37 " Page
http://en.wikipedia.org/wiki/Judicial_activism
Chaterji Susanta, " 'For Public Administration' Is judicial activism really deterrent to legislative anarchy and executive tyranny ? ", The Administrator, Vol XLII, April-June 1997, p9, at p11
Http://www.thehindu.com/opinion/lead/article3785898.ece
http://definitions.uslegal.com/j/judicial-activism/
http://news.oneindia.in/2008/11/15/sorabjee-defends-judicial-activism-1226761401.html
Kmiec, Keenan D. (2004). "The Origin and Current Meanings of 'Judicial Activism'". Cal. L. Rev. 92: 1441, 1447. "Schlesinger's article profiled all nine Supreme Court justices on the Court at that time and explained the alliances and divisions among them. The article characterized Justices Black, Douglas, Murphy, and Rutledge as the 'Judicial Activists' and Justices Frankfurter,Jackson, and Burton as the 'Champions of Self Restraint.' Justice Reed and Chief Justice Vinson comprised a middle group."
Kmiec, Keenan D. (2004). "The Origin and Current Meanings of 'Judicial Activism'". Cal. L. Rev. 92: 1441, 1447. "Schlesinger's article profiled all nine Supreme Court justices on the Court at that time and explained the alliances and divisions among them. The article characterized Justices Black, Douglas, Murphy, and Rutledge as the 'Judicial Activists' and Justices Frankfurter,Jackson, and Burton as the 'Champions of Self Restraint.' Justice Reed and Chief Justice Vinson comprised a middle group."
Haines & Sherwood, The Role of the Supreme Court in American Government and Politics: 1789–1835, 1944, p.209
Andhyarujina, T.R: Judicial Activism & Constitutional Democracy in India, (Bom.: 1992) at p.29
Upendra Baxi Supra at p.31
Ref to Article "when seed for judicial activism was sowed" by Balakrishnan, The Hindusthan Times, New delhi dated 01-04-96 p.9
Since keshavananda Bharathi Vs. state of Kerala, AIR 1973 SC 1463
Indira Nehru Gandhi Vs. Raj narain, (1975) SCC Supp 1, Kihota Hollohon Vs. Zachillu L. (AIR 1993 SC 412), Chandra Kumar vs. Union of India (1997) Sc 1125
Such an exercise can be seen by Supreme court in the case Vishaka vs St. of Rajasthan(1997)6 SCC 241 where the three bench judges of Supreme Court headed by Chief Justice Verma, specifically declared that "Some Guidelines should be laid down for the protection of these Rights (of working women against sexual harassments) to fill the legislative vacuum" at p.247
1989 (2) Scale 98 (541)
1996 1 SCC 753
http://www.hindu.com/2009/07/18/stories/2009071852820800.htm
http://indialawyers.wordpress.com/2012/08/06/disturbing-trends-in-judicial-activism/
http://www.thehindu.com/opinion/lead/disturbing-trends-in-judicial-activism/article3731471.ece
Charles M. Lamb : "Judicial Restraint of Supreme Court" in Stephen C. Halpren & Charles M. Lamb (Ed): Supreme Court Activism & Restraint (Massachusetts : Toronto, 1984) pp.7-36- Also see G. Edward White: The American Judicial Tradition (New York: Oxford, 1976) Chaps.8, 10, 14.
Lochner Vs. New York, 198 U.S.45 (74) (1904)
1998 Cri. L.J. 1208: AIR 1998 SC 889
M.C Mehta Vs. Union of India, AIR 1997 SC 734.
S.P. Sathe, Judicial Activism: The Indian Experience, 6 Wash. U. J. L. & Pol'y 029 (2001)
http://digitalcommons.law.wustl.edu/cgi/viewcontent.cgi?article=1443&context=wujlp
L.L.M. – Research Methodology and Techniques of Legal Writing
PROJECT SUBMISSION – October 2014
PROJECT REPORT SUBMITTED ON 20/10/2014 IN FULFILMENT OF THE REQUIREMENTS FOR THE MANDATORY COURSE ON
RESEACH METHODOLOGY AND TECHNIQUES OF WRITING
JUDICIAL ACTIVISM-CRITICAL ANALYSIS AND CURRENT DEBATE
Submitted By
Supervised By
G.ASHWINI,
P.V.K RAO,
L.L.M. Candidate,
Professor,
2014-1LLM-17,
B.A, M.A, M.Phil, Ph.D.,
NALSAR University of Law,
NALSAR University of Law,
Hyderabad, Telangana.
Hyderabad, Telangana.
DECLARATION
I do hereby declare that this project entitled "Critical Analysis of Judicial Review and Current Debate" is the record of bona fide research carried out by me under the guidance and supervision of Professor P.V.K. Rao, Faculty of Law, Nalsar University of Law. Hyderabad. Telangana in the partial fulfillment of the project report to be submitted for the Mandatory Course "RESEARCH TRAINING AND METHODS OF LEGAL WRITING"
I further declare that this study has not previously formed the basis for the award of any degree, diploma, associate ship or other similar title of recognition. This is my original work and has not been presented earlier in this manner. This information is purely of academic interest and passion over the subject.
An error or Omission that might have occurred is totally un-intentional and un-fortunate, and I express apology for the same.
TABLE OF CONTENTS
SL.NO
TITLE
PAGE NO.
1
ABSTRACT
5
2
OBJECT OF STUDY
5
2.1
SCOPE OF STUDY
6
2.2
SOURCE OF INFORMATION
6
2.3
RESEARCH QUESTIONS
6
2.4
HYPOTHESIS
7
3
DEFINITIONS
7
4
ORIGIN AND HISTORY OF JUDICIAL REVIEW
11
4.1
EVOLUTION OF JUDICIAL REVIEW IN USA
11
4.1.1
THE ORIGIN OF JUDICIAL REVIEW
11
4.1.2
FIRST CASE
12
4.1.3
USA CONSTITUTION
12
4.1.4
FOREFATHERS OF USA CONSTITUTION
13
4.2
JUDICIAL ACTIVISM IN UK
13
4.3
EVOLUTION OF JUDICIAL ACTIVISM IN INDIA
13
4.4
FACTORS CONTRIBUTING TO THE EVOLUTION OF JUDICIAL REVIEW IN INDIA
15
4.5
CONSTITUTIONAL PROVISIONS OF JUDICIAL REVIEW IN INDIA
16
4.6
EMERGENCE OF JUDICIAL REVIEW IN INDIAN JUDICIARY
16
5
ROLE OF JUDICIAL REVIEW AND FUNDAMENTAL RIGHTS
17
5.1
THE PLACE OF JUDICIAL REVIEW IN INDIAN CONSTITUTION
17
5.2
EXPANSION OF FUNDAMENTAL RIGHTS
18
5.3
MILESTONES OF PUBLIC INTEREST LITIGATION IN INDIA
20
5.4
PUBLIC CAUSE LITIGATION
24
5.4.1
ARAVALI CASE
27
5.4.2
COMMON CAUSE Vs. UNION OF INDIA
28
5.5
MILTARY OPERATION
29
5.6
LEGISLATIVE PROCEEDINGS
29
6
IMPLICATIONS OF JUDICIAL REVIEW ON INDIAN JUDICIARY
29
7
CONSTITUTIONAL PROVISIONS FOR JUDICIAL REVIEW IN INDIA
32
8
CRITISISMS
33
8.1
CRITISISMS IN INDIAN CONTEXT
34
9
CONCLUSION
34
10
BIBLIOGRAPHY
37
1. ABSTRACT:
The judicial activism is use of judicial power to articulate and enforce what is beneficial for the society in general and people at large. Supreme Court despite its constitutional limitation has come up with flying colors as a champion of justice in the true sense of the word. JUSTICE… this seven letter word is one of the most debated ones in the entire English dictionary. With the entire world population being linked to it, there is no doubt about the fact that with changing tongues the definition does change. The judicial activism has touched almost every aspect of life in India to do positive justice and in the process has gone beyond, what is prescribed by law or written in black and white. Only thing the judiciary must keep in mind is that while going overboard to do justice to common man must not overstep the limitations prescribed by sacrosanct i.e. The Constitution.
Key words: Judicial activism, judicial power, Constitutional limitation.
2. OBJECT OF THE STUDY:
As "Judicial Activism" is an ever- emerging concept and evolves in their later stages of development, my emphasis lies on the study of the predominant role played by Judicial activism and its impact on Indian Judiciary. My object or aim of the study proposes to be The Critical analysis of Judicial Review and current debate of it in transnational scenario.
My purpose of the study is:
To explore the historical background of Judicial Review
To examine the dimensions of legitimate use of "Doctrine of Judicial review"
What are the grounds to be invoked for the use of judicial review
How does Doctrine of Judicial Review acts as a check and balance on the Executive as well on legislative actions
The Scope of the judicial review to exercise its power over legislative and executive action
Analyzing the consequences or after effects of judicial review, if works in frustration of anything
To review the legal frame work regulating and governing the legitimate use of this doctrine.
2.1 SCOPE OF STUDY:
The scope of the study is not only limited to the explaining the Doctrinal approach of Judicial activism but also the risk it carries, when used recklessly. It emphasis on the Legal frame work the laws relating to "Judicial Review and Activism in India" As there is a little chance of field work, this study is based on "Doctrinal" Approach.
2.2 SOURCE OF INFORMATION:
Research in this work mainly relied upon "Doctrinal Method". The present approach in the research is primarily Doctrinal, analytical and descriptive. The present research is mainly dependent on Statues and Committee reports and secondary sources like books and articles. Internet has provided with major contribution of the work. Internet has provided with major contribution to explore into the various dimensions of the topic by providing with most latest and relevant information
2.3 RESEARCH QUESTIONS:
This Research paper focuses and tries to answer the following questions:
1. What is the Historical background of Judicial Activism?
2. What are the definitions of Judicial Activism?
3. What are the various functions and uses of Judicial Activism?
4. What is the legal framework of the judicial activism in India?
5. How the Judicial activism saw light in Indian Judiciary in initial and in phases?
6. How the concept of PIL (public interest litigation) had its roots in Indian Judiciary?
The above research made a significant and considerable effort in answering the above spot lighted questions
2.4 HYPOTTHESIS:
My Hypothesis is to draw up an impression that Right to Judicial Review and Judicial Activism acts as boon to the depressed and down trodden sections of the society with the improvement and entrenchment in the Era of Fundamental rights by the way of invoking the concepts of PIL (Public Interest Litigation), SIL (Social Interest litigation) and Expanding the horizons of Article 21 ad personal liberty. It also acts as check and balances on the acts of the Legislative and Executive actions maintaining an accountability and transparency, there by acting as a touchstone in either validating or invalidating the Acts formulated by both Legislative and Executive organs of State body.
3. DEFINITIONS:
Judicial activism describes judicial rulings suspected of being based on personal or political considerations rather than on existing law. The question of judicial activism is closely related to constitutional interpretation, statutory construction, and separation of powers.
Black's Law Dictionary defines judicial activism as a "philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions." Judicial activism means active role played by the judiciary in promoting justice. Judicial Activism to define broadly is the assumption of an active role on the part of the judiciary. Ronald Dworkin, for example, rejects a "strict interpretation" of the constitutional text because it limits constitutional rights "to those recognized by a limited group of people at a fixed date of history."
According to Prof. Upendra Baxi, Judicial Activism is an inscriptive term. It means different things to different people. While some may exalt the term by describing it as judicial creativity, dynamism of the judges, bringing a revolution in the field of human rights and social welfare through enforcement of public duties etc., others have criticized the term by describing it as judicial extremism, judicial terrorism, transgression into the domains of the other organs of the State negating the constitutional spirit etc.
Judicial activism implies going beyond the normal constraints applied to jurists and the Constitution, which gives jurists the right to strike down any legislation or rule against the precedent if it goes against the Constitution. Thus, ruling against majority opinion or judicial precedent is not necessarily judicial activism unless it is active. In the words of Justice J.S Verma , Judicial Activism must necessarily mean " the active process of implementation of the rule of law, essential for the preservation of a functional democracy".
In a modern democratic set up, judicial activism should be looked upon as a mechanism to curb legislative adventurism and executive tyranny by enforcing Constitutional limits. That is, it is only when the Legislature and the Executive fail in their responsibility or try to avoid it, that judicial activism has a role to play. In other words, judicial activism is to be viewed as a "damage control" exercise, in which sense, it is only a temporary phase. Recent times have seen judiciary play intrusive roles in the areas of constitutionally reserved for the other branches of governments. Issues in judicial activism arise, when governance is apparently done by Mandamus.
The Constitution of India operates in happy harmony with the instrumentalities of the executive and the legislature. But to be truly great, the judiciary exercising democratic power must enjoy independence of a high order. But independence could become dangerous and undemocratic unless there is a constitutional discipline with rules of good conduct and accountability: without these, the robes may prove arrogant.
Judicial activism is the view that the Supreme Court and other judges can and should creatively (re)interprets the texts of the Constitution and the laws in order to serve the judges' own visions regarding the needs of contemporary society. Judicial activism believes that judges assume a role as independent policy makers or independent "trustees" on behalf of society that goes beyond their traditional role as interpreters of the Constitution and laws. The concept of judicial activism is the polar opposite of judicial restraint.
Failure on part of the legislative and executive wings of the Government to provide 'good governance' makes judicial activism an imperative. Delivering justice to a population of over a billion does not sound like and never will be an easy task. It however becomes increasingly difficult in a country like India. The Executive, the Legislature and the Judiciary are the three wings of the Indian democracy.
Judicial activism, however, came into its own only in the last couple of years. In his Dr. Zakir Hussain Memorial Lecture, Former Chief Justice of India A.M. Ahmadi said, "In recent years, as the incumbents of Parliament have become less representative of the will of the people, there has been a growing sense of public frustration with the democratic process. This is the reason why the (Supreme) Court had to expand its jurisdiction by, at times, issuing novel directions to the executive."
Many are critical of judicial activism as an exercise of judicial powers, which displaces existing laws or creates more legal uncertainty than is necessary, whether or not the ruling has some constitutional, historical or other basis. Judicial activism can be considered as "legislating from the bench." Some have even gone to the extent of calling it judicial tyranny. This implies that a judge is ruling on the basis personal political convictions or emotions. Declaring that the judiciary has a vital function to protect minority rights in a pluralist society, former Attorney General of India Soli J Sorabjee said ''judicial activism has contributed to the protection of fundamental human rights.
When serious issues like environmental pollution crop up and the statutory bodies take no action and the people suffer, the courts have to step in to alleviate human suffering, he added. Calling upon the judiciary to evolve a ''jurisprudence of compassion'', Mr. Storable said the institution of public interest litigation (PIL) had helped to secure ''fundamental rights as a living reality for some sections of society.'' However, the senior Supreme Court lawyer cautioned that PIL ''could not be treated as a pill for every ill'' and said that some had sought to use it as an instrument of blackmail and oppression. The judiciary had to be vigilant against personal, political and publicity-oriented litigation masquerading as PIL, he added. However, the abuse of PIL was not a ground for its abolition or restriction as it had played an important role in securing justice to suffering sections, ranging from under-trial prisoners to children working in hazardous occupations and workers treated as slaves in quarries and kilns. Lauding Justice (Red.) V R Krishna Ayer for his judgments upholding rights of prisoners, Mr. Storable said torture was rampant in Indian prison cells. By giving judgments against solitary confinement and handcuffing of prisoners, Justice Krishna Ayer had upheld basic human dignity.
Judicial activism might sound, for a lay man, a heavy-duty term but in the simpler manner is quite easy to comprehend. We can say in simple words that judicial activism is a practice by the judges that does not involve the balance of law, instead it hampers it. In judicial activism, the judge places his final decision with his heart and mind, which is emotionally handled. It, at times, works in our favor to save from the wrong decision to take place but at times it also backfires on us. In other words we can easily say that judicial activism is the practice going beyond the normal law for the jury. There are some very important cases which come in the talk whenever we discuss about judicial activism in India. Bhopal gas tragedy and the Jessica All Murder case are among the top two. The latter was an open and shut case for all. Money and muscle power tried to win over the good. But lately, it was with the help of judicial activism that the case came to at least one decision. The two most prominent figures in the Bar Council of India whose names are the most inter related with judicial activism are Justice Prafullachandra Natwarlal Bhagwati and Justice Vaidyanathapura Rama Krishna Iyer.
4. ORIGIN AND HISTORY OF JUDICIAL REVIEW:
Arthur Schlesinger Jr. introduced the term "judicial activism" in a January 1947 Fortune magazine article titled "The Supreme Court: 1947".
The phrase has been controversial since its beginning. An article by Craig Green, "An Intellectual History of Judicial Activism," is critical of Schlesinger's use of the term; "Schlesinger's original introduction of judicial activism was doubly blurred: not only did he fail to explain what counts as activism, he also declined to say whether activism is good or bad."
Even before this phrase was first used, the general concept already existed. For example, Thomas Jefferson referred to the "despotic behavior" of Federalist federal judges, in particular, John Marshall.
4.1 EVOLUTION OF JUDICIAL REVIEW IN USA:
4.1.1 The origin of Judicial Review
In Marbury v. Madison (1803) US SC
Marbury v. Madison was the first US Supreme Court case to strike down an Act of Congress as unconstitutional. Since that time, the federal courts have exercised the power of judicial review.
The Supreme Court of US ruled that the federal courts have the duty to review the constitutionality of Acts of Congress and to declare them void when they are contrary to the Constitution.
Judicial Review is now a well settled doctrine probably in all the democratic country.
4.1.2 First Case:
Little v Barreme
This case is also known as the Flying Fish Case. In it the order of President John Adams was declared void by the US Supreme Court.
Many people know Marbury v. Madison as the first Supreme Court decision to declare an act of Congress Unconstitutional but few people could identify the Court's first decision declaring Executive Branch action to be unconstitutional.
In US the history of judicial review can be divided into two parts:
Judicial Review before Constitution of US; and
Judicial Review after Constitution of US.
4.1.3 USA CONSTITUTION:
Before US Constitution the US state courts in at least seven of the thirteen states had engaged in judicial review and had invalidated state statutes because they violated the state constitution or other higher law.
The Constitution of US came into force in 1787. There are no specific provisions related with judicial Review but there are some provisions which indicate this doctrine of Judicial Review.
Article 3 states: The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time establish.
Article 6 states: this Constitution, the supreme Law of the Land; and the Judges and Government authorities in every State shall be bound by it.
And the Supreme Court has the ultimate authority to decide whether statutes are consistent with the Constitution or not
4.1.4 FORE FATHERS OF USA CONSTITUION:
The View of the Founding Fathers of US Constitution:
The framers stated that the courts' power to declare laws unconstitutional would provide a check on the legislature, protecting against excessive exercise of legislative power.
4.2 JUDICIAL ACTIVISM IN UK:
There is no written Constitution in UK but the doctrine of Judicial Review is used there.
In UK the doctrine of "ultravires" was relied upon by the judiciary for striking down legislation by sub-ordinate bodies constituted by Charter of Statutes.
4.3 EVOLUTION OF JUDICIAL ACTIVISM IN INDIA:
Supreme Court has attained the zenith of its powers in 1973 with its claim to invalidate even an amendment of the Constitution on substantive grounds. As an eminent lawyer sums up, from about 1974, the court's emphasis has shifted to correcting the executive actions of Government for their un-reasonableness particularly in Administrative matters
However, the imposition of Emergency in 1975 has had a very demoralizing effect on judiciary because of super cession of senior most judges, in the appointment of the Chief Justice of India, and using the process of Constitutional Amendments to restrict the jurisdiction of the courts.
The Supreme Court, plight at that time i.e. in mid 1970's was described by Upendra Baxi in the following words:
"Justices of the Supreme Court, again like many middle-class Indians, had all along assumed that something like authoritarian rule just cannot emerge in Indian Polity. Nothing very drastic had happened in the national emergencies proclaimed earlier, which were related to more serious situations of aggressions or hostility by neighboring countries. But as events un-folded, they watched from their Olympian Heights with increasing anxiety the wide spread interests, the regime of press censorship, the strengthening of MISA, the expansion of IX schedule, retroactive changes in the election law, numerous amendments to the provisions of the Constitution…………….
The learned author saw at least three distinct phases of 3emergency which witnessed the above mentioned developments that took place from 1975 and March, 1977.I tries to analyze the reasons for the development of judicial activism in India
During the initial phase, there was "mass transfers" of several high courts in opposition to the conventions that only the senior most sitting judge will be appointed as the Chief Justice of India i.e. the super cession of senior most judges by junior judges. These were the developments that affected the judiciary, directly. The rest affected the credibility of the judiciary indirectly. Thus the major parts of Constitution affected substantially by the emergency amendments were the very areas, in the most people then, and almost all people now, expected a vigorous assertion of judicial power by the highest court in land. Such assertion of judicial power has started in the late 1970's and early 1980's.
4.4 Factors contributing to the evolution of Judicial review in India:
The concept of judicial activism can be seen to reflecting form the trends exemplified by some
decisions and orders of the Supreme Court. They are as under:
The Judiciary since 1973 claims the power to nullify on substantive grounds, even an Amendment to the Constitution by amending power if it changes "the basic structure of frame work of the constitution". The Concept of judicial control over the constitution has been evolved by and known to courts in India only.
The un-doubted privileges of the legislature even in respect of internal proceedings have been brought under the purview of judicial review.
Power of Judicial review as exercised by the Supreme Court and the High Court has been recognized by these courts to be unalterable "basic structure of Constitution"
Twenty one High courts, with the Supreme Court at the Apex, correct the entire gamut of Country's administration.
The concept of "state" for the purpose of the enforcement of fundamental rights has been widened by the Successive Judgments of the supreme court so as to include both public and Quasi- public authorities
The courts have broadened the scope of "Locus Standi" in the Public Interest Litigation matters, in the early eighties;
The Supreme court has often resorted to judicial legislation by virtue of its powers under Article 141 to fill the void created by the so-called legislative vacuum
There by, in effect the judicial activism is enshrined in the Constitution of India in following provisions:
4.5 Constitutional Provisions of Judicial Review in India:
The Constitution of India explicitly establishes the doctrine of judicial review in several Articles, such as, 13, 32, 131-136, 143, 226 and 246. The doctrine of judicial review is thus firmly rooted in India, and has the explicit sanction of the Constitution.
The main object of Article 13 is to secure the Fundamental Rights. Article 32 and 226 entrusts the roles of the protector and guarantor of fundamental rights to the Supreme and High Courts. Article 245 states that the powers of both Parliament and State legislatures are subject to the provisions of the constitution. Article 246 (3) ensures the state legislature's exclusive powers on matters pertaining to the State list. Article 131-136 entrusts the court with the power to adjudicate disputes between individuals, between individuals and the state between the states and the union but the court may be required to interpret the provisions of the constitution and the interpretation given by the Supreme Court becomes the law honored by all courts of the land.
4.6 EMERGENCE OF JUDICIAL REVIEW IN INDIAN JUDICIARY (with help of some pre-dominant cases)
Kesavananda Bharati v. State of Kerala
In Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 Justice Khanna said that Judicial Review has become an integral part of our Constitutional system and if the provisions of the Statutes are to be found violative of any of the Articles of the Constitution which is the touchstone for the validity of all the laws, the Supreme Court and the High Courts are empowered to strike down the said provisions of the Statutes.
Sajjan Singh vs. state of Rajasthan
Two dissenting judges in Sajjan Singh v. Rajasthan AIR 1965 SC 845 case raised doubts whether the fundamental rights of citizens could become a plaything of the majority party in Parliament.
The judges had the opinion that the law passed by the Legislature can be declared void if it violates the Fundamental Rights.
Minerva Mills v. Union of India
In his minority judgment in Minerva Mills v. Union of India Bhagwati, J., observed:
"It is the judiciary to uphold the constitution values and to enforce the constitutional limitations. That is the essence of the rule of the law, which inter alia requires that 'the exercise of the powers by the Government it be the legislature or the executive or any other authority, be conditioned by the constitution and the law.' The power of the Judicial Review is an integral part of the constitution system…. the power of judicial review…. Part of the basic structure of the Constitution."
5. ROLE OF JUDICIAL REVIEW AND FUNDAMENATAL RIGHTS:
5.1 The place of 'judicial review 'in Indian Constitution:
In post-independence India, the inclusion of explicit provisions for' judicial review' were necessary in order to give effect to the individual and group rights guaranteed in the text of the Constitution. Dr. B.R. Ambedkar, who chaired the drafting committee of our Constituent Assembly, had described the provision related to the same as the 'heart of the Constitution'.1 Article 13(2) of the Constitution of India prescribes that the Union or the States shall not make any law that takes away or abridges any of the fundamental rights, and any law made in contravention of the aforementioned mandate shall, to the extent of the contravention, be void.
While judicial review over administrative action has evolved on the lines of common law doctrines such as 'proportionality', 'legitimate expectation', 'reasonableness' and principles of natural justice, the Supreme Court of India and the various High Courts were given the power to rule on the constitutionality of legislative as well as administrative actions to protect and enforce the fundamental rights guaranteed in Part III of the Constitution. The higher courts are also approached to rule on questions of legislative competence, mostly in the context of Centre-State relations since Article 246 of the Constitution read with the 7th schedule, contemplates a clear demarcation as well as a zone of intersection between the law-making powers of the Union Parliament and the various State Legislatures.
Hence the scope of judicial review before Indian courts has evolved in three dimensions – firstly, to ensure fairness in administrative action, secondly to protect the constitutionally guaranteed fundamental rights of citizens and thirdly to rule on questions of legislative competence between the centre and the states. The power of the Supreme Court of India to enforce these fundamental rights is derived from Article 32 of the Constitution. It gives citizens the right to directly approach the Supreme Court for seeking remedies against the violation of these fundamental rights.
This entitlement to constitutional remedies is itself a fundamental right and can be enforced in the form of writs evolved in common law – such as habeas corpus (to direct the release of a person detained unlawfully), mandamus (to direct a public authority to do its duty), quo warranto (to direct a person to vacate an office assumed wrongfully), prohibition (to prohibit a lower court from proceeding on a case) and certiorari (power of the higher court to remove a proceeding from a lower court and bring it before itself). Besides the Supreme Court, the High Courts located in the various States are also designated as constitutional courts and Article 226 permits citizens to file similar writs before the High Courts. With the advent of Public Interest Litigation (PIL) and dilution of concept of " locus Standi " in recent decades, Article 32 has been creatively interpreted to shape innovative remedies such as a 'continuing mandamus' for ensuring that executive agencies comply with judicial directions.
5.2 EXPANSION OF FUNDAMENTAL RIGHTS:
The emergency period and the infamous Habeas corpus constituted defining moment in history of judicial review in India. The strong criticism of the judgment gave solid base to judicial review and was followed by expansion of fundamental rights. Article 21 of the Constitution of India reads as follows: "No person shall be deprived of his life or personal liberty except according to procedure established by law." The narrow interpretation of this article in the early years of the Supreme Court in A.K. Gopalan's case was changed in Manteca Gandhi's case. In that decision, it was held that governmental restraints on 'personal liberty' should be collectively tested against the guarantees of fairness, non-arbitrariness and reasonableness that were prescribed under Articles 14, 19 and 21 of the Constitution. The Court developed a theory of 'inter-relationship of rights' to hold that governmental action which curtailed either of these rights should meet the designated threshold for restraints on all of them. In this manner, the Courts incorporated the guarantee of "Substantive Due Process" of U,S.A into the language of Article 21. This was followed by a series of decisions, where the conceptions of 'life' and 'personal liberty' were interpreted liberally to include rights which had not been expressly enumerated in Part III. In the words of Justice Bhagwati:
"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 necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms."
In his work 'Social Action Litigation: The Indian Express' Justice 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."
Notably, over the decades, the Supreme Court has affirmed that both the Fundamental Rights and Directive Principles must be interpreted harmoniously. It was observed in the Kesavananda Bharati case, that the directive principles and the fundamental rights supplement each other and aim at the same goal of bringing about a social revolution and the establishment of a welfare State, the objectives which are also enumerated in the Preamble to the Constitution. Furthermore, in Unna Krishnan, J.P. v. State of Andhra Pradesh, Justice Jevons Reddy declared:
"The provisions of Parts III and IV are supplementary and complementary to each other and not exclusionary of each other and that the fundamental rights are but a means to achieve the goal indicated in Part IV".
This approach of harmonizing the fundamental rights and directive principles has been successful to a considerable extent. The Supreme Court has interpreted the 'protection of life and personal liberty' as one which contemplates socio-economic entitlements especially in public interest cases.
5.3 Milestones of Public Interest Litigation in India:
One of the earliest cases of public interest litigation was reported as Hussainara Khatoon (I) v. State of Bihar. This case was concerned with a series of articles published in a prominent newspaper - The Indian Express which exposed the plight of under trial prisoners in the state of Bihar. A writ petition was filed by an advocate drawing the Court's attention to the deplorable plight of these prisoners. Many of them had been in jail for longer periods than the maximum permissible sentences for the offences they had been charged with. The Supreme Court accepted the dilution of "locus standi" and allowed an advocate to maintain the writ petition. Thereafter, a series of cases followed in which the Court gave directions through which the 'right to speedy trial' was deemed to be an integral and an essential part of the protection of life and personal liberty. Soon thereafter, two noted professors of law filed writ petitions in the Supreme Court highlighting various abuses of the law, which, they asserted, were a violation of Article 21 of the Constitution. These included inhuman conditions prevailing in protective homes, long pendency of trials in court, trafficking of women, importation of children for homosexual purposes, and the non-payment of wages to bonded laborers among others. The Supreme Court accepted their "locus standi" to represent the suffering masses and passed guidelines and orders that greatly ameliorated the conditions of these people.
In another matter, a journalist, Ms. Sheela Barse, took up the plight of women prisoners who were confined in the police jails in the city of Bombay. The Court took cognizance of the matter and directions were issued to the Director of College of Social Work, Bombay to visit the Bombay Central Jail and conduct interviews of various women prisoners in order to ascertain whether they had been subjected to torture or ill-treatment. Based on his findings, the Court issued directions such as the detention of female prisoners only in designated female lock-ups guarded by female constables and that accused females could be interrogated only in the presence of a female police official.
Public interest litigation acquired a new dimension – namely that of 'epistolary jurisdiction' with the decision in the case of Sunil Batra v. Delhi Administration, It was initiated by a letter that was written by a prisoner lodged in jail to a Judge of the Supreme Court. The prisoner complained of a brutal assault committed by a Head Warder on another prisoner. The Court treated that letter as a writ petition, and, while issuing various directions, opined that:
"…technicalities and legal niceties are no impediment to the court entertaining even an informal communication as a proceeding for habeas corpus if the basic facts are found".
In Municipal Council, Ratlam V. Vardichand, the Court recognized the "locus standi" of a group of citizens who sought directions against the local Municipal Council for removal of open drains that caused stench as well as diseases. The Court, recognizing the right of the group of citizens, asserted that if the:
"…centre of gravity of justice is to shift as indeed the Preamble to the Constitution mandates, from the traditional individualism of "locus stand" to the community orientation of public interest litigation, the court must consider the issues as there is need to focus on the ordinary men."
In Parma and Kotare v. Union of India, the Supreme Court accepted an application by an advocate that highlighted a news item titled "Law Helps the Injured to Die" published in a national daily, The Hindustan Times. The petitioner brought to light the procedural difficulties which came in availing urgent and life-saving medical treatment to persons injured in road and other accidents. The Supreme Court directed medical establishments to provide instant medical aid to such injured people, notwithstanding the formalities to be followed under the procedural criminal law.
The Supreme Court has met the changing needs of society by the extensive liberalization of the rule of "locus standi" which gave birth to a flexible public interest litigation system. A powerful thrust to public interest litigation was given by a 7-judge bench in the case of S.P. Gupta v. Union of India. The judgment recognized the "locus stand" of bar associations to file writs by way of public interest litigation. In this particular case, it was accepted that they had a legitimate interest in questioning the executive's policy of arbitrarily transferring High Court judges, which threatened the independence of the judiciary. Explaining the liberalization of the concept of "locus stand", the court opined:
"It must now be regarded as well-settled law where a person who has suffered a legal wrong or a legal injury or whose legal right or legally protected interest is violated, is unable to approach the court on account of some disability or it is not practicable for him to move the court for some other sufficient reasons, such as his socially or economically disadvantaged position, some other person can invoke the assistance of the court for the purpose of providing judicial redress to the person wronged or injured, so that the legal wrong or injury caused to such person does not go un- redressed and justice is done to him."
The unique model of public interest litigation that has evolved in India not only looks at issues like consumer protection, gender justice, prevention of environmental pollution and ecological destruction, it is also directed towards finding social and political space for the disadvantaged and other vulnerable groups in society. The Courts have given decisions in cases pertaining to different kinds of entitlements and protections such as the availability of food, access to clean air, safe working conditions, political representation, affirmative action, anti-discrimination measures and the regulation of prison conditions among others.
For instance, in People's Union for Democratic Rights v. Union of India, a petition was brought against governmental agencies which questioned the employment of underage laborers and the payment of wages below the prescribed statutory minimum wage-levels to those involved in the construction of facilities for the then upcoming Asian Games in New Delhi. The Court took serious exception to these practices and ruled that they violated constitutional guarantees. The employment of children in construction-related jobs clearly fell afoul of the constitutional prohibition on child labor and the non-payment of minimum wages was equated with the extraction of forced labor. Similarly, in Bandhua Mukti Morcha v. Union of India, the Supreme Court's attention was drawn to the widespread incidence of the age-old practice of bonded labor which persists despite the constitutional prohibition. Among other interventions, one can refer to the Shriram Food & Fertilizer case where the Court issued directions to employers to check the production of hazardous chemicals and gases that endangered the life and health of workmen. It is also through the vehicle of PIL, that the Indian Courts have come to adopt the strategy of awarding monetary compensation for constitutional wrongs such as unlawful detention, custodial torture and extra-judicial killings by state agencies.
An important step in the area of gender justice was the decision in Vishaka v. State of Rajasthan. The petition in that case originated from the gang-rape of a grassroots social worker. In that opinion, the Court invoked the text of the Convention for the Elimination of all forms of Discrimination Against Women (CEDAW) and framed guidelines for establishing Redressal mechanisms to tackle sexual harassment of women at workplaces. The decision came under considerable criticism for encroaching into the domain of the legislature. It must be remembered that meaningful social change, like any sustained transformation, demands a long-term engagement. Even though a particular petition may fail to secure relief in a wholesome manner or be slow in its implementation, litigation is an important step towards systemic reforms.
5.4 Public cause litigation:
However, over the years, the social action dimension of PIL has been diluted and eclipsed by another type of "public cause litigation" in courts. In this type of litigation, the court's intervention is not sought for enforcing the rights of the disadvantaged or poor sections of the society but simply for correcting the actions or omissions of the executive or public officials or departments of government or public bodies. Examples of this type of intervention by the Court are innumerable. A recent example of this approach was the decision in People's Union for Civil Liberties v. Union of India, where the Court sought to ensure compliance with the policy of supplying mid-day meals in government-run primary schools. There had been widespread reports of problems in the implementation of this scheme such as the pilferage of food grains. As a response to the same, the Supreme Court issued orders to the concerned governmental authorities in all States and Union Territories, while giving elaborate directions about the proper publicity and implementation of the said scheme. The apex Court has also championed the cause of pavement dwellers in Olga Telis vs. Bombay Municipal Corporation.
In the realm of environmental protection, many of the leading decisions have been given in actions brought by renowned environmentalist M.C. Mehta viz., strict liability for the leak of Oleum gas from a factory in New Delhi, directions to check pollution in and around the Ganges river, the relocation of hazardous industries from the municipal limits of Delhi, directions to state agencies to check pollution in the vicinity of the Taj Mahal and several afforestation measures. A prominent decision was made in a petition that raised the problem of extensive vehicular air pollution in Delhi. The Court was faced with considerable statistical evidence of increasing levels of hazardous emissions on account of the use of diesel as a fuel by commercial vehicles. The Supreme Court decided to make a decisive intervention in this matter and ordered government-run buses to shift to the use of Compressed Natural Gas (CNG), an environment-friendly fuel. This was followed some time later by another order that required privately-run 'autorickshaws' (three-wheeler vehicles which meet local transportation needs) to shift to the use of CNG. At the time, this decision was criticized as an unwarranted intrusion into the functions of the pollution control authorities, but it has now come to be widely acknowledged that it is only because of this judicial intervention that air pollution in Delhi has been checked to a substantial extent.
Another crucial intervention was made in Council for Environment Legal Action v. Union of India, wherein 'Polluter Pays' principle was evolved. In S.Jagannath V.UOI the Supreme Court gave directions to tackle ecological degradation in coastal areas. In recent years, the Supreme Court has taken on the mantle of monitoring forest conservation measures all over India, and a special 'Green bench' has been constituted to give directions to the concerned governmental agencies to maintain judicial supervision in order to protect our ecological resources from rampant encroachments and administrative apathy.
In the interest of public the Supreme Court has given directions for parking charges, wearing of helmets in cities, cleanliness in housing colonies, disposal of garbage, control of traffic in New Delhi, made compulsory the wearing of seat belts, ordered action plans to control and prevent the monkey menace in cities and towns, ordered measures to prevent accidents at unmanned railway level crossings, prevent ragging of college freshmen, for collection and storage of blood in blood banks, and for control of loudspeakers and banning of fire crackers.
In recent orders, the Supreme Court has directed the most complex engineering of interlinking rivers in India. The Court has passed orders banning the pasting of black film on automobile windows. On its own, the Court has taken notice of Baba Ramdev being forcibly evicted from the Ramlila grounds by the Delhi Administration and censured it. The Court has ordered the exclusion of tourists in the core area of tiger reserves. All these managerial exercises by the Court are hung on the dubious jurisdictional peg of enforcing fundamental rights under Article 32 of the Constitution. In reality, no fundamental rights of individuals or any legal issues are at all involved in such cases. The Court is only moved for better governance and administration, which does not involve the exercise of any proper judicial function.
In its most activist and controversial interpretation of the Constitution, the Supreme Court took away the constitutionally conferred power of the President of India to appoint judges after consultation with the Chief Justice, and appropriated this power in the Chief Justice of India and collegiums of four judges. In no Constitution in the world is the power to select and appoint judges conferred on the judges themselves.
The PIL has proved to be a strong and patent weapon in the hand of the court enabling it to unearth many scans and corruption cases in public life and to punish the guilty involved in those scams. Hadaka scam, urea scam, fodder scam in Bihar,
St. kit's scam, Ayurvedic Medicines scam and illegal Allotment of government Houses and petrol pumps and the recent prosecution of the Telecom Minister and officials in the 2G Telecom scam case by the Supreme Court have come to light through the public interest litigation, certain social organization and public spirited individuals filed a writ petitions in the Supreme Court and High Courts by way of public litigation requesting court to inquire and punish those who are found guilty of by passing laws of the country and misusing their official positions in public life. In the 2G Licenses case, the Court held that all public resources and assets are a matter of public trust and they can only be disposed of in a transparent manner by a public auction to the highest bidder. This has led to the President making a Reference to the Court for the Court's legal advice under Article 143 of the Constitution. In the same case, the Court set aside the expert opinion of the Telecom Regulatory Authority of India (TRAI) to sell 2G spectrum without auction to create greater tele density in India. The Court is made the monitor of the conduct of investigating and prosecution agencies who are perceived to have failed or neglected to investigate and prosecute ministers and officials of government.
In this context I would like to analyze two important cases as the recent trends and major developments in the field of Judicial Activism. They are:
Illegal mining at ARAVALI mountains
Common cause Vs Union of India.
5.4.1 Illegal Mining at Aravali Range and Judicial Activism:
Most distinctive and ancient mountain chain of peninsular India, mark the site of one of the oldest geological formations in the world.
Heavily eroded and with exposed outcrops of the slate rock and granite, it has summits reaching 4950 feet above sea level.
A large number of activities, operations of stone crushers and deforestation besides other activities are causing environmental degradation.
These mines are usually located in the clusters in remote mineral rich districts/areas where living standards is tower and understanding of people towards environmental impact is also poor.
The mining brings extensive alteration in the natural tend profile of the area.
The mining wastes is being discharged into the surrounding channels of water, leading to 'wastage' of groundwater
In May 1992, parts of the Aravalli range were declared ecologically sensitive under the Environment (Protection) Act.
In August 1992, the Forest Department of Haryana had issued a notification under the Punjab Land Preservation Act 1900, banning the clearing and breaking up the land not under cultivation, quarrying of stone, in the Badkal and Pali area.
In 1996, the Honorable Supreme Court banned all mining activity within 2 kms of the Badkal and Surajkund tourist resorts and ordered to stop all mining activities and pumping of ground water in and from area up to 5 kms from Delhi-Haryana border in the Haryana side of the Ridge.
It was also ordered that mining leases within the area from 2 km to 5 km radius should not be renewed without obtaining no-objection certificates from the Haryana Pollution Control Board as also the Central Pollution Control Board (CPCB).
The Apex Court banned mining on May 6, 2002, in Aravalli Ranges after it found that illegal mining was going in the range damaging the ecology of the area.
5.4.2 COMMON CAUSE Vs UNION OF INDIA AIR 1996 SC 1619
Common Cause, an organization that involves itself in various matters of public interest, filed a public interest petition pursuant to Article 32 of the Constitution of India in an effort to bring transparency in various public interests litigation
In Common Cause Vs Union of India, a petition was filed under Article 32 of the Constitution stating the certain provisions of the Consumer Protection Act, 1986 had not been implemented and failed to establish certain District Forums and State commissions. The Supreme Court issued orders so as to establish Redressal machinery under Consumer protection Act, 1986 in a series of directions. This view also tries to emphasis on the point that the Supreme Court is not only exercising the continuous monitoring but also in seeing the directions are implemented duly.
In Common Cause Vs Union of India in response to a PIL filed, A Division of Bench of the Supreme Court took cognizance of serious Deficiencies and short comings in the matter of the collection, storage and supply of blood through various blood centers. The Supreme Court issued directions which include:
Establish a National Council for Blood Transfusion
To impart skilled training to the Technical professional
Conduct research
Discourage prevailing method of professional donors
To offer certain special training sessions and graduation courses for blood collection, processing and storing.
5.5 Military Operation:
The Supreme Court has made an order even in a military operation. In 1993, the Court issued orders on the conduct of military operations in Hazratbal shrine, Kashmir where the military had as a matter of strategy restricted the food supplies to hostages. The Court ordered that the provision of food of 1,200 calorific value should be supplied to hostages. Commenting on this, an Army General wrote: "For the first time in history, a Court of Law was asked to pronounce judgment on the conduct of an ongoing military operation. Its verdict materially affected the course of operation."
5.6 Legislative proceedings:
Even proceedings of Legislatures are controlled by the Court. In the Jharkhand Legislative Assembly case, the Supreme Court ordered the Assembly to conduct a Motion of Confidence and ordered the Speaker to conduct proceedings according to a prescribed agenda and not to entertain any other business. Its proceedings were ordered to be recorded for reporting to the Court. These orders were made in spite of Article 212 of the Constitution which states that Courts are not to inquire into any proceedings of the legislature.
6. IMPLICATIONS OF JUDICIAL REVIEW ON INDIAN JUDICIARY:
The landscape of recent Supreme Court rulings offers some interesting insights into the metamorphosis of judicial activism in India. Most strikingly, the Supreme Court recently issued a notice to the Union government seeking an explanation of the steps taken by it to ameliorate the plight of Indian students in Australia, who have been facing racially motivated attacks. Foreign policy is widely considered to be non-justifiable, that is, courts cannot interfere. Yet, the interference by Indian courts has not wholly been condemned. The next, and almost equally striking, instance is a Supreme Court notice questioning the proliferation of Mayawati statues, allegedly worth crores of rupees, in Uttar Pradesh. Like foreign policy, budgetary allocations (butter, guns or statues?) are non-justifiable. But judicial interference in this matter too has not been deprecated, nor is it worthy of serious censure.
However, judicial activism in India has now taken on an interesting face. The courts in India pursue a form of review which can be described at best as 'dialogic' — a term used famously by Peter Hogg and Allison Bushell in the context of the Canadian Supreme Court's decisions. The Indian Supreme Court's gaze has now gone beyond the protection of the socially and economically downtrodden, and into the realm of public administration. However, its opinions often resemble aspirations rather than binding pronouncements. For example, the Supreme Court issued guidelines in 2006 to reform the police administration – which is a State subject on which only the State Assemblies can legislate. Similar guidelines have been issued increasingly in legislative spheres. Because of these opinions, at least in theory, employers must now act against sexual harassment at the workplace, banks must be prudent in their use of recovery agents, and police officers must follow procedures prior to an arrest, mildly similar to the American Miranda rights. (In India, they could perhaps be called 'Basu' rights, considering D.K. Basu v. State of West Bengal, 1986).
In the 2G Licenses case, the Court held that all public resources and assets are a matter of public trust and they can only be disposed of in a transparent manner by a public auction to the highest bidder. This has led to the President making a Reference to the Court for the Court's legal advice under Article 143 of the Constitution. In the same case, the Court set aside the expert opinion of the Telecom Regulatory Authority of India (TRAI) to sell 2G spectrum without auction to create greater tele-density in India.
The Court has for all practical purposes disregarded the separation of powers under the Constitution, and assumed a general supervisory function over other branches of governments. The temptation to rush to the Supreme Court and High Courts for any grievance against a public authority has also deflected the primary responsibility of citizens themselves in a representative self government of making legislators and the executive responsible for their actions. The answer often given by the judiciary to this type of overreach is that it is compelled to take upon this task as the other branches of government have failed in their obligations. On this specious justification, the political branches of government may, by the same logic, take over the functions of the judiciary when it has failed, and there can be no doubt that there are many areas where the judiciary has failed to meet the expectations of the public by its inefficiency and areas of cases.
Justice Jackson of the U.S. has aptly said: "The doctrine of judicial activism which justifies easy and constant readiness to set aside decisions of other branches of Government is wholly incompatible with a faith in democracy and in so far it encourages a belief that judges should be left to correct the result of public indifference it is a vicious teaching." Unless the parameters of PIL are strictly formulated by the Supreme Court and strictly observed, PIL which is so necessary in India, is in danger of becoming diffuse, unprincipled, encroaching into the functions of other branches of government and ineffective by its indiscriminate use.
In recent orders, the Supreme Court has directed the most complex engineering of interlinking rivers in India. The Court has passed orders banning the pasting of black film on automobile windows. On its own, the Court has taken notice of Baba Ramdev being forcibly evicted from the Ramlila grounds by the Delhi Administration and censured it. The Court has ordered the exclusion of tourists in the core area of tiger reserves. All these managerial exercises by the Court are hung on the dubious jurisdictional peg of enforcing fundamental rights under Article 32 of the Constitution. In reality, no fundamental rights of individuals or any legal issues are at all involved in such cases. The Court is only moved for better governance and administration, which does not involve the exercise of any proper judicial function.
On the other hand in its activist and controversial interpretation of the Constitution, the Supreme Court took away the constitutionally conferred power of the President of India to appoint judges after consultation with the Chief Justice, and appropriated this power in the Chief Justice of India and collegiums of four judges. In no Constitution in the world is the power to select and appoint judges conferred on the judges themselves.
The Court is made the monitor of the conduct of investigating and prosecution agencies who are perceived to have failed or neglected to investigate and prosecute ministers and officials of government. Cases of this type are the investigation and prosecution of ministers and officials believed to be involved in the Jain Hawala case, the fodder scam involving the former Chief Minister of Bihar, Lalu Prasad Yadav, the Taj Corridor case involving the former Chief Minister of Uttar Pradesh, Mayawati, and the recent prosecution of the Telecom Minister and officials in the 2G Telecom scam case by the Supreme Court.
7. CONSTITUTIONAL PROVISIONS FOR JUDICIAL REVIEW IN INDIA:
The Indian Constitution adopted the Judicial Review on lines of US Constitution. Parliament is not supreme under the Constitution of India. Its powers are limited in a manner that the power is divided between centre and states. Moreover the Supreme Court enjoys a position which entrusts it with the power of reviewing legislative enactments both of Parliament and the State legislatures. This grants the court a powerful instrument of judicial review under the constitution.
Both the political theory and text of the Constitution has granted the judiciary the power of judicial review of legislation. The constitutional provisions which guarantee judicial review of legislations are articles 13, 32,131-136,143,145,226,246,251,254 and 372.
Article 13 establishes that any law which contravenes any of the provisions of the part of Fundamental Rights shall be void.
Article 372 establishes the judicial review of the pre-constitution legislation.
Article 32 and 226 entrusts the roles of the protector and guarantor of fundamental rights to the Supreme and High Courts.
Article 246 (3) ensures the state legislature's exclusive powers on matters pertaining to the State list.
Article 245 states that the powers of both Parliament and State legislatures are subject to the provisions of the constitution. The legitimacy of any legislation can be challenged in the court of law on the ground that the legislature is not competent enough to pass a law on that particular subject matter the law is repugnant to the provisions of the constitution or the law infringes one of the fundamental rights.
Article 131-136 entrusts the court with the power to adjudicate disputes between individuals, between individuals and the state between the states and the union but the court may be required to interpret the provisions of the constitution and the interpretation given by the Supreme Court becomes the law honored by all courts of the land.
8. CRITISISMS:
The opponents of judicial review are generally the supporters of judicial self-restraint. In the History of the U.S Supreme court, four justices stand out as leading advocates of judicial restraint. They are Justices Oliver Wendell Holmes, Louis Brandies, Harlan F. Stone and Felix Frankfurter. They argued that the power of Supreme Court to declare laws Un-Constitutional should be used sparingly and that justices of the court must accord maximum respect to legislative acts. They repeatedly expressed the opinion that the political process was the best method to resolve disputes where the values conflicted, and that is was a contradiction in democracy for oligarchic court to set itself against the elected legislature or to act in its stead.
The Philosophy of Judicial Restraint is reflected in one of the early dissents of Justice Holmes, who summed up the essence of judicial self restraint in propounding his "reasonable man" thesis. He said, "The court should nullify legislative acts, unless it can be said that a rational and a fair man necessarily would admit that the statute proposed would infringe the Fundamental principles as they have been understood by the traditions of our people and our laws"
8.1 CRITISISMS IN INDIAN CONTEXT:
The Opposition to Judicial Activism also comes from the difficulties created in implementation of the directives given by the court, in the form of some affirmative action. This So-called affirmative activism may require the court to supervise the continuous action which affects large number of individuals. Consequently, it often produces extensive administrative responsibilities for the court. In the process, the court formulate controversial programs of affirmative action requiring detailed administration for protracted periods of time under constant judicial supervision. In India, the continuing monitoring of "Jain-Hawala-Dairies Scam", investigation by the supreme Court in Vineet Narain Vs. UOI , by forming a new writ called "Continuing Mandamus" and the series of positive directions pertaining to shifting of polluting industries causing damages to Taj Mahal and their closure and banning of the plying of 15 years old and more than 15 years of old commercial vehicles in the National Capital Region of Delhi demonstrate this kind of Judicial Administration which is continuous. This judicial attitude raises both pragmatic and jurisprudential questions about the limits of the Judicial Power.
9. CONCLUSION:
The exercise of the power of judicial review has at times generated controversies and tensions between the courts, the executive and the legislature. For example the pronouncements in the aria of the property relations, legislative privileges, and constitutional amendments have been controversial and have even led to several constitutional amendments which were undertaken to undo or dilute judicial rulings which the central Government did not like. For example the decision given in Shah Bano case the Supreme Court of India held that Muslim women can claim for maintenance after divorce but central Government passed Muslim Women's (Protection of Rights on Divorce) Act, 1986 to dilute the decision given in Mohd. Ahmad Khan. V. Shah Bano Begum 1985 Cr. L.J. 875 (SC).
Efforts have been made in India to curtail the scope of judicial review in some constitutional areas. The Law Minister in the Central Government once stated in Parliament that the courts had, through their exercise of power of judicial review, retarded the process of socio-economic development of the country, and, therefore, he justified certain restrictions on the powers of the courts to declare laws unconstitutional.
But, in spite of all the hurdles, the doctrine of Judicial Review has a vibrancy of its own and has even been declared as the basic features of the Constitution.
The Judiciary cannot take over the functions of the Executive. The Courts themselves must display prudence and moderation and be conscious of the need for comity of instrumentalities as basic to good governance. Judicial activism has to be welcomed and its implications assimilated in letter and spirit. An activist Court is surely far more effective than a legal positivist conservative Court to protect the society against legislative adventurism and executive tyranny. When our chosen representatives have failed to give us a welfare state, let it spring from the Judiciary.
The power of judicial review is recognized as part of the basic structure of the Indian Constitution. The activist role of the Judiciary is implicit in the said power. Judicial activism is a sine qua non of democracy because without an alert and enlightened judiciary, the democracy will be reduced to an empty shell. Judicial activism in its totality cannot be banned. It is obvious that under a constitution, a fundamental feature of which is the rule of law, there cannot be any restraint upon judicial activism in matters in which the legality of executive orders and administrative actions is questioned. The courts are the only forum for those wronged by administrative excesses and executive arbitrariness.
Judicial activism is not an aberration. It is an essential aspect of the dynamics of a constitutional court. It is a counter-majoritarian check on democracy. Judicial activism, however, does not mean governance by the judiciary. Judicial activism must also function within the limits of the judicial process.
The judiciary is the weakest body of the state. It becomes strong only when people repose faith in it. Such faith constitutes the legitimacy of the Court and of judicial activism. Courts must continuously strive to sustain their legitimacy. Courts do not have to bow to public pressure, but rather they should stand firm against public pressure. What sustains legitimacy of judicial activism is not its submission to populism, but its capacity to withstand such pressure without sacrificing impartiality and objectivity. Courts must not only be fair, they must appear to be fair. Such inarticulate and diffused consensus about the impartiality and integrity of the judiciary is the source of the Court's legitimacy.
Take away judicial activism and tyranny will step in to fill the vacant space.
So to sum up the judicial activism in India, it will be very appropriate to quote the words of Dr. A.S. Anand, Chief Justice of India who said :
"…. the Supreme Court is the custodian of the Indian Constitution and exercises judicial control over the acts of both the legislature and the executive."
I would like to conclude by stating that the Courts are not above the Constitution and must be conscious of the conscience of the Preamble.
10. BIBLIOGRAPHY:
Lokendra Malik (editor),Judicial Activism in India: A Festschrift in Honor of Justice V.R. Krishna Iyer. Universal Law Publishing Co., 2013 (Ed)
S.P Sathe, Judicial Activism in India. Oxford University Press, 2nd Edition,2002.
Dr. G.B. Reddy, Judicial Activism in India. Gogia Law Agency, 2nd Edition, 2013
Honorable Mr. K.G. Bala krishnan, Ex-Chief Justice of India "JUDICIAL ACTIVISM UNDER THE INDIAN CONSTITUTION" Trinity College Dublin, Ireland – October 14, 2009
Mr. Surya Deva, "Public Interest Litigation in India: A Critical Review". Sweet & Maxwell, London, NW3 3PF
Mr. R.Shanmuga Sundaram, "Judicial Activism and Overreach in India". Amicus Curiae Issue 72 Winter 2007
Dr. Srigouri Kosuri, "Social Activism as Judicial Activism". Vol.1 Issue:4 ,Sept 2012.
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