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Judicial Activism: Project Report: 2014
Judicial Activism: Project Report: 2014
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TABLE OF CONTENTS
Conclusion 23-24
Bibliography 25
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JUDICIAL ACTIVISM : AN INTRODUCTION
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DEFINING JUDICIAL ACTIVISM
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ORIGIN OF JUDICIAL ACTIVISM
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constitutional interpretation with threat of stopping political
donations.
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JUDICIAL ACTIVISM IN INDIA
During the last two decades, judicial activism has played a major
role in protecting the rights and freedoms of individuals, as
guaranteed under the constitution. After the landmark decision in the
Menka Gandhi’s case, courts have assumed an activist posture and
come forward to the rescue of aggrieved citizens. In a number of
cases, subsequent to the Menka Gandhi’s case, the judiciary
interpreted the constitutional provision in its wider possible meaning
to protect basic civil liberties and fundamental rights. During this
period, our judiciary developed the concept of social action litigation
and public interest litigation by discarding the traditional and self-
imposed limitations on its own jurisdiction. In 1975, Justice VR
Krishna Iyer for the first time in the Bar Council’s case advocated
the liberal interpretation of locus standi in public interest litigation.
He observed that in a developing country like India, public-oriented
litigation better fulfils the rule of law if it is to run close to the rule
of life. The concept of public interest litigation took a clearer shape
through the remarkable judgment in what is popularly known as “the
case of the judges’ transfer”. In this case, Justice Bhagwati said
that the traditional rule was of ancient vintage and arose during an
era when private law dominated the scene. He observed that there is
an urgent need to innovate new methods and devise new strategies
for the purpose of providing access to justice to the large masses of
people who are denied their human rights and to whom freedom and
liberty have no meaning. The courts have a duty to utilize the
initiative and zeal of public-minded persons and organizations by
allowing them to act for general or group interest.
Justice Bhagwati further developed the idea of social justice through
courts in another case in which he observed, “The time has now
come when the courts must become the court for the poor and
struggling masses of this country. They must shed their character as
upholder of the established order and the status quo. They must be
sensitized to the need of doing justice to the large masses of people
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to whom justice has been denied by a cruel and heartless society for
generations. It is through public interest litigation that problems of
poor are now coming to the forefront and the entire theatre of the
law is changing. It holds out great possibilities for the future.”
The Supreme Court initiated this case by converting a letter written
by the People’s Union for Democratic Rights. The letter,
addressed to one of Supreme Court judges, was based upon a report
made by a team of three social scientists who were commissioned by
the People’s Union for Democratic Rights for the purpose of
investigating and inquiring into the condition under which workmen
were employed in the construction work of various projects
connected with the Asian Games. In this case, the Supreme Court
came down heavily against critics of public interest litigation.
It was observed that those who were decrying public interest
litigations, did not seem to realize that the courts are not meant only
for the rich and the well-to-do, for the landlord and the gentry, for
the business magnate and the industrial tycoon but they exist also for
the poor and the downtrodden, the have-nots and the handicapped
and the half-hungry millions. Public interest litigation and judicial
activism has touched almost every aspect of life. Be it the case of
bonded labour, rehabilitation of freed bonded labour, payment of
minimum wages, protection of pavement and slum dwellers, juvenile
offenders, child labour, illegal detentions, torture and maltreatment
of woman in police lock-up, the implementation of various
provisions of the constitution, environment problems, the courts took
cognizance of each case and laid down various judgments to protect
the basic human rights of each and every member of society.
No doubt law regulates the society, but some time society also
regulates law. Changing aspirations of people also affects law.
Constitutions, courts and other parts of the judicial system are made
for common people. Realising the fact that in spite of all
constitutional provisions and other enactments, socio-economic
justice remained a distant dream for the poor and down-trodden,
Justice Bhagwati invites judges to use their power to further the
cause of social justice.
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In his work “Social Action Litigation: The Indian Express” Just
ice Bhagwati observed
“Today, we find that in third world countries, there are large number
of groups which are being subjected to exploitation, injustice and
even violence. In this climate of conflict and injustice, judges have
to play a positive role and they cannot content themselves by
invoking the doctrine of self-restraint and passive interpretation. The
judges in India have fortunately a most potent judicial power in their
hands, namely the power of judicial review. The judiciary has to
play a vital and important role not only in preventing the remedying
abuse and misuse of power but also in
eliminating exploitation and injustice.”
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CONSTTUTIONAL POSITION
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prohibited the challenging of any detentions made during that time.
The Constitution was also amended to permit the excesses of the
Emergency. The Decision was strongly condemned and “Judicial
Activism” had a strong moral basis after the Emergency.
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JUDICIAL ACTIVISM V. JUDICIAL RESTRAINT
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Judicial decisions stand and fall on the strength of their
reasons, and the judicial law making role is more interactive
and broad based than is usually assumed.
Further, benefit of such law making is that it provokes the
legislature to act, in which case legislature maybe persuaded to
replace the ad hoc legislation with more comprehensive and
proper legislation.
A great strength of the Judiciary in law making was that it is
not elected and so not beholden to vote banks.
Finally he gives a constitutional justification, that judges in
India are bound by their oath as Judges to play an active role
in law making
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TRANSGRESSING THE BOUNDRIES
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ISSUES AND CONCERNS
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ACCOUNTABILITY OF JUDICIARY
One of the main concerns for the critics of Judicial Activism is that
the law making done by judges is no good till it is brought into
effect. The Law making organ of the government -the Legislature
has the means of making laws and bringing them into effect,
unfortunately the Judiciary does not. So what happens when the
Judiciary makes a law but fails to effectively implement it because
of lack of means to do so?
S.P Sathe in his book Judicial Activism in India-Transgressing
Borders and Enforcing Limits makes a difference between Judicial
Law making in the ‘Realist Sense’ and ‘Non Realist Sense’. He says
that Judicial Law making in the realist sense is what the Court does
when it expands the meanings of the words ‘personal liberty’ or due
process of law’ or ‘freedom of speech and expression’. When
however the Court lays down guidelines for inter-country adoption,
against sexual harassment of working women at the work-place, or
abolition of child labour, it is not judicial law making in the realist
sense but amounts to legislating like a legislature. Sathe terms this as
judicial excessivism.
It is when such law making is undertaken by the Judiciary that the
question of how to implement the law arises. If the Legislature
passes legislation to the effect, it would be a picture perfect scenario.
But when the Legislature refuses to take an action, there is a vacuum
that’s created between the law pronounced in the Judgement and its
actual implementation. A court is not equipped with the skills and
competence to discharge functions that essentially belong to the
other co-ordinate organs of the government.
The second question that arises is whether such legislation by the
Court is desirable?- this can be answered in context with Separation
of Powers Doctrine, But the desirability of such a legislation can be
contested vis a vis the fact that such law making by the court might
not see all future requirements and might have been made without
taking into consideration various viewpoints. For e.g. Vishakha’s
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case, where guidelines against sexual harassment at work were laid
down. It took the Legislature over a decade to contemplate
Legislation to the effect. The Court did lay down the guidelines, but
only the Legislature had to think through what would happen in case
of breach of such guidelines, what would be the penalties that would
be imposed, what would mean by the term ‘sexual harassment’,
whether only women could be liable to be sexually harassed at
workplaces and many such concerns. Thus the discussion boils down
to the basic question of what laws, principles would be applicable to
the Judiciary in deciding matters which are essentially pertaining to
other organs of the states? And what is the method or procedure
provided by the Constitution or any law for the enforcement of such
orders passed by the courts?
The danger of Judiciary creating a multiplicity of rights without the
possibility of adequate enforcement will, in the ultimate analysis, be
counter productive and undermine the credibility of the institution.
When laws that are pronounced cannot be implemented, the entire
process of making such laws becomes a sham.
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SEPERATION OF POWERS
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nursery admissions, unauthorised schools , begging in public, auto
rickshaw overcharging, size of speed breakers on the road. These are
clearly policy areas, where the Judiciary has interfered and
legislated.
It is believed that the framers of our Constitution took care to
provide for an independent and impartial Judiciary as the interpreter
of the Constitution and as the custodian of the rights of the citizens
through the process of Judicial Review, which permits the Judiciary
to interpret laws but not lay them down. Judicial review is much
stricter a concept, whereas Judicial Activism, as the name suggests is
much wider in scope. The framers, it is true, only permitted to
enquire into any legislation or an executive action. But Judicial
Activism tends to hijack the functions of the other organs and act
upon it.
The question then arises is that why would Judiciary overstep? And
the answer to this is given by Sathe very clearly-
‘Those Indians who finding that the legislatures and the executive
s are not responding to their grievances turn to courts for
protection against injustice from a class-structured polity, and
secure some relief, however paltry, have begun to look to the Court
as their own choice. Sathe further adds that ‘Judicial process is
expensive dilatory and technical and if it is preferred despite such
inherent defects, it is only because the other avenues of redressal
have become ineffective and unreliable.’
This is how the entire concept of Public Interest Litigation came up
and it sprouted from nowhere but from an Activist Judiciary.
Having stated the reasons for the Judiciary overstepping, the
pertinent question here is whether this overstepping is diluting the
Doctrine and thus being contrary to the Constitution? The question
can be answered in the light of the following parameters-
True Constitution, although makes separate provisions for
three organs of the state, does not place them in watertight
compartments.
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The Constitution by virtue of Article 142 gives extensive
powers to the Supreme Court in exercise of its jurisdiction to
pass any decrees or make any orders for carrying out justice.
As Justice Vivian Bose has described this power granted by
Article 142 as the ‘flaming sword’ in an elegant prose-
“We have upon us the whole armour of the Constitution and walk
henceforth in its enlightened ways, wearing the breast plate of its
protecting provisions and flashing the flaming sword of its
inspiration”
The Constitution instead of putting the organs into watertight
compartments , gives them a leeway to move around , especially the
Judiciary by way of Article 142 and by holding Judicial Review as
the basic feature of the Constitution. The issue then is not whether
diluting the Doctrine is contrary to the Constitution, but how far can
the doctrine be diluted or what are the permissible limits of such
dilution. The content of Judicial Power is not defined in our
Constitution. True the Judiciary cannot cross the line of separation to
the extent that it usurps the powers of the other organs. But the
above mentioned guidelines by the Courts are examples of instances
where the legislature did not legislate at all. And also the guidelines
laid down by the Judiciary become the law of the land only when,
even after having given such “GUIDELINES”, the legislature fails
to take any step to fill in the gap. Failure of Legislature to act even
after having been given guidelines cannot be held against the
Judiciary under the garb of diluting the Doctrine of Separation of
Powers.
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INFLUENCE BY POLITICAL ESTABLISHMENTS
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CONCLUSION
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the trust that the framers of the Constitution have put in the Judiciary
of the country, is respected and is maintained with responsibility.
Justice Y.K Sabharwal said in an interview
“When the Supreme Court declares that executive and the
legislature has exceeded its limits and crossed province the
judgement is a decision on behalf of “We the people of India,” to
whom the legislature and the executive are accountable”
Judicial Activism provides a safety valve in a democracy. Just a few
concerns need to be addressed so as to prevent Judiciary from
usurping the powers of the other organs. And instead of accusing
Judiciary of Over reach, a mechanism to concretise such guidelines
into legislations actively, should be devised. The panacea for the so
called evil ‘over-reach’ is with the Judiciary itself and ‘self –
restraint’ is the best form of keeping a check on itself.
To conclude quoting a few lines -
“That plants slowly nurtured by judicial craftsmanship have
grown into sturdy trees and have blossomed with colourful and
fragrant flowers. Judicial Activism has added much needed
oxygen to a gigantic democratic experiment in India by the
alchemy of judico-photosynthesis”
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BIBLIOGRAPHY
PRIMARY SOURCE
SECONDARY SOURCE
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