JUDICIAL ACTIVISM
PROJECT REPORT: 2014 MADHAV VIDHI MAHAVIDYALAYA (GWALIOR)
IN GUIDANCE GUIDANCE OF:
SUBMITTED BY:
DR. MAMTA MISHRA ASST.PROFESSOR M.V.M. GWALIOR
ANUJA SINGH LL.M. SECOND SEM ROLL NO. 1268213
1
2
TABLE OF CONTENTS
CHAPTER NAME
PAGE NO.
Judicial Activism : An Introduction
4
Defining Judicial Activism
5
Origin of Judicial Activism
6-7
Judicial Activism in India
8-10
Constitutional Position
11-12
Judicial Activism V. Judicial Restraint
13-14
Transgressing The Boundaries
15
Issues and Concerns
16
Accountability of Judiciary
17-18
Separation of Powers
19-21
Influence By Political Establishments
22
Conclusion
23-24 3
Bibliography
25
JUDICIAL ACTIVISM : AN INTRODUCTION The success of a democracy, especially one based on a federal system, depends largely on an impartial and independent judiciary endowed with sufficient powers to administer justice. The framers of the Indian Constitution, therefore, thought it fit to entrust the judiciary with vast powers. The trinity of an independent judiciary, independent constitutional review, and the supremacy of law operate together for the working of a constitutional government. The Trinity – Legislative, Judiciary and the Executive-is an accomplished phenomena, Harmonious existence is a theory. Montesquieu- a French Philosopher, believed that concentration of power in one person or group results in disastrous consequences. Therfore, governmental functions shall be vested in three different organs the Legislature, the Executive and the Judiciary. He further felt that each organ should be independent from others and they should not interfere with each other. His principle of Separation of Powers can be encapsulated as follows: •
Each organ should be independent of another.
•
No one organ should perform functions that belong to the other.
For any of the two combined together could lead to disastrous consequences. For instance if Judiciary combines with the Executive, it will result in judges becoming violent and oppressive. If the Judiciary combines with the Legislature, there would be no liberty. And if the Executive and the Legislature combine it would lead to arbitrariness. Two prominent constitutional functionaries recently expressed their concern over the role played by the Indian Judiciary. Judiciary is not an overriding authority and no organ has
4
the right to emphasize powers of another, These assertions have, in the wake of several apex court rulings, striking down executive decisions and parliamentary legislations.
DEFINING JUDICIAL ACTIVISM According to Black's Law Dictionary, judicial activism is "a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent." “Activism’ means “a policy of vigorous action of a philosophy or a creative will1” or “The doctrine or policy of being active or doing things with decision”. Judicial Activism would therefore mean taking
recourse
to
judicial
process
leading
to
judicial
pronouncements on different intricate issues it is active role played on the part of the Judiciary. 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 functional democracy”. According to Prof. Upendra Baxi, “Judicial Activism is an ascriptive term. It means different things to different people. Judicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. The
question
of
judicial
activism
is
closely
related
constitutional, statutory construction, and separation of powers.
1
5
to
ORIGIN OF JUDICIAL ACTIVISM The concept of judicial activism which is another name for innovative interpretation was not of the recent past; it was born in 1804 when Chief Justice Marshall, the greatest Judge of the Englishspeaking world, decided “ Marbury v. Madison1”. He observed that the Constitution was the fundamental and paramount law of the nation and "it is for the court to say what the law is". He concluded that the particular phraseology of the Constitution of the United States confirms and strengthens the principle supposed to be essential to all written Constitutions. That a law repugnant to the Constitution is void and that the courts as well as other departments are bound by that instrument. If there was conflict between a law made by the Congress and the provisions in the Constitution, it was the duty of the court to enforce the Constitution and ignore the law. The twin concepts of judicial review and judicial activism were thus born. Some proponents of a stronger judiciary argue that the judiciary helps provide checks and balances and should grant itself an expanded role to counterbalance the effects of transient majoritarian, i.e. there should be an increase in the powers of a branch of government which is not directly subject to the electorate, so that the majority cannot dominate or oppress any particular minority through its elective powers. Moreover, they argue that the judiciary strikes down both elected and unelected official action, that in some instances acts of legislative bodies reflect the view the transient
6
majority may have had at the moment of passage and not necessarily the view the same legislative body may have at the time the legislation is struck down, that the judges that are appointed are usually appointed by previously elected executive officials so that their philosophy should reflect that of those who nominated them, that an independent judiciary is a great asset to civil society since corporations and the wealthy are unable to dictate their version of constitutional interpretation with threat of stopping political donations.
7
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 selfimposed 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
8
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 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
9
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. In his work “Social Action Litigation: The Indian Express” Justic e 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
eliminating exploitation and injustice.”
10
but
also
in
CONSTTUTIONAL POSITION The Constitution provides for sufficient provisions to maintain the theory of Separation of Powers. Article 50 prescribes separation of the Judiciary from the Executive. Articles 121 and 211 forbid the legislature from discussing the conduct of any judge in discharge of his duties. Articles 122 and 212 prohibit the courts from sitting in judgement over the internal proceedings of the legislature. Article 105 (2) and 194(2)on the other hand, protect the legislators from interference of the courts with regards their freedom of speech and expression. Thus the Constitution of India, tries its best to inculcate Montesquieu’s theory of Separation of Powers, but what actually happens when the Judiciary actually over steps? And what exactly is ‘overstepping by the judiciary’. These questions have remained unanswered by the Constitution. Judicial review is a significant source of Judicial Activism. One can say that the seeds of Judicial Activism were sown in Judicial Review. Though in India, the Constitution does not specifically mention the power of Judicial Review, but it does mention that any act
violative
of
Fundamental
Rights
can
be
declared
unconstitutional. Thus the Judiciary can override the powers of the Legislature through Judicial Review. In India power of Judicial Review is now considered to be a basic feature of the Constitution. Initially the power of Judicial review was limited to checking the acts or decisions affecting fundamental rights, but lately the Judiciary has also started expressing its concern in matters relating to social, developmental and environmental issues. It could be easily said that the Emergency of 1975 and the period immediately thereafter constituted defining moments for Judicial Activism in India. The infamous ADM Jabalpur v Shukla, popularly known as the Habeas Corpus case was decided and was a
11
blow to the civil liberties in India. The suspension of Article 21 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.
12
JUDICIAL ACTIVISM V. JUDICIAL RESTRAINT Having understood the meaning of the word Judicial Activism, it would be legitimate to say that the line between the terms Judicial Activism and Judicial Over Reach is difficult to draw. As the former Chief Justice of India, Justice Ahmadi has stated “Sometimes this Activism has the potential to transcend the borders of Judicial Review and turn into populism and excessivism”. Thus to one judge it maybe Activism while to the other it may be Over Reach. Or to ones who may agree with the Judgement it maybe Activism and to those who disagree it maybe Over Reach. It is difficult to lay down strict guidelines as to when it would be Activism and when the Judiciary might be over reaching. But if we have a look at some of the provisions of our Constitution like Article 32 (Right to Constitutional Remedies in the Supreme Court directly for enforcement of all fundamental rights), Article 226 (power of high courts to issue certain writs) and Article 227 (power of superintendence over all courts and tribunals by the high court), just goes to show that the basic document of governance- our Constitution has provided for these overreaching provisions. The Constitution has placed that responsibility of Judicial Governance in the Judges of higher judiciary. Judiciary is that branch of the government with greatest institutional capacity to enforce the legal norms in a disinterested way. The Legislature and the Executive because of their vested interest of seeking re-election are prone to ignore constitutional limits to pamper the electorate. Following are the reasons for justifying the law making of the Judiciary :
Judges are fit candidates to make law since the rational dialectic comes naturally to common law judge
13
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
Judicial Activism in a modern democratic set up is to be looked upon as an agency to curb legislative adventurism and executive tyranny by enforcing Constitutional limits. Approach to Judicial Activism could be either negative or affirmative.
14
TRANSGRESSING THE BOUNDRIES This intolerance to the abuse of Judicial Activism had long been cumulating. The Indian Courts, apparently, have forgotten their place in the Constitutional arrangement. They have flagrantly breached the principle of Separation of Powers. As pointed out by Hon'ble Mr. Justice J. S. Verma, the former CJI, in his Dr. K.L. Dubey Lecture the Judiciary has intervened to question a
'mysterious car' racing down the Tughlaq Road in Delhi, allotment of a particular bungalow to a Judge, specific bungalows for the Judges, pool, monkeys capering in colonies, stray cattle on the streets, clearing public conveniences, levying congestion charges at peak hours at airports with heavy traffic, etc. under the threat of use of contempt power to enforce compliance of its orders. Recently, the Courts have apparently, if not clearly, strayed into the executive domain or in matters of policy. use and misuse of ambulances, requirements for establishing a world class burns ward in the hospital, the kind of air Delhi ties breathe, begging in public, the use of sub-ways, the nature of buses we board, the legality of constructions in Delhi, identifying the buildings to be demolished, the size of speed-breakers on roads, auto-rickshaw over-charging, growing frequency of road accidents and enhancing of road fines etc.
15
ISSUES AND CONCERNS The following are the main issues or areas of concern with an activist Judiciary
Where the Judiciary interferes with the functions clearly of administrative or legislative nature, in such cases, is the Judiciary responsible / accountable to anyone for the discharge of such functions and what are constitutional and legal sanctions behind such orders made and directions given by courts, by way of Judicial Activism?
dilution of the theory of Separation of Powers is inadvertent when there is an activist Judiciary. The critics believe that it goes against the Constitution.
Judicial Activism could be used by the current day political establishments to get their interests protected. And thus there may be misuse of the Judicial Process.
16
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
17
not see all future requirements and might have been made without taking into consideration various viewpoints. For e.g. Vishakha’s 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.
18
SEPERATION OF POWERS Separation of Powers doctrine as envisaged by Montesquieu has been held as one of the basic features of our Constitution. There could be five categories of Judicial Action which could be further categorised into Activism and Excessivism
Minimal Judicial action and literal interpretation : Under
this the Judiciary can traverse only territory demarcated for them by the legislature and the executive, and as such there is no controversy, neither there is any scope of any controversy.
Creative or purpose interpretation : for instance expanding
the meaning of certain terms.
The Oversight Function over the Executive : Executive
action or malfunction, Filling in gaps and exercising oversight over the executive inaction.
The Oversight Function over the Legislature : Making
common law, ad hoc legislation where legislature fails to legislate, or there are lacunae in existing legislation and passing orders and directions and reviewing functioning of the legislature.
Creative interpretation which amounts to rewriting the
Constitution. There is no straight jacket formula which will help in arriving at a conclusion that Judiciary has overstepped or it has been well within its limits. A case, how decided is dependent on how a judge perceives it and integrates his wisdom with the law of the land to arrive at a conclusion. So there is no objectivity but only subjectivity that becomes a deciding factor to determine whether the Doctrine has been diluted or not. Glaring examples of Judiciary overstepping its limits and stepping in to the area of the executive has been orders passed by Honourable 19
Delhi High Court on subjects ranging from age and other criteria for 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-
20
True Constitution, although makes separate provisions for three organs of the state, does not place them in watertight compartments.
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.
21
INFLUENCE BY POLITICAL ESTABLISHMENTS A judicial decision either stigmatises or legitimises a decision of the legislature or the executive. judicial decision needs to be neither politically motivated, nor politically inclined, since it is through its decisions that the court changes the existing power relations, judicial activism is bound to be political in nature. Through its decisions the constitutional court becomes an important power centre of democracy. Thus a politicised judicial pronouncement not only strikes at the roots of the democracy but a tainted judiciary can never do justice. It is natural for the critics of Judicial Activism to fear an influence of the current political establishment on the Judiciary. A very glaring example has been the entire period of emergency of 1975 when the Judiciary was almost controlled by the Legislature. The emergency brought in severe restrictions on an individual liberty and judicial review. The purpose is to depict lucidly how the judiciary, if does not practise self-restraint can be a puppet in the hands of the Legislature. Though the irony is that on the face of it, it seemed, in the above case, that the Judiciary directed the Legislature, but analysing it one realises that the Legislature actually, through the judicial process, sorted the matter in its own interests.
22
CONCLUSION As we can see the Doctrine of Separation of Powers runs as a thread in all the major areas of concern discussed above. In a way it is actually the Doctrine which raises a major concern and the other concerns flow out from it. Be it the infrastructure missing for the Judiciary to implement the laws or whether the Judiciary is influenced by the political establishment of the day, Separation of Powers is at the root. And when exactly does the Judiciary dilutes the doctrine and crosses the limits is not defined. If the intention of the framers of the Constitution was to not let the Judiciary legislate, it could have placed all three organs in separate water tight compartments, which it has very clearly not. Even the framers of the Constitution intended to give space to the Judiciary to move around and about the line of separation. Though there are examples of the Legislature exercising the Judicial Power- for instance in the disputes arising out of the 10th Schedule of the Constitution. And similarly the Executive while exercising statutory and discretionary powers takes up adjudicatory role and also makes laws by way of subordinate legislation or by promulgation of Ordinances in terms of Article 123 and 213 of the Constitution. But it is only the Judiciary which is by way of Article 142 given wide powers to pass orders or decrees in furtherance of Justice. That’s the trust that the framers have placed in the higher Judiciary. And such a trust has to come with responsibility. Because without responsibility such trust can become tyrannical and the consequences a havoc for a democracy. The legitimacy of the Court and Judicial Activism is derived from the faith that people repose in the Judiciary and thus Courts have to continuously strive to maintain their legitimacy. Also one has to understand that Judges after all are human beings and to err is only
23
human. An activist Judge has to be prepared to take criticism of his judgements. This is an important tool to keep a check on the fact that 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”
24
BIBLIOGRAPHY
PRIMARY SOURCE
S.P.Sathe , book on Judicial activism
Fali.S.Nariman, Before Memory Fades-An Autobiography
Wikipedia, the free encyclopedia – Judicial Activism
Yojna magzine
SECONDARY SOURCE
Satyabrata Sinha, “Judicial Activism: Its Evolution and Growth”
P.P.Rao, Judicial Activism “Its Positive and Negative Aspects”
Prof D Banerjia , Judicial Activism-Dimensions and Directions
DR K.N Katju Memorial Lecture on ‘Separation of Powers and Judicial Activism in India’
25
