Judicial Activism is the liberal construction of the provisions of statutes conferring rights: An appraisal

(Term Paper towards the partial fulfillment of the assessment in the subject of Jurisprudence II)

Submitted by: Priyadarshi Banerjee Roll Number – 469 Semester – VII

Submitted to: Mr. Ajay Kr. Sharma Faculty of Law

National Law University, Jodhpur Summer Session (July - November 2009)


..............................4 Liberal Construction in Constitutional Matters.....................3 Judicial Activism.......................................................................................................................11 Conclusion.........................................CONTENTS Contents....................................................................................................14 2 .................................................................................................................................................................................2 Introduction.........................................................................................................................

One looks for a sort of “objectified” intent – the intent that a reasonable person shall gather from the text of the law. One of the most common tools that has been applied over the years in aiding an exercise in interpretation is that of determining the intent of the legislators who made the law. It is in the perspective of such debate that it shall be the objective in this paper to try identifying instances where judicial activism has stemmed from the liberal interpretation of statutes and/or provisions and thus bestowing rights onto the subjects which would otherwise have remained implicit alone. placed alongside the remainder of the corpus juris. not what legislators intended them to say but did not write into the law’s text for anyone to read. On its face it appears to be a democratic aim: to capture the intention of the law makers. one does not really look for subjective legislative intent. (Princeton University Press. meaning that the unexpressed intent of legislators must not bind citizens. it is the question of interpreting a provision (not necessarily a statute or the Constitution itself. A Matter of Interpretation: Federal Courts and the Law. but its implications for how judges should interpret the law are complex and contested. 1 The problematic of such an approach crops from the fact that despite frequent statements to the contrary. 1 Antonin Scalia. but often rules. it is imperative to address a question that how should judges interpret statutory or constitutional law so that its rule is a reality that is consistent with a constitutional democratic ideal. 1998)p. Princeton. Since in most matters that arise before the various High Courts of the country or the Hon’ble Supreme Court. regulations and various texts of the like).INTRODUCTION The rule of law is essential to constitutional democracy. Laws mean what they actually say.17 3 . However there is a critique to this theory in the idea that a government is that of laws and not that of men. Whether such an approach is right or wrong and its determination shall only come as an offshoot of the discussion ensuing and shall not be the moot subject of this paper. legislators who are accountable to the majority.

betterment of society. It is therefore felt that it is the duty of the judiciary to keep the charter of the government current with the times and not allow it to become archaic or out of tune with the needs of the day. When it comes to the ordinary statutes. Legislature. It is true that the occasion for the judiciary to so act. Since it is an accepted rule of interpretation that remedial statutes should be given “the widest operation which its language will permit. committed to proper social values. That situation can be avoided only by preventing that situation and the absence of the need for anyone to approach the courts for redressal of their grievances. Judicial activism operates broadly stated. New situations generally and usually develop and the law has to be so interpreted and applied to solve problems arising out of such situations. much of such activism crops from such liberal construction. In this process the judicial craftsmanship is utilized to fill in the gaps between the law as it is and the law as it is ought to be. while emanating a law. Geeta Shrivastava (2001) Judicial Activism In India & Abroad.e. CENTRAL INDIA LAW QUARTERLY Vol. 14.JUDICIAL ACTIVISM In the context of expectation aforesaid it is natural to investigate what is ‘judicial activism’. it is specially with reference to the beneficial legislations or the remedial statutes that we shall observe the phenomenon of such activism. Firstly in the interpretation of ordinary statutes and secondly in the interpretation of the Constitution. Judicial activism has to be so understood and with this meaning of the expression it can hardly be disputed that such action of the judiciary is within the role assigned to it by the Constitution. Laws according to social activists have a social purpose i.. cannot visualize all situations arising in future and needing the support of law. in two ways. The words 2 Smt. This judicial creativity is called ‘judicial activism’2. arises quite often because of the perception of failure of some other organ to discharge its obligations. pp. Judiciary under our Constitution has been conceived as an arm of social revolution. Judicial activism is the search for the spirit of the Law when the letter of the law appears to be deficient for justice in the cause.155-166 at 155 4 .

for sweeping.”3 AIR INDIA STATUTORY CORPORATION V.77 AIR 1997 SC 645 4 5 Notwithstanding anything contained in this Act.10(1)5 of the Contract Labour (Regulation & Abolition) Act. the respondent union's members. In fact in the instant case it shall be noteworthy that it’s due to the liberal interpretation a right is being created in the Contract Labourers to be absorbed by the principal employer. The Central Government exercising the power under Section 10 of the Act. 1976 prohibiting "employment of 3 In re: Hindu Women’s Right to Property Act AIR 1941 PC 72 at p. UNITED LABOUR UNION ORS. as contract labour. The two main related issues in law that emerged from the contentions had been that what shall be the meaning of the word "appropriate Government under Section 2(1)(a) of the Act. on basis of recommendation and in consultation with the Central Advisory Board constituted under Section 10(1) of the Act.4 AND This case is being discussed. after consultation with the Central Board or. The case revolved around the interpretation of S. notwithstanding the fact that it has since been overruled. cleaning. This case actually shall provide one of the ideal examples where judges in the higher judiciary in their earnest attempt to provide relief to an underprivileged class interprets a statute and even brings in a particular import in a provision when such a thing is not even remotely mentioned in the statute itself. dusting and watching of the buildings owned and occupied by the appellant.2 [interpretation of the phrase ‘appropriate government] and S. a State Board. operation or other work in any establishment. The related facts had been that appellants engaged. as the case may be. prohibit. employment of contract labour in any process. 1970. although such a provision did not exist in the statute. issued a notification on December 9. 5 . and whether on abolition the contract labour are entitled to be absorbed. the appropriate Government may.of such a statute must be so construed as “to give the most complete remedy which the phraseology will permit. by notification in the Official Gazette.

the social system shapes the wants and aspirations that its citizens come to have. They freely referred to the Preamble.4 at para 3 Supra n."6 Since the appellant did not abolish the contract system and failed to enforce the notification of the Government of India dated December 9. cleaning.1976 for sweeping.4 at para 46 7 6 . therefore. the respondents came to file writ petitions for direction to the appellant to enforce forthwith the aforesaid notification abolishing the contract labour system in the aforesaid services and to direct the appellant to absorb all the employees. dusting and watching of buildings owned or occupied by the establishments in respect of which the appropriate government under the said Act is the Central Government. therefore. Referring to a previous judgment by the Hon’ble Court. as also Part III and Part IV of the Constitution to establish that the Act in question is essentially one to bring about social justice and hence the same should be borne in mind when interpreting any provisions thereof. the cumulative effect of social and economic legislation is to specify the basic structure. 1989 directing that all contract workers be regularised as employees of the appellant from the date of filing of the writ petition. 1976. basic human right and a fundamental right as part 6 Supra n. In fact.contract labour on and from December 9. It is interesting to note that even in the determination of the true meaning of the provisions in question. Economic empowerment is. Thus an economic system is not only an institutional device for satisfying existing wants and needs but a way of creating and fashioning wants in the future. And hence the matter was appealed by special leave before the Supreme Court. Moreover. Subsequently the learned judges of the Division Bench dismissed the appeal as well. The writ petition was allowed by the learned single Judge on November 16. the Apex Court actually went into a lengthy discussion about the Constitution and its various provisions insomuch as to bring in the constitutional principles in the aid of interpretation. the bench approved the same7. It determines in part the sort of persons they want to be as well as the sort of persons they are. the dalits and the tribes as an integral constitutional scheme of socio-economic democracy is a way of life of political democracy. to the poor. The economic empowerment.

right to work of workman. Cohen etc. right from St. the right to work would become as such a fundamental right. be it under the State. The Supreme Court surveyed the entire statute to actually establish that it is essentially one which intends to lay down rights which are 8 R.T. as a right. equality and of status and dignity to the poor. Chandevarappa and Ors. v. Though. thus. Fundamental Rights can ill-afford to be consigned to the limbo of undefined premises and uncertain application. be claimed but after the appointment to a post or an office. middle class and poor people is means to development and source to earn livelihood.R.of right to live. Due to economic constraints. Thomas Acquinas. its agency instrumentality. Mahatma Gandhi. juristic person or private entrepreneur it is required to be dealt with as per public element and to act in public interest assuring equality. It is interesting here to note that in that one single judgement the bench tried to account for the philosophies laid down by a large number of thinkers. M. to live with minimum comforts. shelter. However the most interesting part of the judgement stems from the reasoning provided by the Court when it tries to justify the decision of adjudging that absorption of the abolished contract labours is implicit in the scheme of the statute itself. Harold Laski. Roscoe Pound. It was held that right to life to a workman would include right to continue in permanent employment which is not a bounty of the employer nor can its survival be at the volition and mercy of the employer. Edward Kent. though right to work was not declared as a fundamental right. State of Karnataka (1995) 6 SCC 309 Delhi Transport Corporation v. clothing and health. D. and all to account for the emphasis that they are laying on law to become an instrument for social engineering. As also through their lengthy reasoning did they surmise that fundamental rights are to be actually set at naught if it’s not for economic freedom and certainty. the dalits and the tribes. Income is the foundation to enjoy many Fundamental Rights and when work is the source of income. Mazdoor Corporation (1991) I LLJ 395 SC 9 7 .8 Following another judgement9 the bench in the present matter accepted the widened sweep of Art. be seen that all essential facilities and opportunities to the poor people are fundamental means to development. lower class.C. food. right to employment cannot. which is a genus of Article 14 and all other concomitant rights emanating therefrom are species to make their right to life and dignity of person real and meaningful.. the weaker sections. It would.21 and the Right to Life.

contractor.e. the principal employer's obligation to absorb them arises. they interpreted that the phrase “matters connected therewith” in the Preamble of the Act would furnish the consequence of abolition of contract labour. establishment of latrine and urinals as enjoined under Section 18 are part of basic human right to health assured under Article 39 and right to just and human conditions of work assured under Article 42. 10 Supra n.21. the provision in Section 17 to provide rest rooms to the workmen is a right to leisure enshrined in Article 43 of the Constitution. the intermediary. is removed from the field and direct linkage between labour and principal employer is established. The contractor stands removed from the regulation under the Act and direct relationship of "employer and employee" is created between the principal employer and workmen…. On abolition of contract labour.. The Court went by the logic that an Act which intends to bring about justness in the system possibly could not have ‘denuded’ the contract workers of the same rights and privileges that they seek to ensure by abolishing the contract workers and not absorbing them under a direct relationship of employer and employee with the hitherto ‘principle employer’. They held that “The operation of the Act is structured on an inbuilt procedure leaving no escape route. The enforcement of the provisions to establish canteen in every establishment under Section 16 is to supply food to the workmen at the subsidised rates as it is a right to food. a basic human right. Supply of wholesome drinking water. All of them are fundamental human rights to the workmen and are facets of right to life guaranteed under Article 21.4 at para 59 8 . i. Similarly.essentially part of the right to life as under Art. Thereby. Even after admitting that “it is true that [there can be found] no express provision in the Act declaring the contract labour working in the establishment of the principal employer in the particular service to be the direct employees of the principal employer” 10. The right of the employee for absorption gets ripened and fructified. Abolition of contract labour system ensures right to the workmen for regularisation of them as employees in the establishment in which they were hitherto working as contract labour through the contractor.” Hence we are to observe that it is through the process of liberal interpretation that almost a new right is conferred while the Hon’ble Court acts as an instrument of judicial activism to bring about a just order which according to them best supports the constitutional scheme.

or pedantic. Their case was espoused by the Delhi Municipal Workers Union and. the following question was referred by the Secretary (Labour). filed thereafter by the Corporation was dismissed by the Division Bench on March 9. raised a demand for grant of maternity leave which was made available only to regular female workers but was denied to them on the ground that their services were not regularised and. onesided. 1961 to determine if the workers on the muster roll were eligible for the benefits under it. 1997. Whether the female workers working on Muster Roll should be given any maternity benefit? If so. engaged by the Municipal Corporation of Delhi. what directions are necessary in this regard? The Tribunal. and is not confined to industrial adjudication 11 AIR 2000 SC 1274 9 . The Court again in the present case took up the mantle of activism and promoted the constitutional objectives of social engineering. 1996. The concept of social justice is not narrow. 1998 on the ground of delay. Indeed the concept of social justice has now become such an integral part of industrial law that it would be idle for any party to suggest that industrial adjudication can or should ignore the claims of social justice in dealing with industrial disputes. therefore. The letters Patent Appeal. FEMALE WORKERS (MUSTER Female workers (muster roll). by its Award dated 2nd of April. 1961 to muster roll female workers who were in the continuous service of the Corporation for three years or more. The Corporation challenged this judgment in a Writ Petition before the Delhi High Court which was dismissed by the Single Judge on January 7.MUNICIPAL CORPORATION ROLL)11 OF DELHI V. consequently. allowed the claim of the female workers (muster roll) and directed the Corporation to extend the benefits under the Maternity Benefit Act. And hence the matter came up before the Supreme Court. they were not entitled to any maternity leave. Delhi Administration to the Industrial Tribunal for adjudication. Hence all that was left for the Apex Court to decide was the scope of the provisions of the Maternity Benefit Act.

for that matter. which aims at providing social and economic justice to the citizens of this country. be "workmen" and the dispute between them and the Corporation would have to be tack led as an industrial dispute in the light of various statutory provisions of the Industrial Law. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work. Further on. the Court was more inclined towards applying the Act to the distressed Respondents. 42.39. They quoted from the Convention on the Elimination of all forms of discrimination against women (CEDAW). 1961.alone. when it was argued that even if the Maternity Benefit Act. Its sweep is comprehensive. in dealing with industrial matters. The workmen or. Article 1114 was the main 12 Supra n. but adopts a realistic and pragmatic approach. 43 as also the Fundamental Rights under Arts. 1961 would be applied. the Court negatived such contention by looking into the humane need of an individual for such benefits.11 at para 33 13 14 2. it does not adopt a doctrinaire approach and refuses to yield blindly to abstract notions. would out rightly reject the contention. States Parties shall take appropriate measures: 10 .” The Court referred to the definition of ‘industry’ as has been given in the Industrial Disputes Act and broadly construed that the Corporation shall amount to an industry as has already been adjudged by the Apex Court. Taking cue from the mandate given in Art. therefore.14 & 15. one of which is the Maternity Benefit Act.11 at para 29 Supra n. A wide survey of the Constitutional provisions in Part III as well as the Directive Principles of State Policy were made. It is founded on the basic ideal of social-economic equality and its aim is to assist the removal of socio-economic disparities and inequalities. The court commented that “This is a narrow way of looking at the problem which essentially Is human in nature and anyone acquainted with the working of the Constitution. nevertheless.13 To further the strength of their reasoning the Learned Judges also made a survey of the International Conventions to which India is a signatory. those employed on muster roll for carrying on these activities would. the women workers on the muster roll shall not be eligible for the same as they were paid on a daily basis.12 When the arguments agitated against the order of the Tribunal were directed towards the applicability of the Act itself.

but the liberal interpretation to provisions nonetheless always creates an enormous impact that revolutionizes the process of courts.provision that was concentrated on for securing the ends of justice for the women workers. 11 . Again. (a) To prohibit. to address a social evil or wrong. The technical doctrine of locus standi is being gradually widened to give it a social content in conformity with the letter and spirit of the Constitution of India. (c) To encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life. dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status. (d) To provide special protection to women during pregnancy in types of work proved to be harmful to them. and so read these employees immediately become entitled to all the benefits conceived under the Maternity Benefit Act. Hence we find the phenomenon of judicial activism not only in the conferring of new rights to a class but as well when the statute itself guarantees certain rights but are read broadly to encompass a wider class. Even in the field of constitutional law. subject to the imposition of sanctions. In Fertilizer Corporation Kamgar Union v. They read the provisions of such conventions as well into the contract of service between Municipal Corporation of Delhi and the women employees (muster roll). One of the most significant such fields shall be definitely the Public interest Litigation which came to become a very important tool in vindicating rights of the underprivileged. there are various aspects and circumstances wherein the Courts have adopted an activist stance. 1961. it is being reiterated that whether such activism is good or bad. in particular through promoting the establishment and development of a network of child-care facilities. LIBERAL CONSTRUCTION IN CONSTITUTIONAL MATTERS It is not only in the interpretation of ordinary statutes that we find the activism of the Courts. (b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment. seniority or social allowances. is entirely a different question.

Public interest litigation is part of the process of participative justice and standing in civil litigation of that pattern must have liberal reception at the judicial doorsteps. By propounding the thesis that citizens should be enabled to enjoy the right to life and liberty 15 AIR 1981 SC 344 12 . underprivileged and exploited persons of the country. and too impoverished to engage lawyers. from statute to statute. This vast underprivileged section of the society found themselves utterly helpless. justice was only a remote and even theoretical proposition for the mass of illiterate. The major outcome of these cases would be a widening of the power of the citizen to move the courts even when his own rights are not violated. arguing that parties will not litigate at considerable personal cost unless they have a real interest in the matter.Union of India15 Justice Krishna Iyer prepared a real case for the broad-based application of the principle of locus standi necessary to challenge administrative actions. Thus the vested interests that exploited them were emboldened to continue with their cruel and even illegal practices with cynical contempt for law. It has been conclusively proved that liberalized standing rules had caused no significant increase in the number of actions brought. file papers and bear heavy expenditure on dilatory litigation. The liberal theory in Social Action Litigation is that the judge would not ask the petitioner how he was affected and what was his personal injury or loss. In India until the public interest litigation was developed by the Supreme Court. The first building blocks for the expanding concept of locus standi were provided by those Supreme Court decisions which indicated that the expression ‘aggrieved person’ to whom standing may be given is an elastic concept the meaning of which shall be varying from circumstance to circumstance. Ubi jus ubi remedium must be enlarged to embrace all interests of public minded citizens with serious concern for conservation of public resources and the direction and correction of public power so as to promote justice in all its facets. Locus Standi must be liberalized so as to meet the challenges of the times. They were unaware of the law or even of their legal rights unacquainted with the niceties of procedure involved.

There cannot be allowance for people who would surreptitiously want to settle their own personal needs or would want to profit from the filing of such a litigation.21 of the Constitution.guaranteed under A. The apex court held that the enjoyment of a pollution free environment is included under the right to life under art 21 it observed that “Right to life is a fundamental right under art 21 of the constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life.16 the Apex court gave a much wider platform for litigants to approach by diluting the locus standi even further to the effect that a group of journalists were entitled to file a PIL for the degradation of the environment. But alongside this the court also made clear that there has to be a line drawn in allowing people to approach the courts.if anything endangers or impairs that quality of life in derogation of laws a citizen has right to have recourse to art 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life” This judgment has been a landmark in the history of enviro-legal action in India because of the broadening of the spectrum of the those who would be allowed to file a complaint. In the case of Subhash Kumar vs.Now as a pollution free environment is a fundamental right guaranteed under art 21 anyone who is affected by pollution or there is a hamper to anyone from enjoying the environment they can approach the courts. Also again in the field of environmental law the Courts have again taken an activist stance to protect the environment and ensure better living conditions for the populace.But the basic criterion remains the fact that it has to be for the betterment of the environment and not for private gains. 16 AIR 1991 SC 420 13 . State of Bihar and ors. the Supreme Court enlarged the scope of locus standi to include the rightful concern of other citizens willing to espouse the cause of their less fortunate countrymen.

National Union Water Front Workers. The Supreme Court of India. since their inception has been instrumental in shaping the socio-economic environ.CONCLUSION At the very outset of this concluding section. does not extend to reading in the provision's of the Act what the legislature has not provided whether expressly or by necessary implication. In the foregoing discussion the illustration of the Air India case had been given. In fact as a note of caution they held that. sufficient in the present article. it is to be admitted that by no means the survey of literature specially in the form of case laws. and only when there is an ambiguity to the meaning that tools of interpretation be applied.”18 17 AIR 2001 SC 3527 Id at para 103 18 14 . the same has been adopted through the activist approach in liberally interpreting provisions in statutes as also the Constitution to bestow wider rights to individuals. as also the various High Courts. And at many instances much more than one. or substitution remedy or benefits for that provided by the legislature. “The principle that a beneficial legislation needs to be construed liberally in favour of the class for whose benefit it is intended. It must not be forgotten that a statute is ordinarily to be given its plain and ordinary meaning. However this time they refused to read the automatic absorption of these workers in the provisions of the Act. v. The same is due to the simple fact of abundance in material. However such an activist attitude is definitely to be adopted with a certain amount of circumspection. Substantially the same questions again had come up before the Supreme Court in the case of Steel Authority of India Ltd.17 The Supreme Court here again looked into the question of abolition of contract labour and the automatic absorption of the same in the same enterprise. This perhaps shall be the best place to actually have a brief glimpse at the case that overruled it and the reasons for the same.

However we must realize the peril of such an exercise as is well illustrated by the twin cases of Air India and Steel Authority of India. when judicial activism starts going absolutely beyond the bounds of the letters promulgated by the legislature. The difficulties and uncertainties of determining original meaning and applying it to modern circumstances are manifold and yet a very important tool for social engineering. 15 . The scope of the fundamental rights has been widened progressively in an effort to provide relief to the underprivileged. can be named as liberal construction. It is admitted that it is essential to have a judiciary that is acutely aware of the socio-economic realities of the nation. The entire enterprise must also be balanced by the ideals of Separation of powers. which is not permissible. which is also explicit in our Constitution. Hence although incidental tinkering with the law. in the process of interpreting it and applying to a situation.Judicial Activism in the shape of liberal interpretation of statutes has permeated almost all fields of litigation. it shall amount to judicial legislation. for effective dispensation of justice but the same should be bound by proper judicial discipline which is often transgressed.

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