitutes denial of
justice. Though speedy trial is not specifically enumerated as a fundamental right, it is
implicit in the broad sweep and content of Art. 21. Speedy trial which means reasonably
expeditious trial, is an integral part of the fundamental right to life and liberty enshrined in
Art. 21.
The court also observed that, “Expeditious trial and freedom from detention are part
of human rights and basic freedoms. The judicial system which permits incarceration of men
and women for long periods of time without trial is denying human rights to such undertrials
and withholding basic freedoms from them. Law has become for them an instrument of
injustice and they are helpless and despairing victims of the callousness of the legal and
judicial system.”
It is the responsibility of the State to ensure that fair and impartial justice is made
available at the door steps of the poor and economically weaker sections irrespective of their
caste, creed, religion, geographical position at free of cost.

95
AIR 1979 SC 1369

[33]
2.4 Protection of child rights

The evil of employment of children in agriculture and industrial sectors in India is a product
of economic Constitution, being aware of the likely exploitation of the children by persons
indifferent to their needs for their own personal gain specifically prohibited employment of
children in certain areas of employment.

The role of judiciary in India has been quite significant in promoting the child
welfare. Mr Justice Subba Rao, the former Chief Justice of India, rightly remarked, “Social
Justice must begin with child unless tender plant is properly nourished; it has little chance of
growing into strong and useful tree. So, first priority in the scale of social justice should be
96
given to the welfare of children” .

2.4.1 Attitude of the Supreme Court towards the evil of Child Labour

97
In Peoples Union for Democratic Rights vs. Union of India , the Supreme Court held
that the employment of children below 14 years of age was being hazardous, ultra-vires of
the Article 24 of the Constitution. The court took a serious note of the construction industry
being kept out of the ambit of employment of Children Act, 1938. Expressing concern about
the “sad and deplorable omission” the court advised the state Government to take immediate
steps for the inclusion of construction works in the schedule of the Act and to ensure that the
Constitutional mandate of Article 24 is not violated in any part of the country. Further the
Court observed that, “there can be, no doubt that notwithstanding the absence of
specification of construction industry in the Schedule to the employment of Children Act,
1938, no child below the age of 14 years can be employed in construction and the Union of
India as also every State Government must ensure that this constitutional mandate is not
violated in any part of the country.”

The aforesaid view was reiterated in Salal Hydro-Project vs. State of Jammu and
98
Kashmir case, where the Supreme Court held that construction work being a hazardous
employment, no children below the age of 14 can be employed in such work because of

96 K.Subba Rao, “Social Justice and Law”(1974), National Publications House Delhi, p.5.
97 AIR 1982 SC 1473
98 AIR 1984 SC 177

[34]
Constitutional prohibition contained in Article 24. In the instant case the Supreme Court has
gone beyond its conventional approach, that is directing the central government to persuade
the workmen to send their children to nearby schools and to arrange not only for schools but
also provide free of charge, books and other facilities such as transportation etc.

99
Then the Supreme Court in L.K. Pandey vs. Union of India observed that welfare
of the entire community, its growth and development depends upon the health and well-
being of its children and that children need special protection because of their tender age and
physique, mental immaturity and incapacity to look after themselves. Further, the Supreme
100
Court in Vishal Jeet vs. Union of India held that it is the duty of the state to see that
Article 39(e) and Article 23 of the Constitution are strictly adhered to and every step is
ensured to safe guard the interest of the child worker and save them against all forms of
exploitation.

101
In M.C. Mehta v. State of Tamil Nadu , a writ petition was filed by Shri M.C.
Mehta, seeking court orders for violation of fundamental rights of 2,941 child labourers
employed in factories of Sivasaki, manufacturing matches and fireworks. Further a suo moto
cognizance was taken by the court in the wake of an accident in one of the Sivakasi cracker
factories. The court recognized poverty as a cause for child labour and gave its tacit approval
to child labour. It tried to ensure social security measures for child labourers so as to give
them an opportunity to discontinue working. The Supreme Court in its order gave certain
directions to the Government of India and the Government of Tamil Nadu on the issue of
elimination of child labour. The main features of judgment are as under:

1) Survey for identification of working children;

2) Withdrawal of children working in hazardous industry and ensuring their


education in appropriate institutions;

3) Contribution @ Rs.20,000/- per child to be paid by the offending employers


of children to a welfare fund to be established for this purpose;

99
(1984) 2 SCC 244
100
1990 AIR 1412
101
AIR 1997 SC 699

[35]
4) Employment to one adult member of the family of the child so withdrawn
from work and it that is not possible a contribution of Rs.5,000/- to the welfare fund
to be made by the State Government;

5) Financial assistance to the families of the children so withdrawn to be paid


-out of the interest earnings on the corpus of Rs.20,000/25,000 deposited in the
welfare fund as long as the child is actually sent to the schools;

6) Regulating hours of work for children working in non-hazardous occupations


so that their working hours do not exceed six hours per day and education for at least
two hours is ensured. The entire expenditure on education is to be borne by the
concerned employer.

The Court in this case appeared to give credence to the Nimble Fingers Theory. The

Court observed that, “We take note of the fact that the tender hands of the young workers are
more suited to sorting out the manufactured product and process it for the purposes of
packing.” This nimble fingers theory has been criticized by a number of human rights
organizations, including Human Rights Watch. This view seems to rationalize the argument
that child labour is not an evil, but a production necessity. This rationalization is a lie. The
only rationale about this argument is that children bring down the cost of production thereby
increasing the profits of their masters.

However, the directions of the Supreme Court suffered from non-implementation and
in 2009 the Delhi High Court in Court on Its Own Motion vs. Government of Delhi,
102
NCT , had to issue directions to the Delhi Government to formulate an action plan on the
lines of the directions of the Supreme Court in 1997, for the protection of working
103
children .

104
In Bachpan Bachao Andolan vs. Union of India and Others , the petitioner, an
NGO for child rights filed a writ petition in the Supreme Court for issuance of directions for
rescue of children employed in circuses across the country. In this case the Apex Court

102 WP(C) No. 9767 of 2009


103 “To Ban or Balance: Children as Handa and Popular Cinema” availale at
http://www.nlujodhpur.ac.in/downloads/lawreview/Final_Cinema.pdf 104
2011 5 SCC 1

[36]
ordered, among other things, that the employment of children in circuses be prohibited; raids
be conducted on all circuses to liberate the children and examine the violations of their
rights, and that the rescued children be kept in the Care and Protective Homes until they are
18; the state talk to the parents of the children, and in case they are willing to take their
children back to their homes, they may be directed to do so after proper verification; and the
105
state frame a proper scheme of rehabilitation of rescued children from circuses .

2.4.2 Sexual Abuse of Children

The sexual abuse of children is one of the most heinous crimes. It is an appalling violation of
their trust, an ugly breach of our commitment to protect the innocent. A 2007 study by the
Ministry of Women and Child Development (MWCD) found that 53.22 per cent of India’s
106
children have experienced some form of sexual abuse. Against this background, the lack
of specific provisions for child sexual abuse in our criminal law is a serious lacuna.

The matter had come to the Supreme Court in the case of Sakshi v. Union of
107
India , where a PIL was filed with growing concern, the dramatic increase of violence, in
particular, sexual violence against women and children as well as the implementation of the
provisions of the Indian Penal Code, namely, Sections 377, 375/376 and 354. The Supreme
Court gave the following directions:

In holding trial of child sex abuse or rape:

(i) a screen or some such arrangements may be made where the victim or
witnesses (who may be equally vulnerable like the victim) do not see the body or
face of the accused;

(ii) the questions put in cross-examination on behalf of the accused, insofar as


they relate directly to the incident, should be given in writing to the presiding
officer of the court who may put them to the victim or witnesses in a language
which is clear and is not embarrassing;

105 http://www.bettercarenetwork.org/Law/instrument.asp?InstID=1694: last visited on 15-04-2018


106 “Study on Child Abuse: A 2007 Study by Ministry of Women and Child Development ”; Available at
www.wcd.nic.in/childabuse.pdf
107
(2004) 5 SCC 545

[37]
(iii) the victim of child abuse or rape, while giving testimony in court,
should be allowed sufficient breaks as and when required.

2.4.3 Child Trafficking

Child-trafficking, traditionally associated with only trafficking for commercial sex, is


growing fast in India. There are no laws that specifically target child-trafficking.
Commercial sex-trafficking offences are handled under the Immoral Traffic (Prevention)
Act. Labour-trafficking offences are handled under the Child Labour Act for those hazardous
industries in which child labour is considered an offence. There is no law prohibiting
employment of children in work outside the definition of “hazardous”.

Child Trafficking can be defined as:

“Sale and purchase of children for gain, within the country (intracountry) and across
borders (inter-country), by deceit, fraud or force, resulting in exploitation of the person
trafficked.”

Trafficking of children is done for various reasons like Sexual Exploitation (Forced
prostitution, Socially and religiously sanctified forms of prostitution, Sex tourism,
Pornography), Illegal Activities (Begging, Organ trade, Drug peddling and smuggling),
Labour (Bonded labour, Domestic work, Agricultural labour, Construction work, Carpet
industry, garment industry, fish/shrimp export as well as other sites of work in the formal
and informal economy), Entertainment and Sports, Adoption, Marriage.
From the legal point of view – India has been a front-runner in the battle against human
trafficking though much still needs to be done. The criminalization of trafficking flows from
Article 23(1) of the Constitution. To tackle human trafficking, we have had the necessary
legislation n place, principally the Immoral Traffic (Prevention) Act, 1956, in addition to
several provisions in labour laws and the Indian Penal Code. These form a composite legal
code for the prosecution and punishment of traffickers.

[38]
In addition to these legislative measures, the Supreme Court of India has touched on
108
this issue in two prominent judgments, i.e. – Vishal Jeet vs. Union of India and in
109
Gaurav Jain v. Union of India . These judgments directed the Government of India,
among other things, to prepare a ‘National Plan to Combat Trafficking and Commercial
Sexual Exploitation of Women and Children’. As a result of this, a National Plan was drafted
in 1998 which lays down suggested measures for prevention, rescue, rehabilitation and
reintegration.

110
In the case of Vishal Jeet v. Union of India Supreme Court gave the following
directions:

1) All the State Governments and the Governments of Union territories should
direct their concerned law enforcing authorities to take appropriate and speedy action
under the existing laws in eradicating child prostitution without giving room for any
complaint of remissness or culpable indifference.

2) The State Governments and the Governments of Union territories should set
up a separate Advisory Committee within their respective zones consisting of the
Secretary of the Social Welfare Department or Board, the Secretary of the Law
Department, sociologists criminologists, members of the women’s organisations,
members of Indian Council of Child Welfare and Indian Council of Social Welfare as
well the members of various voluntary social organisations and associations etc., the
main objects of the Advisory Committee being to make suggestions of:

i. the measures to be taken in eradicating the child prostitution,


and

ii. the social welfare programmes to be implemented for the care,


protection, treatment, development and rehabilitation of the young
fallen victims namely the children and girls rescued either from the
brothel houses or from the vices of prostitution.

108 1990 (3) SCC 318


109 1997 (8) SCC 114
110 Supra 107

[39]
3) All the State Governments and the Governments of Union territories should
take steps in providing adequate and rehabilitative homes manned by well-qualified
trained social workers, psychiatrists and doctors.

4) The Union Government should set up a committee of its own in the line, we
have suggested under direction No. (2) the main object of which is to evolve welfare
programmes to be implemented on the national level for the care, protection,
rehabilitation etc. of the young fallen victims namely the children and girls and to
make suggestions of amendments to the existing laws or for enactment of any new
law, if so warranted for the prevention of sexual exploitation of children.

5) The Central Government and the Governments of States and Union territories
should devise a machinery of its own for ensuring the proper implementation of the
suggestions that would be made by the respective committees.

6) The Advisory Committee can also go deep into Devadasi system and Jogin
tradition and give their valuable advice and suggestions as to what best the
government could do in that regard.

The need of the hour is for the courts to award stringent punishment in offences against
111
children. In Childline India Foundation vs. Alan John Waters and Ors. ,
complaints of physical and sexual abuse of children kept in shelter homes in Mumbai
were before the Supreme Court. Convicting the accused who deserved no leniency the
court observed as follows:
“Children are the greatest gift to humanity. The sexual abuse of children is
one of the most heinous crimes. It is an appalling violation of their trust, an
ugly breach of our commitment to protect the innocent. There are special
safeguards in the Constitution that apply specifically to children. The
Constitution has envisaged a happy and healthy childhood for children which
is free from abuse and exploitation”.

111
(2011) 6 SCC 261

[40]
112
In Gaurav Jain v. Union of India , the Supreme Court held that juvenile homes should be
used for rehabilitating child prostitutes and neglected children.

2.4.4 Rape of a Minor

113
In Dhananjoy Chatterjee vs. State of W.B. which involved rapecum-murder, the trial
court, the High Court and the Supreme Court agreed it to be a fit case for imposition of death
penalty. The Court pointed out that in recent years, rising crime rate, particularly against
woman had made judicial sentencing a subject of concern. The object of sentencing should
be to see that criminal does not go unpunished and the victim of crime as also the society has
the satisfaction that justice has been done. The sentence of death appears more appropriate
where rape and murder is committed by an accused having criminal record. The emerging
inference is that if a girl child is raped and murdered, the probability of death sentence is
highest.

2.4.5 Child Delinquency and Neglected Children of Juvenile

The Juvenile Justice Act, 1986 was enacted to provide for the care, protection, treatment,
development and rehabilitation of neglected or delinquent juveniles and for the adjudication
of such matters relating to disposition of delinquent juveniles. The Act sought to achieve a
uniform legal framework for juvenile justice in the country as a whole so as to ensure that no
child, in any circumstance, is lodged in jail and police lock-up. This is being ensured by
establishing Juvenile Welfare Boards and Juvenile Courts to deal adequately with the
subject.

One of the land mark judgments in the sphere of child and minor welfare is Sheela Barse
114
and Others vs. Union of India Others . In this case, the Supreme Court made an order
issuing various directions in regard to Physically and mentally retarded children as also
abandoned or destitute children who are lodged in various jails in the country for ‘safe
custody’.

112 Supra 108


113 1997 (8) SCC 114
114 AIR 1986 SC 1773

[41]
The Court directed the Director General of Doordarshan as also the Director General
of All India Radio to give publicity seeking cooperation of nongovernmental social service
organizations in the task of rehabilitation of these children. The Court declared that it was
“extremely pained and anguished that these children should be kept in jail instead be being
properly looked after, given adequate medical treatment and imparted training in various
skills which make them independent and self-reliant.”

2.4.6 Other cases relating to child rights

115
In Sheela Barse vs. Union of India the Supreme Court found that though several
states have enacted several legislations for the fulfilment of Constitutional obligations for the
welfare of children under Article 39(f), yet it is not enforced in some states. In view of this it
directed that such beneficial legislation be brought into force and administered without
delay. Justice Bhagawati made a suggestion to formulate and implement a national policy for
the welfare of children. Further, the Hon’ble Justice observed that the children’s programmes
should find a prominent part in our plans for the development of resources, so that our
children grow up to become citizen, physically fit, mentally alert and morally healthy,
endowed with the skill and motivations needed by society.

116
In Mohini Jain vs. State of Karnataka , the Supreme Court held that although the
right to education as such has not been guaranteed as a fundamental right under the
Constitution, it becomes clear from the Preamble of the Constitution and its Directive
Principles, contained in section IV, that the framers of the Constitution intended the State to
provide education for its citizens. The court then relates the Directive Principle of Article 14
which requires that the state attempt to implement the right to education within its economic
capacity. The court then reasons that this principle creates a constitutional right to education
because education is essential to the fulfilment of the fundamental rights of dignity and life.
The court links the right to education to the right to life by reasoning that to sustain life a
human being requires the fulfilment of all the enabling rights which create life of dignity. In
doing this, the court pointed to numerous cases which held that the right to life encompassed
more than life and limb, but also dignity and the necessities of life, such as nutrition,
clothing shelter, and literacy. Without dignity, the court explains, the right to life is not
115 AIR 1986 SC 1773
116 1992 AIR 1858

[42]
fulfilled. It was the court's opinion that one is only able to obtain a dignified life in India
through education, making education fundamental to the right to life, and therefore an
obligation of the State to fulfil.

117
In the landmark judgment in Shabnam Hashmi Vs. Union Of India & Ors. , the
Supreme Court ruled that, “ruled that any person can adopt a child under the Juvenile Justice
(Care and Protection of Children) Act 2000 irrespective of religion he or she follows and
even if the personal laws of the particular religion does not permit it…The JJ Act 2000 is a
secular law enabling any person, irrespective of the religion he professes, to take a child in
adoption. It is akin to the Special Marriage Act 1954, which enables any person living in
India to get married under that Act, irrespective of the religion he follows. Personal beliefs
and faiths, though must be honoured, cannot dictate the operation of the provisions of an
enabling statute…" The ruling assumes significance as there are over 12 million orphaned
118
children in India but on an average only 4,000 get adopted every year .

119
The Supreme Court in Dr. Subramanian Swamy and others v. Raju and others ,
refused to read down the provisions of the JJ Act, 2000, in order to account for the mental
and intellectual competence of a juvenile offender and refused to interfere with the age of a
juvenile accused, in cases where juveniles were found guilty of heinous crimes. It was held
by the Court that the provisions of the Act are in compliance with Constitutional directives
and international conventions. The Court further stated that the classification of juveniles as
a special class stood the test of Article 14 of the Constitution, and that the Court should
120
restrict itself to the legitimacy and not certainty of the law .

2.5 Rights of Bonded Labourers

It is most unfortunate that even after so many years of independence the inhumane
practice of bonded labour is still present in the society. In India the Bonded labour system

117
WRIT PETITION (CIVIL) NO. 470 OF 2005.
118
indiatoday.intoday.in/story/supreme-court-gives-adoption-rights-to-
muslims/1/344463.html;last visited on 10-04-2018
119

AIR 2014 SC 1649


120
http://www.thehindu.com/todays-paper/tp-opinion/towards-a-comprehensive-juvenile-
justice- law/article6222778.ece; last visited on 10-04-2018
[43]
continues to be the most pernicious form of human bondage. Most of these labourers come
from lowest strata of the society such as the untouchables, Adivasis, or agricultural
labourers. The system of bonded labour is one of the main characteristics of the feudal
hierarchical society. The system was designed to enable a few socially and economically
powerful sections of society to exploit the weaker sections of the society. The Constitution of
India guarantees Fundamental Rights against exploitation. Article 23 of the Constitution of
India prohibits “Traffic in human beings and beggar and other similar forms of forced
labour. The contravention of this Constitutional provision is made an offence punishable in
accordance with the law. To give effect to this Constitutional mandate parliament has
enacted Bonded Labour System (Abolition) Act, 1976.

The latest judicial trend reveals that Indian courts are quite enthusiastic in using the
law as a tool of social revolution. The judiciary is expected to act as catalytic agent of social
control. In India higher judiciary has been endeavouring to shield the cause of poor, bonded
labour and other deprived sections of the society. A number of writ petitions were filed
before the Supreme Court by way of Public Interest Litigation for the enforcement of Article
23 of the Constitution and the bonded labour system (Abolition) Act, 1976.

In People's Union for Democratic Rights and others Vs. Union of India and
121
others otherwise referred to as the Asiad Workers Case, the Supreme Court considered
the scope and ambit of Article 23 in detail. The court held that the scope of Article 23 is wide
and unlimited and strikes at “traffic in human beings” and “beggar and other forms of forced
labour” wherever they are found. It is not merely “beggar” that is prohibited but also other
forms of forced labour. “Beggar” is a form of forced labour under which a person is
compelled to work without any remuneration. This Article strikes itself at forced labour in
whatever form it may manifest itself, because it is contrary to human dignity and basic
human values. The practice of forced labour is condemned in almost every international
instrument dealing with human rights. Every form of forced labour, “beggar” or otherwise, is
prohibited and it is immaterial whether the person who is forced to give his labour or service
to another is paid remuneration or not. Even if remuneration is paid, labour or services
provided by the person would be hit by Article 23, if it is forced labour, e.g., labour supplied
not willingly but as a result of force or compulsion. This Article strikes at every

121
(1982) 3 SCC 235

[44]
form of forced labour even if it has its origin in a contract voluntarily entered into by the
person obligated to provide labour or service. The Court observed as follows:
“Moreover, in a country like India where there is so much poverty and
unemployment and there is no equality of bargaining power, a contract of service
may appear on its face voluntary, but it may, in reality, be involuntary, because while
entering into the contract, the employee by reason of his economically helpless
condition, may have been faced with Hobson’s choice, either to starve or to submit to
the exploitative terms dictated by the powerful employer. It would be a travesty of
justice to hold the employee in such a case to the terms as per contract and to compel
him to serve the employer even though he may not wish to do so. That would
aggravate the inequality and injustice from which the employee even otherwise
suffers on account of his economically disadvantaged position and lend the authority
of law to the exploitation of of the poor helpless employee by the economically
powerful employer. Article 23, therefore, says that no one shall be forced to provide
labour or service against his will, even though it be under a contract of service…”

If a person has contracted with another to perform service and there is a


consideration for such service in the shape of liquidation or debt or even remuneration he
cannot be forced by compulsion of law, or otherwise to continue to perform such service as
it would be forced labour within the meaning of Article 23. The word “force” was
interpreted by the Court very widely. Bhagwati, J., said:
“The word “force” must therefore be construed to include not only physical
or legal force but also force arising from the compulsion of economic
circumstances which leaves no choice of alternatives to a person in want and
compels him to provide labour or service even though the remuneration
received for it is less than minimum wage. We are, therefore, of the view that
when a person provides labour of service to another for remuneration which
is less than the minimum wage, the labour or service provided by him clearly
falls within the scope and ambit of the words "forced labour" under Article 23
of the Constitution of India”

Thus a person who provides labour or service to another for remuneration which is
less than minimum wage amounts to forced labour under Article 23. In the instant case, it
was held that the deduction of Re. 1 per worker per day by the Jamadars from the wages

[45]
payable to the workers employed by contractor for Asiad Projects in Delhi as a result of
which the workers did not get the minimum wage of Re. 9.25 per day was violative of
Article 23 of the Constitution.

Most of the Public Interest Litigation proceedings on the bonded labour seek to
implement the Bonded Labour System (Abolition) Act, 1976. The first major Public Interest
122
Litigation on this issue was Bandhua Mukti Morcha vs. Union of India filed in 1981.
The main issue concerned the existence of bonded labour in the Faridabad stone quarries
near the city of Delhi. It was alleged that majority of the workers were compelled to migrate
from other states, and turned into bonded labourers. The workers were living in sub-human
and miserable conditions. A violation of various labour laws and the Bonded Labour System
(Abolition) Act 1976 was alleged. The SC stated that:
“Therefore, whenever it is shown that the labourer is made to provide forced
labour, the Court would raise a presumption that he is required to do so in
consideration of an advance or other economic consideration received by him
and he is, therefore, a bonded labour. This presumption may be rebutted by
the employer and also by the State Government if it so chooses but unless and
until satisfactory material is provided for rebutting this presumption, the
Court must proceed on the basis that the labourer is a bonded labourer
entitled to the benefit of provisions of the Act. The State Government cannot
be permitted to repudiate its obligation to identify, release and rehabilitate the
bonded labourers on the plea that though the concerned labourers may be
providing forced labour, the State Government does not owe any obligation to
them unless and until they show in an appropriate legal proceeding conducted
according to the rules of adversary system of justice, that they are bonded
labourers. But unless and until satisfactory evidence is produced for rebutting
this presumption the court must proceed on the basis that the labourer is a
bonded labourer entitle to the benefit under the provision of the Bonded
Labour System (Abolition) Act, 1976. "

The courts also recognized the right of bonded labourers to live with human dignity.
It read the Directive Principles of State Policy into article 21 of the Constitution to make the
right to live with human dignity fruitful to the working class of the country. The stand in

122
(1984) 4 SCC 161

[46]
123
the Asiad case was reiterated that the state is under a constitutional obligation to see that
there is no violation of any fundamental rights of person, particularly when he belongs to the
weaker section of the community and is unable to wage a legal battle against a strong and
powerful opponent who is exploiting him. The Central government is bound to ensure
observance of social welfare and labour laws enacted by the parliament for the purpose of
securing to the workmen a life of basic human dignity in compliance with the Directive
Principles of State Policy. Justice Bhagwati observed:
“Bonded labour is totally incompatible with the new egalitarian socio-
economic order which we have promised to build and it is not only an affront
to basic human dignity but also constitutes gross and revolting violation of
constitutional values.”

The Apex Court also observed that when an action is initiated in the court through
public interest litigation alleging the existence of bonded labour the Government should
welcome it as it may give the Government an opportunity to examine whether bonded labour
system exists and as well to take appropriate steps to eradicate that system. This is the
constitutional obligation of the Government under Article 23.

124
In Neeraja Choudhary vs. State of M.P , case the Supreme Court felt that it is
not enough to merely identify and release bonded labourers but it is equally, perhaps more
important that after identification and release they must be rehabilitated because without
rehabilitation, they could be driven by poverty and helplessness and they may once again
turn to Bonded labour. It is the plainest requirement of Articles 21 and 23 of the Constitution
that the bonded labourers must be identified and released and on release they must be
suitably rehabilitated. The Bonded labour system (Abolition) Act, 1976 has been enacted
pursuant to the mandate of the Constitutional spirit with a view to ensuring basic Human
Dignity to the bonded labourers and any failure of action on the part of the state Government
in implementing the provisions of this legislation would be the clearest violation of Article
21 apart from Article 23 of the Constitution.

125
In Sanjit Roy vs. State of Rajsthan , the Supreme Court held that the payment of
wages lower than the minimum wages to the person employed on Famine Relief Work is

123 AIR 1982 SC 1473


124 AIR 1984 SC 1099
125 AIR 1983 SC 328

[47]
Violative of Article 23. Whenever any labour or service is taken by the Sate from any person
who is affected by drought and conditions of scarcity the State cannot pay him wages les
than minimum wage on the ground that it is given them to help to meet famine situation. The
State cannot take advantage of their helplessness.

126
In Deena vs. Union of India it was held that labour taken from prisoners without
paying proper remuneration was “forced labour” and violative of Article 23 of the
constitution. The prisoners are entitled to payment of reasonable wages for the work taken
from them and the Court is under duty to enforce their claim.

The decisions of the Supreme Court in the above cases set a new trend to ameliorate
the plight of bonded labourers. In these cases, the Supreme Court highlighted the importance
of the involvement of voluntary agencies in the process of identification and release of
bonded labourers. While finally reposing confidence in social action groups, the Apex Court
in Bandhua Mukti Morcha127 observed:
“It is primarily through social actions groups and voluntary agencies alone
that it will be possible to eradicate the bonded labour system”. In both the
cases the court expressed its faith in the inclusion of the members of
voluntary groups in the vigilance committees as a remedy for identification of
bonded labourers. However their achievement cannot be much unless the
states create the proper climate for this purpose. The decision of the Supreme
Court in Bandhua Mukthi Morcha recognised the right of the bonded
labourers to live with basic human dignity. The court derived this right from
Article 21 of the Constitution, which is a sanctuary of human values after
much celebrated decision of the Supreme Court in Maneka Gandhi. The
Supreme Court used expressions “bonded labour” and “forced labour” in such
a way so as to include it in Article 21 and related it to “right to live with
human dignity”.

The machinery of Public Interest Litigation has been successfully used to bring
Justice within the reach of the poor masses who were forced to work without being payed
even the minimum wages. The Supreme Court has quite successfully elaborated the meaning

126 AIR 1983 SC 1155


127 1984 3 SCC 161

[48]
of “beggar” and held that Article 23 of the Constitution is designed not only to protect the
individuals against state but also against other private citizens. The observations of the
Supreme Court in Bandhua Mukti Morcha and Neeraja Chaudary created new
Constitutionalism to secure the implementation of social or labour welfare legislations
through judicial process. The judiciary has certainly brought into limelight, the
administrative lapses and a sense of awakening in the public. It is high time the Government
took serious note of the direction of the Supreme Court in a positive manner. Indeed there is
a greater need not only to identify and release bonded labourers but to effectively and
adequately rehabilitate the released bonded labourers. Then only it can be considered that
Fundamental Rights of the bonded labourers are well protected in India, in the welfare state
established under the Constitution with long cherished goals.

2.6 Backward classes and their protection

An area, which has faced huge litigation and continues to be controversial with a
continuous tussle between the so called upward and the backward classes, has witnesses
changing trends of the Court. While earlier the Supreme Court believed in a literal
interpretation of the Constitution, devoid from practical realities, later on, in an advent to
secure the devices meant for the upliftment of the backward class, the Supreme Court turned
assumed a proactive role for itself and stood tall for their protection and the trend continues
to be there today as well.

128
The case of State of Madras v. Champakam Dorairajan reflects the earliest
ideology of the Supreme Court in this regard. The Government Order of 1951, which
provided for reservation in Medical Colleges on lines of caste, was challenged in this case as
being violative of fundamental right under Article 15(1) and Article 29(2) wherein the right
not to be discriminated in government admissions on multifarious considerations was
guaranteed. The Court did not agree to the justification given by the State that Article 46, as
a directive principle, mandated the state to make provisions for the promotion of the
educational and economic interests of the Scheduled Castes and Scheduled Tribes. The Court
opined that being a directive principle, Article 46 could not override the fundamental

128
AIR 1951 SC 226

[49]
rights under Article 15 and 29 and therefore, the Government Order was declared ultra vires
the Constitution.
Therein, thus, the Court took a positivist stand and ensured that the backward classes
were not promoted at the cost of the other well to do classes.

The opinion of a seven judge bench, however, was otherwise when the issue of
reservation was again before them in the illustrious case of Indra Sawhney v. Union of
129
India wherein the concept of reservation was not only validated but in fact was permitted
upto 50% i.e. the fact that half of all the government seats and posts could be set aside for a
portion of population not more than 15% of the entire population of country, was approved
by the Court. Thus the zeal to bring about parity in the people, both in terms of opportunity
and also instilling the ability to exploit the opportunity (especially to the vulnerable and the
destitute) made the Court think in terms of applying the ‘pull up’ theory when ‘push up’
theory was already at work under the Constitution.

The present trend is that even if there is one post that is sought to be filled and the
Government applies 40 point Roster (which provides for reservation and manner in which
the post is to be filled) in filling that post, which may even amount to 100% reservation and
total exclusion of the General category, it is not considered to be violative of Article 14.21 In
fact, the right to reservation was declared to be a fundamental right by the Supreme Court in
130
the case of State of Kerala v. N.M. Thomas .
Thus the intent of the Court to ensure the upheaval of the backwards can be evenly
witnessed.

2.7 Abolition of Untouchability

Article 17 of the Constitution abolishes untouchability. This has been done to castrate the
stigma and disgrace that was cast upon on a particular section of the society merely because
they were a deprived lot and were assigned the most abhorable work of the society. The
provision adopted here sought to end an age old practice which had found an almost
permanent place in the highly indoctrinated Indian society.
129 AIR 1993 SC 477
130 1976 SCR (1) 906

[50]
Nevertheless, though the Constitution prohibited untouchability in any form, its
enforcement was not an easy task. In N. Adithayan v. Travancore Devaswom Board &
Ors., the question which arose before the Supreme Court was, whether the appointment of a
person, who is not a Malayala Brahmin, as "Santhikaran" or Poojari (Priest) of the Temple in
question Kongorpilly Neerikode Siva Temple at Alangad Village in Ernakulam District,
Kerala State, is violative of the constitutional and statutory rights of the appellant. It was
contended that only Namboodri Brahmins alone were allowed to perform poojas or daily
rituals by entering into the Sanctum Sanctorum of Temples in Kerala, particularly the
Temple in question, and that had been the religious practice and usage all along and that
such a custom cannot be thrown over by the Travancore Devaswom Board, which was
responsible for the administration of the Temple.
However, the Court observed that distinction based on caste could not be allowed to
permeate in the social fabric of the society as far as everyday working was concerned. Since
worshipping in a temple had become a secular aspect, in this case, the Petitioner could not
contend that becoming a pujari in the temple was an exclusive right of a particular class
because people belonging to other class were not permitted in the temple, a practice which
was already abolished by Article 17 and positively established as under Article 25. Thus the
Court reaffirmed its stand that discrimination of any sort, amounting to untouchability would
not be tolerated in any form, express or implied.

In a similar case wherein, a complaint was filed that the respondent obstructed the
Harijans from taking water from the well as they were "Mahras" and that there was a
separate well for them, saying that if the Harijans insist on taking water the result would be
unhappy but the same was dismissed the High Court in appeal, the Supreme Court observed
that, under Article 17 of the Constitution and also under the Protection of Civil Rights Act,
1955, the thrust was to liberate the society from blind and ritualistic adherence and
traditional beliefs which lost all legal or moral basis and further seeks to establishment new
ideal for the society and in interpreting the Act, the judge should be cognigent to and always
keep at the back of his mind the constitutional goals and the purpose of the act and should
interpret the provisions in the light to an annihilate, untouchability and to afford to the Dalits
and Tribes right to equality, social integration and fraternity. Therefore the Court concluded
that where the Harijans were stopped from taking water from well on the round of their

[51]
being untouchable, the offence under Section 4 of Protection of Civil Rights Act, 1955 was
clearly made out.

2.8 Upholding the dignity of women

131
Further, in C.B. Muthamma v. Union of India wherein Rule 8(2) of the Indian Foreign
Services (Conduct & Discipline) Rules, 1961, required a women member of the Indian
Foreign Services to resign from the service if the Government was satisfied that her family
and domestic commitments were likely to come in the way of due and effective discharge of
her duties was declared as illegal and unconstitutional. The Court observed:
“We do not mean to universalize or dogmatize that men and women are equal
in all occupations and all situations and do not exclude the need to pragmatise
where the requirements of particular employment, the sensitivities of sex or
the peculiarities of societal sectors or the handicaps of either sex may compel
selectivity. But save where the differentiation is demonstrable, the rule of
equality must govern.”

Thus it can be stated with definitive that the Court has always played a pro-active
role in standing for bringing about a social change and here, standing for the rights and the
dignity of the women, the Court in categorical terms held that it would not permit
differentiation unless found essential in the facts of the case.

132
In similar circumstances, in Air India v. Nargesh Mirza the Court declared Air India
Regulation 46(i)(c) which provided for the services of the Air Hostesses to stand terminated
on first pregnancy, as violative of Article 14 as it sought to discriminate only on grounds of
sex. In categorical terms the Court observed:
“The provision according to which the services of Air Hostesses would stand
terminated on first pregnancy is not only manifestly unreasonable and
arbitrary but contains the quality of unfairness and exhibits naked despotism
and is, therefore, clearly violative of Article 14 of the Constitution. It amounts
to compelling the Hostesses not to have any children and thus interfere with
and divert the ordinary course of human nature. By making
131 AIR 1979 SC 1868
132 AIR 1981 SC 1829

[52]
pregnancy as a bar to continuance of ordinary course of Air Hostess, the
Corporation seems to have made an individualized approach to a women’s
physical capacity to continue her employment even after pregnancy which
undoubtedly is a most unreasonable approach.
…the termination of the services of an Air Hostess under such
circumstances is not only a callous and cruel act but an open insult to Indian
womanhood the most sacrosanct and cherished institution. Such a course of
action is extremely detestable and abhorrent to the notions of a civilized
society. Apart from being grossly unethical it smacks of a deep rooted sense
of utter selfishness at the cost of all human values. Such a provision,
therefore, is not only manifestly unreasonable and arbitrary but contains the
quality of unfairness and exhibits the quality of unfairness and exhibits naked
133
despotism and is, therefore, violative of Article 14.”

Standing for the protection of the first legally married wives, the Court in Sarla
134
Mudgal v. Union of India reaffirmed that marriage celebrated under a particular personal
law cannot be dissolved by application of another personal law to which one of the spouses
converts and the other refuses to do so. It further declared that a marriage could only be
dissolved by a decree of divorce on the ground mentioned under Section 13 of Hindu
Marriage Act and would continue to subsist after the husband having converted to Islam and
any second marriage after conversion would be an offence under Section 494 IPC.

135
Further, in case of Neeru Mathur v. LIC wherein the Petitioner applied for the
post of Assistant in LIC and was successful in both written and interview tests, she was
asked to fill a declaration form which was duly submitted upon being examined by a lady
doctor she found medically fit for the job. She was discharged from service when she
applied for a maternity leave. The Corporation contended that she was so removed as she
gave a wrong declaration wherein she was required to give the dates of her last menstruation
cycle, if the menstrual periods always been regular and painless, the number of conceptions
that have taken place and other personal details. In these circumstances, the Court observed
that there was no material to show that her work was not satisfactory and simply because she
gave a wrong declaration, she could not removed especially when ‘the declaration was

133
Ibid
134 AIR 1995 SC 1531
135 AIR 1992 SC 392

[53]
indeed embarrassing if not humiliating and the modesty and self-respect may perhaps
preclude the disclosure of such personal problems’ by the Petitioner and thus the concern of
the Court for the equilateral treatment of women can be duly observed.

It is noteworthy to mention the case of Associate Banks Officers Association v.


136
State Bank of India , wherein the Apex Court held that women workers are in no way
inferior to their male counterparts and hence there should be no discrimination on the ground
of sex against women.

137
In Air India Cabin Crew Association v. Yeshaswinee Merchant , the Supreme
Court has held that the twin Articles 15 and 16 prohibit a discriminatory treatment but not
preferential or special treatment of women, which is a positive measure in their favour.

Article 19 (1) (g) of the Constitution guarantees that all citizens have a right to
practice any profession or to carry on any occupation or trade or business. Sexual
harassment in exercise of this right at the work place amounts to its violation. In the case of
138
Delhi Domestic Working Women’s Forum v. Union of India relating to rape and
violence of working women the Supreme Court called for protection to the victims and
provision of appropriate legal representation and assistance to the complainants of sexual
assault cases at the police station and in courts.

Article 21 contains provisions for protection of life and personal liberty of persons.
139
In the case of State of Maharashtra v. Madhukar Narayan Mandikar , the Supreme
Court has held that even a woman of easy virtue is entitled to privacy and no one can invade
her privacy. This article has also been invoked for the upliftment of and dignified life for the
prostitutes.

The right to life enshrined in Article 21 of the Constitution also includes the right to
140
live with human dignity and rape violates this right of women.

136 AIR 1998 SC 32


137 AIR 2004 SC 187
138 (1995) 1 SCC 14
139 AIR 1991 SC 207
140 Bodhisattwa Gautam v. Subhra Chakraborty, AIR 1996 SC 922

[54]
A very important and useful provision of women’s welfare and well being is
incorporated under Article 42 of the Constitution. It imposes an obligation upon the State to
make provisions for securing just and humane conditions of work and for maternity relief.
Some of the legislations which promoted the objectives of this Article are the Workmen’s
Compensation Act, 1923, the Employees State Insurance Act, 1948, the Minimum Wages
Act, 1948, the Maternity Benefit Act, 1961, the Payment of Bonus Act, 1965, and the like. In
141
the case of Dattatraya v. State of Bombay , the Supreme Court held that legal provisions
to give special maternity relief to women workers under Article 42 of the Constitution do not
infringe Article 15 (1). In the case of Municipal Corporation of Delhi v. Female Workers
142
(Muster Roll) , the Supreme Court held that the benefits under the Maternity Benefits Act,
1961 extend to employees of the Municipal Corporation who are casual workers or workers
employed on daily wages basis. This applies to the claim of non-regularized female workers
for maternity relief.
It is unfortunate that the one reason or the other the practice of female infanticide still
prevails. One of the reasons may be the problem faced by the parents during marriage
coupled with the dowry demand by the so-called educated and/or rich person who are well
placed in society. The traditional system of female infanticide whereby female child was
done away with after birth by poisoning or letting her choke on husk continues in a different
form by taking advantage of advance medical techniques. Unfortunately, developed medical
science is misused to get rid of a girl child before birth. Knowing fully well that it is
immoral and unethical as well as it may amount to an offence; foetus of a girl child is
143
aborted .

In the case of Centre for Enquiry Into Health and Allied Themes (CEHAT) and Ors.v.
144
Union of India (UOI) and Ors. , the Supreme Court has admitted that:
“.. in Indian Society, discrimination against girl child still prevails, may be
because of prevailing uncontrolled dowry system despite the Dowry
Prohibition Act, as there is no change in the mind-set or also because of
insufficient education and / or tradition of women being confined to
household activities. Sex selection/sex determination further adds to this
adversity. It is also known that number of person condemn discrimination

141 AIR 1952 SC 181


142 AIR 2000 SC 1274
143 Centre for Enquiry into Health and Allied Themes (CEHAT) & Ors. V. Union of India and Ors.,
AIR 2001 SC 2007.
144
AIR 2003 SC 3309

[55]
against women in all its forms. And agree to pursue, by appropriate means, a
policy of criminating discrimination against women, still however, we are not
in a position to change mental set-up which favours a male child against a
female. Advance technology is increasingly used for removal of foetus (may
or may not be seen as commission of murder) but it certainly affects the sex
ratio. The misuse of modern science and technology by preventing the birth
of girl child by sex determination before birth and thereafter abortion is
evident from the 2001 Census figures which reveal greater decline in sex ratio
in the 0-6 age group in States like Haryana, Punjab, Maharashtra and
Gujarat, which are economically better off.”

2.9 Right to Food

The right to food can be seen as an implication of the fundamental “right to life”, enshrined
in Article 21 of the Indian Constitution. Indeed, the Supreme Court has explicitly stated
(several times) that the right to life should be interpreted as a right to “live with human
145
dignity”, which includes the right to food and other basic necessities.

The right to food can also be linked with Articles 39(a) and 47 of the Constitution.

Article 39(a) directs the State to ensure that all citizens have “the right to an adequate means
of livelihood”. According to Article 47, “the State shall regard the raising of the level of
nutrition and the standard of living of its people and the improvement of public health as
among its primary duties”. These two Articles belong to the “Directive Principles of State
Policy”, which are not supposed to be enforceable in Court (Article 37). However, it is

145
For instance, in Francis Coralie v. Administrator, Union Territory of Delhi and Ors. (1981) 1 SCC
608 the Supreme Court observed:
"We think that the right to life includes the right to live with human dignity and all that goes
along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and
shelter and facilities for reading, writing and expressing one-self in diverse forms, freely
moving about and mixing and commingling with fellow human beings. Of course, the
magnitude and content of the components of this right would depend upon the extent of the
economic development of the country, but it must, in any view of the matter, include the right
to the basic necessities of life and also the right to carry on such functions and activities as
constitute the bare minimum expression of the human-self.

Similarly, in Shantistar Builders v. Narayan Khimalal Totame (1990) 1 SCC 520, the Supreme Court
stated: "The right to life is guaranteed in any civilized society. That would take within its sweep the
right to food…"

[56]
possible to argue that Articles 39(a) and 47 are enforceable in court as expressions of the
146
fundamental right to life.

In April 2001, People's Union for Civil Liberties (PUCL) filed a “writ petition” on
the right to food in the Supreme Court. This petition was filed at a time when the country's
food stocks reached unprecedented levels while hunger in drought-affected areas intensified.
Initially the case was brought against the Government of India, the Food Corporation of
India (FCI), and six State Governments, in the context of inadequate drought relief.
Subsequently, the case was extended to the larger issues of chronic hunger and
undernutrition, and all the State Governments were added to the list of “respondents”.

Regular hearings on this case has been held since April, 2001 and this has received
much attention; both at home and abroad. Although the Court is yet to announce its final
judgement on the matter, it has issued various interim orders. Among these orders is the
order to the government to:

(1) introduce cooked mid-day meals in all primary schools,

(2) provide 35 kgs of grain per month at highly subsidised prices to 15 million
destitute households under the Antyodaya component of the PDS,

(3) double resource allocations for Sampoorna Grameen Rozgar Yojna (India’s
largest rural employment program at that time, now superseded by the Employment
Guarantee Act), and

(4) universalise the Integrated Child Development Services (ICDS).

Various interims were passed directing authorities to see that food is provided to the
aged, infirm, disabled, destitute women, destitute men who are in danger of starvation,
pregnant and lactating women and destitute children, especially in cases where they or
members of their family do not have sufficient funds to provide for them.

146
It is also worth remembering that while Article 37 states that the Directive Principles “shall not be
enforceable by any court”, it goes on to emphasize that these Principles “are nevertheless fundamental
in the governance of the country and it shall be the duty of the state to apply these principles in
making laws” (Article 37).

[57]
The first major interim order of the Supreme Court in this PIL was issued on 28th November
2001. This order focuses on eight food-related schemes:
(1) Public Distribution System (PDS);
(2) Antyodaya Anna Yojana (AAY);
(3) National Programme of Nutritional Support to Primary Education, also known as
“Mid-
Day Meals scheme”;
(4) Integrated Child Development Services (ICDS);
(5) Annapurna; (6) National Old Age Pension Scheme (NOAPS);
(7) National Maternity Benefit Scheme (NMBS); and
147
(8) National Family Benefit Scheme (NFBS).

Essentially, the interim order of 28th November 2001 converted the benefits of these eight

“schemes” into legal entitlements. This means, for instance, that if someone has an
Antyodaya card but she is not getting her full quota of 35 kg of grain per month at the
official prices (Rs 3/kg for rice and Rs 2/kg for wheat), she can claim her due as a matter of
right, by going to Court if necessary.

In the case of Mid-Day Meals, the interim order went further than just giving a legal
protection to existing entitlements. It also directed the government to replace monthly “dry
rations” of grain with daily, cooked Mid-Day Meals, within 3 months.

The basic idea of this order was that, at the very least, the government should be held
accountable to what it claims to be doing to protect the right to food, i.e. implement these
food-related schemes. Many of the subsequent hearings were concerned with the
th
implementation of the 28 November order, leading to further orders around the schemes.
After a brief discussion of "umbrella" orders that pertain to all the food-related schemes, this
section presents a scheme-wise summary of the orders.

This is a legally and politically important case and is one of the longest running
mandamus cases of its kind. It has continued to have an increasingly positive effect in the
lives of the poor and the hungry. This case has helped in asserting the right to food as a

147
A ninth scheme, Sampurna Gramin Rozgar Yojana (SGRY), was not mentioned in this order but it
did figure in the initial list of food-related schemes on which the Supreme Court requested affidavits
from the State Governments (on 17th September 2001), and SGRY became the main focus of the next
interim order, issued on 8th May 2002.
[58]
fundamental right under Article 21, which has proved to be a very valuable instrument in
holding the state answerable and reduced the State’s freedom to cut down on programs
related to right to food.

However, even with all the programs in place, the Supreme Court Commissioners
who are monitoring implementation of the PUCL case report more starvation deaths in
148
recent times than when the case first came up . This shows that maybe the laws and court
orders are not what really matter in the end, but the actual execution of the necessary
provision and maybe, we need to weed out the corruption in the system before we can expect
the food to reach the people suffering due to starvation

2.10 Other specific instances

It has not been these illustrations alone but there are a lot of other specific instances
wherein the Court seems to have brought in social justice and values to ensure change in the
societal structure and values.

149
In Jolly George Verghese v. Bank of Cochin the Court declared civil
imprisonment for non payment of debt as unconstitutional and thus saved the victims of
poverty who were unable to pay off their debts even when the decree of the Court was
executed against them and thus had no option but to serve the prisons.

150
In Madhu Kishwar v. State of Bihar the Court declared section 7, 8 of the
Chhota Nagpur Tenancy Act, 1908 excluding the female heirs in Scheduled Tribes from
inheritance was declared as unconstitutional and the Court directed the government to
reconsider the Act looking into the feasibility of permitting inheritance to females.

148 ‘Right to Food, Making it Happen; Progress and Leasons Learned through implementation’, The
Food and Agricultural Organisation of the United Nations, 2011
149 1980 SCR (2) 913
150 AIR 1996 5 SCC 125

[59]
An attempt towards social change has been to change the mentality of the traditional
Indian folk that girl child in not a bane to the family as has come to be understood in the
present era. In this regard, the emphasis has been to curb the usage of scientific sex-
determining instruments. The role of the Court has been proactive in the sense that the Court
itself ensured its compliance. If fact notices were given to the Secretary of eleven states for
151
delay its compliance.

152
In Kamalabhai Jethamal v. State of Maharashtra , the Supreme Court severely
condemned the practice of Bombay Police to employ young men as trap witnesses in order
to find out prostitutes and get them arrested.

In a series of writ petitions on the same issue, brought before the notice of the Court
by leading Jurist Upendra Baxi and Late Ms. Lolita Sarkar, the Supreme Court ensured that
the mental patients at the Agra Protective Home were ensured not only their minimal rights
for their survival but also for a dignified existence. The Court not only directed but also
supervised the implementation of its directions to see to it that its concerns were properly
153
meted out.

Further, understanding the plight of the workers, the Court in Chandra Bhavan
154
Boarding and Lodging, Bangalore v. State of Mysore held that the provisions of the
Minimum Wages Act, 1948 were not arbitrary and in fact had to be sustained in a country
like India wherein though living wage was the target but on account of the general level of
the wages in the country and the industries and also the capacity of the industry to pay, a
certain quantum of wages had to be determined as minimum wages which may sustain the
worker in a reasonable manner i.e. is that wage which is sufficient to cover the bare physical
needs of a worker and his family.

151 CEHAT & Ors. v. Union of India, AIR 2003 SC 3309


152 AIR 1962 SC 1189
153 Upendra Baxi & Lolita Sarkar v. State of U.P. , Writ Petition No. 1900 of 1981; Upendra Baxi &
Lolita Sarkar v. State of U.P. (1983) 2 SCC 308; Upendra Baxi & Lolita Sarkar v. State of U.P. (1986)
4 SCC 106; Upendra Baxi & Lolita Sarkar v. State of U.P. (1998) 8 SCC 622; Upendra Baxi & Lolita
Sarkar v. State of U.P. (1999) 9 SCC 388
154
AIR 1970 SC 2042

[60]
Giving fair treatment to the physically challenged persons, the Court in Javed Abidi
155
v. Union of India & Ors. directed the grant of facilities of concession while traveling air
same as in train or bus. Thus the directions were given to Indian Airlines and the Persons
with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995
was enforced in spirit as well.

156
Further, in Samtha v. State of A.P. the Court held that right to development was a
fundamental right of the tribal folk and was an essential ingredient of right to live as
enshrined under Article 21. Thus the Court held that additional protection was to be meted to
them. If equality is the fundamental tenet underlying the Constitution than inequality in any
form shall not be tolerated. Having determined to eliminate any form of man made
inequality; the Court approved the abolition of the privy purses paid to the erstwhile rulers of
157
the independent states that existed prior to the commencement of the Constitution.

Citing the phenomenon of “scarcity amidst plenty” and of malnutrition and starvation
amongst the most deprived sections of the population, and linking the basic health status of
school-age children to the right to education, the apex judiciary directed every state
government to introduce cooked mid-day meals in all government and government-assisted
158
primary schools within six months .

155 AIR 1999 SC 512


156 (1997) 8 SCC 191
157 H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior, & Ors. v. Union
of India and Anr., AIR 1971 SC 530
158 Sathe, Judicial Activism in India, 13

[61]
CHAPTER 3

IS THE SUPREME COURT TRANSGRESSING THE DOCTRINE OF

SEPARATION OF POWERS

3.1 Doctrine of Separation of Powers

“There is no liberty where judicial power is not separated from both


legislative and executive power. If judicial and legislative powers are not
separated, power over the life and liberty of citizens would be arbitrary,
because the judge would also be a legislator. If it were not separated from
executive power, the judge would have the strength of an oppressor.”

These words of Montesquieu, the great political philosopher of the Enlightenment, best sum
up the Doctrine of Separation of Powers i.e. a system of governance in which different
branches of government exercise different powers to avoid concentration of powers and
preserve human liberty—the legislature should make law, the executive should execute it,
and the judiciary should settle disputes in accordance with the law.

The Constitution of India envisages a system of governance based on the separation


of powers, even though the Constitution does not expressly mention it. For instance, Article
53(1) expressly vests the executive power of the union in the President, and Article 50
clearly states that the State should take necessary steps to separate judiciary from the
executive. In the Indian Context, ‘Separation of Power’ is one of the basic features of the
Indian Constitution, which has been rightly declared by the Supreme Court of India in the
159
matter of State of Bihar v. Bal Mukund Shah .

160
In Rai Sahib Ram Jawaya Kapur & Ors. v. The State of Punjab, the Supreme
Court, therefore, observed:
“The Indian Constitution has not indeed recognized the doctrine of separation
of powers in its absolute rigidity but the functions of the different parts or

159 (2000) 4 SCC 640


160 AIR 1955 SC 549

[62]
branches of the Government have been sufficiently differentiated and
consequently it can very well be said that our Constitution does not
contemplate assumption, by one organ or part of the State, of functions that
essentially belong to another.”

The doctrine of separation of power has not been adopted in its classical and strict
sense. However, the Constitution of India had attempted to insulate each one of these organs
against their powers being trenched upon by the other departments of State. This is very well
reflected from the various provisions of the Constitution like Article 121 of the
161
Constitution which puts a kind of restriction on Parliament. It states that no discussion
shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court
or of a High Court in the discharge of his duties. A similar provision with regard to the State
162
legislatures is Article 211 of the Constitution of India .

Additionally, Article 361 of the Constitution grants a kind of immunity to the


President or the Governor. It states that the President or the Governor shall not be
answerable to any court for the exercise and performance of the powers and duties of his
office. Besides this, Article 74 (2) of the Constitution mandates that the question whether
any, and if so, what advice was tendered by Ministers to the President shall not be inquired
into by any court. These provisions are illustrative enough to reach the conclusion that the
Constitution makers took every possible measure to have a robust form of ‘separation of
power’ under the Indian Constitutional scheme, thereby upholding the independence of each
organ of the state, while at the same time, keeping the mechanism of ‘Checks and Balances’
intact, so as to uphold the flag of the Rule of Law and to maintain the Supremacy of the
Constitution.

163
Subsequently, in L. C. Golak Nath & Ors. v. State of Punjab & Anr ., the
Supreme Court reinforced its view with respect to separation of powers thus:
“The constitution creates Legislature, the Executive and the Judiciary. It
demarcates their jurisdiction minutely and expects them to exercise their

161 Article 121- No discussion shall take place in Parliament with respect to the conduct of any Judge
of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting
an address to the President praying for the removal of the Judge as hereinafter provided.
162 Article 211- No discussion shall take place in the Legislature of a State with respect to the conduct
of any Judge of the Supreme Court or of High Court in the discharge of his duties.
163
AIR 1967 SC 1643,

[63]
respective powers without overstepping their limits. They should function
within the spheres allotted to them”

Today, the doctrine of separation of powers has strong footing in the constitutional
jurisprudence in India. This is evident from the Supreme Court’s observation in State of

West Bengal & Ors. v. Committee for protection of Democratic Rights, West Bengal &
164
Ors. :
“It is trite that in the constitutional scheme adopted in India, besides
supremacy of the constitution, the separation of powers between the
legislature, the executive and the judiciary constitutes the basic features of
the Constitution.”

3.2 Judicial Activism of the Supreme Court of India

With the aforementioned caveats in mind, in the Indian context, judicial activism
is regarded as the active interpretation of an existing provision with the view of enhancing
the utility of legislation for social betterment, in accordance with the constitution. The
Supreme Court has itself urged judges to actively strive to achieve the constitutional
aspirations of socio-economic justice.

165
In S. P. Gupta v. Union of India , referring to the orthodox British view of
judging—judge as a neutral and passive umpire—the Court observed:
“Now this approach to the judicial function may be all right for a stable
and static society but not for a society pulsating with urges of gender
justice, worker justice, minorities’ justice, dalit justice and equal justice
between chronic un-equals. Where the contest is between those who are
socially or economically unequal, the judicial process may prove
disastrous from the point of view of social justice, if the Judge adopts a
merely passive or negative role and does not adopt a positive and creative
approach. The judiciary cannot remain a mere bystander or spectator but
it must become an active participant in the judicial process ready to use
law in the service of social justice through a pro-active goal oriented
164 AIR 2010 SC 1476
165 AIR 1982 SC 149

[64]
approach. . . .What is necessary is to have Judges who are prepared to
fashion new tools, forge new methods, innovate new strategies and evolve
a new jurisprudence, who are judicial statesmen with a social vision and a
creative faculty and who have, above all, a deep sense of commitment to
the Constitution with an activist approach and obligation for
accountability, not to any party in power nor to the opposition nor to the
classes which are vociferous but to the half hungry millions of India who
are continually denied their basic human rights. We need Judges who are
alive to the socio-economic realities of Indian life, who are anxious to
wipe every tear from every eye, who have faith in the constitutional values
and who are ready to use law as an instrument for achieving the
166
constitutional objectives.”

For a long time now, the Supreme Court has emphasised the Constitutional objectives, and
has acted as if it were moved by the teary-eyed masses of India. It has understood that when
some branch of the government fails to discharge its constitutionally mandated function,
people are entitled to move the courts for redress; so moved, the Court has compelled the
inactive branch concerned, to discharge the said function.

In Kumari Mathuri Patil & Anr. v. Addl. Commissioner, Tribal Development &
167
Ors., the Supreme Court realised, that at the instance of fraudulent and fabricated
certificates, candidates belonging to forward communities had been obtaining benefits that
were meant only for reserved category candidates under the reservation policy of the State.
In order to check the same, and to give such benefits to genuine candidates, the Supreme
Court issued a set of 15 guidelines, providing for a complete procedure with respect to how
such certificates should be granted, which would be the authority that is competent to issue
such certificates, and a procedure for the issuance of the same. It also created a vigilance cell
headed by a senior police officer, whose purpose was to investigate the social status of the
claimant.

The Supreme Court, while deciding the case, in Dayaram v. Sudhir Batham &
168
Ors., doubted the correctness of the said judgment. The court doubted the competence of

166 Ibid
167 (1994) 6 SCC 241
168 (2012) 1 SCC 333

[65]
the Supreme Court to issue such directions, which were allegedly to be legislative in nature.
Therefore, the matter was referred to a larger bench, and such larger bench held, that in
exercise of the powers conferred upon it by Article 32 r/w Article 142 of the Constitution,
the directions issued by the Supreme Court were valid and laudable, as the same had been
made to fill the vacuum that existed in the absence of any legislation, to ensure that only
genuine SC/ST and OBC candidates would be able to secure the benefits of certificates
issued, and that bogus candidates would be kept out. Simply filling up an existing vacuum
till the legislature chooses to make appropriate laws, does not amount to taking over the
functions of the legislature.

Furthermore, the founding fathers, by the incorporation of Article 141, empowered


the Supreme Court to declare the law of the land. Expounding on Article 141, in Nand
169
Kishore v. State of Punjab , the Court held:
“Their Lordships decisions declare the existing law but do not enact any fresh
law, is not in keeping with the plenary function of the Supreme Court under
Article 141 of the Constitution, for the Court is not merely the interpreter of
the law as existing, but much beyond that. The Court as a wing of the State is
by itself a source of law. The law is what the Court says it is.”

In reference to its powers that may be exercised when it is moved by an appropriate


proceeding for the enforcement of a fundamental right, in Bandhua Mukti Morcha v.
170
Union of India , the Supreme Court observed:
“It is not only the high prerogative writs of mandamus, habeas corpus,
prohibition, quo warranto and certiorari which can be issued by the Supreme
Court but also writs in the nature of these high prerogative writs and therefore
even if the conditions for issue of any of these high prerogative writs are not
fulfilled, the Supreme Court would not be constrained to fold its hands in
despair and plead its inability to help the citizen who has come before it for
judicial redress, but would have power to issue any direction, order or writ
including a writ in the nature of any high prerogative writ. This provision
conferring on the Supreme Court power to enforce the fundamental rights in
the widest possible terms shows the anxiety of the Constitution makers not to
allow any procedural technicalities to stand in the way of enforcement of
169 (1995) 6 SCC 614
170 AIR 1984 SC 802

[66]
fundamental rights. The Constitution makers clearly intended that the
Supreme Court should have the amplest power to issue whatever direction,
order or writ may be appropriate in a given case for enforcement of a
fundamental right.”

Quoting the observations in respect of policy making by Lord Justice Lawton in


171
Laker Airways , Chief Justice A.S. Anand, as he then was, re-iterated the principle that
the ‘role of the judge is that of a referee. I can blow my judicial whistle when the ball goes
out of play; but when the game restarts, I must neither take part in it nor tell the players how
to play’. Justice Anand added:
“The judicial whistle needs to be blown for a purpose and with caution. It
needs to be remembered that court cannot run the government. It has the duty
of implementing the constitutional safeguards that protect individual rights
but they cannot push back the limits of the Constitution to accommodate the
172
challenged violation.”

Wise words indeed for judges to remember. The problems, however, is the absence of
an effective remedy when judges cross the line, consciously or otherwise, leaving no remedy
to restore constitutional balance.

Courts of law are creatures of the Constitution and can act only within the sphere of
their jurisdiction.

3.3 Article 32 and Article 142 Jurisprudence

In its activist streak, the Supreme Court has also imparted new vigour to the process
of constitutional interpretation. For instance, the Supreme Court has insightfully identified
Article 32 as the constitutional provision that provides for the enforcement of fundamental
rights in areas with legislative vacuum. Not only has it held that fundamental rights are
limitations upon the State power, but the right to constitutional remedies is itself a
fundamental right enshrined in Article 32 of the Constitution, and in the case of an
infringement of a fundamental right by the State, an aggrieved party can approach the
Supreme Court for a remedy.
171 (1977 (2) WLR 234 at 267)
172 Pratap Bhanu Mehta, “The rise of judicial sovereignty,” Journal of Democracy 18, 2 (April 2007)

[67]
173
In Vishaka & Ors. v. State of Rajasthan & Ors. , the Supreme Court held:
“In view of the above, and the absence of enacted law to provide for the
effective enforcement of the basic human right of gender equality and
guarantee against sexual harassment and abuse, more particularly against
sexual harassment at work places, we lay down the guidelines and norms
specified hereinafter for due observance at all workplaces or other
institutions, until a legislation is enacted for the purpose. This is done in
exercise of the power available under Article 32 of the Constitution for
enforcement of the fundamental rights and it is further emphasised that this
would be treated as the law declared by this Court under Article 141 of the
Constitution.”

Providing further reinforcement to the Article 32 jurisprudence, in Vineet Narain v.


174
Union of India , the Court noted that the issuance of guidelines and directions, in the
exercise of the powers under Articles 32 and 142, has become an integral part of our
constitutional jurisprudence. It also pointed out that such an exercise of powers was
absolutely necessary to fill the void in areas with legislative vacuum. In addition, the Court
noted:
“As pointed out in Vishaka, it is the duty of the executive to fill the vacuum
by executive orders because its field is co-terminus with that the legislature,
and where there is inaction even by the executive for whatever reason, the
judiciary must step in, in exercise of its constitutional obligations under the
aforesaid provisions to provide absolution till such time as the legislature acts
to perform its role by enacting proper legislation to cover the field. On this
basis, we now proceed to give the directions enumerated hereafter for rigid
compliance till such time as the legislature steps in to substitute them by
proper legislation. These directions made under Article 32 read with Article
142 to implement the rule of law wherein the concept of equality enshrined in
Article 14 is embedded, have the force of law under Article 141 and by virtue
of Article 144 it is the duty of all authorities, civil and judicial, in the territory
175
of India to act in aid of this Court.”

173 AIR 1997 SC 3011


174 AIR 1998 SC 889
175 Ibid

[68]
Similarly, the Supreme Court has vitally contributed to the development of Article 142
176
jurisprudence. In Supreme Court Bar Association v. Union of India a Constitution
Bench of the Court held:
“Indeed this Court is not a court of restricted jurisdiction of only dispute-
settling. It is well recognized and established that this court has always been a
law maker and its role travels beyond merely dispute settling. It is a "problem
solver in the nebulous provisions dealing with the subject matter of a given
case cannot be altogether ignored by this Court, while making an order under
Article 142. Indeed, these constitutional powers cannot, in any way, be
controlled by any statutory provisions but at the same time these powers are
not meant to be exercised when their exercise may come directly in conflict
with what has been expressly provided for in a statute dealing expressly with
177
the subject.”

Describing the scope of the powers under Article 142, in Kalyan Chandra Sarkar v.
178
Rajesh Ranjan , the Court noted:
“Article 142 is an important constitutional power granted to this court to
protect the citizens. In a given situation when laws are found to be inadequate
for the purpose of grant of relief, the court can exercise its jurisdiction under
Article 142 of the Constitution. This court reiterated that directions issued by
this court under Article 142 from the law of the land in the absence of any
substantive law covering the field and such directions "fill the vacuum" until
the legislature enacts substantive law. This court has issued guidelines and
directions in several cases for safeguarding, implementing and promoting the
179
fundamental rights, in the absence of legislative enactments.”

The Court described this power to do ‘complete justice’ as a ‘corrective power’,


which privileges equity over law. The Supreme Court explaining the nature of inherent
power in article 142 of the Constitution stated that:

176 AIR 1998 SC 1895


177 Ibid
178 AIR 2005 SC 972
179 Ibid

[69]
“… in exercise of its plenary powers under Article 142 this Court could not
ignore any substantive statutory provision dealing with the subject. It is a
residuary power, supplementary and complementary to the powers
specifically conferred on the Supreme Court by statutes, exercisable to do
complete justice between the parties where it is just and equitable to do so.”

Hence, the power under Article 142 of the Constitution was vested in the Supreme
Court to prevent any obstruction in the stream of justice; it can be considered as a tool for
rendition of individualized justice. The Court held:
“This Court's power under Article 142(1) to do "complete justice" is entirely
of different level and of a different quality. What would be the need of
complete justice in a cause or matter would depend upon the facts and
circumstances of each case and while exercising that power the Court would
take into consideration the express provisions of a substantive statute. Any
prohibition or restriction contained in ordinary laws cannot act as a limitation
on the constitutional power of this Court. Once this Court has seisin of a
cause or matter before it, it has power to issue any order or direction to do
"complete justice" in the matter.”

Nevertheless, Supreme Court had cautioned itself against the abuse of the power to
review by declaring:
“The power, however, has to be exercised for doing full and complete justice.

But wider the discretionary power, the more sparing its exercise. Times out of
number this Court has stressed that though parties promiscuously provoke
this jurisdiction, the Court parsimoniously invokes the power.”

While considering the nature and ambit of its own power under this Article, this
Court observed that it was advisable to leave its power uncatalogued so that it remains
elastic enough to be molded to suit the given situation, even where no alternative remedy is
efficacious due to lapse of time. The recent prudence on the part of Supreme Court itself, to
streamline its jurisdiction and ambit of Art. 142 of the Constitution is well reflected when a
division bench of it referred the question at hand to the Chief Justice of India for constituting
a higher bench.

[70]
3.4 Other Examples Where the Court Issued Guidelines

As an example, in the absence of the any legislation enacted by Parliament on the subject of
inter-country adoption, i.e., the adoption of Indian children by foreign nationals, the
180
Supreme Court issued detailed guidelines in L. K. Pandey v. Union of India & Anr .
Since there has been no subsequent legislation, these guidelines continue to be the law.
Similarly, in the absence of any relevant legislation, the Supreme Court issued guidelines
181
required to be followed while making arrests, in D. K. Basu v. State of West Bengal ,
concerned about the plight of the undertrials, the Supreme Court issued pertinent guidelines
182
in Ramamurthy v. State of Karnataka .

3.5 The Bounds of the Supreme Court's Activism

Notwithstanding the risk of being redundant, it is crucial to stress that the Court has
always understood it to be the obligation of the executive branch to pass orders in areas of
legislative vacuum; this is because the executive’s field is co-terminus with that of the
legislature. It is only when both the legislature and the executive have failed to provide
legislation in an area, the Court has found it to be the duty of the judiciary to intervene and,
that too, only until the Parliament enacts proper legislation covering the area. The Supreme
Court has been remarkably cautious while deciding whether to perform legislative or
executive functions.

183
In Aravali Golf Club v. Chander Hass , it observed that judges should not
unjustifiably try to perform executive or legislative functions; in the name of judicial
activism, the judiciary cannot attempt to take over the functions of another organ of the
State. Nonetheless, the Court noted that judicial activism is a useful, if not necessary, adjunct
to a healthy democracy. Such activism, however, should be resorted to only in exceptional
circumstances where the interests of the nation or of the poorer or weaker sections of the
society would be in peril in the absence of judicial action. Ordinarily, the task

180 AIR 1986 SC 272


181 AIR 1997 SC 610
182 AIR 1997 SC 1739
183 (2008) 1 SCC 683

[71]
of legislation or administrative decisions is for the legislature and the executive and not for
the judiciary.

Crucially for our constitutional democracy, the Supreme Court has always held the
Constitution to be the supreme and immutable source of law. According, even in its activist
posture, in Dayaram, the Court has noted:
“This Court has neither re-written the Constitution nor resorted to ‘judicial
legislation’. The judicial power was exercised to interpret the Constitution as
a ‘living document’ and to enforce fundamental rights in an area where the
will of the elected legislatures have not expressed themselves.”

3.6 Has the Supreme Court in its activism failed to respect the Constitution?

It has frequently been remarked that the Indian Supreme Court through its activism
has assumed the role of the Legislature; the criticism is that it has not only performed the
circumscribed role of a law giver, but that it has actually assumed the role of a plenary law-
making body, like the Legislature. Put differently, it has been stated that the SC has clearly
overstepped the limits of the judiciary and has ventured into the domains of the other
branches of the government. Many proponents of judicial restraint have opined, that some
remedies designed by the Supreme Court such as the 'continuous mandamus' demonstrate
the failure of the judiciary to observe judicial restraint, and that is undesirable because it is a
failure to accord respect to other co-equal branches of the government. According to this
view, the judiciary acts as if it were first among equals.

It is, of course, true that our Constitution comprehends three co-equal branches of the
government. No democracy and no constitution gives absolute powers to the judiciary. In
fact, it must be acknowledged that the consolidation of power by any one branch of
government is anathematic to the very idea of democracy. Consequently, judicial creativity
ought not to result in subverting the Constitution. Any attempt made by the judiciary to re-
write the Constitution, particularly in light of the Court's own creation of the basic structure
doctrine, ought to be regarded as unconstitutional. An act of the judiciary that is motivated
purely by goals other than those enshrined in the Constitution must be considered
constitutionally illegitimate, and such an act must be curbed in its infancy.

[72]
The basic question that then arises is whether the Supreme Court has followed the
principle of separation of powers even as it has embraced judicial activism? The answer has
to be a resounding yes. The Court has always abided by the Constitution. It has valiantly
ulfilled its primary responsibility of upholding the Constitutional goals. It is the Court's
constitutionally mandated duty to enforce the law, not for each minor violation but for those
violations that result in grave consequences for the public at large. In such cases, no criticism
of such acts as judicial overreach is sustainable in our constitutional framework. Despite
being inspired by the constitutional objective of socio-economic justice, the Court has been
rather cautious in its activism. It is only when both the legislature and the executive have
failed to provide legislation in an area, that the Court has found it to be the duty of the
judiciary to intervene and, that too, only until the Parliament enacts proper legislation
covering the area. In a manner of speaking, the Court has invited the legislature to pass laws
in the very areas where it has passed directions to fill the legislative vacuum. Being
pragmatic and prudent, the Court has withstood the test of time and proved to be an
illustrious example of an active judiciary in a democratic set-up.

Thus, the aforesaid cases clearly reveal that the courts in India have not violated the
mandatory constitution, rather they have only issued certain directions. Some of them are
admittedly legislative in nature, but the same have been issued only to fill up the existing
vacuum, till the legislature enacts a particular law to deal with the situation. Therefore, there
cannot be any justification for anyone to say that judiciary has become judocracy, and has
taken over the role of the executive and legislature.

With its activism, the Supreme Court has only protected the citizenry—particularly
the weak and the downtrodden sections—against the unconstitutional acts of the legislature
and the executive. So judicial activism has served as an invaluable tool for the court in
strengthening our democracy. Employing it strategically and cautiously, the Supreme Court
has profoundly enriched our fundamental rights jurisprudence. Far from Montesquieu’s
averments, the activism of the Indian judiciary has indisputably enhanced our conception of
liberty, and has also helped the end the suffering of many an oppressed.

It needs to be recognized that there will inevitably be opposition from affected


quarters to the social activism shown by the Supreme Court. Such criticism may be blatant

[73]
or subtler. They may come from expected quarters or unexpected ones including from within
the judiciary itself. An example of this may be seen in the judgement of a two-judge bench
of the Supreme Court speaking through Katju, J. while setting aside a High Court judgement
(which had directed the State to regularize the plaintiff gardener as a truck driver since he
had been working in that capacity for the past 10 years). The two-judge bench then went on
to make gratuitous comments on the role of the judiciary and on the supposed limitations of
public interest litigation in India. These were questions not arising for determination in that
case. As long as forty years ago, the Supreme Court rightly prescribed that:
“Obiter observations and discussion of problems not directly involved in any
proceeding should be avoided by courts in dealing with all matters brought before them, but
this requirement becomes almost compulsive when the Court is dealing with constitutional
matters.” Blithely ignoring this sound directive, the two-judge bench went on to pronounce
upon the supposed limitations of public interest litigation. Even worse, the two-judge bench
went on to criticize two judgements delivered by a three-judge bench in Jagadambika
184 185
Pal , and the Jharkhand Assembly case calling those judgments ‘glaring examples of
deviations from the clearly provided constitutional scheme of separation of powers’.

This strain of criticism of judicial activism as articulated in judgement of Katju, J., as


such is untenable. Courts have been consistent in granting relief in SAL cases relating to
labour, to victims of custodial violence, and to victims of the excesses committed by the
executive. Since previously the targets of the Court’s orders were comparatively junior
officials, and certainly not prominent politicians, the issue of judicial activism was not raised
by the executive. The present charge of alleged interference by the courts has only now
begun to emerge, as those who wield political and economic power are beginning to be
threatened by the new found zeal of the Supreme Court in distributing social justice.61 In
this context, Justice Sachar maintains that:
“It will thus be amply clear that the judiciary (barring some rare escapades) as
mentioned in the two-judge judgment is aware of its precise role in the constitutional set up.
So when seemingly interested people, mostly politicians, accuse it of overstepping its
constitutional limits, the anger is borne more out of frustration at their own partisan actions
being challenged before the judiciary rather than the usurpation of power and jurisdiction by
the courts.”

184 AIR 1998 SC 58


185 AIR 2005 SC 415

[74]
CHAPTER IV

COMPLIANCE OF DIRECTIVES

Another major problem with the idea of the Supreme Court doing social justice is
that it has been doing only symbolic justice. Two facets of this problem could be noted here.
First, judiciary is often unable to ensure that its guidelines or directions in PIL cases are
complied with, for instance, regarding sexual harassment at workplace (Vishaka case) or the
procedure of arrest by police (D.K. Basu case). No doubt, more empirical research is needed
to investigate the extent of compliance and the difference made by the Supreme Court’s
guidelines. But it seems that the judicial intervention in these cases have made little progress
in combating sexual harassment of women and in limiting police atrocities in matters of
arrest and detention.

The second instance of symbolic justice is provided by the futility of over conversion
of Directive Principles into Fundamental Rights and thus making them justiciable. Not much
is gained by recognising rights which cannot be enforced or fulfilled. It is arguable that
186
creating rights which cannot be enforced devalues the very notion of rights as trump .
‘‘A judge may talk of right to life as including right to food, education, health, shelter
and a horde of social rights without exactly determining who has the duty and how
such duty to provide positive social benefits could be enforced’’.
So, the Social Justice Bench might dupe disadvantaged sections of society in believing that
justice has been done to them, but without making a real difference to their situation.

The question further arises as to how the directives and orders made by the Court in
PIL cases can be enforced. The orders made by the Court are obviously not self-executing.
They have to be enforced through State agencies and if the State agencies are not
enthusiastic in enforcing the court orders, the object and purpose of PIL would remain
largely unfulfilled. The consequence of the failure of State machinery to secure the
enforcement of court orders in PIL cases would not only result in the denial of effective
justice to the disadvantaged groups but would also have a demoralizing effect on further

186
Public Interest Litigation in India: A Critical Review By Surya Deva

[75]
attempts at litigation. It would make people lose faith in the capacity of the Court to deliver
justice through PIL. The success or failure of the strategy of PIL would necessarily depend
on the extent to which it is able to provide actual relief to the vulnerable sections of the
community. It is, therefore, absolutely essential to the success of the strategy of PIL that a
method be found for securing enforcement of court orders in such litigation. There are two
different methods that have been adopted to ensure that the orders made by the Court in PIL
cases are carried out. These are dealt with below.

Public-spirited individuals or the social action group, which initiated the PIL and
secured the order of the Court, should not remain content merely with the court order. They
should also take the necessary follow-up actions and maintain constant pressure on State
authorities or agencies to enforce and implement it. If it is found that the court order is not
being implemented effectively, they must immediately bring it to the notice of the Court so
that the Court can call upon the State authorities or agencies to render an explanation as to
why it has not been carried out. If there is wilful or contumacious disregard of the court
order, the Court can punish the concerned officers of the State for contempt of court. The
188
Supreme Court has not so far used its contempt jurisdiction in PIL cases. But if particular
orders made in a PIL case are not carried out, the obligation of drawing the attention of the
Court to such failure of implementation should be on the individual or social action group. If
the Supreme Court has to use its powers to punish the concerned for contempt in appropriate
and exceptional cases, it should not hesitate to do so. The Supreme Court has also started
appointing monitoring agencies for the purpose of ensuring implementation of the orders
made by it in PIL cases. This is another example of innovative use of judicial power by the
Supreme Court.

189
The Supreme Court in Sheila Barse v. Union of India , gave various directions
regarding police lock-ups for women and directed that a lady judicial officer should visit the
police lock-ups periodically and report to the High Court as to whether the directions of the
Supreme Court were being carried out or not. This was also seen in Bandhua Mukti
190
Morch , where the Supreme Court issued approximately twenty-one directions, several of
which have already been referred to above. With a view to ensuring implementation

188
Power to punish for its contempt has been granted to the Supreme Court under Arts. 129 and
Art.142. Sections 4 and 15 of the Contempt of Courts Act, 1971 contain the substantive provisions
with respect to the contempt of court.
189 Sheela Barse v. Union of India, (1988) 4 SCC 226
190 Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161

[76]
of these directions, the Supreme Court appointed Laxmi Dhar Misra, a Joint Secretary, in the
Ministry of Labour, to visit the Faridabad stone quarries after a period of about two or three
months. This was done to ascertain whether the directions given by the Court had been
implemented and to make a report for the Supreme Court with regard to the implementation
of those directions. Mr. Misra carried out the assignment as a monitoring agent and
submitted a report for the Court’s consideration.

191
The Supreme Court in Neeraja Chaudhary’s case , and in another case coming
192
from the State of Madhya Pradesh also directed that representatives of social action
groups operating within the area should be appointed as members of the Vigilance
Committees constituted under the Bonded Labour System (Abolition) Act, 1976. The same
193
strategy was also followed in the ASIAD Workers’ case where the Supreme Court, after
clearly laying down the law on the subject, appointed three social activists as ombudsmen
for the purpose of ensuring that labour laws were being observed by the state administration.
The PIL strategy is still in the course of evolution but it holds out great promise for the
future. This is so because by adopting it the Court has tried to secure obedience to the orders
made by it.

Article 32 and Article 226 confer on the Supreme Court and the High Courts the power to
issue “directions, orders or writs” for achieving the objectives of those articles. The courts
have issued directions for varied purposes. In public interest litigation, the Supreme Court
and the High Courts have issued directions for appointing committees or for asking the
government to carry out a scheme. They may constitute specific orders to the parties to do or
194
refrain from doing something. For example, directions in the Azad Riksha Pullers case
asked the Punjab National Bank to advance loans to the rikshaw pullers and contained a
whole scheme for the repayment of such loans.

195
Directions in Common Cause v. Union of India provided for how blood should
be collected, stored, given for transfusion, and how blood transfusions could be made safe.
Directions were given to the government to disseminate knowledge about the environment

191 Neeraja Chaudhary v. State of Madhya Pradesh (1984) 3 SCC 243


192 Mukesh Advani v. State of Madhya Pradesh (1985) 3 SCC 162
193 People’s Union for Democratic Rights v. Union of India (1982) 3 SCC 235
194 A.I.R. 1981 S.C. 14
195 A.I.R. 1996 S.C. 929

[77]
196
through slides in cinema theaters or special lessons in schools and colleges. The Supreme
197
Court gave directions as to how children of prostitutes should be educated; what the fee
198
structure in private medical or engineering colleges should be; preparing a scheme for the
199
housing of pavement dwellers or squatters; and how the CBI should be insulated from
extraneous influences while conducting investigations against persons holding high
200
offices. When contract labour workers in the Food Corporation of India sought an
extension of the Contract Labour Regulation and Abolition Act of 1970, the Court directed
the concerned governments to organize committees, to make the necessary inquiries and to
201
submit reports as to whether contract labour should be abolished in those corporations.

202
In another case, the Court was asked to conduct an inquiry into police officers of
red light areas, and to remove all victims from the flesh trade and provide them with
remedies. The Court could not undertake such a roving inquiry, but gave directions to the
203
government. In Kishen v. State of Orissa , the Supreme Court gave directions to the
government regarding measures to be taken for preventing deaths due to poverty and
starvation. These directions were in the nature of specific orders from the Court to the
government and were administrative in character. Some of these directions had legislative
effect. Law making by the Supreme Court through directions has belied the legal theory
regarding ratio decidendi and obiter dictum.

The ratio -obiter distinction has become inconsequential in constitutional law


litigation in general, and particularly in public interest litigation. In public interest litigation,
the Court has begun legislating through issuing directions. These directions are overtly
legislative and they are considered binding not only by the Supreme Court and lower courts,
204
but also by the government and social action groups. In Laxmikant Pandey v. India the
Supreme Court provided guidelines as to what procedures should be followed and what
precautions should be taken when allowing the adoption of Indian children by foreign
parents. There was no law to regulate intercountry adoptions and such lack of legal
regulation could cause incalculable harm to India n children. Considering the possibility of

196 M. C. Mehta v. Union of India, A.I.R. 1992 S.C. 382


197 Gaurav Jain v. India, A.I.R. 1990 S.C. 292
198 TMA Pai Foundation v. State of Karnataka, A.I.R. 1995 S.C. 2431
199 Sodan Singh v. New Delhi Municipal Corporation, A.I.R. 1998 S.C. 1174
200 Vineet Narain v. Union of India, A.I.R. 1998 S.C. 889
201 Food Corporation of India Workers’ Union v. Food Corporation of India, A.I.R. 1985 S.C. 488
202 Vishal Jeet v. Union of India, A.I.R. 1990 S.C. 1412
203 A.I.R. 1989 S.C. 677
204 Laxmi Kant Pandey v. Union of India, A.I.R. 1987 S.C. 232

[78]
child trade for prostitution as well as slave labor, legal regulation of such adoptions was
essential. Therefore, Justice Bhagwati created a scheme for regulating both inter-country and
intra-country adoptions. For the last twenty years, social activists have used these directions
205
to protect children and promote desirable adoptions.

The realist school of jurisprudence uncovered the myth that judges merely declare or
interpret pre-existing law. The realist school of jurisprudence stated that judges make law
and the law is what the courts say it is. This “legal skepticism” was a reaction to Austin’s
definition of law as a command of the political sovereign. According to analytical
jurisprudence, a court merely applies or interprets existing law. The American realist school
of jurisprudence asserted that the judges made law, though interstitially. Jerome Frank,
Justice Holmes, Justice Cardozo, and Justice Karl Llewellyn were the chief exponents of this
206
school. The Indian Supreme Court not only makes law, as understood in the sense of
realist jurisprudence, but actually legislates. Judicial law making in the realist sense is what
the Court does when it expands the meanings of the words “personal liberty,” “due process
207
of law,” or “freedom of speech and expression.”

After surveying Indian Supreme Court caselaws, one can see that sometimes the
Court has clearly transcends the limits of the judicial function and undertakes functions
which really belong to either the legislature or the executive. In these type of cases its
decisions clearly violate the limits imposed by the doctrine of separation of powers. A court
is not equipped with the skills and the competence to discharge functions that essentially
belong to other coordinate bodies of government. Its institutional equipment is inadequate
208
for undertaking legislative or administrative functions. It cannot create positive rights
such as the right to work, the right to education, or the right to shelter. It does not have the
equipment for monitoring the various steps that are required for the abolition of child labor.
It cannot stop entirely the degradation of the environment or government lawlessness. Its
209
actions in these areas are bound to be symbolic. Admitting all these aspects, therefore,
judicial activism is welcomed not only by individuals and social activists, but also by the

205 Upendra Baxi, “The (im)possibility of constitutional justice”


206 V.D. Mahajn, Jurisprudence and Legal Theory (7th Edition)
207 Rajagopal, Balakrishnan, “Pro-human rights but anti-poor? A critical ealuation of the Indian
Supreme Court from a social movement perspective.” Human Rights Review
208 Dr. Subra Maniyam A, “Judicial Activism : A Panacea for achieving Socio Economic Goals" Nov.
Journal AIR 2001 Vol 88
209 Justice A.S. Anand, ‘Protection of Human Rights: Judicial obligation or Judicial Activism? –
Krishan Rao Memorial Lecture’, (1997) 7 Supreme Court Cases (Journal section)

[79]
government and other political players, like the political parties and civil servants. None of
the political players have protested against judicial intrusion into matters that essentially
belonged to the executive. Some feeble whispers are heard, but they are from those whose
vested interests are adversely affected. On the other hand, the political establishment is
showing unusual deference to the decisions of the Court. Whether it is the limitation by the
basic structure doctrine on Parliament’s constituent power under Article 368 of the
Constitution, or the limitations upon the President’s power under Article 356, 207 the
political establishment has considered itself bound to function within the limits drawn by the
Supreme Court. Generally, the people believe that the government and other authorities must
abide by the decisions of the Court. The general population and political players believe that
in matters involving conflict between various competing interests, the courts are better
arbiters than politicians.

[80]
CONCLUSIONS

1) The hypothesis that the Supreme Court plays an important role in ensuring social
justice for the vulnerable sections of the society is true. The Supreme Court has an
important role to play in the social justice system and the best mechanism for the
delivery of social justice has been developed through the innovation of the Apex
Court itself in the form of PIL. PIL affords a ladder to justice to disadvantaged
sections of society, some of which might not even be well-informed about their
rights. Furthermore, it provides an avenue to enforce diffused rights for which either
it is difficult to identify an aggrieved person or where aggrieved persons have no
incentives to knock at the doors of the courts. PIL also enables the civil society to
play an active role in spreading social awareness about human rights, in providing
voice to the marginalised sections of society, and in allowing their participation in
government decision making and all this has been achieved only due to the efforts of
the Supreme Court.

2) The hypothesis that in its zeal to deliver social justice the Supreme Court has not
violated the sanctity of the Constitution of India b transgressing the Doctrine of
Separation of Powers is true. After a careful perusal of various case law it is safe to
say that the charge attributed to the Supreme Court that in its zeal to ensure social
justice it often transgresses into the domain of the Executive and the Legislature is
not correct. It important to note that the Indian judiciary has effectively dealt with the
issue of judicial constraint and public interest litigation.

3) The hypothesis that Article 21 of the Constitution is the umbrella provision under
which the Supreme Court has given such a wide and purposive interpretation to
Right to Life to ensure social justice is true. In addition to Article 21 the Supreme
Court has over the years also tried to give effect to the Directive Principles of State
Policy.

4) The hypothesis that Supreme Court has succeeded to some extent in providing
social justice to the vulnerable sections of the society is true as can be seen from the
guidelines and directions issued by it to the Executive on matters relating to child
rights, labour rights, women rights, right to food, rights of the transgender etc.

[81]
Over the years the process of court was abused in as much as frivolous PILs were
filed in the name of social justice and by persons seeking publicity and sometimes also for
private gains. But as with any innovation, there is a prospect of capture and abuse. But, so
far as the Supreme Court is concerned, this has been recognized and addressed through
development of procedures (constantly in the process of further refinement) to screen SAL
petitions when they are filed. A recent judgement of the Supreme Court states that frivolous
petitions shall be dismissed with costs in order to dissuade persons from misusing the
procedure established for SAL cases. Dealing with two inter-connected appeals questioning
a Bombay High Court decision, Justice Pasayat opined that the time had come to weed out
210
petitions “which though titled as public interest litigations are in essence something else.”
Recalling several decisions of the Supreme Court, the bench condemned in the harshest of
words the trend of filing petitions under the garb of public interest litigation for service
related matters. This case underscores the complexities involved in making decisions
concerning the legitimacy of SAL petitions. While it may be true as a general rule that
service-related matters ought not to be filed as SAL petitions, there is a need to make
exceptions where there are allegations of blatant abuse of power or discretion, in whatever
form, including dismissals, transfers or other forms of victimization of ‘whistle-blowers’.

An important issue relating to the enterprise of democratising justice through SAL


concerns its sustainability. This issue implicates the multiple tasks of sustaining the
champions of change, of sustaining and increasing the inclusiveness of the broad-based
popular constituencies who support and claim ownership of SAL, and the herculean task of
strengthening of the capacities needed for effective application of the SAL approach among
judges, lawyers, and court personnel.

However, as long as the thirst for justice remains yet to be fully slaked, and as long
as the hunger for justice remains yet to be fully-appeased, the sociological approach towards
law as adopted by the Supreme Court will continue to hold its unique attraction, not only in
the pursuit of justice for the privileged and affluent few but, more importantly, in the pursuit
of justice for all.

210
Ashok Kumar Pandey v. State of W.B. (2004) 3 SCC 349

[82]
The move by India’s Supreme Court over the last three decades to make various
socioeconomic entitlements in the Constitution justiciable through its substantive
reinterpretations and the innovation of public interest litigation has been enormously
valuable. Simply put, the move has highlighted the severe human deprivations that still
afflict millions of citizens in the world’s largest democracy, and sought to protect many of
them in individual judicial cases. By highlighting the nexus between socioeconomic rights
violations and poor governance, the higher judiciary in India has “emerged as the defender
of a normative and homogenous civil society of equal citizens,” allaying the fear that
nonelected public institutions would increasingly become the abode of privileged social
classes in the wake of increasing electoral participation by historically subordinate groups.1
In comparative terms, the Court has resisted becoming a conservative “juristocracy” like
many of its counterparts in Westminster-style parliamentary democracies around the world.

That said, the record and trajectory of India’s Supreme Court also indicate the
drawbacks of relying too heavily on an apex judiciary to protect basic socioeconomic rights
and the risks of burdening even well-intentioned progressive justices with unrealistic popular
expectations. High judicial activism cannot guarantee the extension of basic socioeconomic
entitlements, since it cannot enforce its directives in many instances, which in any case turn
on the responsiveness, capacity, and accountability of the state. Ultimately all courts face
what scholars call Hamilton’s dilemma: “The judiciary…may truly be said to have neither
FORCE nor WILL, but merely judgment; and it must ultimately depend on the aid of the
211
executive arm even for the efficacy of its judgments.”

211
http://www.constitution.org/fed/federa78.html last visited on 21/03/2018

[83]
SUGGESTIONS

1) In overturning the much celebrated decision of the Delhi High Court in Koushal
vs. Union of India and declaring that Sec 377 of Indian Penal Code is not violative of
Article 14 and Article 21 in as much as it criminalizes consensual sex between two
consenting adults (of the same sex), the Supreme Court denied the chance to millions
of people to abandon a life of shame and continuous fear. It is suggested that the
Court will rectify its mistake and afford the same protection to the Fundamental
Rights of the people belonging to the LGBT community as it shows, sometime over
zealously, to the rest.
2) Although the efforts of the Supreme Court in protecting the rights of the
vulnerable sections of the society is commendable yet only giving directions from the
high chambers of the Court is not sufficient. There is a serious lack of any follow up
efforts on the part of the Supreme Court to ensure that its directions are complied.
The Executive frequently cites lack of resources to implement Court’s orders on
social welfare. All three organs of the State i.e. the Executive, the Legislature and the
Judiciary need to work together to chart out a path to ensure compliance with
Supreme Court directives so that a vast majority of the country that is poor and not
even aware about its rights are not denied the most important aspect of justice i.e.
social justice.
3) The Executive and the Legislature should not view the orders of the Supreme
Court as transgression into its domain rather it should welcome these steps of the
highest court of the country as they fill the gap left by them. They should never
forget that the only reason why they are holding their public offices is to serve the
people. The only reason sometimes the Supreme Court issues orders which are in
essence functions of the Executive or the Legislature is that they have failed to fulfil
their duties.

[84]
Bibliography

Laws

1. The Constitution of India, 1950

2. Indian Penal Code, 1860


3. Criminal Procedure Code, 1973
4. Muslim Women (Protection of Rights on Divorce) Act, 1986

Books

nd
1. Constitutional Law of India by Dr. J.N. Pandey (52 Edition), Central Law
Agency
th
2. Constitution of India by V.N. Shukhla (10 Edition), Eastern Book Company
th
3. Studies in jurisprudence and legal theory by Dr. N.V. Paranjape (6 Edition),
Central Law Agency
th
4. Jurisprudence and lagal theory by V.D. Mahajan (7 Edition), Eastern Book
Company
th
5. Jurisprudence by R.W.M. Dias (5 Edition)

Journals & Articles

1. Baxi, Upendra (1985) "Taking Suffering Seriously: Social Action Litigation


in the Supreme Court of India," Third World Legal Studies: Vol. 4, Article 6.
Available at: http://scholar.valpo.edu/twls/vol4/iss1/6.

2. Constitutional Control Praxis In The Present Day, Lecture By K.G.


th
Balakrishnan, Former Chief justice of India on 15 August, 2008 at Brazilian
Supreme Court
3. Sripati, V. (1998) Toward Fifty Years of Constitutionalism and Fundamental
Rights in India: Looking Back to See Ahead (1950–2000) American University
International Law Review, 14.
[85]
4. Desai, A., H. and Muralidhar, S. (2000) Public Interest Litigation: Potential and
Problems. In Kirpal, B., N. (2000) (ed.), Supreme but not Infallible- Essays in
Honour of the Supreme Court of India. New Delhi: Oxford University Press
5. The legislative aspect of judiciary: judicial activism and judicial restraint by Dr.
Justice B.S. Chauhan, Judge, Supreme Court of India
6. Growth of Public Interest Litigation in India; Address by Justice K.G.
Balakrishnan, Former Chief Justice of India at Singapore Academy of Law, Fifteenth
Annual Lecture on October 8, 2008
7. A PROGRESSIVE JURISTOCRACY? THE UNEXPECTED SOCIAL
ACTIVISM
OF INDIA’S SUPREME COURT by Sanjay Ruparelia

8. S. P. Sathe, Judicial Activism in India: Transgressing borders and enforcing


limits, second edition. New Delhi: Oxford University Press, 2004, ix–xxi.
9. Eradication of Child Labour- Socio–Legal Challenge and Judicial Activism in
India by Dr.Vasundhara Patil in American International Journal of Research in
Humanities, Arts and Social Sciences
10. Speeches Delivered by Former Chief Justice P. Sathasivam at Tamil Nadu State
Judicial Academy; compiled by Tamil Nadu State Judicial Academy
11. Pratap Bhanu Mehta, “The rise of judicial sovereignty,” Journal of Democracy
18, 2
(April 2007)
12. Upendra Baxi, “The (im)possibility of constitutional justice”
13. Rajagopal, Balakrishnan. “Pro-human rights but anti-poor? A critical valuation of
the
Indian Supreme Court from a social movement perspective.” Human Rights Review

14. Rajeev Dhavan, ‘Law as struggle: Public Interest Law in India’, 36 Journal of
Indian Law Institute 302 (1994)
15. N.R. Madhava Menon, ‘Public Interest Litigation: A major breakthrough in the
delivery of social justice’, 9 Journal of Bar Council of India 150 (1982)
16. Parmanand Singh, ‘Promises and perils of Public Interest Litigation in protecting
the rights of the poor and the oppressed’, 27 Delhi Law Review 8 (2005)
17. Dr. Subra Maniyam A - Judicial Activism : A Panacea for achieving Socio
Economic Goals" Nov. Journal AIR 2001 Vol 88
18. Justice A.S. Anand, ‘Protection of Human Rights: Judicial obligation or Judicial
Activism? –Krishan Rao Memorial Lecture’, (1997) 7 Supreme Court Cases (Journal
section)
19. “A Tool for Action” published by Right To Food Campaign, Secretariat
[86]
Websites

1. http://www.constitution.org/fed/federa78.htm; last accessed on 20-04-2015

2. https://indconlawphil.wordpress.com/2014/04/15/nalsa-v-uoi-the-supreme-
court-on- transsexuals-and-the-future-of-koushal-v-naz/; last accessed on 20-03-
2015
3. http://onlinelibrary.wiley.com/
4. indconlawphil.wordpress.com
5. http://upendrabaxi.in
6. http://www.ipsonet.org/
7. http://www.readcube.com/
8. http://openscholarship.wustl.edu/
9. http://papers.ssrn.com/
[87]