Judicial Activism and Its Impact on the Administration of Justice in India (With Reference to Separation of Power)

JUDICIAL ACTIVISM AND ITS IMPACT ON THE ADMINISTRATION OF JUSTICE IN INDIA (WITH REFERENCE TO SEPARATION OF POWER)

THESIS

SUBMITTED FOR THE AWARD OF THE DEGREE OF DOCTOR OF PHILOSOPHY IN LAW

BY RACHNA SINGH (ENROLMENT NO.: GC-7237)

UNDER THE SUPERVISION OF Prof. (Dr.) IQBAL ALI KHAN CHAIRMAN & FORMER DEAN

DEPARTMENT OF LAW ALIGARH MUSLIM UNIVERSITY ALIGARH-202002 (INDIA)

2016

JUDICIAL ACTIVISM AND ITS IMPACT ON THE ADMINISTRATION OF JUSTICE IN INDIA (WITH REFERENCE TO SEPARATION OF POWER)

ABSTRACT

SUBMITTED FOR THE AWARD OF THE DEGREE OF DOCTOR OF PHILOSOPHY IN LAW

BY RACHNA SINGH (ENROLMENT NO.: GC-7237)

UNDER THE SUPERVISION OF Prof. (Dr.) IQBAL ALI KHAN CHAIRMAN & FORMER DEAN

DEPARTMENT OF LAW ALIGARH MUSLIM UNIVERSITY ALIGARH-202002 (INDIA)

2016 DEPARTMENT OF LAW ALIGARH MUSLIM UNIVERSITY ALIGARH, INDIA

Prof. (Dr.) Iqbal Ali Khan Date………….. Chairman & Former Dean

CERTIFICATE

It gives me immense pleasure to certify that Ms Rachna Singh, Research Scholar bearing Admission No. : Ph.D.-L-574-09 and Enrolment No.: GC-7237 has completed this Thesis entitled, “JUDICIAL ACTIVISM AND ITS IMPACT ON THE ADMINISTRATION OF JUSTICE IN INDIA (WITH REFERENCE TO SEPARATION OF POWER)” for the award of the Ph.D. Degree, under my supervision.

The present work is an original contribution in the field of Constitutional Law.

Prof. (Dr.) Iqbal Ali Khan

ACKNOWLEDGEMENTS

I bow in reverence to the Almighty God whose benign benediction gave me the required zeal for the completion of this work.

Prof. (Dr.) Iqbal Ali Khan, Chairman & Former Dean, Department of Law, my supervisor, is one of those rare teachers who are paragons of knowledge and a source of strength & inspiration to their students. I would like to express my sincere gratitude, reverence and utmost regards for his illuminating, scholarly guidance and creative supervision of this work. He has been a real source of strength, inspiration and confidence to me.

I would not miss this opportunity of thanking Prof. (Dr.) Javed Talib, Dean, Faculty of Law, Prof. (Dr.) Saleem Akhtar, Prof. (Dr.) Mohammad Shabbir, Dr. Wasim Ali, Dr. Zaheeruddin, Dr. Badar Ahmad, Dr. Zubair A. Khan, Dr. Shakeel Samdani, Dr. Shakeel Ahmed, and Dr. Mohd. Ashraf, for their guidance.

My sincere thanks are also due to Dr. Tabassum, Ms. Kusumavati, Ms. Talat Anjum, Ms. Deepti Sharma for their unremitting help, guidance and support.

The unfathomable blessings, good wishes, prayer and love of my parents are the spiritual strength with which I have pursued this work. My beloved father Late Mr. Harmahendra Singh and my mother Mrs. Lalita Singh provided me the much needed support and encouragement at every step of my career; their contribution is immeasurable. Whatever I am today, is the fruit of their sincere efforts.

I am also indebted to my husband, Mr. Gajendra Joshi and my brothers, Mr. Gagan Singh and Mr. Pawan Singh whose everlasting love and affection has provided me with enough mental and moral strength to accomplish this task successfully. My vocabulary fails to express the gratitude towards them for their co-operation, help, inspiration, valuable suggestions and constructive criticism from time to time.

I am also thankful to my cherished friends, classmates and critics for all their help and continued encouragement.

I am also thankful to Dr. Zafar Khan, Mr. Shareef, Mr. Zaheer, Mr. Azeem, Mr. Yasin, Mr. Israr, Mr. Mohammad, Mr. Ahmad, Mr. Israr-un-Nabi, Mr. Roshan Khayal, and Mr. Iqbal and the entire faculty staff for their assistance and help rendered to me.

My acknowledgement would be incomplete if I fail to express my thanks to Mr. Dilip Chakraborty for helping me type my thesis.

Lastly, I am grateful to all those who helped me directly or indirectly in completing this thesis.

(Rachna Singh)

Dedicated to my beloved father late Shri Harmahendra Singh and my lovely mother Smt. Lalita Singh for their unconditional love, constant support and encouragement throughout my life……. Abstract

ABSTRACT

The expression 'Judicial Activism' signifies the anxiety of courts to find out appropriate remedy to the aggrieved by formulating a new rule to settle the conflicting questions in the event of lawlessness or uncertain laws. The above statement can be explained in a simplified manner asunder the Constitution of India, the three branches of the government, namely the Legislative, Executive and the Judiciary, have been assigned their own separate roles. It is when the Judiciary steps into the shoes of the Executive or the Legislature and embarks on the work of law-making rather than interpreting laws, it can be deemed to be judicial activism.

Black’s Law Dictionary explains very well:

“Judicial activism is judicial philosophy which motivates judges to depart from strict adherence to judicial precedent in favor of progressive and new social policies which are not always consistent with the restraint expected of the appellate judges. It is commonly marked by decisions calling for social engineering and occasionally these decisions represent intrusions in the legislative and executive matters.”

The Constitution, by its very existence, was a social revolutionary statement. It was to be a modernizing force. Social revolution and democracy were to be the strands of the seamless web most closely related. The Constitution was to foster the achievement of many goals. The members of the Constituent Assembly brought to the framing of the judicial provisions of the Constitution an idealism equaled only by that shown towards the Fundamental Rights. Indeed, the Judiciary was seen as an extension of the Rights, for it was the courts that would give the Rights force. The Judiciary was to be an arm of the social revolution. But unfortunately, the Constitution of India has often been made a topic of conflict by its three organs.

In 1977 the Janata party came to power with overwhelming support, defeating the Congress almost to extinction. The Janata party dismantled the constitutional amendments brought into law by the Congress party.

The year 1980 brought Mrs. Gandhi back to power. Her victory at the polls was decisive, with a large majority in the Parliament. The Supreme Court had always been uncomfortable with Mrs. Gandhi’s governance; during the late sixties her economic

Abstract

and political policies were struck down in the Bank Nationalization and Privy Purse cases; in the early seventies the Court was locked in the Kesavananda battle and again in her election cases; when the Court supported her emergency in the Shukla case it was execrated by public opinion.

During 1985 there was a new government at the Centre, a new Chief Justice in the Supreme Court, and a new perception of the Indian economy. With surplus wheat in the granaries and a promise to eradicate corruption, the country was relaxed, and optimistic. A fresh youthful breeze blew across India in what was akin to an Indian version of the Kennedy era in America.

During the period 1987-99 India saw twelve Chief Justices. K.N. Singh J was the Chief Justice for the shortest period of eighteen days, Pathak J and Ahmadi J for the longest, of a little over two years each. During the same period there were eight Prime Ministers. There was instability in the governance of the country. Political parties lost their credibility and capacity to rule. Bureaucracy became a powerful and significant lever of power. Corruption became rampant. The people suffered acutely as a consequence of the nexus between politicians and bureaucrats on the one hand and criminals on the other.

The second part of the last decade witnessed a new significant phenomenon, momentous in its dimensions and disturbing in its impact, i.e. the persistent, continual exposure of sordid events in both the print and electronic media.

During recent years it has become fashionable among some citizens to disparage the founders and their document. These individuals, disappointed by developments in the country since 1950, have called for changing the Constitution, explaining that it has not ‘worked.’ Such thinking is misguided. Constitutions do not ‘work,’ they are inert, dependent upon being ‘worked’ by citizens and elected and appointed leaders.

1.1 CHOICE OF THE TOPIC

‘The seat of Justice is the seat of God’, Mahavir Tyagi has famously told the constituent assembly but how far it is true, in the current scenario, is the need of examination.

Abstract

There have been many loopholes and lacuna in our legal system. In the name of judicial activism, modern day Judges in India have abandoned the traditional role of a neutral referee and have increasingly resorted to tipping the scales of justice in the name of "distributive justice". The legitimacy of such actions needs critical appraisement at the hands of the legal fraternity, even at the risk of unpopularity by swimming against the tide. Undoubtedly, the Indian judiciary has played an important role in the development of the nation and probably that is the major reason for people’s faith in it. Thus, the ongoing debate on judicial activism has made it the topic of this research.

As India takes its place on the international stage, it is only natural that legal systems of the world over will turn their attention to its highest court and want to draw on the development of constitutional jurisprudence by the Supreme Court of India over the last sixty years. That trend has already begun.

The above facts have prompted the researcher to undertake the study of “Judicial activism and its impact on the administration of justice in India with reference to separation of power”.

1.2 OBJECTIVE OF THE STUDY

In this study, it is proposed to examine the various facets of judicial activism. An attempt shall be made to analyze that how has judicial activism developed and how far has it succeeded in correcting the wrongs. The objectives of this study can be:

1) To find out whether the role of a judge is merely to declare law as it exists or to make law; 2) To compare the Judicial Behavior of the Indian Judiciary before and after 1980;

3) To evaluate the factors responsible for the origin of Judicial activism in India, its evolution and reasons for its growth, in the light of the decisions given by the Supreme Court in the post-1980 era;

4) To discuss and analyze the concepts of Judicial Power, Judicial Review, Judicial Activism and Separation of powers in general with particular reference to India;

5) To ascertain the problems and perils of judicial activism;

6) To examine the factors that have given rise to Public Interest litigations in India;

Abstract

7) To discuss the role played by judicial activism in the administration of justice in India;

8) To suggest ways and means to ensure and uphold the spirit of constitutionalism etc.

1.3 RELEVANCE OF THE STUDY

Judiciary may not be democratic as initiator, but it becomes so by democratic approval through acceptance of judicial pronouncements by the people at large. Black finds merit in a judiciary provided with the power of judicial review. To quote him: “Now surely it ought to be clear that no democratic principle whatever is infringed, if the people choose, as a matter of prudence, to give the power of constitutional decision to a Court composed of men trained in the requisite professional discipline, and isolated from immediate responsiveness to changing popular views.”

In the light of above discussion, the present study has attempted to harmonize the various facets of judicial activism and the following issues can be listed which in turn are vital and retain higher relevance for a smooth functioning of the Constitutional machinery.

1) Is it the function of a judge merely to declare law or, taking in consideration the hopes of masses, can they make law? 2) Whether judicial activism is a positive or a negative concept?

3) Has the judiciary really succeeded in curtailing the arbitrary powers of the other two state organs?

4) Has judicial activism acquired social legitimacy?

5) Whether it is constitutionally justified for the judiciary to encroach in the domain of legislature and executive to check any anomaly that arises as a result of the mal-functioning?

1.4 SIGNIFICANCE OF THE STUDY

The power of judicial review has three important implications - nullification, credibility and creativity. Since the power of judicial review results in the nullification

Abstract

or annihilation of legislative and executive actions of not only the Central Government but also the State Governments, it has attracted two-fold challenges from both the governments. The challenge to judicial review coming from the Centre is based on the principle of separation of powers, and the challenge coming from the States is based on the nature of the federal structure.

1.5 HYPOTHESES OF THE STUDY

Keeping in mind the objectives of this research, the following hypotheses have been formulated:

1. Judicial activism is both a positive and negative concept as judicial activism has facilitated the balanced administration of justice in India. But an unfettered and unrestrained judicial system is detrimental to the constitutionalism in a democracy like India. 2. Judicial activism has developed as the result of escapism of political elite and failure of the executive machinery and an active participation of judiciary in protecting the fundamental and human rights. 3. Judicial activism is just an upgraded form of judicial review, which has been adopted as a weapon to curtail the arbitrary powers of the legislature. Due to increasing cases of judicial activism, the legislature has become more preventive in taking decisions and making law. 4. Through activist approach, the Supreme Court has succeeded in filling up the lacunae created by the legislature and executive and has contributed more for the development for the specific areas in the constitutional law. 5. Judicial activism has acquired social legitimacy and the people have become more aware of their rights and the protection and enforcement of civil liberties.

1.6 SCOPE OF THE STUDY

The study aims at arriving at an understanding the role of judiciary in modern scenario and finding solutions to some important issues. In the name of judicial activism, modern day Judges in India have abandoned the traditional role of a neutral referee and have increasingly resorted to tipping the scales of justice in the name of "distributive justice". The legitimacy of such actions needs critical appraisement at the

Abstract

hands of the legal fraternity, even at the risk of unpopularity by swimming against the tide.

In this ongoing complex of adjudicatory process, the judge is required to take judicial notice of the social and economic ramification, consistent with the theory of law. Whether the creativity and judicial activism of the judiciary does not some time cross the thin invisible line of separation of powers and usurps the powers of the other two organs of governance i.e. Legislatures and Executives. Does Judiciary evaluate the practicability of implementation of its decisions by the other two organs of governance while adjudicating e.g. Delhi CNG case? Whether Judiciary requires self restraint when dealing with PILs and last but not the least, to what extent Judiciary has been able to live up to the expectations and deliver justice to the masses and actually served as the need of an hour.

1.7 RESEARCH METHODOLOGY

The methodology adopted in this research work is doctrinal in nature. Doctrinal research not only involves analysis of the case law arranging, ordering, systematizing legal propositions and study of legal institution but it does more, it creates law and its major tool to do so is through legal reasoning or rational deduction. Therefore the methodology adopted herein involves review of relevant literature, critical and analytical study of theoretical, practical and legislative and judicial aspects. It will involve in depth study of source materials, text review, case study and comparative study. As the topic is from Constitutional Law, historical Approach to study the position, role of judiciary and judicial review is felt necessary. A reference to the Constituent Assembly Debates shall be made to find out the intention of the framers of the Constitution in certain crucial areas of the study. The research shall also include study of case laws. Law Commission report and parliamentary debates will also be referred to. Use of internet will also be made to gather important information relating to the subject of study. Mode of citation is uniform throughout the paper.

As regards the evaluation of the position of the Judiciary in India, the method adopted shall be purely Historical whereas with regard to the Analysis of the Judicial behavior of the Supreme Court of India in specific areas of the Constitutional Law of India, the methodology adopted shall be Analytical and Critical and descriptive in nature.

Abstract

The research will be based on two types of material i.e., primary materials and secondary materials. On the whole, the work shall be mainly based upon views of Jurist, library based and doctrinal in nature with traits of historical and analytical methodology. Material and information has been collected from both legal sources and socio-economic sources like original judgments of various National and International Courts, National and International Journals, Research Papers presented at National and International Seminars and other published works, websites, etc.

1.8 LIMITATIONS OF THE STUDY

All studies have some restrictions and limitations. This topic is of such a nature that an individual researcher has to face the various limitations. The study involves research of changing role of judiciary for the socio-economic welfare of the society. For researcher it is difficult to collect primary data for such a study and as such has to depend very much on the secondary data. Much dependence has been made on the records of the parliament and of other legislative bodies and on the journals, periodicals, Articles and books. In the aforesaid circumstances and under the aforesaid limitations the researcher has focused the studies on the basis of case laws, books, journals and periodicals. A sincere attempt has been made to overcome these limitations and present a study that is relevant in the areas of time and content.

1.9 LITERATURE REVIEW

It is stated that all the three organs of the state should perform their functions independently without encroaching upon the functions of the other organ. In the interest of the society and harmonizing the conflicting interests in the society Judges should be allowed to go for equitable rational, moral and ethical consideration.

The Indian Supreme Court emphatically states that Public Interest Litigation is different from adversary litigation traditional model. The Court observed that PIL is a strategic arm of the legal aid movement and which is intended to bring justice within the reach of poor masses who constitute the low visibility area of humanity.

The source of research includes, inter alia, published books on Constitutional Law of India, newspaper, national and international periodicals, magazines, journals

Abstract

published by the Indian Law Institute, official gazettes with respect to the latest amendments in the Constitution of India, AIR, latest judgments which have been decided by the SC of India, HC of States, cases relating to the matter Judicial Activism.

Data and cases have also been collected through the Internet. All types of old and latest information with respect to judicial law making are available in the library records. Further, with respect to the field research it involved views of Judges, case studies, particularly from the legal fraternity, visits to institutions with respect to law making authorities, attending seminars, international conferences.

1.10 THE SOURCES OF RESEARCH

Primary Sources:

i. Constituent Assembly Debates (CAD) have been referred to,to understand the views expressed by the members of the Constituent Assembly while the framing of the Constitution. ii. The various developments in the field of the Constitution of India, after 1980 in particular; iii. The decisions rendered by the Supreme Court of India and other High Courts, reported in different Law Journals like the Supreme Court Cases, All India Reporter, etc. and iv. Reports of Inquiry Commissions, Law Commission of India and Parliamentary Committees etc.

Secondary Sources:

Abstract

iii. The opinions of the intellectual jurists and critics on the issue of Judicial Activism and their studies on the related factors. iv. Various memorial lectures, extension lectures, inaugural and valedictory addresses given by eminent personalities related to the administration of justice and judiciary.

1.11 SCHEME OF STUDY

The first chapter initiates an introduction to the topic. It enlightens on various segments of the study viz., scope, objective, significance, hypotheses, limitation, etc.

Chapter two deals with the explanation of certain terms like Judicial Activism, Judicial Review, Judicial Restraint, Judicial Power, social justice, Judicial Passivism, Separation of Powers, and Public Interest Litigation & Judicial Overreach, without which study will not be complete. It would also cover the position of judicial review and judicial activism in other countries.

Chapter three makes an attempt to explore the Historical quest. In India, although the activism versus restraint debate existed even in the pre-Constitution period, it did not vigorously take-off till the 1970s when the Supreme Court of India itself became an activist. It would explain how early Indian judges retained a positivist role within the constitution framework. The justices of the Indian Supreme Court functioned in a very technocratic manner, hesitant “to assume wider powers for the Court”. The term "judicial activism" came into currency sometime in the twentieth century to describe the act of judicial legislation i.e. Judges making positive law.

To make the study more simple, the chapter has been divided into 3 parts, viz., the Pre–emergency era (1950 – 1974), Emergency era (1975 – 1977) and then Post – emergency era (1978 onwards). The post-emergency era has been discussed in chapter five, in detail.

Chapter four would make a discussion judicial activism vis-à-vis separation of power. The tussle for independence and supremacy between the judiciary, legislature and executive is an old saga. The chapter will elucidate all these aspects in length. The very first objection that ousts the constitutionality of judicial activism is the concept of Separation of Powers.

Abstract

Chapter five would precede detailing how the Court between 1977 and 1998 handed down a series of rulings that increased its prominence as a legal as well as a political institution.

It will elaborate how the Court’s activism over the past two and one-half decades has translated into increased legitimacy for the institution. This chapter will discuss how the Court’s willingness to tackle some of the most controversial political and legal issues to date has given it prime legitimacy, which has resulted in making it “the most powerful apex court in the world”.

Chapter six will also discuss the impact of judicial activism on the administration of justice in India. Though, India has inherited the British legal system but over the years the Indian judiciary has evolved an indigenous jurisprudence to accelerate the administration of justice in the country.

Chapter seven, the penultimate chapter, will focus on the growth of public interest litigation in the Supreme Court. It will detail the various ways that the Supreme Court has attempted to provide greater access for people to use the legal process.

Chapter eight will conclude the research. For conclusions and suggestions, please refer to the complete thesis of this work.

TABLE OF CONTENTS

PAGE

Preface i-iii

Acknowledgements iv-v

List of Cases vi-xi

Abbreviations and Maxims xii-xiii

Table of Contents xiv-xviii

Chapter 1 INTRODUCTION 1-25

1.1 CHOICE OF THE TOPIC 11

1.2 OBJECTIVE OF THE STUDY 12

1.3 RELEVANCE OF THE STUDY 12

1.4 SIGNIFICANCE OF THE STUDY 13

1.5 HYPOTHESES OF THE STUDY 14

1.6 SCOPE OF THE STUDY 14

1.7 RESEARCH METHODOLOGY 15

1.8 LIMITATIONS OF THE STUDY 16

1.9 LITERATURE REVIEW 16

1.10 THE SOURCES OF RESEARCH 21

1.11 SCHEME OF STUDY 22

Chapter 2 DEFINITIONS AND EXPRESSIONS 26-80

2.1 DEFINITIONS 27

2.2 AGREEMENT AND DISSONANCE ON JUDICIAL ACTIVISM 30

2.3 TERMINOLOGY AND EXPRESSIONS 32

xiv

2.3.1 LAW AS DHARMA AND THE COMMAND OF THE 32 SOVEREIGN

2.3.2 ROLE OF A JUDGE 35

2.3.3 DISTINCTION BETWEEN AN ACTIVIST AND A 38 NON ACTIVIST JUDGE 2.3.4 JUDICIAL ACTIVISM AN INHERENT OF JUDICIAL 39 REVIEW 2.3.5 THE INDIAN VIEW OF JUDICIAL REVIEW 40

2.3.6 MODELS OF JUDICAIL REVIEW 42

2.3.7 THEORIES OF JUDICIAL PASSIVISM AND ACTIVISM 43

2.3.8 JUDICIAL SELF-RESTRAINT VERSUS JUDICIAL 44 ACTIVISM

2.3.9 INTERPRETIVISM AND NON INTERPRETIVISM 45

2.3.10 THEORIES OF JUDICIAL REVIEW 46

2.3.11 JUDICIAL ACTIVISM V. SEPARATION OF POWERS 50

2.3.12 JUDICIAL ACTIVISM AND THE LIVING 51 CONSTITUTION 2.3.13 JUDICIAL SELF-RESTRAINT AND ACTIVISM- THE 55 TWO PHASES OF JUDICIAL CREATIVITY 2.3.14 COUNTER-MAJORITARIAN APPROACH 56

2.4 JUDICIAL ACTIVISM AND THE OTHER WORLD 57 CONSTITUTIONS 2.4.1 AMERICA 58

2.4.2 AUSTRALIA 62

2.4.3 BRITIAN 65

2.4.4 CANADA 68

2.4.5 FRANCE 71

2.4.6 GERMANY 72

2.4.7 IRELAND 73

2.4.8 ISRAEL 74

2.4.9 JAPAN 76

2.4.10 NEW ZEALAND 76

2.4.11 SOUTH AFRICA 77

2.5 FINDINGS 79

Chapter 3 EVOLUTION AND DEVELOPMENT OF JUDICIAL 81-111 ACTIVISM IN INDIA

3.1 ORIGIN 81

3.2 PRE- EMERGENCY ERA (1950 – 1964) 83

3.2.1 NEHRUVIAN ERA 84

3.2.2 POST –NEHRUVIAN ERA 96

3.3 EMERGENCY ERA (1975-1977) 103

3.3.1 ATTEMPT TO REVERSE THE BASIC STRUCTURE 107 DOCTRINE

3.4 FINDINGS 110

Chapter 4 JUDICIAL ACTIVISM AND SEPARATION OF POWER 112-131

4.1 THE ORIGIN 114

4.2 THE POSITION OF SEPARATION OF POWER IN THE WORLD 117

4.2.1 UNITED KINGDOM 117

4.2.2 U.S.A. 118

4.2.3 FRANCE 119

4.3 THE DOCTRINE OF ‘SEPARATION OF POWER’ IN INDIA 119

4.4 FINDINGS 131

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Chapter 5 POST EMERGENCY JUDICIAL ACTIVISM 132-171

5.1 THE INCREASING JURISDICTIONAL REACH OF THE APEX 132 COURT

5.2 DIMENSIONAL EXPANSION ADDED TO ARTICLE 21 134

5.3 ARTICLE 32 AND THE SUPREME COURT 137

5.4 EVOLUTION OF COMPENSATORY JURISPRUDENCE 139

5.5 THE JUDGES’ CASE AND THE PARLIAMENT 150

5.6 JUDICIAL ACTIVISM AND HUMAN RIGHTS 155 JURISPRUDENCE

5.7 THE APEX COURT:A CRITIC OF ACTIVIST APPROACH OF 157 JUDICIARY

5.8 JUDICIARY AS NEGATOR OF LEGISLATIVE INITIATIVE 160

5.9 THE RISING GLORY OF THE APEX COURT 161

5.10 FINDINGS 171

Chapter 6 JUDICIAL ACTIVISM AGAINST ABUSE OF 172-187 ADMINISTRATIVE POWER

6.1 JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS IN INDIA 172

6.2 JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS UNDER 175 ARTICLES 32 AND 136: SUPREME COURT’S REVIEW JURISDICTION

6.3 JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS UNDER 178 ARTICLE 226 AND 227

6.4 THE WEDNESBURY TEST 181

6.5 PRINCIPLE OF PROPORTIONALITY 181

6.6 DOCTRINE OF LEGITIMATE EXPECTATION 182

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6.7 JUDICIAL REVIEW OF PRESIDENTIAL POWER: “BOMMAI” 183 CASE

6.8 POST “BOMMAI” SCENARIO: EXCESSIVE JUDICIAL REVIEW 183 AND OVERACTIVISM

6.9 FINDINGS 186

Chapter 7 THE PUBLIC INTEREST LITIGATION REGIME: A 188-214 HEYDAY OF JUDICIAL ACTIVISM

7.1 THE CONCEPT OF LOCUS STANDI 189

7.2 FROM TRADITIONAL DOCTRINE OF LOCUS STANDI TO 191 PUBLIC INTEREST LITIGATION

7.3 INDIAN PERSPECTIVE 199

7.4 FEATURES OF PIL IN INDIA 201

7.5 GUIDELINES FOR PIL AS LAID DOWN BY THE SUPREME 202 COURT

7.6 THE DIFFERENT PHASES OF PIL 205

7.7 JUDICIAL ACTIVISM AND ENVIRONMENTAL 206 JURISPRUDENCE

7.8 RELEVANT QUOTES FROM SUPREME COURT JUDGMENTS 207

7.9 FROM PUBLIC INTERSEST LITIGATION TO SOCIAL 208 INTEREST LITIGATION

7.10 FINDINGS 213

CONCLUSION 215-234

BIBLIOGRAPHY 235-246

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DECLARATION

I declare that the thesis entitled “JUDICIAL ACTIVISM AND ITS IMPACT ON THE ADMINISTRATION OF JUSTICE IN INDIA (WITH REFERENCE TO SEPARATION OF POWER)” has been prepared by me under the able guidance of Prof. (Dr.) Iqbal Ali Khan, Chairman & Former Dean, Department of Law, Aligarh Muslim University, Aligarh.

No part of this thesis has formed the basis for the award of any degree or fellowship previously.

Rachna Singh (Enrolment No.: GC-7237) Department of Law Aligarh Muslim University Aligarh-202002

ABBREVIATIONS

A.C Appeal Cases

A.I.R All India Reporter

All Allahabad

A1LE.R All England Law Reporter

A.P. Andhra Pradesh

Ass Assam

Art Article

ALJ Aligarh law journal

Bom Bombay

BHCR Bombay High Court reports

CAD Constituent Assembly Debates

Cal Calcutta

Calif. Law Rev. California Law review

CE Conseil d'Etat

C.J Chief Justice

Cr. L.J. Criminal Law Journal

CULR Cochin University Law Review

D.B. Division Bench

F.B. Full Bench

F.C. Federal Court

Guj Gujarat

GuwaLR Gawahati Law Reporter

H.P Himachal Pradesh

ILI Indian Law Institute

I.L J Indian Law Journal.

xii

ILR Indian Law Reporter

J Justice

J.I.L.I. Journal of Indian Law Institute

J.&K. Jammu & Kashmir

Ker Kerala

K.B Kings Bench

KULR Kashmir University Law Review

M.P. Madhya Pradesh

Mad Madras

Mys Mysore

N.H.R.C. National Human Rights Comm.

Ori. Orissa

OHLJ Osgoode Hall Law Journal

Pat Patna

Puj Punjab

Q.B. Queens Bench

Raj Rajasthan

S.C. Supreme Court

S.C.W. Supreme Court Weekly Report

S.C.C. Supreme Court Case

T.C. Tribunal des Conflicts

U Chi L Rev University of Chicago Law Review

U.K. United Kingdom

U.S. United States Supreme Court Reports

U.S.A. United States of America

U.N. United Nations v Versus

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PREFACE

The struggle for freedom was not only to demolish the foreign rule but it was also to build on egalitarian society to secure life of quality to the people with right to equality. The Constitution of India in its Preamble, solemnly declares establishment of a Sovereign, Socialist, Secular, Democratic, Republic, promoting among its citizens, justice, social, economic and political. This promise is established in the fundamental rights and directive principles of State policy enshrined in Part III and Part IV of the Constitution.1

Law was analyzed from its performance and the functional role it performed – a tendency to measure legal rules, doctrine and institutions by the extent of their utility. This was judged by the objectives they achieved or in furtherance of which they existed. Access to justice is an intrinsic problem faced in a majority of Third World countries today. Poverty, ignorance and inaccessibility of vast masses in these countries posed a problem of justice before them forcing the judiciary to evolve a new statesman as it was realized that unless justice was ensured to them by society, freedom will have no relevance and social justice will be meaningless. Judicial Activism turned out to be savior in many such cases.

Dr. Rajendra Prasad said on the date of adoption of the Constitution:

“Whatever the Constitution may or may not provide, the welfare of the country will depend upon the way in which the country is administered. That will depend upon the men who administer it. It is trite saying that a country can have only the Government it deserves. Our Constitution has provisions in it which appear to some, to be objectionable from one point or another. We must admit that the defects are inherent in the situation in the country and the people at large. If the people who are elected are capable and are men of character and integrity, they would be able to make the best even of a defective Constitution. If they are lacking in these, the Constitution cannot help the country. After all, a Constitution like a machine is a lifeless thing. It acquires life because of the men who control it and operate it and India needs today nothing

1 Dr B L Wadhera, Public Interest Litigation 4 (Universal Law Publishing Co., New Delhi, 4th edn., 2014). i more than a set of honest men who will have the interest of the country before them. There is a fissiparous tendency arising out of various elements in our life.

I have no doubt that when the country needs men of character, they will be coming up and the masses will throw them up. Let not those who have served in the past therefore rest on their oars, saying that they have done their part and now has come the time for them to enjoy the fruits of their labours. No such time comes to anyone who is really earnest about his work. In India today I feel that the work that confronts us is even more difficult than the work, which we had when we were engaged in the struggle. We did not have then any conflicting claims to reconcile no loaves and fishes to distribute, no powers to share. We have all these now, and the temptations are really great. Pray of Got that we shall have the wisdom and the strength to rise above them, and to serve the country which we have succeeded in liberating”.2

The principles of constitutionalism were introduced for the first time by the Nehruvian era courts. But it was directed mainly against the executive. The courts at the time dared not question the sovereignty of the Parliament and its law–making power.

Judiciary in the country devised as an arm of social revolution by the Constitution makers, by its activism, has infused a new life in certain articles but some are still untouched. Of late, the ‘Green Bench’ of the Supreme Court has delivered some landmark judgments on issues that concern the public at large. Judicial activism has started growing from a power to right. With the courts exercising their power in remedying the grievances of many, gradually the exercise of the power in this field has expanded.

However, the growing judicial activism has few shortcomings too. Outlining the dangers of judicial activism, Justice Katju deplored courts entertaining PILs as “routine” saying that this “choked” the dockets of superior courts “obstructing the hearing of genuine and regular cases.” Much of PIL “is really blackmail,” he said, adding that it largely developed into “an uncontrollable Frankenstein and a nuisance.”

Judicial activism has also been observed under the scheme of the Indian Constitution and it has also raised a debate. The main issues are whether judicial activism is judicial overreach or there is a myth about judicial overreach. What are the areas of

2 Id. at 9. ii such judicial activism or judicial overreach? If it is judicial activism, what is the need of judicial activism under the scheme of the Indian Constitution? If it is judicial overreach, what should be the limits for curbing an overreach?

The above issues are the theme of the present research study under the title “JUDICIAL ACTIVISM AND ITS IMPACT ON THE ADMINISTRATION OF JUSTICE IN INDIA (WITH REFERENCE TO SEPARATION OF POWER)”. This topic lays an emphasis on the spirit of our constitution that there is separation of power among three organs of the state; with special emphasis to the preamble that citizen has to be provided with justice -social, political and economical. The research would have been directionless without the able guidance and supervision of my revered guide, Prof. (Dr.) Iqbal Ali Khan, Chairman and Former Dean, Department of Law, Aligarh Muslim University, Aligarh.

(Rachna Singh)

iii

ACKNOWLEDGEMENTS

I bow in reverence to the Almighty God whose benign benediction gave me the required zeal for the completion of this work.

My sincere thanks are also due to Dr. Tabassum, Ms. Kusumavati, Ms. Talat Anjum, Ms. Deepti Sharma for their unremitting help, guidance and support.

I am also thankful to my cherished friends, classmates and critics for all their help and continued encouragement.

My acknowledgement would be incomplete if I fail to express my thanks to Mr. Dilip Chakraborty for helping me type my thesis.

Lastly, I am grateful to all those who helped me directly or indirectly in completing this thesis.

(Rachna Singh)

LIST OF CASES

Name of the cases A 1. A.R. Antulay v. R.S. Nayak AIR 1988 SC 1531

2. Adam v. Naylor (1947) KB 204

3. Afzal v. State of Haryana (1994) 1 SCC 425

4. Aheibam Ongbi Leihao Devi v. State of Manipur AIR 1999 Gau 9

5. Ajab Singh v. State of U.P. (2000) 3 SCC 521

6. Ajay Hasia v. Khalid Mujib AIR 1981 SC 487

7. Amitadyuti Kumar v. State of W.B. (2000) 9 SCC 404

8. Amulya Patnaik v. State of Orissa AIR 1967 Ori. 116

9. Arvinder Singh Bagga v. State of U.P. (1994) 6 SCC 565

10. Assn. pool v. Radhabai , AIR 1976 MP 164

11. Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161

12. Bank of Bengal v. United Company

13. Basavva Patil v. State of Mysore (1977) 4 SCC 358

14. Bata Shoe Co. v. Union of India AIR 1954 Bom 129

15. Bhim Singh v. State of J&K (1985) 4 SCC 677

16. Bhuwneshwar Singh v. Union of India (1993) 4 SCC 327

17. Bodhisattwa Gautam v. Subhra Chakraborty (1996) 1 SCC 49

18. C. Ramakanda Reddy v. State of A.P. AIR 1989 A.P. 235

19. Chairman, Railway Board v. Mrs. Chandrima Das AIR 2000 SC 988; (2000) 2 SCC 465

20. Charan Lal Sahu v. Union of India, 1990 SCC (1) 613

21. Charanjit Kaur v. Union of India (1994) 2 SCC 1

22. Common Cause v. Union of India (1996) 6 SCC 593

23. Coomber v. justices of Berks (1883) 9 A.C. 61

24. D.G. & I.G. of Police v. Prem Sagar (1999) 5 SCC 700

25. D.K. Basu v. State of W.B. (1997) 1 SCC 416

26. Dalip Singh v. State of Haryana, 1993 Supp (3) SCC 336

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

28. Delhi Judicial Service Assn., Tis Hazari Court v. State of Gujarat (1991) 4 SCC 406

29. Dhananjay Sharma v. State of Haryana (1995) 3 SCC 757

30. Duncan v. Finlater (1839) 6 CL & F 894 (910)

E, F, G 31. Elizabeth H. Dalehite v. United States 346, U.S. 15 (1953)

32. Etti v. Secretary of State, I.L.R.(1939) Mad. 843

33. Feather v. The Queen, 6 B.S., 257, 292, 122, Eng. Rep. 1191(Q.B.), 1865

34. Govind Kumar and Anr. v. State of Rajasthan and Anr. AIR 2009 Raj.61

35. Gudalure M.J. Cherian v. Union of India, 1995 SCC (Cr) 925

H, I, J

36. Home Office v. Torset Yachy Co. Ltd. (1970), 2 All E.K. 294

37. Hussain v. State of Kerala (2000) 8 SCC 139

38. Inder Singh v. State of Punjab (1994) 6 SCC 275

39. Indian Towing Company v. United States, 350, U.S. 61 (1955)

40. Jiwan Mal Kochar v. Union of India (1984) 1 SCC 200

vii

41. Kanaka Rana v. State of Orissa AIR 2009 Orissa 17

42. Kasturi Lal Ralia Ram Jain v. State of U.P. AIR 1965 SC 1039

43. Kasturi Lal v. State of U.P. AIR 1965 SC 1039 ; (1965) 1 SCR 375

44. Kessoram Podar & Co. v. Secretary of State for India, I.L.R. (1926) 54 Cal. 969

45. Khatri (II) v. State of Bihar AIR (1981) 1 SCC 627

46. Khedat Mazdoor Chetna Sangath v. State of M.P. (1994) 6 SCC 260

47. Krishna Murthy v. State of A.P. (1960) 2 And. W.R. 502

L, M

48. Logue v. United States, 412, U.S. 521

49. M.C. Mehta v. Union of India (1987) 1 SCC 395

50. M.P. Dwivedi, In re (1996) 4 SCC 152

51. Madhav Rao Scindia v. Union of India (1971) 1 SCC 85

52. Malkiat Singh v. State of U.P. (1998) 9 SCC 351

53. Maneka Gandhi v. Union of India, AIR 1978 SC 597

54. Mclnerny v. Secretary of State (1911) 38 Cal. 797

55. Mohd. Zahid v. Govt. of NCT of Delhi (1998) 5 SCC 419

56. Municipal Council, Ratlam v. Vardichand AIR 1980 SC 1622D

57. Murti Devi v. State of Delhi (1998) 9 SCC 604

58. N. Nagendra Rao v. State of A.P. AIR 1994 SC 2663.

59. Nagpur Corporation v. its Employees AIR 1960 SC 675

60. Naresh Sridhar Mirajkar v. State of Maharashtra AIR (1967 ) SC 1

61. Nilabal Bahera alias Lalita Bahera v. State of Orissa (1993) 2 SCC 746

62. Nobin Chander Dey v. Secretary of State ILR (1875) 1 Cal 11 viii

63. P. Rathnam v. State of Gujarat , 1994 SCC (Cri) 1163

64. Parmanand Katara v. Union of India (1989) 4 SCC 286

65. Penninsular and Orientation Steam Navigation Co. v. The Secretary of State (1861) 5 Bom HCR App 1

66. People's Union for Civil Liberties v. Union of India (1997) 3 SCC 433

67. People'sUnion for Democratic Rights v. State of Bihar (1987) 1 SCC 265

68. Postsangbam Ningol Thokchom v. General Officer Commanding (1997) 7 SCC 725

69. Pratul Kumar Sinha v. State of Bihar, 1994 Supp (3) SCC 100

70. President, Citizens for Democracy v. State of Assam (1995) 3 SCC 743

71. Province of Bombay v. Kusaldas S. Advani, 1950 SCR 621: AIR 1950 SC 222

72. R.D. Upadhyay v. State of A.P (2001) 1 SCC 437

73. R.D. Shetty v. International Airport Authority AIR 1979 SC 1628

74. R.S. Sodhi v. State of U.P., 1994 Supp (1) SCC 142 and 143

75. Rajasthan Kisan Sangthan v. State AIR 1989 Raj 10, at p. 16

76. Rajasthan State Electricity Board v. Mohan Lal AIR 1967 SC 1857

77. Raleigh v. Coaschen (1898)

78. Ram Ghulam v. Govt of UP AIR 1950 Allah. 206

79. Ravinder Kumar Sharma v. State of Assam (1999) 7 SCC 435

80. Rudul Shah v. State of Bihar (1983) 4 SCC 141

81. Rup Ram v. The Punjab State AIR 1961 Punj. 336

82. Rupa Ashok Hurra v. Ashok Hurra And Another AIR 2002 SC 1771

83. Saheli, a Women's Resources Centre v. Commissioner of Police, Delhi: AIR 1990SC 513 84. Satya Narain v. Distt. Engineer AIR 1962 SC 1161

85. Satyawati Devi v. Union of India AIR 1967 Delhi 98

86. Sebastian M. Hongray v. Union of India (1984) 1 SCC 339

87. Secretary of State of India v. Kamatache Boys saheba (1859) 7 M.I.A. 476

88. Secretary of State v. Cockcraft AIR 1915 Mad 993

89. Secretary of State v. Hari Bhanji (1882) ILR Mad 273

90. Secretary of State v. Sheoramjee Hanumantra AIR 1952 Nag. 213

91. Shiv Sagar Tiwari v. Union of India (1996) 6 SCC 599

92. Shyam Sunder v. State of Rajasthan AIR 1974 SC 890

93. State of A.P. v. Ankanna, AIR 1967 A.P. 41, S.P. Gupta

94. State of Andhra Pradesh v. Challa Ramkrishna Reddy (2000) 5 SCC 712

95. State of Bihar v. Abdul Majid (1954) SCR 786: (AIR 1954 SC 245)

96. State of Bombay v. Hospital Mazdoor Sabha AIR 1960 SC 610

97. State of Gujarat v. Govinda bhai AIR 1999 Guj. 316

98. State of Gujarat v. Memon Mahomed Haji Hasan AIR 1967 SC 1885(1967) 3 SCR 938

99. State of M.P. v. Chiranjilal AIR 1981 M.P.65

100. State of M.P. v. Dattamal AIR 1967 M.P. 246

101. State of M.P. v. Ram Pratap AIR 1972 M.P. 219

102. State of Maharashtra v. Madhukar Narayan Mardikar AIR 1991 SC 207

103. State of Maharashtra v. Ravikant S. Patil (1991) 2 SCC 373

104. State of Mysore v. Ramachandra AIR 1972 Bom.93

105. State of Punjab v. Vinod Kumar (2000) 9 SCC 742

106. State of Rajasthan vs. Vidyawati AIR 1962 SC 933D

107. State of U.P. v. Hinduatan Lever AIR 1972 All. 486

108. State Of UP v. Hindustan lever Ltd. AIR 1972 All. 486

109. Sukhdev v. Bhagatram (1975) 3 S.C.R. 619

110. Tamlin v. Hansford (1949), 2 All E.R. 327; (1950) K.B. 18

111. Thangarajan v. Union of India AIR 1975 Mad. 32

112. The Indian Insurance Companies v. Radhabai Babulal, AIR 1976 M.P. 164

113. Thirath Ram Saini v. State of Punjab (1997) 11 SCC 623

114. U.P. Warehousing Corporation v. Vijai Narain (1980) 3 SCC 459

115. Union of India v. Bhagwati Prasad Mishra AIR 1967 M.P. 159

116. Union of India v. Satiya Sharma AIR 1979 J & K 6

117. Union of India v. Smt. Jasso AIR 1962 Punjab 315

118. Union of India v. Sugarbai AIR 1969 Bom. 13

119. Union of India v. Harbans Singh AIR 1959 punj. 39

120. Union of India v. Ladulal Jain AIR 1963 SC 1681

121. United States v. Causby, 328, U.S., 256 (1946)

122. University of Madras v. Santa Bai AIR 1954 Mad. 67

123. Venkata Rao v. The secretary of State AIR (1937) P.C. 31

124. Vishaka v. State of Rajasthan AIR 1997 SC 3011

ABBREVIATIONS

A.C Appeal Cases

A.I.R All India Reporter

All Allahabad

A1LE.R All England Law Reporter

A.P. Andhra Pradesh

Ass Assam

Art Article

ALJ Aligarh law journal

Bom Bombay

BHCR Bombay High Court reports

CAD Constituent Assembly Debates

Cal Calcutta

Calif. Law Rev. California Law review

CE Conseil d'Etat

C.J Chief Justice

Cr. L.J. Criminal Law Journal

CULR Cochin University Law Review

D.B. Division Bench

F.B. Full Bench

F.C. Federal Court

Guj Gujarat

GuwaLR Gawahati Law Reporter

H.P Himachal Pradesh

ILI Indian Law Institute

I.L J Indian Law Journal.

xii

ILR Indian Law Reporter

J Justice

J.I.L.I. Journal of Indian Law Institute

J.&K. Jammu & Kashmir

Ker Kerala

K.B Kings Bench

KULR Kashmir University Law Review

M.P. Madhya Pradesh

Mad Madras

Mys Mysore

N.H.R.C. National Human Rights Comm.

Ori. Orissa

OHLJ Osgoode Hall Law Journal

Pat Patna

Puj Punjab

Q.B. Queens Bench

Raj Rajasthan

S.C. Supreme Court

S.C.W. Supreme Court Weekly Report

S.C.C. Supreme Court Case

T.C. Tribunal des Conflicts

U Chi L Rev University of Chicago Law Review

U.K. United Kingdom

U.S. United States Supreme Court Reports

U.S.A. United States of America

U.N. United Nations v Versus

xiii

TABLE OF CONTENTS

PAGE

Preface i-iii

Acknowledgements iv-v

List of Cases vi-xi

Abbreviations and Maxims xii-xiii

Table of Contents xiv-xviii

Chapter 1 INTRODUCTION 1-25

1.1 CHOICE OF THE TOPIC 11

1.2 OBJECTIVE OF THE STUDY 12

1.3 RELEVANCE OF THE STUDY 12

1.4 SIGNIFICANCE OF THE STUDY 13

1.5 HYPOTHESES OF THE STUDY 14

1.6 SCOPE OF THE STUDY 14

1.7 RESEARCH METHODOLOGY 15

1.8 LIMITATIONS OF THE STUDY 16

1.9 LITERATURE REVIEW 16

1.10 THE SOURCES OF RESEARCH 21

1.11 SCHEME OF STUDY 22

Chapter 2 DEFINITIONS AND EXPRESSIONS 26-80

2.1 DEFINITIONS 27

2.2 AGREEMENT AND DISSONANCE ON JUDICIAL ACTIVISM 30

2.3 TERMINOLOGY AND EXPRESSIONS 32

xiv

2.3.1 LAW AS DHARMA AND THE COMMAND OF THE 32 SOVEREIGN

2.3.2 ROLE OF A JUDGE 35

2.3.3 DISTINCTION BETWEEN AN ACTIVIST AND A 38 NON ACTIVIST JUDGE 2.3.4 JUDICIAL ACTIVISM AN INHERENT OF JUDICIAL 39 REVIEW 2.3.5 THE INDIAN VIEW OF JUDICIAL REVIEW 40

2.3.6 MODELS OF JUDICAIL REVIEW 42

2.3.7 THEORIES OF JUDICIAL PASSIVISM AND ACTIVISM 43

2.3.8 JUDICIAL SELF-RESTRAINT VERSUS JUDICIAL 44 ACTIVISM

2.3.9 INTERPRETIVISM AND NON INTERPRETIVISM 45

2.3.10 THEORIES OF JUDICIAL REVIEW 46

2.3.11 JUDICIAL ACTIVISM V. SEPARATION OF POWERS 50

2.3.12 JUDICIAL ACTIVISM AND THE LIVING 51 CONSTITUTION 2.3.13 JUDICIAL SELF-RESTRAINT AND ACTIVISM- THE 55 TWO PHASES OF JUDICIAL CREATIVITY 2.3.14 COUNTER-MAJORITARIAN APPROACH 56

2.4 JUDICIAL ACTIVISM AND THE OTHER WORLD 57 CONSTITUTIONS 2.4.1 AMERICA 58

2.4.2 AUSTRALIA 62

2.4.3 BRITIAN 65

2.4.4 CANADA 68

2.4.5 FRANCE 71

2.4.6 GERMANY 72

2.4.7 IRELAND 73

2.4.8 ISRAEL 74

2.4.9 JAPAN 76

2.4.10 NEW ZEALAND 76

2.4.11 SOUTH AFRICA 77

2.5 FINDINGS 79

Chapter 3 EVOLUTION AND DEVELOPMENT OF JUDICIAL 81-111 ACTIVISM IN INDIA

3.1 ORIGIN 81

3.2 PRE- EMERGENCY ERA (1950 – 1964) 83

3.2.1 NEHRUVIAN ERA 84

3.2.2 POST –NEHRUVIAN ERA 96

3.3 EMERGENCY ERA (1975-1977) 103

3.3.1 ATTEMPT TO REVERSE THE BASIC STRUCTURE 107 DOCTRINE

3.4 FINDINGS 110

Chapter 4 JUDICIAL ACTIVISM AND SEPARATION OF POWER 112-131

4.1 THE ORIGIN 114

4.2 THE POSITION OF SEPARATION OF POWER IN THE WORLD 117

4.2.1 UNITED KINGDOM 117

4.2.2 U.S.A. 118

4.2.3 FRANCE 119

4.3 THE DOCTRINE OF ‘SEPARATION OF POWER’ IN INDIA 119

4.4 FINDINGS 131

xvi

Chapter 5 POST EMERGENCY JUDICIAL ACTIVISM 132-171

5.1 THE INCREASING JURISDICTIONAL REACH OF THE APEX 132 COURT

5.2 DIMENSIONAL EXPANSION ADDED TO ARTICLE 21 134

5.3 ARTICLE 32 AND THE SUPREME COURT 137

5.4 EVOLUTION OF COMPENSATORY JURISPRUDENCE 139

5.5 THE JUDGES’ CASE AND THE PARLIAMENT 150

5.6 JUDICIAL ACTIVISM AND HUMAN RIGHTS 155 JURISPRUDENCE

5.7 THE APEX COURT:A CRITIC OF ACTIVIST APPROACH OF 157 JUDICIARY

5.8 JUDICIARY AS NEGATOR OF LEGISLATIVE INITIATIVE 160

5.9 THE RISING GLORY OF THE APEX COURT 161

5.10 FINDINGS 171

Chapter 6 JUDICIAL ACTIVISM AGAINST ABUSE OF 172-187 ADMINISTRATIVE POWER

6.1 JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS IN INDIA 172

6.2 JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS UNDER 175 ARTICLES 32 AND 136: SUPREME COURT’S REVIEW JURISDICTION

6.3 JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS UNDER 178 ARTICLE 226 AND 227

6.4 THE WEDNESBURY TEST 181

6.5 PRINCIPLE OF PROPORTIONALITY 181

6.6 DOCTRINE OF LEGITIMATE EXPECTATION 182

xvii

6.7 JUDICIAL REVIEW OF PRESIDENTIAL POWER: “BOMMAI” 183 CASE

6.8 POST “BOMMAI” SCENARIO: EXCESSIVE JUDICIAL REVIEW 183 AND OVERACTIVISM

6.9 FINDINGS 186

Chapter 7 THE PUBLIC INTEREST LITIGATION REGIME: A 188-214 HEYDAY OF JUDICIAL ACTIVISM

7.1 THE CONCEPT OF LOCUS STANDI 189

7.2 FROM TRADITIONAL DOCTRINE OF LOCUS STANDI TO 191 PUBLIC INTEREST LITIGATION

7.3 INDIAN PERSPECTIVE 199

7.4 FEATURES OF PIL IN INDIA 201

7.5 GUIDELINES FOR PIL AS LAID DOWN BY THE SUPREME 202 COURT

7.6 THE DIFFERENT PHASES OF PIL 205

7.7 JUDICIAL ACTIVISM AND ENVIRONMENTAL 206 JURISPRUDENCE

7.8 RELEVANT QUOTES FROM SUPREME COURT JUDGMENTS 207

7.9 FROM PUBLIC INTERSEST LITIGATION TO SOCIAL 208 INTEREST LITIGATION

7.10 FINDINGS 213

CONCLUSION 215-234

BIBLIOGRAPHY 235-246

xviii

Chapter 1 INtrODUCtION

Chapter 2 DeFINItIONS aND eXpreSSIONS

Chapter 3 eVOLUtION aND DeVeLOpMeNt OF JUDICIaL aCtIVISM IN INDIa

Chapter 4 JUDICIaL aCtIVISM aND SeparatION OF pOWer

Chapter 5 pOSt-eMerGeNCY JUDICIaL aCtIVISM

Chapter 6 JUDICIaL aCtIVISM aGaINSt aBUSe OF aDMINIStratIVe pOWer

Chapter 7 the pUBLIC INtereSt LItIGatION reGIMe: a heYDaY OF JUDICIaL aCtIVISM

CONCLUSION

BIBLIOGraphY

Introduction

CHAPTER-1

INTRODUCTION

The service of India means the service of the millions who suffer. It means the ending of poverty and ignorance and disease and inequality of opportunity. The ambition of the greatest man of our generation has been to wipe every tear from every eye. That may be beyond us, but as long as there are tears and suffering, so long our work will not be over.

- Jawaharlal Nehru

The 21st century is witnessing huge shifts in the global balance of power. As the dominance of the west wanes, the world focus shifts to the emerging powers of the new world order, like India. India arouses more interest because of its successful sustenance of democracy and its fabulous economic growth, notwithstanding its corrosive corruption and crumbling infrastructure. This journey from being a British slave to an upcoming power has not been easy for India. Whether it is legislature, executive or the judiciary, the ultimate goal of all is ‘service of India’.

In 1922, Gandhi had said that swaraj would not be the gift of the British Parliament, but must spring from ‘the wishes of the people of India as expressed through their freely chosen representatives.’ He had expressed that Indians must shape their own destiny, that only in the hands of Indians could India become herself. Twenty- four years later these words were repeated during the opening session of the Constituent Assembly: they were, some said, the Assembly’s origin; all agreed that they were its justification.

The Constituent Assembly, brought into being by the will of the Indian people and, in the last scene of the last act, with the help of the British, drafted a constitution for India in the years from December 1946 to December 1949. In the Assembly Indians were, for the first time in a century and a half, responsible for their own governance. They were, at last, free to shape their own destiny, to pursue their long-proclaimed aims and aspirations, and to create the national institutions that would facilitate the fulfillment of these aims.

Introduction

In the words of B.R. Ambedkar-

“By independence we have lost the excuse of blaming the British for anything going wrong. If hereafter things go wrong, we will have nobody to blame except ourselves.”1

The Constitution, by its very existence, was a social revolutionary statement. It was to be a modernizing force. Social revolution and democracy were to be the strands of the seamless web, most closely related. Jawaharlal Nehru believed, “This cannot be done by the wisest of lawyers sitting together in conclave; it cannot be done by small committees trying to balance interests and calling that constitution-making; it can never be done effectively when the political and psychological conditions are present, and the urge and sanctions come from the masses.”2

Democracy, representative government, personal liberty and equality before the Law, were revolutionary for the society. Social-Economic equitableness as expressed in the Directive Principles of the State Policy was equally revolutionary. So were the Constitution’s articles allowing abolishing zamindari and altering property relations and those allowing for compensatory discrimination in education and employment for disadvantaged citizens. The Constitution was to foster the achievement of many goals.

More than sixty years have passed since India won independence and these years have, no doubt, been momentous and eventful. The nation has faced dangers and conquered them. The nation has made progress in socio-economic matters. But, judged by the yardstick of the objectives of the Constitution, the progress is slow and naturally, millions of our countrymen, who live in villages and towns, feel frustrated and angry that the promise of giving them social and economic justice still remains to be fulfilled. Laws have been passed covering socio-economic needs of the country but their implementation has been totally inadequate. Untouchability, still continues to govern the lives of a section of our society; poverty still stalks abroad, illiteracy rate is still high, unemployment is faced by many people, both educated and uneducated; communal differences and suspicions have not been banished, and the Indian community as a whole, still continues to be a fragmented traditional community which, loves to look back and leans on tradition rather than look forward and lean on

1 Granville Austin, The Indian Constitution: Cornerstone of a Nation 384 (Oxford University Press, New Delhi, 26th impression, 2015). 2 Id. at 1.

Introduction

reason. The growing impatience, frustration and anger of large masses of this country pose a very serious challenge to the progress of Indian democracy.

Though, there have been initiatives from the legislature and the executive but it is the Indian judiciary which has taken a lead in taking immediate steps to curtail this growing impatience. The Judiciary has always been seen as an extension of the rights, for it was the courts that would give force to the rights.

The judiciary was to be an arm of the social revolution, upholding the equality that Indians had longed for during colonial days, but had not gained – not simply because the regime was colonial, and perforce repressive, but largely because the British had feared that social change would endanger their rule. The Courts were also idealized because, as guardians of the Constitution, they would be the expression of the new law created by Indians for Indians.

The role of a judge and executive has been clearly stated even during the Vedic period:

“Rajno hi raksadhi krtah parasvadayinah sathah

Bhtya bhavanti prayena tebhyo reksedimah prajah”

Thus, meaning the king should give the charge of the protection of the subjects to such officers who are virtuous, well tried, qualified and from respectable families.

The traditional role of the Judge has been envisaged as that of an impartial arbiter who hears the forensic debate before him and renders judgment without ever stepping into the arena of debate. Lately, however, it has become fashionable for Judges to jump into the fray and actively participate in the debate by supporting one side or the other and this process masquerades under the felicitous name "judicial activism".

The expression `Judicial Activism' signifies the anxiety of courts to find out appropriate remedy to the aggrieved by formulating a new rule to settle the conflicting questions in the event of lawlessness or uncertain laws.

This obviously is a difficult explanation for a layman to understand. But, the above statement can be explained in a simplified manner asunder the Constitution of India, the three branches of the government, namely the Legislative, Executive and the Judiciary, have been assigned their own separate roles. It is when the Judiciary steps

Introduction

into the shoes of the Executive or the Legislature and embarks on the work of law- making rather than interpreting laws, it can be deemed to be judicial activism.

Black’s Law Dictionary explains very well:

Before the twentieth century, legal scholars squared off over the concept of judicial legislation, that is, judges making positive law. "Where Blackstone favored judicial legislation as the strongest characteristic of the common law, Bentham regarded this as a usurpation of the legislative function and a charade or 'miserable sophistry."' John Austin, rejected Bentham's view and defended a form of judicial legislation in his famous lectures on jurisprudence.

Judicial activism is an upgraded form of judicial review. Judicial review means overseeing by the judiciary of the exercise of power by other co-ordinate organs of government with a view to ensuring that they remain confined to the limits drawn upon their powers by the Constitution. The practice of judicial review of legislation was extended by Britain to colonies like India.

Later, when India got independence this debate continued in the Constituent Assembly also. The debates show that the makers of the Constitution wanted a limited judicial review. Most of them were admirers of the Westminster model of democracy and wanted the courts in India to interpret the Constitution so as to cause minimum interference with the legislature. In their opinion, a single integrated judiciary, along with a uniform system of laws was essential to maintain the unity of the country. Apart from being the conscience-keeper of the Constitution and the protector of fundamental rights of the people, the framers wished to equip the judiciary with powers which would enable it to "keep the charter of Government current with the times and not allow it to become archaic or out of tune with the needs of the day". While the provisions relating to the judiciary were being drafted, there was general

3 Anirudh Prasad, C.P. Singh, Judicial Power and Judicial Review 23 (Eastern Book Company, Lucknow, First edn., 2012).

Introduction

agreement on the issue that if independent India were to achieve a social revolution, the judiciary would have a vital role to perform and would therefore have to be well equipped for the purpose.

According to Justice V.G. Palishikar, judicial activism can be defined as the process of law-making by judges. It means an active interpretation of existing legislation by a Judge, made with a view to enhance the utility of that legislation for social betterment. Judicial activism is different from judicial pessimism which means interpretation of existing provisions of law, without an attempt to enhance its beneficial aspects by so interpreting the existing law to advance and progress the beneficial extent of that legislation.4

Judicial institutions have a sacrosanct role to play in a constitutional democracy like India. Under Article 32 a person can approach the Supreme Court for violation of any of his fundamental rights as Article 13(2) also states that if a law passed by the state affects a fundamental right, it may be declared null and void by the Supreme Court.5 The High Courts are empowered with wider jurisdiction to entertain any petition not only for the enforcement of fundamental rights alone but also for any other purpose.6 The Supreme Court can also decide whether Parliament or State Legislature has made any law beyond its allotted powers.7 Even Parliament can enlarge jurisdiction and powers of the Supreme Court with respect to any matters in the Union List by enacting law to this effect and also through law give it power to use it writ jurisdiction under clause (2) of Article 32 for any other purpose.8 Further, power is vested in the Supreme Court to pass such decree or order as is need for doing justice in any case or matter pending before it.9 This provision containing inherent powers of the court contains no limitation regarding the case or circumstances which necessitates the court to exercise its power nor does it lay down any conditions to be satisfied before such power is exercised. But the courts itself through various judgments have said that Article 142 could not be used to build a new edifice where none existed earlier so to achieve something indirectly, which could not be achieved directly.

4 Justice V.G. Palishikar, “Judicial Activism” vol.8 AIR 201 (1998). 5 Articles 13(2) and 32(1) & (2) of the Indian Constitution. 6 Article 226 of the Indian Constitution. 7 Article 131 of the Indian Constitution. 8 Articles 138 & 139 of the Indian Constitution. 9 Article 142 of the Indian Constitution.

Introduction

The role of Judiciary as it arguably bears a larger share of the immediate responsibility for preserving and defending the indispensable liberal dimension of the democratic regime than do the two branches in spite of having no control over the sword or purse. In this duty lies the best claim to the legitimacy that the courts can muster when they extend their writ in an activist fashion.10

In the context of Indian experience, when this job of tailoring was adhered to by the Indian Judiciary, it was alleged as ‘judicial anarchy’, judicial over-activism or judicial despotism.11 Few critics, albeit labeled Judiciary as a ‘third chamber’, and ‘a super executive.’ It is alleged that Judiciary has usurped the authority of legislative and executive organs of the government. The opponents criticize Judiciary as anti- democratic and counter majoritarian.

One of the very important principles of just democratic governance is the application of Constitutional limits on the extent of government power. These limits include conducting periodic elections, guaranting civil rights, and promoting an independent judiciary, which allows citizens to seek protection of their rights and redress government functions. These limits help to make branches of government accountable to each other and to the people. An independent judiciary is must for safeguarding the rule of Law and is, therefore, vital facet of good governance.

“A judge must be of sterner stuff. His mental equipoise must always remain firm and undeflected. It is essential that a judge should not allow his personal prejudice to go into the decision- making. A closed mind is antithetical to fair hearing. Prejudice tends to corrupt the ability to exercise independent judgment. It has a tendency to intrude upon a free mind and may influence the outcome.”12

A former Chief Justice of the United States Supreme Court, Warren stated thus:-

10 Dr. Tarun Arora & Dr. Shivani Goswami, “Revisiting Judicial Activism and Judicial Self-restraint: An Indian Outlook” in Lokendra Malik (ed.), Judicial Activism India 283 (Universal Law Publishing Co. pvt. Ltd, New Delhi, 2014). 11 Surya Deva, “Who will judge the judges: A critical Purview of Judicial Activism” Vol. 1 Delhi University Law Journal 30-40 (1997). 12 Mangilal v. state of M.P., (1994) 4 SCC 564: 1994 SCC (cri) 1308.

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“Our judges are not monks or scientists, but participants in the living stream of our national life, steering the law between the dangers of rigidity on the one hand and formlessness on the other”.13

Of course, India has a tradition of conscientious judges who have proved their mettle as judges. A very reputed Chief Justice of the Madras High Court resigned in protest of an unwanted transfer, but observed decorum. In his interview with India Today, in answer to the question of P.S. Vaidyanathan that why he did not challenge his transfer in a court of law, the learned Ismail CJ said, “I believe that a person holding such an office as Chief Justice of a High Court should not become a petitioner before a court with regard to his right to hold that office.”14 We also find the example of Malimath CJ, Karnataka High Court, who was not elevated to the Supreme Court, while his juniors – Venkataramaiah and Venkatachaliah JJ – were and later also adorned the highly coveted office of the CJI. But he never turned green with envy. He readily did whatever task was entrusted to him by every successive government.15

We also have a tradition of peculiar trust in the highest office of the CJI, as well as of the High Courts, and non-interfering Prime Ministers and Chief Ministers. The experience of Hidayatullah J is quite instructive in this regard. In his book, My Own Boswell: Memoirs of M. Hidayatullah16, Hidayatullah J, when he was the Chief Justice of the Madhya Pradesh High Court, cites the remarks of Dr Katju, the Chief Minister, as:

“Chief Justice, these are your courts and you know best. If I know or hear anything otherwise about a candidate recommended by you, I shall caution you. Otherwise your choice will be my choice also.”17

One of the essential features of the democratic republic established by the Indian Constitution is division of power between the three important wings of the State. The three wings are expected to operate in their respective fields so that democratic governments, both at the Centre and the States can function to fulfill the noble objectives enshrined in the preamble to the Constitution. As early as in 1951, in In re

13 Warren, “The law and the future” Fortune, 52 (Nov. 1955). 14 Anirudh Prasad , “Threat to the independence of the judiciary” 21 Law quarterly 1-4,7(1984). 15 F.S. Nariman, “Turning point” 8 SCCJ 7, 17 (2006). 16 M. Hidayatullah, My own Boswell: Memoirs of M. Hidayatullah 178 (Arnold Heinemann, New Delhi, 1961) 17 Ibid.

Introduction

Delhi Laws case18 the Supreme Court noted that though there are no specific provisions in the Constitution vesting legislative powers exclusively in the legislature and the judicial power in the judiciary, the essence of the doctrine of separation of powers was implicit in the constitutional scheme. Later in Indira Gandhi case19 in 1975 "separation of powers" was treated as a part of the basic structure of the Constitution.

The philosophy of justice-social, economic, political spelt out in the Preamble and article 38 of the Constitution is to be imbibed in culture and life of people not only by Judiciary but also by other organs of the State, hence, the importance of other two organs should not be over-shadowed by the role of judiciary.

Even Dr. B.R. Ambedkar in his speech before the Constituent Assembly expressed his views regarding putting checks on the authority of the various organs of the Government. To quote: “In fact, the purpose of a Constitution is not merely to create the organs of the State but to limit their authority, because, if no limitation was imposed upon the authority of the organs, there will be complete tyranny and complete oppression….. It would result in utter chaos.”20

As originally enacted, the Constitution of India provided for a Supreme Court with a Chief Justice and 7 judges. In the early years, a full bench of the Supreme Court sat together to hear the cases presented before them. As the work of the Court increased and cases began to accumulate, Parliament increased the number of judges from the original 8 in 1950 to 11 in 1956, 14 in 1960, 18 in 1978, 26 in 1986 and 31 in 2008 (current strength). As the number of the judges has increased, they have sat in smaller benches of two or three (referred to as a division bench) — coming together in larger benches of five or more (referred to as a constitution bench) when required to settle fundamental questions of law.21

18 AIR 1951 SC 332. 19 AIR 1975 SC 2299. 20 C.A.D, Vol. IX, 1659-63. 21 Supreme Court of India, available at: https://en.wikipedia.org/wiki/Supreme_Court_of_India (last visited on 15 April 2015).

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In 2008, then Union Law Minister, H.R. Bharadwaj, explained the motivation for increasing the number of judgeships in the Supreme Court from 26 to 31 as follows:22

“It has not been possible for the Chief Justice of India to constitute a five-Judge Bench on a regular basis to hear cases involving interpretation of constitutional law as doing that would result in constitution of less number of Division Benches which in turn will result in delay in hearing of other civil and criminal matters.”

Despite increases in the number of judgeships, the pressure of the Court’s backlog remains so great that it continues to be difficult to constitute the requisite number of constitutional benches. As a result, matters of public importance continue to be decided by smaller benches of 2-3 judges. One example is a recent judgment on the legality of euthanasia – a complex issue concerning difficult questions of constitutional law, which was decided by a two judge bench. Another example is the decision regarding the constitutionality of state sponsored militia in the state of Chattisgarh, which was delivered by a two judge bench.23

During the period from January 1950 till August 1999, the Supreme Court has decided almost 20,491 cases covering nearly 97,240 printed pages of Indian Law Reports24 but as per report published by the Supreme Court on 01 March 2015, more than 61300 are still pending before the apex court.25

In the early years, the Supreme Court interpreted the role of the Judiciary merely as determining in accordance with narrow procedural rules. In A.K. Gopalan v. State of Madras26, the Supreme Court remarked, “In India the position of the Judiciary is somewhere in between the Courts in England and the United States… But our Constitution, Unlike the American Constitution, does not recognize the absolute Supremacy of the Court over the legislative authority in all respects, for outside the restricted field of constitutional limitations our parliament and the State Legislature

22 Statement of Objects and Reasons, The Supreme Court Number of Judges Amendment Bill, available at: http://www.prsindia.org/uploads/media/1209532839/1209532839_The_Supreme_ Court__Number_ of_Judges__Amendment_Bill__2008.pdf (last visited on 25 june 2015). 23 Rishad A Chowdhury, “Missing the Wood for the Trees: The Unseen Crisis in The Supreme Court”, 5 NUJS L. Rev. 351 (2012). 24 Gobind Das, B.N. Kirpal, et.al. (eds.), Supreme but not Infallible-Essays in Honour of the Supreme Court of India 17 (Oxford University Press, New Delhi, 2000). 25 Supreme Court – Monthly Statement, March 2015, available at: http://www.sci.nic.in/p_stat/ pm01032015.pdf (last visited on 15 April 2015). 26 A.K. Gopalan v. State of Madras (1950) SCR 88 at 286, 287.

Introduction

are Supreme in their respective legislative fields and in that wider field there is no scope for the Court in India to play the role of the Supreme Court of the United States.”

This perception changed by the time of Golak Nath27 case, where the Supreme Court declared that fundamental rights could not be derogated from even by an amendment to the Constitution. Six years later, in Kesavananda Bharati28 case, while overruling Golak Nath, the court evolved another far-reaching doctrine under which Parliament was denied the power to amend the Constitution in a manner that violated its ‘basic structure’. The Supreme Court could not deny judicial review even by a constitutional amendment.

The first event that helped it gain legitimacy was the emergency of 1975. The 1977 elections saw the overwhelming defeat of the Congress party. The Janata party came to power. It immediately dismantled most of the amendments inserted during the emergency and also put in place some constitutional safeguards aimed at ensuring that the emergency provisions in the Constitution are not misused.

During this period the Supreme Court set about the task of reviving the pre-eminent position it had lost during the emergency. In his R.B. Datar Memorial Lecture given in April 1999, Mr Fali S. Nariman described the years since 1977 as "the best years of the Court" during which he said, "The Court has built around itself (step by step and case by case) an almost impregnable fortress of judicial inviolability". Environmental protection remained an active consideration in the agenda of the Court. There were cases of pollution of water due to discharge of toxic effluents by industries on the banks of rivers. To stop this, the Court issued various directions. To halt denudation of forests, activities associated with wood products like sawmills were directed to be closed down, hazardous industries from Delhi were sought to be shifted outside the municipal limits29, Directions were issued for the installation of pollution control systems to minimize air pollution by industries30 The Court also issued directions to

27 Golak Nath v. State of Kerala (1967) 2 SCR 762. 28 Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225. 29 M.C. Mehta v. Union of India, (1996) 4 SCC 351. 30 S. Jagannath v. Union of India, (1997) 2 SCC 87.

Introduction

prevent vehicular pollution in Delhi31. These decisions led to the feeling in some circles that the judiciary is overstepping its limits.

India’s evolution is in stark contrast with many of its Asian neighbours whose experiments with democracy have been short-lived or at best, erratic. The Indian Judiciary has had a defining role to play in this evolution over the years—in upholding and cementing democratic institutions and values and in steering our course firmly in that direction. Its role through the power of judicial review has made it possible for us to evolve into the motley, boisterous and outspoken democracy that we are—in contradiction with the quiet, controlled, quasi-authoritarian regimes that we see around us.

1.1 CHOICE OF THE TOPIC

‘The seat of Justice is the seat of God’, Mahavir Tyagi has famously told the constituent assembly but how far it is true, in the current scenario, is the need of examination.

As India takes its place on the international stage, it is only natural that legal systems of the world over, will turn their attention to its highest court and want to draw on the development of constitutional jurisprudence by the Supreme Court of India over the last sixty years. That trend has already begun.

31 M.C. Mehta v. Union of India, (1999) 1 SCC 413.

Introduction

The above facts have prompted the researcher to undertake the study of “Judicial activism and its impact on the administration of justice in India with reference to separation of power”.

1.2 OBJECTIVE OF THE STUDY

In this study, it is proposed to examine the various facets of judicial activism. An attempt shall be made to analyze as to how judicial activism has developed and how far it has succeeded in correcting the wrongs. The objectives of this study can be:

1) To find out whether the role of a judge is merely to declare law as it exists or to make law;

2) To compare the Judicial Behavior of the Indian Judiciary before and after 1980;

4) To discuss and analyze the concepts of Judicial Power, Judicial Review, Judicial Activism and Separation of powers in general with particular reference to India;

5) To ascertain the problems and perils of judicial activism;

6) To examine the factors that have given rise to Public Interest litigations in India;

7) To discuss the role played by judicial activism in the administration of justice in India;

8) To suggest ways and means to ensure and uphold the spirit of constitutionalism etc.

1.3 RELEVANCE OF THE STUDY

Judiciary may not be democratic as initiator, but it becomes so by democratic approval through acceptance of judicial pronouncements by the people at large.32

32 Supra note 3 at 15.

Introduction

Black finds merit in a judiciary provided with the power of judicial review. To quote him: “Now surely it ought to be clear that no democratic principle whatever is infringed, if the people choose, as a matter of prudence, to give the power of constitutional decision to a Court composed of men trained in the requisite professional discipline, and isolated from immediate responsiveness to changing popular views.”33

In the light of above discussion, the present study has attempted to harmonize the various facets of judicial activism and the following issues can be listed, which, in turn, are vital and retain higher relevance for a smooth functioning of the Constitutional machinery.

1) Is it the function of a judge merely to declare law or, taking in consideration the hopes of masses, can they make law?

2) Whether judicial activism is a positive or a negative concept?

3) Has the judiciary really succeeded in curtailing the arbitrary powers of the other two state organs?

4) Has judicial activism acquired social legitimacy?

5) Whether it is constitutionally justified for the judiciary to encroach in the domain of legislature and executive to check any anomaly that arises as a result of the mal-functioning?

1.4 SIGNIFICANCE OF THE STUDY

The power of judicial review has three important implications - nullification, credibility and creativity. Since the power of judicial review results in the nullification or annihilation of legislative and executive actions of not only the Central Government but also the State Governments, it has attracted two-fold challenges from both the governments. The challenge to judicial review coming from the Centre is based on the principle of separation of powers, and the challenge coming from the States is based on the nature of the federal structure.

33 Charles L. Black Jr., The People and the Court: Judicial Review in a Democracy 178-180 (Macmillian Co., New York, 1960).

Introduction

1.5 HYPOTHESES OF THE STUDY

Keeping in mind the objectives of this research, the following hypotheses have been formulated:

1. Judicial activism is both a positive and negative concept as judicial activism has facilitated the balanced administration of justice in India. But an unfettered and unrestrained judicial system is detrimental to the constitutionalism in a democracy like India. 2. Judicial activism has developed as the result of escapism of political elite and failure of the executive machinery and an active participation of judiciary in protecting the fundamental and human rights. 3. Judicial activism is just an upgraded form of judicial review, which has been adopted as a weapon to curtail the arbitrary powers of the legislature. Due to increasing cases of judicial activism, the legislature has become more preventive in taking decisions and making laws. 4. Through activist approach, the Supreme Court has succeeded in filling up the lacunae created by the legislature and executive and has contributed more for the development for the specific areas in the constitutional law. 5. Judicial activism has acquired social legitimacy and the people have become more aware of their rights and the protection and enforcement of civil liberties.

1.6 SCOPE OF THE STUDY

The study aims at arriving at an understanding the role of judiciary in modern scenario and finding solutions to some important issues. In this ongoing complex of adjudicatory process, the judge is required to take judicial notice of the social and economic ramifications, consistent with the theory of law. Whether the creativity and judicial activism of the judiciary does not some time cross the thin invisible line of separation of powers and usurps the powers of the other two organs of governance i.e. legislatures and executives. Does judiciary evaluate the practicability of implementation of its decisions by the other two organs of governance while adjudicating e.g. Delhi CNG case? Whether judiciary requires self restraint when dealing with PILs and last but not the least, to what extent Judiciary has been able to

Introduction

live up to the expectations and deliver justice to the masses and actually served as the need of an hour.

1.7 RESEARCH METHODOLOGY

The methodology adopted in this research work is doctrinal in nature. Doctrinal research not only involves analysis of the case law arranging, ordering, systematizing legal propositions and study of legal institution but it does more. It creates law and its major tool to do so is through legal reasoning or rational deduction. Therefore the methodology adopted herein involves review of relevant literature, critical and analytical study of theoretical, practical and legislative and judicial aspects. It will involve in depth study of source materials, text review, case study and comparative study. As the topic is from Constitutional Law, historical approach to study the position, role of judiciary and judicial review is felt necessary. A reference to the Constituent Assembly Debates shall be made to find out the intention of the framers of the Constitution in certain crucial areas of the study. The research shall also include study of case laws. Law Commission report and parliamentary debates will also be referred to. Use of internet will also be made to gather important information relating to the subject of study. Mode of citation is uniform throughout the paper.

Introduction

1.8 LIMITATIONS OF THE STUDY

All studies have some restrictions and limitations. This topic is of such a nature that an individual researcher has to face the various limitations. The study involves research of changing role of Judiciary for the socio-economic welfare of the society. For researcher it is difficult to collect primary data for such a study and as such has to depend very much on the secondary data. Much dependence has been made on the records of the parliament and of other legislative bodies and on the journals, periodicals, Articles and books. In the aforesaid circumstances and under the aforesaid limitations the researcher has focussed the studies on the basis of case laws, books, journals and periodicals. A sincere attempt has been made to overcome these limitations and present a study that is relevant in the areas of time and content.

1.9 LITERATURE REVIEW

Literature review is an objective analysis of contributions made by authors, researchers, experts including technical specialists. It is a chronological presentation of growth and development of literature in a particular field over a period of time. The present review analyzes how various literatures available on the topic helped achieve clear understanding of the subject. In the case of the present study, only a few observations have been made by Jurists on Judicial activism. However brief they may be, the present study as a pioneering venture, attempts to record the same, for the sake of analytical convenience.

All the three organs of the state should perform their functions independently without encroaching upon the functions of the other organ. In the interest of the society and harmonizing the conflicting interests in the society, Judges should be allowed to go for equitable rational, moral and ethical consideration.

The source of research includes, inter alia, published books on Constitutional Law of India, newspaper, national and international periodicals, magazines, journals published by the Indian Law Institute, official gazettes with respect to the latest 16

Introduction

amendments in the Constitution of India, AIR, latest judgments which have been decided by the SC of India, HC of States, cases relating to the matter Judicial Activism.

Justice Y.K Sabharwal (2014)34 describes “Judiciary in India enjoys a very significant position since it has been made the guardian and custodian of the Constitution. It not only is a watch dog against violation of the fundamental rights guaranteed under the Constitution and thus insulates all persons, Indians and aliens alike, against discrimination, abuse of State power, arbitrariness etc., but borrowing the words of one of the founding fathers of the American Constitution and laws”. If this armour were to be stripped of its onerous functions it would mean that “the door is wide open for nullification, archy and convulsion”.

Justice Krishna Iyer (1969)35 has explained the role of judges in the present scenario “In the inevitable chemistry of social change judges are certainly not anti- catalysts”

Granville Austin (2015)36 in his work on the Indian Constitution states that “During the British period, despite the presence of Indians in government, Indians had not been responsible for the laws that governed them. Indians had neither law nor courts of their own, and both the courts and the law had been designed to meet the needs of the colonial power. Under the Constitution, all this would be changed. The courts were, therefore, widely considered one of the most tangible evidences of independence.”

S.P. Sathe (2002)37 examines judicial review and its role in democracy in the monograph on Judicial Activism in India. Judicial activism, argues Prof.Sathe, is

34 Justice Y.K. Sabharwal, “Role of judiciary in good Governance” in Lokendra Malik (ed.), Judicial Activism in India 81(Universal Law Publishing Co., New Delhi, 2014). 35 Justice V.R. Krishna Iyer in Kunhu Mohammed v. T.K Ummayithi (1969), Kerala Law reports, p 629. 36 Granville Austin, The Indian Constitution Cornerstone of the nation 204 (OUP, New Delhi, 2015). 37 S.P. Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits 242 (Oxford University Press, New Delhi, 2nd edn., 2002).

Introduction

inherent in judicial review. The book is an important contribution to the debate on the role of Courts and the ramifications thereof. The coverage is not only legal, but also historical and political. Important decisions have been analyzed by Prof.Sathe on issue of secularism, Majority’s Right equal to Minority Right, Right to establish educational institutions, Right to establish Religious and charitable institutions, Right of education, policy of Disinvestment, conflicting claim of Supremacy between Parliament and Supreme Court and other related issues.

Rajeev Dhavan (2004)38, the former scholar has observed: "Judicial activism is simply ensuring the systematic enforcement of Court orders and the rule of law. It is the power of the judges to interpret and, perforce, create law. Judicial activism flows from the failure of the executive to adhere to law.

Dr. G. B. Reddy (2002)39, The juridical activism of individual judges is supported by even staunch advocates of judicial restraint like Felix Frank further, who said, - “ Judges are men, not disembodied spirits; as men they respond to human situations.” The learned judge went on to add that the judges do not reside in a vacuum and that they are “not dummies, unspotted by human emotions.”

B.D. Dua (2007)40 explains that “ Few will deny that the Supreme Court in particular has come a long way to earn public applause for its innovative and creative jurisprudence. In the process however, it has exercised, some constitutional and legislative domains, contrary to the original ‘checks and balances’ design of the Constitution. This judicial transformation of the original scheme of the Constitution, it is further argued, has been facilitated because of dysfunctionality of politics.”

Anirudh Prasad, C.P. Singh (2012)41 refers to various instances of judicial activism displayed by the judges of the apex Court, in his book, thus quoting “Since the judiciary is part of the democratic set-up, it should also work under and not over it. Judiciary cannot be substitute of the democracy itself or of the constitution. The best

38 Rajeev Dhavan, B.N. Kirpal et al. (eds.), Supreme but not infallible: Essays in honour of the Supreme Court of India (OUP,New Delhi, 2004) 39 Dr. G. B. Reddy, Judicial activism in India 369 (Gogia Law Agency, Hyderabad, 2002). 40 B.D. Dua, M.P.Singh et al. (eds.), Indian judiciary and politics: The changing Landscape 358 (Manohar Publications, New Delhi, 2007). 41 Anirudh Prasad, C.P. Singh, Judicial Power and Judicial Review 823 (Eastern Book Company, Lucknow, First edn., 2012).

Introduction

protector of the systems is the people themselves. The malady of the system is that people are expecting too much from the courts, but have lost confidence in them.”

Dr. B. L. Wadhera (2014)42 has discussed public interest litigation as form of judicial activism. He quotes “The Supreme Court was forced to liberalise the rule of locus standi when it found that the Constitution and the law was being subverted to serve vested interests, that the poor who could not themselves approach the courts were exploited, that the executive was failing in the discharge of its constitutional and statutory duties and that for millions of Indians the Constitution and the law were becoming an empty joke.”

According to P.M. Bakshi (2012) 43 “it is depressing to note that on account of such trumpery proceedings initiated before the Courts, innumerable days are wasted which time otherwise could have been spent for the disposal of cases of the genuine litigants. Though we are second to none in fostering and developing the newly invented concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated….Yet we cannot avoid but express our opinion that while genuine litigants with legitimate grievances……are all standing in along serpentine queue for years with the fond hope of getting into the Courts and having their grievances redressed.”

Kermit Roosevelt III (2011)44 has analyzed that the conventional argument for the living Constitution focuses on the fact that conditions and attitudes have changed greatly since the framers’ times. Living constitutionalists argue that the Constitution must be able to adapt to respond to current needs and problems rather than remaining frozen in time. Because the amendment process is so difficult and cumbersome, living constitutionalists seem to view judicial modification of the Constitution with equanimity – a necessary evil, at the worst.

Justice R.C. Lahoti (2005)45 points out: “As an independent judiciary, under the scheme of the Constitution, the Court has played its role effectively in acting as a watchdog through judicial reviews over the acts of the legislature and executive. The

42 Dr. B.L. Wadhera, Public Interest litigation 25 (Universal law Publishing Co., New Delhi, 2014). 43 P.M. Bakshi, Public interest Litigation 57 (Ashoka Law House, New Delhi, 3rd edn., 2012). 44 Kermit Roosevelt III, The myth of Judicial Activism 38, 39 (Universal Law Publishing Co. Pvt. Ltd, New Delhi, 2011). 45 Justice R.C.Lahoti, A Conspectus of Judicial System (Nyaya Deep, Vol.VI, Issue1, Jan.2005).

Introduction

major contribution of the Supreme Court has been to uphold the constitution by delineating the role of the three organs of the State. When two organs of the State fail to perform their duties, the judiciary cannot remain a mute spectator. While acting within the bounds of law, the Supreme Court has always risen to the occasion as one of the guardians of the Constitution, criticism of Judicial activism notwithstanding.”

Upendra Baxi46 described judicial activism as "the gradual judicial takeover of 'the direction of the administration in a particular arena from the executive' as creeping jurisdiction”. He very well says, “There is a need for wise accommodation between Parliament and the Supreme Court.”

Lokendra Malik (2014)47 the editor of this book has quoted the words of justice V. R Krishna Iyer “The Judiciary should only compel performance of duty by the designated authority in case of its inaction or failure, while a takeover by the Judiciary of the function allocated to another branch is inappropriate. Judicial activism is appropriate when it is in the domain of legitimate judicial review. It would neither be judicial ‘adhocism’ nor judicial tyranny.” The book rightly compiles erudite articles by eminent authors on varied issues related to judicial activism in India.

Justice K.G. Balakrishnan says that the Supreme Court has been the doyen of public interest litigation. As a power regulator, the Supreme Court has two functions: it limits government arbitrariness and power abuse; and it makes more rational and its policies more intelligent. Supreme Court is the bulwark for maintenance of democracy and a bastion of Civil liberties. It is a potential instrument of social justice to bring about equality in result. The argument that the Supreme Court should maintain restraint fails to recognize the constant failures of governance taking place at the hands of the other organs of State, and that it is the function of the Court to check, balance and corrects any failure arising out of any other State organ... The only function of the court is to protect the rights of the people, and all its actions are

46 Upendra Baxi, “Some Reflections on the Nature of Constituent Power” in Jacob and Dhavan (eds.), Indian Constitution: Trend and Issues (N.M. Tripathi, 1978). 47 Lokendra Malik (ed.), Judicial Activism in India 81(Universal Law Publishing Co., New Delhi, 2014).

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directed to further this function.” He adds that the Court serves as the whip hand of the people towards any wrong done by the State.48

1.10 THE SOURCES OF RESEARCH

Primary Sources: i. Constituent Assembly Debates (CAD) have been referred to, to understand the views expressed by the members of the Constituent Assembly while the framing of the Constitution. ii. The various developments in the field of the Constitution of India, after 1980 in particular; iii. The decisions rendered by the Supreme Court of India and other High Courts, reported in different Law Journals like the Supreme Court Cases, All India Reporter, etc. and iv. Reports of Inquiry Commissions, Law Commission of India and Parliamentary Committees etc.

Secondary Sources:

i. Leading works on Judiciary in general and judicial activism in particular; ii. Articles written by eminent Judges, Jurists, Academicians, Lawyers and Journalists etc. published in leading Law Journals like the Harvard Law Review, Modern Law Review, Journal of Indian Law Institute, Indian Bar Review, SCC and AIR, and also the Annual Survey of Indian Law etc; iii. The opinions of the intellectual jurists and critics on the issue of Judicial Activism and their studies on the related factors. iv. Various memorial lectures, extension lectures, inaugural and valedictory addresses given by eminent personalities related to the administration of justice and judiciary.

48 Justice K.G. Balakrishnan, Relationship between the Executive, Legislature and Judiciary 10 (Nyaya Deep, Vol. Ix, Issue 2, April 2008).

Introduction

1.11 SCHEME OF STUDY

The first chapter initiates an introduction to the topic. It enlightens on various segments of the study viz., scope, objective, significance, hypotheses, limitation, etc. It also explains the importance of the study and specifies the postulations which form the basis of the study. It covers the research methodology that has been adopted for this research study. The literature review and the sources of research have been explained.

Chapter two deals with the explanation of certain terms like Judicial Activism, Judicial Review, Judicial Restraint, Judicial Power, social justice, Judicial Passivism, Separation of Powers, and Public Interest Litigation & Judicial Overreach, without which the study will not be complete. It would also cover the position of judicial review and judicial activism in other countries.

The tide of judicial activism, facilitated by the power of judicial review shows no signs of ebbing. On the contrary, it continues to surge notwithstanding frequent and often shrill confrontations between the executive and the Judiciary.49 This research examines the nature of the power of judicial review under the Indian Constitution and its evolution through judicial decisions, particularly in the last two decades. It goes on to explore and analyse the arguments in favour of and against strong judicial review, both in India and internationally. It concludes by proposing suggestions that could enable a continued but meaningful and effective exercise of the jurisdiction.

49 At a conference of Chief Ministers and Chief Justices of the High Courts in New Delhi held on 8.2.2007. Prime Minister Dr. Manmohan Singh warned that “the dividing line between judicial activism and judicial overreach is a thin one”. He stated that “compelling action by authorities of the States through the power of mandamus is an inherent power vested in the judiciary. However, substituting mandamus with a takeover of the functions of another organ may, at times, become a case of overreach”, Indian Express, New Delhi, 9.2.2007.

Introduction

Within the broad Scheme of the Supremacy, there are powers and autonomy in the executive and the legislature that are inviolable authority. Social justice is the main concept on which our Constitution is built which is clearly laid down in the preamble as the guiding principle of the Constitution. Part III and IV of Indian constitution are significant in the direction of Social Justice and economic development of the citizens. Judiciary can promote social justice through its judgments. Such judgments are covered under this chapter.

To make the study more simple, the chapter has been divided into 3 parts, viz., the Pre–emergency era (1950 to 1974), Emergency era (1975 – 1977) and then Post – emergency era (1978 onwards). The post-emergency era has been discussed in chapter five, in detail.

Chapter four would make a discussion on judicial activism vis-à-vis separation of power. The framers of the Constitution considered it undesirable to give unfettered powers to the Legislature. Judiciary was set as a check but in recent judicial trends it has become the matter of fact that our judges directly and indirectly involve themselves in law making business while Doctrine of separation of power connotes otherwise.

The tussle for independence and supremacy between the judiciary, legislature and executive is an old saga. The chapter will elucidate all these aspects in length. The very first objection that ousts the constitutionality of judicial activism is the concept of Separation of Powers.

While the framing of the Indian Constitution, some of the Members of the Assembly felt that in some areas of the social revolution, the Legislature should have the final say. They expressed the view that in those areas, Judges should have a limited role — restricted to interpreting the written law. Shri Alladi Krishnaswamy Ayyar, who along with Shri K.M. Munshi, B.N. Rau and B.R. Ambedkar played a prominent role in drafting the provisions relating to the judiciary, had this to say on the matter:

"While there can be no two opinions on the need for the maintenance of judicial independence, both for safeguarding of individual liberty and the proper working of the Constitution, it is also necessary to keep in view one important principle. The doctrine of independence is not raised to the level of a dogma so as to enable the judiciary to function as a kind of super-legislature or super-executive. The judiciary is

Introduction

there to interpret the Constitution or adjudicate upon the rights between parties concerned....The judiciary as much as the Congress and the executive, is depending for its proper functioning upon the cooperation of the other two."50

This doctrine tries to bring exclusiveness in the functioning of the three organs and hence a strict demarcation of power is the aim sought to be achieved by this principle. This doctrine signifies the fact that one person or body of persons should not exercise all the three powers of the government. Though the very doctrine finds no strict adherence in the scheme of Indian Constitution, the study shall touch upon various vital aspects of ‘separation of powers’ with a detailed analysis of its origin, genesis, its true precept etc.

Chapter five would precede detailing how the Court between 1977 and 1998 handed down a series of rulings that increased its prominence as a legal as well as a political institution. It will point to the famous 1975 ‘Prime minister election’ judgment as a brave, watershed moment in the Court’s history. Be that as it may, provisions such as Article 226, Article 32, Article 136, Article 142, Article 144 etc. giving powers of far- reaching consequences were enacted in the Constitution.

Chapter six will also discuss the impact of judicial activism on the administration of justice in India. In India, the higher judiciary has not only used its powers, in an innovative way but has also made significant contribution in upholding constitutionalism, rule of law, personal liberty, human rights, secularism, gender justice, democratic values, rights of minorities and industrial peace. Though, India has inherited the British legal system but over the years the Indian judiciary has evolved an indigenous jurisprudence to accelerate the administration of justice in the country.

Chapter seven, the penultimate chapter, will focus on the growth of public interest litigation in the Supreme Court. It will detail the various ways that the Supreme Court

50 Extract from the speech delivered by Justice A.H. Ahmadi, the Chief Justice of India on the occasion of Law Day, November 1996 at premises of the Supreme Court of India.

Introduction

has attempted to provide greater access for people to use the legal process. For example, the Court has interpreted the Constitution’s provisions regarding “writs” to mean that petitions may be filed directly in a state High Court where the state government is accused of violating a statutorily or constitutionally protected right.

Judicial activism in India has now taken on an interesting face. The courts in India pursue a form of review which can be described as 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.

Chapter eight will conclude the research with the required suggestions.

Definitions and Expressions

CHAPTER-2

DEFINITIONS AND EXPRESSIONS

Judicial Activism is a term used for the unconventional role played by the court when it gives value judgments and grants relief to the aggrieved person or persons according to its moral and social sense of justice in a situation where statutory law is silent or even contrary. It has also been defined by some jurists as “non-interpretive judicial review.”1

In Britain, where there was no written constitution and the Parliament was supreme, the role of the courts was to interpret the statutes. The courts were neither supposed to twist and turn the language of the laid statutory provisions nor add or delete words from it, as it could ruin the will of parliament that was supreme.

On the other hand, in countries with written Constitutions, like U.S.A and India, it is not the legislature which is supreme but it is the Constitution. Since, the task of interpreting the words of the constitution is in the hands of the courts, the judiciary has more say than their counter-parts in England.

The first reported use of the term 'judicial activism' was by Arthur M Schlesinger in an article on the Supreme Court of the United States in the January 1947 edition of Fortune magazine. This was Roosevelt's Supreme Court. The words 'judicial activists' appeared on top of the second page of the article referring to Justices Black, Douglas, Murphy and Rutledge. They were contrasted with 'Champions of Self Restraint' – Frankfurter, Jackson and Burton. Justice Reed appeared next to a photograph of Chief Justice Vinson above the title 'Balance of Power'. No definition of 'judicial activist' was offered in the article. However, Schlesinger sought to characterize the conflict he perceived between the two groups in a way that gave content to his coined term. The activist group, as he saw them, believed the Supreme Court could play an affirmative role in promoting the social welfare. The 'Champions' advocated a policy of judicial self restraint, where one group saw the court as an instrument to achieve desired social results, the second saw it as an instrument to permit the other branches of

1 Bachan Lal Kalgotra, “Evolution and jurisprudenital dimensions of judicial activism” in Dr. Bhatia (ed.), Judicial Activism and Social Change 242 (1990).

Definitions and Expressions government to achieve the results the people want for better or for worse. In so characterizing the conflict, Schlesinger acknowledged the legal realism underpinning the Black/Douglas view which derived from ideas particularly dominant at Yale Law School. The Yale thesis, as he outlined it, was that judging is a matter of reverse engineering from result to reasons. On that theory: A wise judge knows that political choice is inevitable; he makes no false pretense of objectivity and consciously exercises the judicial power with an eye to social results.2

Keenan Kmiec, a former law clerk to Justice Samuel Alito, offers 'five core meanings' of 'judicial activism': i Invalidation of the arguably constitutional actions of other branches. ii Failure to adhere to precedent. iii Judicial 'legislation'. iv Departures from accepted interpretive methodology. v Result oriented judging.3

2.1 DEFINITIONS

Merriam Webster’s Dictionary of Law:

“Judicial Activism is the practice in the judiciary of expanding and protecting individuals’ rights through decisions that depart from the established precedent or are independent of or in opposition to supposed constitutional or legislative intent.”4

Black’s Law Dictionary:

“A Philosophy of judicial law 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.”5

2 M. Schlesinger Jr., The Supreme Court: 1947, FORTUNE, Jan. 1947, at pp. 202, 208 cited from Keenan D. Kmiec, “The Origin and Current Meanings of Judicial Activism” 92 Calif. Law Rev. 1441 (2004). 3 Kmiec K, “The Origin and Current Meanings of Judicial Activism” 92 Calif. Law Rev. (2004). 4 Merriam-Webster’s Dictionary of Law, (Springfield, Massachusetts: Merriam-Webster, 1999). 5 Garner A. Bryan, Black’s Law Dictionary (West Group Publication, 7th edn., 2002) .

Definitions and Expressions

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.”6

Former Chief Justice of India, A.M. Ahmadi defines:

“Judicial Activism is a necessary adjunct of the judicial function since the protection of public interest as opposed to private interest happens to be its main concern.”7

According to Prof. Upendra Bakshi:

“Judicial Activism is an as criptive 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, judicial transgression into the domains of the other two organs of the state, negating the constitutional spirit.”8

According to K.L. Bhatia:

“Judicial activism in India is a movement from personal injury to public concern by relaxing, expanding and broadening the concept of locus standi. Judicial activism in India, is a progressive movement from “personal injury standing” to “public concern standing” by allowing access to justice to pro bono public that is public spirited individuals and organizations on behalf of “lowly and lost” or “underprivileged” or “underdogs” or “little men” who on account of constraints of money, ignorance, illiteracy have been bearing the pains of excesses without access to justice.”9

According to Justice P.N. Bhagwati:

“The judge infuses life and blood into the dry Skelton provided by legislature and creates a living organism appropriate and adequate to meet the needs of the society. The Indian judiciary has adopted an activist goal oriented approach in the matter of interpretation of fundamental rights. The judiciary has expanded the frontiers of

6 Manika, “Judicial Activism: A means for Attaining Good Governance” 120 (Nyaya Deep, NALSA, Vol. VII, Issue 3, July 2006). 7 A.M. Ahmadi, “Judicial Process: Social Legitimacy and Institutional Viability” 4 SCC (Jour) 1-10 (1996). 8 Supra note 6. 9 K.L. Bhatia, Judicial Review and Judicial Activism - A comparative study of India and Germany from an Indian perspective 116 (Deep & Deep Publications, New Delhi, 1997).

Definitions and Expressions fundamental rights and the process rewritten in some part of the Constitution through a variety of techniques of judicial activism. The Supreme Court of India has undergone a radical change in the last few years and it is now increasingly identified by the justice as well as people‘s last resort for the purpose bewildered”10

According to Justice P.B. Sawant:

“Judicial activism is a procedure to evolve new principles, concepts, maxims, formulae and relief to do justice or to expand the standing of the litigant and open the door of courts for needy or to entertain litigation affecting the entire society or a section of it – as in case of public interest litigation.”11

Legal scholars like Cass Sunstein and Paul Gewitz have defined “activism” as any judicial decision to strike down legislative acts.12

Lord Denning, the father of judicial activism has given suggestions in searching for the spirit of the British Constitution. His suggestions upon three instincts: “the instinct for justice, which he associates particularly with independence of the judges and certainty of the law; the instinct for liberty which involves freedom of discussion, (including freedom of the press) and also freedom of association (including the right to form political parties); finally, a practical instinct which leads to a balancing of rights with duties, and powers with safe guards, so that neither rights nor powers shall be exceeded or abused.”13

Judicial activism, as the concept is typically used, means deciding a case contrary to the plain meaning of the Constitution in order to promote the judge’s political preferences. There have been attempts to offer other definitions, and these are worth considering. We might call a decision activist in a procedural sense, for instance, if the judge reaches out to decide issues that are not necessary to the resolution of the particular case. We might also call a decision activist if it strikes down a state or federal law. There the court is asserting itself against an elected branch of

10 Justice P.N. Bhagawati, “Enforcement of Fundamental rights – Role of the Courts” 24 Indian Bar Review 19 (1997). 11 P.B. Sawant, Judicial Independence – Myth and Reality 70 (Board of Extra Mural Studies, Pune, 1987). 12 Judicial activism, available at: http://en.wikipedia.org/wiki/Judicial_activism (Last visited on 20 DECEMBER 2012). 13 Denning, “Changing Law” in Edward Mac Whinney (ed.), Judicial Review 17 (University of Toronto Press, Toronto, 4th edn., 1965).

Definitions and Expressions government; it is decreeing that some issue will not be settled through the democratic process.14

Defining activism as striking down state or federal laws also has some merit. A judge who upholds a law can hardly be accused of imposing his views. A majority of the legislative members presumably shares those views, and if they change their mind, they can repeal the law. This definition of activism will tell us something about how aggressive the Court is with respect to other governmental actors, which is a relevant datum if we are trying to figure out whether the Court is abusing its authority. 15

David A. Strauss has argued that judicial activism can be narrowly defined as one or more of three possible actions: i overturning laws as unconstitutional, ii overturning judicial precedent, and iii ruling against a preferred interpretation of the constitution.16

2.2 AGREEMENT AND DISSONANCE ON JUDICIAL ACTIVISM

Karl Marx has also observed: “Philosophers have interpreted the world; our task is to change it. I would add in a similar strain, judges have adjudicated disputes but their constitutional task is to transform society too.”17

M.P. Jain, another jurist though agrees that the Constitution itself incorporates the principle of statutory construction through Article 367 (1) but differs that the judicial approach to the Constitution is no longer solely and exclusively one of statutory interpretation.18

John Gardner, acknowledges that judge–made law is legally valid because some judge are judges at some relevant time and place announced it, practiced it, invoked it,

14 Kermit Roosevelt III, The myth of Judicial Activism 38, 39 (Universal Law Publishing Co. Pvt. Ltd, New Delhi, 2011). 15 Ibid. 16 Judicial activism, available at: http://en.wikipedia.org/wiki/Judicial_activism and http://www. lawteacher.net/free-law-essays/constitutional-law/judicial-activism-is-a-term-law-essays.php (Last Visited September 12, 2014). 17 Quoted by Justice V.R. Krishna Iyer, “Jurisprudence Structures” In legally speaking 259 (2004). 18 M.P. Jain, Indian Constitutional Law 1566 (Wadhwa and Company Nagpur, New Delhi, 5th edn., 2008).

Definitions and Expressions enforced it, endorsed it, accepted it or otherwise engaged with it.19 The legitimacy of such law-making role of the judges is supported by Justice P.N. Bhagwati, former Chief Justice of India. According to the learned judge, law making is an inherent and inevitable part of the judicial process and that there is no need for judges to feel shy or apologetic about their law creating roles.20

G. Austin observes, the framers had two strategies – in framing judicial provisions, they wanted to establish the basic power of review; in framing rights, and the aim was to put certain restrictions on the court’s review power, principally in cases concerning property and personal liberty.21

The Supreme Court of India, in an order, has said that the judiciary must refrain from encroaching on legislative and executive domain otherwise it will boomerang in the form of political class stepping to clip their wings. A bench comprising Justice AK Mathur and Justice Markandey Katju said, "If the judiciary does not exercise restraint and over-stretches its limit there is bound to be reaction from politicians and others. The politicians will then step in and curtail the powers or even independence of the judiciary. The judiciary should, therefore, confine itself to its proper sphere, realizing that in a democracy many matters and controversies are best resolved in a non-judicial setting."22 The court said that justification often given for judicial encroachment into the domain of the executive or legislature is that the other two organs are not doing their jobs properly. Even assuming this is so, the same allegation can then be made against the judiciary too because there are cases pending in courts for half-a-century, bench said. If they are not discharging their assigned duties, the remedy is not judicial interference as it will violate delicate balance of power enshrined in the constitution, remarked the court.

Author Durga Das Basu23 criticizes judicial innovations on the ground that it would engender bitterness between the Legislature and the Judiciary, if either of them, seeks to checkmate the other, by means of amendment or judicial activism. But he supports

19 John Gardner, “Legal Positivism”, 153-173, in Aileen Kavanagh and John Oberdiek (eds.), Arguing about Law 162 (Routledge, London and New York, 2009). 20 Id. at 7. 21 G. Austin, The Indian Constitution: Cornerstone of a nation 165 (Oxford University Press, India, 1999). 22 SC asks courts to curb judicial activism Sanjay K Singh, TNN Dec. 11, 2007, 12.49 am IST. 23 Durga Das Basu, An Introduction to the Constitution of India 416 (Wadhwa and Company, Nagpur, 19th edn., Reprint 2005).

Definitions and Expressions the literal interpretation of the Indian Constitution on the ground that though the Indian Constitution is capable of being interpreted by the courts like any other law, is specifically ensured by the Constitution itself by the incorporation of Article 367 (1).24

The debate of judicial activism is closely related to constitutional interpretation, statutory construction, and separation of powers.

2.3 TERMINOLOGY AND EXPRESSIONS

2.3.1 LAW AS DHARMA AND THE COMMAND OF THE SOVEREIGN

Law and Justice have been existing from the very inception of human civilization. It is impossible to have a civilized society in the absence of law and justice. Of course change is constant. So is the Law and justice. They change with the change of society. In ancient era, there did exist law. But those were only the principles of morality, which imposed obligations upon mankind. Even the Manusmriti, Arthashastra by Kautilya and the Advocates have stressed on the principle of morality for imparting justice. Law has played an important role in the history of development of human being and moral of society. However, the nature of it remains changing according to time, place and the requirements of people. But goal of Justice remains unchanged. 25

J.S. Mill had given five attributes of justice.26 They are summarized as under:

1. It is unjust to deprive any one of his personal liberty, his property or any other thing which belongs to him by law.

2. However, one could be deprived of his legal rights, if the law which confers on him those rights is a bad law.

3. Each person should obtain that, whether good or evil, which he really deserves.

4. It is unjust to break faith with any one or to violate an engagement.

24 Durga Das Basu, Comparative Constitutional Law 176 (Wadhwa and Company, Nagpur, 2nd edn., 2008). 25 Hon’ble M.Y. Eqbal, J., “How to bring back the old glory of the Indian judiciary” 97 AIR 58 (April 2010). 26 Warnock Mary (ed.), Utilitarianism by John Stuart Mill 296-301 (Collins and Sons, London, 1962).

Definitions and Expressions

5. It is inconsistent with justice to be partial, to show favour or preference to one person over another. In other words there should be equality of opportunity to all.

Indian systems have orientation or oriental background inherent in Dharma and Staat telling enormous or volumes about political and legal thinking. What we call the law today was infact inbuilt in the Vedic Scriptures and was known as Dharma. There was no distinction between the two categories known as law and religion today.

The wise recognize law as Dharma. So Law is Dharma. To the question what is Dharma, the reply is that Dharma is morality. Dharma is a Sanskrit expression derived from the world /k`, i.e., root which has been declared by Rishis to mean that which sustains (i.e. to preserve, to observe, to promote, to retain) is Dharma. There is no corresponding word to Dharma in English or any other language. It is neither synonymous with religion, nor with the State or government. It is a mould to promote prudent behaviour, based on justice and fair play and the authority of the scriptures. Thought it is difficult to define Dharma, but in the following sayings the entire concept of “state of Dharma” is incorporated and is of utmost importance and significance. 27

“Satyameva Jayate” (literally “truth stands invincible”) is a mantra from the ancient scripture Mundaka Upanishad. Upon independence of India, it was adopted as the national motto of India. It is inscribed in Devnagri script at the base of the National emblem. The meaning of the full mantra is as follows: “Truth alone triumphs; not falsehood. /keksZfo’oL; txr% izfr"BkA Yksds /kfeZ"BiztkmiliZfUrA /kesZ.kikieiuqnfrA /kesZloZizfrf"Bre~A rLek)eZijeonfUrAA /keZ ,oagrksgfUr /keksZ j{kfrjf{kr%A

27 Supra note 9 at 2.

Definitions and Expressions

rLek)eksZ u gUrO;ksekuks /kekZgrksNrAA28

Dharma is the foundation of all affairs in the world; law is the foundation of universe; it is justice (Nayaya), royal edict (Rajashasana), legal system (Vyavahara Dharamasastra). State (Rajashasana), constitutional law (Rajashasana), Rule of Law (Dharmarajya). So Dharma protects those who protect it. People respect one who adheres to Dharma. Dharma insulates man against sinful thoughts and action. Everything in this world is founded on Dharma. Dharma, therefore, is considered supreme.29

It conveys the concept of Rule of Law, i.e., an orderly society would be in existence if everyone acts according to Dharma and thereby protects Dharma, and such an orderly society, in turn, protects the right of individuals. Thus, in this perspective it is more akin to duty or obligation; it is duty first and then right. It is believed that there were no legal proceedings when people were habitually veracious, but as the standard of behaviour declined, the system of legal proceedings for enforcement of rights and punishment of wrongs was established and the ruler was appointed to decide law suits as he had the power to enforce the law and punish the wrong doer.30

As per Manu Smriti: “Law governs the king, law protects the subjects law wakes when men are asleep; therefore, wise men hold that law alone is religion”.31 The law when administrated thoughtfully gives the people all round happiness A King who administers law beautifully in the light of truth succeeds in fostering the three fold advancement of life, i.e., piety, enjoyment and plenty.

While inaugurating the conference on “Incorporating Spirituality in Judicial System” Justice K.S. Radhakrishan, Judge, Supreme Court of India, maintained, that in a scenario when more and more heinous crimes were being committed by juveniles today, it was highly imperative that we need to teach spirituality starting from school days itself and it should constitute a part of the course curriculum and not simply

28 Id. at 3. 29 Ibid. 30 Ibid. 31 Ibid.

Definitions and Expressions made an option for schools, whether public or private.32 Therefore, vedic teachings from school days are imperative even today.

Professor Hart has made a distinction between ‘obliged to act’ and ‘have an obligation to act.’33 People obey the law when they are obliged to out of fear of punishment. People also obey the law because they think that they have an obligation to do so. It is the latter feeling that makes the law legitimate and ensures greater social compliance with it. The judiciary is the weakest organ of government and has control over neither the sword nor the purse. Its decisions are enforced because people feel that they have an obligation to abide by them. The political establishment has used the Court to legitimize its own decisions. For example, the controversial decision to reserve twenty –seven per cent of public service jobs for the backward classes, which triggered a fierce agitation by young men and women of the forward classes and seemed to have brought India to the verge of a civil war, was accepted without protest after the Supreme Court endorsed it by a majority in Indra Sawney v. Union of India.34

Austinian Jurisprudence gives a very narrow view of the judicial function. Since Austin defined law as a command of the political sovereign and his sovereignty was indivisible and absolute, only the legislature could make law. The function of the courts was to merely declare the pre-existing law or to interpret the statutory law. The entire common law is the creation of the English courts but is posited on the myth that the judges merely found the law. Even with such self-negating perception of their own role, the English judges not only made the law but also changed it to suit the entirely new conditions created by the industrial revolution. Ryland v. Fletcher35and Donoughue v. Stevenson36 are the common law examples of judicial law-making.

2.3.2 ROLE OF A JUDGE

William Blackstone viewed a judge as a “living oracle of law.” The term ‘judicial’ is an adjective of the French word ‘judex’ which means a judge, pertaining to

32 The Tribune, Haryana Plus, New Delhi, Friday, May 17, 2013. 33 H.L.A. Hart, The concept of Law 79-88 (ELBS and Oxford University Press, 1961). 34 AIR 1993 SC 477: (1992) 22 ATC 385. 35 (1868) L.R. 3 H.L. 330. 36 (1932) A.C. 562.

Definitions and Expressions appropriate administration of justice or courts of justice or judge thereof or in the proceedings therein.

Both the Arshshastras and Dharamshastras establish the fact that the king was the fountain of justice. In addition to the king himself a court of ultimate resort, there were four classes of Court including the kings Court presided over by the Chief Judge, with the help of counselors and accessors.37

Where a person distinctively qualified in all the Vedas – a Sannyasin of a very high level gives a ruling on a particular subject, it should be regarded as lawful and binding, and no preference should be given to the opinions of even millions of ignorant persons.

Law is worthy of being defended only by a person who is pure of heart, who associates with righteous conduct and righteous persons, who acts in accordance with the dictates of scriptures, who enjoys the confidence and support of good men, and who is wise. The law is the real head, the law is the real ruler, the law is the administrator of justice and the law is the actual governor.

In the UK, judges observe restraint in view of parliamentary supremacy and separation of powers. But, judicial activism has not been lacking altogether. Denning MR, divided judges into two categories:

i timorous souls who were fearful of allowing a new cause of action, and ii bold spirits who were ready to allow it if justice so required.38

Denning MR, while agreeing with Holmes J said that “Judges do and must legislate but they can do this only interstitially”39, he openly stated that judges change law when such an admission was frowned upon. Denning MR was a “judicial activist.” His activist role was visionary, changeable, and adjustable to the new circumstances. He showed his activism in three ways:

37 SP Singh Chauhan, forwarded by Dr. M. Rama Jois, Sources & Framing of the Constitution of India with Special Reference to Vedic Governance 217 (Universal Law Publishing Co., New Delhi, 2015). 38 Anirudh Prasad, C.P. Singh, Judicial Power and Judicial Review 167 (Eastern Book Company, Lucknow, First edn., 2012). 39 John Bell, Policy Arguments in Judicial Decisions 226 (OUP, 1983).

Definitions and Expressions i He gave progressive and adjustably changeable meaning to common law. Denning MR repudiated the belief of many that law is certain and can only be changed by parliament.40 ii Denning MR did not give much credence to strict observance of the precedent rule. iii Denning MR’s activism was liberal, adopting the purposive interpretation of statutes.

Benjamin N. Cardozo gives a true and honest picture of a judge’s role:

“… [Yet] the judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight –errant roaming at will, in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life.’ Wide enough in all conscience is the field of discretion that remains.”41

In Cohens v. Virginia, Chief Justice John Marshall describes the traditional scope of the judge's duty:

“It is most true that this Court will not take jurisdiction if it should not but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid, but we cannot avoid them.”42

Socrates has said about the quality of judge:43

1) He should hear patiently 2) Answer courteously

40 Supra note 38. 41 Benjamin N. Cardozo, The Nature of Judicial Process 141 ( 2009). 42 Cohens v. Virginia, 19 U.S. 264, 404 (1821). 43 Hon’ble M.Y. Eqbal, J., “How to bring back the old glory of the Indian judiciary” 97 AIR 59 (April 2010).

Definitions and Expressions

3) Conceive easily 4) Deliver quietly

Today again need for incorporating Spirituality in Judicial System is being felt. A.K. Sikri, judge, Supreme Court of India, observed that spirituality was a powerful means of empowering and reforming judicial people and the system for proper administration of justice and it should be adopted by lawyers and judges for better dispensation of justice. He was addressing the plenary session on “Incorporating Spirituality in Judicial System”. Tracing the evolution of natural laws, spiritual laws and man-made laws, Justice Sikri said the third type of laws which were presently the subject matter in administration of justice needed to be supplemented by principles of spirituality for delivering complete justice to people.

2.3.3 DISTINCTION BETWEEN AN ACTIVIST AND A NON ACTIVIST JUDGE

Prof. Upendra Baxi clarified the distinction between activist and non activist or active judge at the Eleventh Triennial Conference of Association of Commonwealth Judges and Magistrates and the Commonwealth Judicial Education held at Cape Town in the year 1977.44 At the Conference, Prof. Upendra Baxi suggested that the distinction may lie in the self image of a judge.45 Prof. Baxi cites three main distinctions between an active judge and an activist judge. Firstly, an active judge regards himself or herself as a trustee of state regime, power and authority. In other words, she subjects herself to the powers of the other two organs – the executive and the legislature. Secondly, she neither indulges in policy–making nor in policy–execution. Thirdly, she does not believe in revolution of the present social order. In brief, “an active (but non- activist) judge promotes ‘stability’ over change.”In stark contrast, firstly, “an activist judge regards herself as holding judicial power in fiduciary capacity for civil and democratic rights of all people, especially the disadvantaged, the dispossessed and the deprived.”Secondly, unlike a non-activist judge, an activist does not subject herself to the powers of the other two organs – the executive and the legislature. She does indulge in policy-making and policy-execution. According to Prof. Upendra Baxi, “an

44 Upendra Baxi, op. cit., p. 165. 45 Ibid.

Definitions and Expressions activist judge is aware that she wields enormous executive and legislative power in her role as a judge and that this power and discretion have to be used militantly for the promotion of constitutional values.”Thirdly, an activist judge through the exercise of her powers tries to cope with the present social and political problems of the society. In brief, she promotes ‘change’ over stability. According to Prof. Baxi, the distinction between an activist judge and a non-activist judge, thus, lies in the exercise of its power.

Political science professor, Bradley Canon has posited six dimensions46 along which judge courts may be perceived as activist:

i majoritarianism, ii interpretive stability, iii interpretive fidelity, iv substance/democratic process, v specificity of policy, and vi availability of an alternate policymaker.

2.3.4 JUDICIAL ACTIVISM AN INHERENT OF JUDICIAL REVIEW

Judicial review is to be found in England, Canada, Australia, South Africa, New Zealand, Sri Lanka, Pakistan, and Bangladesh. It originated in England, where the courts reviewed the acts of the executive to ensure that they lay within the limits of its competence drawn by parliamentary statutes.

In England, the Courts have expanded their power through the process of interpretation. They have imposed greater restrictions on the executive by subjecting more and more of its actions to the principles of natural justice,47 critically scrutinizing the exercise of discretionary powers,48 and narrowly construing the ouster clauses that made the decisions of the administrative authorities or tribunals final and conclusive.49

46 Judicial Activism available at: https://en.wikipedia.org/wiki/Judicial_activism (Last Visited on July 15, 2105). 47 Ridge v. Baldwin (1964) AC 40. 48 Padfield v. Minister of Agriculture, Fisheries and Food (1968) AC 997: (1968) 1 All. E.R. 694. 49 Anisminic Ltd. V. Foreign Compensation Commission (1962) 2 AC 147: (1969) 1 All. E.R. 208.

Definitions and Expressions

Therefore, in England, there was judicial review of administrative action but the courts do not have the power to review the acts of Parliament, since Parliament is supreme. Professor Dicey’s theory of parliamentary sovereignty50 was an English constitutional incarnation of Austin’s theory of sovereignty. The low profile of the judicial role in England was consistent with the theory of parliamentary sovereignty. However, underneath such self-negation lay the creative effort of the courts to protect individual liberty and strengthen the rule of law.

2.3.5 THE INDIAN VIEW OF JUDICIAL REVIEW

“Britain, however, extended the practice of judicial review of legislation to colonies such as India whose constituent acts enacted by British parliament laid down the limits of the legislative power vested in the colonial legislatures. India therefore experienced judicial review of legislation as well as executive acts since the days of British rule. Since there was no bill of rights in the constituent acts, the scope of judicial review was limited. The courts in India followed the policy of maximum judicial restraint.”51

“The judicial attitude in countries ruled by Britain was to interfere with legislative acts only if they clearly transgressed the limits drawn upon their powers. They interpreted the constituent acts in the same manner as they interpreted the ordinary statues. Judicial attitude was influenced by the theory of parliamentary supremacy and the courts denied that they had anything to do with policy or principles beyond what was clearly laid down by the words. The judges in India were brought up in the British tradition of parliamentary supremacy and therefore rarely questioned the validity of the legislative action except on the found of its being ultra vires. Such occasions used to be few.”52

In Empress v. Burah and Book Singh, the Calcutta High Court enunciated the principle of judicial review as follows.53

50 Dicey, Law of the Constitution (Macmillan, 1952). 51 S.P. Sathe, Judical Activism in India: Transgressing Borders and enforcing Limits 2 (Oxford University Press, New Delhi 2nd edn., 2002). 52 Ibid. 53 Empress v. Burah and Book Singh I.L.R. 3 Cal. 63, 87-88.

Definitions and Expressions

The theory of every government with a written Constitution forming the fundamental and paramount law of the nation must be that an Act of legislature repugnant to the Constitution is void. If void, it cannot bind the courts, and oblige them to give it effect; for this would be to overthrow infact what was established in theory and make that operative in law which was not law. The power of judicial review is inherent in the article 13 of the Indian constitution.54

While speaking on this aspect of judicial review, Justice Patanjali Sastri, as he then was, said:55

“In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self restraint and the sobering reflection that the Constitution is meant not only for people of their own way of thinking but for all, and the majority of elected representatives of the people have, in authorizing the imposition of the restrictions, considered them to be reasonable.”

In India, judicial review was believed to be an essential power for:

(i) Upholding of the constitution with federal structure; (ii) Upholding the sanctity of the written Constitution through its interpretation, and;

54 Article 13. (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. (3) In this article, unless the context otherwise requires,— (a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law; (b) “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas. [(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.], Ins. by the Constitution (Twenty-fourth Amendment) Act, 1971, s. 2. 55 State of Madras v. V. G. Row AIR 1952 SC 196, 200.

Definitions and Expressions

(iii) Special responsibility of safeguarding the fundamental rights. That is why the question of ‘judicial review was taken up not only during the drafting of judicial provisions, but during the framing of the fundamental rights as well.”56

“Judicial review as a mechanism for the protection of rights and liberties seems to have gained acceptance in other Commonwealth countries also. In New Zealand, the courts defer to parliamentary intension if there is no possibility of interpreting a statue consistently with the bill of rights and in Canada, although courts can invalidate a primary legislation if it is inconsistent with any of the rights given by the bill of rights legislation, Parliament can insulate a legislation by specifying that its provisions shall apply notwithstanding any contrary decision. However, experience shows that it has been difficult for the Canadian Parliament to respond to judicial decisions in this way.”57

The debate on ‘Judicial review’ is too vast and it has been discussed in depth, in the succeeding chapter.

2.3.6 MODELS OF JUDICIAL REVIEW

There are two models of judicial review. One is a technocratic model in which judges act merely as technocrats and hold a law invalid if it is ultra vires the powers of the legislature. In the second model, a court interprets the provisions of a constitution liberally and in the light of the spirit underlying it keeps the constitution abreast of the times through dynamic interpretation. A court giving new meaning to a provision so as to suit the changing social or economic conditions or expanding the horizons of the rights of the individual is said to be an activist court.58

Judicial activism can be positive as well as negative. A court engaged in altering the power relations to make them more equitable is said to be positively activist and a court using its ingenuity to maintain the status quo in power relations is said to be negatively activist.59

56 Supra note 38 at 23. 57 P.N. Hogg, ‘The Charter Dialogue Between Courts and Legislatures’, 15 OHLJ 75-124 (Spring 1997). 58 Supra note 51 at 5. 59 Ibid.

Definitions and Expressions

The decisions of the US Supreme court in Dred Scott60 or Lochner v. New York61 were examples of negative judicial activism, whereas the decision of that court in Brown v. Board of Education62 is an example of positive activism. In Dred Scott, the US Supreme Court upheld slavery as being protected by the right to property and in Lochner, it held a law against employment of children as violative of the due process clause of the Constitution.

2.3.7 THEORIES OF JUDICIAL PASSIVISM AND ACTIVISM

Judicial passivism and judicial activism are contending and opposite theories of judicial attitude towards the construction of statutes and there are arguments galore for and against these two paradigms. The former concept emanates from the pure theory of separation of powers and is predicated on a declaration theory of judicial functions which assigns to courts the role of declaring what the law is and nothing more (jus dicere). Proponents of this school do not go beyond written laws as they believe that the legislature has written what is meant and meant what is written – ita scriptum est (it is so written). They are not concerned even if literal interpretations of statutes lead to absurdity, hardship or injustice. They are also opposed to vesting courts with discretionary powers, because the discretion of a judge, cautioned Lord Camden, is the law of tyrants – always unknown, different in different men, causal and depending on Constitution, temper and passion – and that in the best it is often caprice, while in the worst it is every vice, folly and passion.63 Judicial passivism is also called the bureaucratic tradition in which judges stick tenaciously to the written text treated as ex cathedra.

On the other hand, judicial activism is rooted in the concept that the end of any law is to arrive at justice, and if literal construction occasions injustice it defeats the very purpose for which the law was enacted. Thus, in the words of B.O. Okere, a leading

60 Dred Scott v. Stanford 60 U.S. 393 (1856). 61 198 U.S. 45(1904). 62 347 U.S. 483 (1954). 63 L.P. Goldberg and E. Levenson, Lawless Judges 339 (The Rand School Press, New York, 1935); also see Clement James Dakas, “Poverty and Tyranny of Judicial Passivism: Imperative of Judicial Activism in Nigeria” JILI (April-December 1997).

Definitions and Expressions jurist of Nigeria, judicial activism is ‘constitutive in theory, liberal in conception and teleological in essence’.64

This tradition has its origin in liberal Whiggism which believes that judges must probe hidden meanings and interpret them in a way to suit the ends of social justice. Oridinarily, a judge is considered an activist when (s)he does not go by the literal meaning of the statute but gives effect to what, in her/his opinion, is congruous with the spirit of the law.

The Harper Collins Dictionary of American Government and Politics defines it as the ‘making of new public policies through the decisions of judges’.65 According to The New Dictionary of Cultural Literacy, it is synonymous with the term ‘broad construction’ which the dictionary defines as a ‘theory of interpretation of the Constitution that holds that the spirit of the time, the values of the justices, and the needs of the nation may legitimately influence the decisions of a court, particularly the Supreme Court.66

2.3.8 JUDICIAL SELF-RESTRAINT VERSUS JUDICIAL ACTIVISM

The concept of judicial review has changing dimensions. To begin with, it is a product of judicial self-restraint. But sometimes it invites activism. The terms judicial restraint and judicial activism describe the degree of assertiveness of judicial power. Judges are said to exercise judicial restraint when they have closeness to statutes and previous cases in reaching their decisions; and they are said to exercise judicial activism when they are apt to interpret existing laws and rulings more loosely and interject their own values in the court decisions.

64 B.O. Okere, ‘Judicial activism or passivity in interpreting the Nigerian Constitution’, in E.I. Nwogugu (ed.), Current Legal Problems in Nigeria: Proceedings of the Anambra State Law Conference 43 (Fourth Dimension Publications Ltd., Enugu, Nigeri, 1988). 65 Jay M. Shafritz, The Harper Collins Dictionary of American Government and Politics (Harper Perennial, New York, 1993). 66 E.D. Jr. Hirsch, Joseph F. Kett and James S. Trefil, The New Dictionary of Cultural Literacy 75 (Houghton Mifflin, Boston, 2002).

Definitions and Expressions

Johann Wolfgang von Goethe believed that “self-limitation is the first mark of the master.”67 Henry J. Abraham sets out 16 maxims of judicial self-restraint which are as follows: i The court has to decide only in definite “case” or “controversy.” ii Parties bringing suit must have “standing.” iii The court does not render advisory opinion. iv Specific constitutional issue has to be raised. v The court shall not decide constitutionality at the instance of one who has availed himself a benefit. vi Local remedies must have been exhausted. vii Question raised must be substantial and not trivial. viii Superior court views question of law and not question of fact. ix In the UK before 1966, the House of Lords felt bound by its own decisions, but the US Supreme Court had never held itself absolutely bound by precedent. x Court appears inclined to defer political questions. xi There is always a presumption in favour of constitutionality. xii Judicial parsimony is case of alternate ground. xiii The court does not impute ill motives to lawmakers. xiv In case of unconstitutionality, courts should try to confine it to particular section or sections. xv Much deference is to be paid to the legislature as an unfair, unjust and injudicious law may be constitutional. xvi Protection against abuses of legislature lies at the polls and not in the courts. 68

2.3.9 INTERPRETIVISM AND NON-INTERPRETIVISM

Closely related to judicial self-restraint and judicial activism, but not the exact, are the concept of interpretivism and non-interpretivism. Interpretivism may be nearer to political conservatism, on the other hand, non-interpretivism goes nearer to judicial role in changed socio-political scenario. In his celebrated book Democracy and

67 Robert H. Jackson, The Supreme Court in the American System of Government 23 (Harvard University Press, Cambridge, 1955). 68 Supra note 38 at 24.

Definitions and Expressions

Distrust: A Theory of Judicial Review, John Hart Ely clarifies the two sides of judicial review-interpretivism and non-interpretivism.

Interpretivism indicated that judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution. On the other hand, non-interpretivism presents the contrary view that courts should go beyond that set of references and enforce norms that cannot be discovered within the four corners of the document.69

Interpretivism is used to designate something like “strict constructionism.” Ely points out an unfortunate incident of quoting by President Nixon to signal a quite different thing, a proclivity to reach constitutional judgments that will please political conservatives. Ely finds similarity of interpretivism and non-interpretivism to that of positivist and natural law thinking. To quote Ely:

“The interpretivism-non-interpretivism dichotomy stirs a long-standing debate that pervades all the law, that between ‘positivism’ and ‘natural law’. Interpretivism is about the same thing as positivism, and natural law approaches are surely one form of non-interpretivism.”70

Interpretivist approach has two significant and interrelated comparative attractions. The first is that it better fits our usual conceptions of what law is and the way it works. The court limits itself to a determination of the purposes and prohibitions expressed by or implicit in its language. The second comparative attraction of an interpretivist approach is more fundamental lying in opposites reconciliation of itself with the underlying democratic theory of our government. Non-interpretivism appears to be inconsistent with democratic theory, but it cannot be ignored altogether.71

Interpretivism is distinguished from non-interpretivism as to its insistence that the work of the political branches is to be invalidated only in accord with an inference whose starting point, whose underlying premise is fairly discoverable in the Constitution.

2.3.10 THEORIES OF JUDICIAL REVIEW

69 Id. at 25. 70 Ibid. 71 Id. at 26.

Definitions and Expressions

The judicial exercise of interpretative power has been subjected to several theories.

Its range varies from interpretivism to non-interpretivism. In between the two come textualism, intentionalism, originalism, non-originalism, structuralism, etc.72

Textualism is the result of the constant modifications of the plain meaning approach. Thurgood Marshall J preferred textual interpretation and, speaking for the majority in United States v. Locke, expressed the view that although the court would not allow a literal reading of the statute to produce absurd results, deference to the supremacy of the legislature, as well as recognition that congressmen typically vote on the language of a bill, generally require us to assume that ‘the legislative purpose is expressed by the ordinary meaning of the words used.’73

The textualists emphasise the plain meaning rule without allowing any recourse to legislative history and help of legislative intent. Scalia J in his concurring opinion in Immigration and Naturalization Service v. Cardozo-Fonseca74 made clear that “where language is clear we are not free to replace it with an unenacted legislative intent.”75

Textualism may not work well when we come across some not so clear and open texture terms used under our Constitution - for example “socially and educationally backward classes”, “reasonable restrictions”, “life or personal liberty”, “public interest”, “equality before law”, “privileges and immunities”, “consultation”, “failure of constitutional machinery”, i.e. the government of the State cannot be carried on in accordance with the provisions of the Constitution, “amendment of the Constitution”, etc.76

Intentionalism requires the help of “intrinsic” as well as “extrinsic” aids so as to determine the intent of the framers of the statute.

The one end of intentionalism is connected with textualism as it too requires ascertaining the intention of the framers of the statute by reading the language used

72 Id. at 64. 73 85 L Ed 2d 64: 471 US 84 (1985). 74 94 L Ed 2d 434: 480 US 421 (1986). 75 Id. at 453. 76 Supra note 38 at 67.

Definitions and Expressions therein. Felix Frankfurter J once said “that a court’s task is to construe not English but congressional English”.77

Reid J said: “In the interpretation of statutes, the function of the court is easily stated. It is to construe the language so as to give effect to the intent of Congress. There is no invariable rule for the discovery of that intention.”78

Originalists emphasize looking at the text of the statute itself and, where its language is not clear, to the original intent of the framers of the Constitution. Originalists argue against judicial creativity and say that if the text and intention of the framers are not sufficient to provide meaning to a clause of the Constitution, judges should exercise restraint and cannot invoke such a provision so as to block actions taken by the political branches79 - legislature and executive. Originalists argue that judges can declare as unconstitutional a specific practice or conduct only when it is absolutely clear from the constitutional text or the framers’ intent. The scope of judicial review is curtailed, though less severely than the textualists do.80

Goldsworthy says that moderate originalism differs from and is superior to extreme versions of originalism for three reasons:81

First, evidence of the founders’ intentions which was readily available to their intended audience at the time of the enforcement of Constitution is acceptable, but not on other evidence of their intention.

Second, only founding fathers’ enactment intentions are relevant to the meaning of the Constitution and not their “application intention”.

Third, if relevant evidence of intention of the framers does not resolve a dispute, then judges may be forced to act creatively, and after considering matters such as consistency with general legal doctrines and principles, public policy and justice, stipulate what the disputed provision should thenceforth be taken to mean.

77 Id. at 68. 78 Edward H. Levi, “An Introduction to Legal Reasoning” 15 U Chi L Rev 501, 520-23 (1948). 79 Christopher N. May and Allan Ides, Constitutional Law- National Power and Federalism: Examples and Explanations 36 (Aspen publishers, New York, 3rd edn., 2004). 80 Ibid. 81 Jeffrey Goldsworthy, “Originalism in Constitutional Interpretation”, 25 Federal Law Review I (1997).

Definitions and Expressions

Non-originalists

Non-originalists are of two types:82 First, are nearer to textualists who plead that the only legitimate basis for interpreting the Constitution is the original words of the text itself. Such legal experts are akin to textualism.83 Second, non-originalists attach wider freedom to the Constitution interpreters. They conceive that, while courts may take help of the text as well as the intent of the framers, they are not limited by these sources.

The main criticism against non-originalists is that in the absence of any apparent support from the constitutional text and the framer’s intent, a judge’s power of judicial review becomes vulnerable.

Originalism and non-originalism have exposed the weaknesses of the two extremes, and some moderation is pleaded for rapprochement between the two. Some originalists appear to have left their textualism or originalism, which leads to rigidity, and speak of specific practices and a form of originalism that allows implementing general principles or precepts endorsed by the framers, even if extending the protection of such practices leads to a situation which the framers may never have envisioned. They are called “sophisticated originalists”. On the other hand, moderate non-originalists give due credence to original intent though they do not treat it binding.

Structuralists gather the principle of interpretation, not from the words of single passage, but from the structure or framework of a Constitution.84 Structuralism allows three structural principles as the guiding spirit behind constitutional interpretation: 1) federalism (division of power between the National Government and the federating States);85 2) separation of powers between the three branches of government (legislature, executive and judiciary);86 and 3) a written Constitution. Structuralists use both textual provisions as well as independent sources to search out the meaning.87

82 Supra note 79 at 37. 83 Ibid. 84 Ibid. 85 Ibid. 86 Id. at 38. 87 “Originalism: The Lesser Evil” 57 U Chi L Rev 849, 862 (1989).

Definitions and Expressions

An excellent example of structuralism is the 13-judge Bench decision in Kesavananda88, wherein the majority ruled that Parliament cannot amend the Constitution so as to alter its basic structure. The Supreme Court declared the Constitution (39thAmendment) Act, 1975 unconstitutional for violating the separation of powers.89

This structuralist approach was evolved quite earlier in Maneka Gandhi90 itself when all the three articles had been taken into consideration for declaring the procedure to be right, just and fair. In I.R. Coelho v. State of T.N.91, the nine-judge Bench of the Supreme Court unambiguously held that “when this triangle of Article 21 read with Article 14 and Article 19 is sought to be eliminated not only the “essence of right” test but also the “rights test” has to apply.”

The different theories relating to the exercise of judicial power reveal that all of them present two faces of judicial action on the Bench - restraintivism and activism. But none can claim to be enough to solve the problems of life. To illustrate, let’s start with the concept of judicial self-restraint or legalism which perpetuates the simplistic idea that the pre-existing body of authoritative legal materials (in particular, the constitutional text and its encrustation with interpretive precedent) already contain a uniquely predetermined ‘right answer’ to any legal problem; and that the task of a judge is to ascertain that uniquely pre-determined answer by an essentially mechanical process.92

The tussle between the two concepts of conservatism or self-restraintism, and liberalism or non-originalism or activism always goes on. No judge is cent per cent a restraintivist or activist.

2.3.11 JUDICIAL ACTIVISM V. SEPARATION OF POWERS

The ultimate goal of our constitution, enunciated by our worthy founding fathers, in its preamble is to secure ‘welfare state.’ For achieving this goal, the constitution has

88 (1973) 4 SCC 225: AIR 1973 SC 1461. 89 1975 Supp SCC I: AIR 1975 SC 2299. 90 (1978) I SCC 248: AIR 1978 SC 597. 91 (2007) 2 SCC I, 108. 92 Anthony Blackshield and George Williams, Australian Constitutional Law and Theory 328 (The Federation Press, Australia, 2006).

Definitions and Expressions created three organs - the Legislature, the Executive and the Judiciary.93The basic design of the constitution is premised on the principle of separation of powers introducing the system of checks and balances. Conceptually, there is no difficulty in demarcating the respective functional areas of these three principal organs but the real issue of Judicial Activism is about its legitimate limits.

The Indian constitution has not recognized the doctrine of separation of powers but the functions of the different parts or branches of the government have been sufficiently differentiated.94 In Union of India v. Deoki Nandan Agarwal95 the apex court was of the view that the court cannot direct the legislature to make a particular law. In the same way in Rajindra Singh v. Prem Mai96 the court even rejected the justification often given for judicial encroachment into the domain of executive or legislature in the cases where the other two organs are not their jobs properly as the same allegation can be made against the judiciary too because there are cases pending in courts for half a century.

Functionally, however, in the course of dispensation of justice, at times situations do arise that require correction of an executive order or removing some legislative lacuna. In such situations sometimes the court may find itself involved in a policy making decision that partake the character of political decision making.97 In addition, the question of balancing of judicial activism and separation of powers arises.98

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. For example, the Supreme Court issued guidelines in 2006 to reform the police administration. Similar guidelines have been issued increasingly in legislative spheres. Because of these opinions, at least in theory, employer must now act against sexual harassment at workplace99 and police officer must follow procedures prior to

93 Justice B.P. Jeeven Reddy, “Judicial activism: a perspective” The Hindu (Delhi) April 30, 2008. 94 See also Asif Hameed v. state of J.& k. (AIR 1989 SC 1899 ) where a three- judge Bench of supreme Court observed: [in para 17- 19] “No organ can usurp the function assigned to another the only check on our own exercise of power is the self imposed discipline of judicial restraint.” 95 AIR 1992 SC 96. 96 2007 [11] SCC 37. 97 Prof. Virendra Kumar, “Judges v. Judges” The Tribune (New Delhi) December 21, 2007. 98 Surat Singh, “Judicial activism- how wise, how otherwise” in K. Mahesh Bishwajit Bhattacharyya (ed.), Judging the Judges 141, 142 (1999). 99 Vishaka v. State of Rajasthan (AIR 1997 SC 3014).

Definitions and Expressions an arrest, mildly similar to the American Miranda Right, in India, they could perhaps be called Basu rights100.

The issue related to the dichotomy of judicial activism and separation of power has been discussed in detail in chapter IV.

2.3.12 JUDICIAL ACTIVISM AND THE LIVING CONSTITUTION

Though the constitutional jurists have defined the constitution as a legal document defining the framework of a government of a particular country, they refuse to accept that it is just a ‘document.’ To justify their claim these jurists put forward the living constitution philosophy. The living constitution philosophy has its origin in America.

These jurists assert that the constitution is very much like a living organism. It grows and adapts itself to the changing needs of the time.101

According to Benjamin N Cardozo, “A Constitution states or ought to state not rules for the passing hour, but principles for an expanding future.”102

Judicial review is a medium to achieve what a Constitution stands for. As early as 1908, Woodrow Wilson in his work Constitutional Government in the United States103sorted out the aims of the Constitution:

“Government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton. It is modified by its environment, necessitated by its tasks, shaped to its functions by the sheer pressure of life…… Living political constitutions must be Darwinian in structure and in practice.”

There are three objections against the judiciary treating the Constitution as a living document: i the Constitution was designed to enable democratic - popularly elected branches of government – not the judiciary, to keep the country abreast of the times;

100 D.K. Basu v. State of W.B. (1993) 2 SCC 746. 101 K.C., “Where, Modern Constitutions” 98- 99 quoted by M.V. Pylee, Constitutions of the World xiii (Universal Law Publishing Co. Pvt. Ltd., New Delhi, 3rdedn., 2006). 102 B.N. Cardozo, The Nature of the Judicial Process 94 (Yale University Press, New Haven, 33rd printing, 1974). 103 Woodrow Wilson, Constitutional Government in the United States (Columbia University press, New York 1908).

Definitions and Expressions ii sometimes the court has miserably failed to act up to mark; and iii advancing society through a free-wheeling, non-elected judiciary is quite unacceptable in a democratic society.104

The strongest argument against the doctrine of ‘Living Constitution’ comes not from its moderate use, but when the concept is seen as promoting activism. The term presumes the premise of “that which is written is insufficient in light of what has transpired since”. This more moderate concept is generally not the target of those who are against the ‘Living Constitution’ The concept considered perverse by constructionalists is "making the law say what you think it should say, rather than submitting to what it does say".105

All the above arguments have become obsolete in view of the fast-changing social requirements and non-responsiveness of the elected branches of government. Much more judicial role is applauded in the area of the protection of rights, like right denied by racial segregation, which is against the democratic majoritarianism.

In a nutshell, the ‘Living Constitution’ refers to a process of revolutionary update of the fundamental law, often accomplished through Supreme Court decisions, which usually may be said to ratify a community consensus rather than to create law wholly new. In Wolf v. Colorado106, Frankfurter J. said:

“It is of the very nature of a free society to advance in its standards of what is deemed reasonable and right. Representing as it does a living principle, due process is not confined within a permanent catalogue of what may at a given time be deemed the limits or the essentials of fundamental rights.” 107

The celebrated American jurists Oliver Wendell Holmes propounded it in the following words, “The constitution is not a document of fastidious dialectics but a means of ordering the life of a people. It is an organic growth.”108

M.V. Pylee puts the rationale behind such concept in the following words, “When our mode of thinking, ways of life and culture change with the change of time, then why

104 Supra note 38 at 175. 105 Living constitution, available at: https://en.wikipedia.org/wiki/Living_Constitution (Last Visited on September 16, 2014). 106 93 L Ed 1782: 338 US 25 (1948). 107 Ibid at p 27. 108 In Gompers v. United States, (1914) 233 U.S. 604/610.

Definitions and Expressions the words and phrases should not take color from the surrounding aspects of the changing pattern of our life and thought.”109

In modern constitutional theory, originalism sets itself against the interpretive practice known as living constitutionalism, which gives greater priority to contemporary understandings. The debate between originalists and living constitutionalists is generally considered one of the most important current battles over how the constitution should be interpreted.110

The standard argument for originalism is relatively straightforward. The Constitution, recall, gets its legal effectiveness from the approval of the ratifiers. When the original Constitution was ratified, and when amendments were added to it over the course of years, a particular meaning was enacted, and judges are not given the authority to change that meaning. The role of a judge is to say what the Constitution does mean, not what it ought to mean; if change is needed.

Allowing judges’ free rein to change the meaning of the Constitution to suit the perceived needs of the day takes sovereignty away. Adhering to original understanding, by contrast, prevents judges from imposing their own values.

Originalists thus argue that constitutional cases should be decided according to our best guess as to how the ratifiers would have decided them. Judges should protect a right to abortion only if the ratifiers would have agreed that it existed; if the ratifiers believed that racially segregated schools were consistent with the Equal Protection Clause, then judges should not interfere. Anything else, originalists say, is illegitimate (or even “activist”).

The conventional argument for the living Constitution focuses on the fact that conditions and attitudes have changed greatly since the framers’ times. Living constitutionalists argue that the Constitution must be able to adapt to respond to current needs and problems rather than remaining frozen in time. Because the amendment process is so difficult and cumbersome, living constitutionalists seem to

109 M.V. Pylee, op. cit., p. xxxi. 110 Kermit Roosevelt III, The myth of Judicial Activism 47 (universal Law Publishing Co. pvt. Ltd, New Delhi, 2011).

Definitions and Expressions view judicial modification of the Constitution with equanimity – a necessary evil, at the worst.111

When the argument is viewed in these terms, it seems fairly clear that the originalists have the better of it. The Constitution as written may not be perfect, but what is the point of a written Constitution at all if judges have the freedom to modify it as they see fit? And what reason is there to think that judges will write a better Constitution than the one we have? Judges might as well decide to disregard individual rights provisions as to expand them. That is, although originalists tend to be political conservatives and living constitutionalists political liberals, there is no reason to think that judges would consistently modify the Constitution in a liberal direction. 112

Originalists like to claim that adherence to original meaning prevents judges from imposing their own values, while living constitutionalism does not. But if ratifiers would not have agreed on how specific cases should be decided, the supposed constraint is illusory. That is, a judge following an originalist methodology could still reach whatever results he wanted by highlighting some historical evidence and downplaying the rest. So, orginalism, as a methodology, does not in fact prevent judges from imposing their preferences on society. Historical evidence does not do much more than “plain meaning”, as far as deciding difficult cases goes.113

2.3.13 JUDICIAL SELF-RESTRAINT AND ACTIVISM- THE TWO PHASES OF JUDICIAL CREATIVITY

A very cautious approach reveals that much of the talk of activism prevailing at present is creating confusion. Judiciary exercises its power to decide disputes and resolve controversies in cases coming before it. Jurisprudentially, its activities are governed by either the Blackstonian discovery theory114 or the creative theory propounded by Bentham and other positivists.115 As a matter of fact, the whole judicial exercise of power and the process of interpreting law is a creative practice.

111 Id. at 48. 112 Id. at 49. 113 Id. at 51. 114 This approach is shared by Lord Coke, Mathew Hale and Bacon. 115 This view is shared by Bentham, Austin, Hart and Gray.

Definitions and Expressions

Likewise, Sawant J116 views judicial activism in relation to judicial function and regards one as judiciary like117 and another as unjudiciary like.118 The former is acceptable as it has an element of creativity and innovation. In an acceptable sense, judicial activism consists of evolving new principles, new concepts, new maxims, new formulae, new equities, new procedures and new relief’s going beyond and sometimes even alien and higher to known and evolved jurisprudence and substantive and procedural law.119

‘Judicial activism’ has become the most potent word to support as well as to deny the legitimacy of judicial review. It is being used with utter confusion, contradiction, and most of the time, with contempt. Judicial power is enough. Judicial self-restraint and judicial activism are two faces of judicial power. The distinction between the two is one of degree, not of kind. The same court may have the activist and restraintivist justices.

Judicial activism is at once a peril and a promise, an assurance of solidarity for the depressed classes of Indian society as well as a site of betrayal.120 The range of activeness may range from Austinian self-restraint to Benjamin Cardozo’s views regarding activism (restrained activism) to Gray’s activism.121

2.3.14 COUNTER-MAJORITARIAN APPROACH

Judicial review is a counter majoritarian check on democracy. A constitutional set-up does not envisage elective despotism and governance swayed by populism. Judicial review puts a check on these tendencies. The judiciary is viewed to play a more and

116 P.B. Sawant, “Judicial Activism—Trends and Prospects” in Subhash C. Kashyap (ed.), Judicial Activism and Lokpal 9-21 (Upper Publications House, New Delhi, 1997). 117 Id. at 13. 118 Ibid, Sawant J includes within impermissible judicial activism extending “to laying down priorities, policies, programmes and giving directions to execute them when they are not obligatory”. Such actions amount to usurpation of the powers of the other branches. 119 Ibid. 120 Upendra Baxi, “The Avatars of Indian Judicial Activism: Explorations in the Geographies of [In] Justice” in K. Kusum, S.K. Verma, ILI (eds.), Fifty Years of the Supreme Court of India: Its Grasp and Reach 156-209, 161 (OUP, 2000). See also, Upendra Baxi and Amita Dhanda (eds.), Valiant Victims and Lethal Litigation: The Bhopal case (N.M. Tripathi, 1990). 121 Austin’s theories and their interpretation over the years has been discussed in W.L. Morrison, “Some Myths About Positivism”, (1958) 68 Yale LJ 212; Benjamin Cardozo views have been expressed in his book, Nature of the Judicial Process (1921) and Gray regards the courts as the most authoritative and highest pronouncer of law in his book, The Nature and Sources of Law.

Definitions and Expressions more activist role with a view to 1) rescue the nation from major failures of elected branches; 2) discharge its responsibility to make democratic process secure and meaningful; and 3) identify constitutional values and ideals, and set public officials in pursuit of those values and ideals.122

David Bilchitz123 summarizes the two-fold justification for judicial review. As to counter majoritarian criticism, there are two categories of justification. First, “democracy – supporting justification for judicial review” arguing that “far from being in conflict with democracy, Judicial review in fact enhances democracy.”124 Second, the category of justification is “right-based.” Irrespective of the fact whether majority agrees or wishes to recognize or not, certain fundamental rights are guaranteed to all individuals in any just society.

2.4 JUDICIAL ACTIVISM AND THE OTHER WORLD CONSTITUTIONS

“In a generic sense, Judicial Activism means the actions of an activated judiciary in protecting fundamental rights of the citizens. It is the direct outcome of the failure of the executive wing of the Government in fulfilling the Constitutional guarantees contemplated in Part III and Part IV of the Constitution, which assure, inter alia, socio-economic justice to the citizens for making their lives fruitful and meaningful.” 125

Complex form of judicial activism appears under the colonial constitutions of Canada and Australia enacted through an Act of the British Parliament. With no Charter of Rights in the British North America Act, 1867, Canadian judicial activism saw two phases – one, before the adoption of the Bill of Rights and another, after the adoption of the Bill of Rights.126The pre-charter judicial activism mainly concentrated in promoting the principles of federalism whereas the post-charter judicial activism indulged in the protection of the fundamental rights and freedoms of the Canadian

122 Supra note 38 at 15. 123 David Bilchitz, Poverty and Fundamental Rights: The Justification and Enforcement of socio- Economic Rights (OUP, 2007). 124 Id. at 104. 125 Maheshwara Swamy, N, “Environment Pollution by Industries : Measures of Control through Judicial Activism - A Critical Analysis” in D. Banerjea, A. Subrahmanyam, V. Vijay Kumar, Judicial Activism- Dimension and Directions 275-293 ( 2002). 126 Durga Das Basu, Select Constitutions of the World (including International Charters) 254 (Lexis Nexis Butterworth Wadhwa, Nagpur, 4thedn., 2009).

Definitions and Expressions citizens. In the absence of a specific Bill of Rights, the Australian courts have shown activism in promoting the principles of federalism.

Judicial activism has been more visible and more prominent under the written constitutions of America and Ireland. The American judges liberally indulged in defining unenumerated rights from the existing enumerated rights by applying the theory of emanation. Similarly, under the Constitution of Free Irish State, 1937, the Irish courts have indulged in liberal interpretation by occasionally appealing to the Preamble. Like the American courts, the Irish courts have deduced unenumerated ‘natural rights’ from the not so exhaustive list of ‘personal rights’. Judicial activism has also been observed under the post World War II constitutions of Japan and Germany. Though based on the American model, the Japanese Supreme Court was a little cautious in declaring an unenumerated fundamental right and protecting human rights of its citizens. In this regard, the German courts were more open either in promoting the principles of federalism or in protecting the human rights of its citizens through the theory of basic structure.

2.4.1 AMERICA

American judicial activism was directed mainly against the legislature. What was said by Lord Coke in Dr. Bonham’s case127 was repeated by Chief Justice Marshall in the American Supreme Court in Marbury v. Madison128 in the year 1803. Lord Coke’s theory of judicial review laid the foundation for judicial review under the American Constitution and other colonial constitutions. Judicial activism implied such power through a harmonious construction of Article III and VI. The supremacy of the American Constitution was implied by reading Section 2 of Article VI whereas the power of judicial review of the American Supreme Court was implied by reading Section 2 of Article III.

Marbury v. Madison129, is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western

127 Infra note 164. 128 5 U.S. 137 (1803). 129 Ibid.

Definitions and Expressions history a court invalidated a law by declaring it "unconstitutional", a process called judicial review. This case resulted from a petition to the Supreme Court by William Marbury, who had been appointed by President John Adams as Justice of the Peace in the District of Columbia but whose commission was not subsequently delivered. Marbury petitioned the Supreme Court to force Secretary of State James Madison to deliver the documents, but the court, with John Marshall as Chief Justice, denied Marbury's petition, holding that the part of the statute upon which he based his claim, the Judiciary Act of 1789, was unconstitutional.

Marbury v. Madison was the first time the Supreme Court declared something "unconstitutional," and established the concept of judicial review in the U.S. The landmark decision helped define the "checks and balances" of the American form of government. Acknowledging the doctrine of judicial review in the Marbury v. Madison case, Chief Justice Marshall observed that the constitution forms the fundamental and paramount law in countries with written constitutions “Consequently, the theory of every such Government must be that an Act of the legislature repugnant to the Constitution is void. These judicial implications were clearly in tune with the intention of the framers of the American Constitution. In striking down part of the Judiciary Act, an act of Congress, Marshall gave new force to the principle of judicial review. The legacy of John Marshall and of Marbury is that judicial review has become a cornerstone of American government. As Justice Marshall recognized, judicial review is an essential component of democratic government; by ensuring that Congress exercises only those powers granted by the Constitution, the courts protect the sovereignty of the people.

Judicial review of Congressional legislations was not used by the American Supreme Court till 1857. In 1857, in Dred Scott v. Stanford130 the Supreme Court for the first time used its power to review and strike down a Congressional legislation, the Missouri Compromise of 1820 as unconstitutional. Judicial activism, however, was restricted during the American Civil War of 1861. After the American Civil War of 1861, the Supreme Court assumed an aggressive form of activism as it struck down twenty-four Congressional legislations as unconstitutional either wholly or partially.

130 (1857) 29 How 393.

Definitions and Expressions

In Perry v. U.S 131 the Supreme Court declared “the Congress cannot invoke the sovereign power of the people to override their will as thus declared.” Not only the Congressional laws of far-reaching importance struck down in quick succession but the Government was criticized for its New Deal measures on the ground that it represented bad economies and bad government. Thus, the New Deal period of 1930 saw another phase of the Supreme Court’s aggressive activism.

According to Justice D.P Madon:

“The Dred Scott and the New Deal decisions all undoubtedly invalidated legislative measures but this was not judicial activism in real reason – rather it was judicial retro- activism. It was judicial activism in reverse gear for it was an attempt to turn the clock back.”132 “The essence of true judicial activism is not invalidation of statutes but the rendering of decisions which are in tune with temper and tempo of times”, reminded Justice Madon.133

In New York Times v. United States134, the New York Times had obtained copies of a highly confidential government document concerning the history of US involvement in Vietnam War by improper disclosure. The Government restrained the publication of those copies. The majority of the court led by Black J. held that the First Amendment unconditionally prohibited the abridgement of ‘the freedom of speech’ or ‘of the press’ and that no considerations of national security empowered the Executive to restrain publication. In yet another decision in Roe v. Wade135 the American Supreme Court has held that the right to privacy includes the constitutional right of a pregnant woman to commit abortion even though it kills the foetus. The right to privacy had itself emanated from the harmonious construction of the rights mentioned in 4th, 5th and the 14th Amendments.

The majority of the cases involving the ‘commerce-clause’ were examples of growing judicial activism in the U.S.

131 (1934) 214 U.S. 330 (353). 132 D.P. Madon, “Judicial Activism – An essential part of the Judicial Activism” 11(3) Indian Bar Review (IBR) 246-258, 254 (1984). 133 Id. at 254. 134 403 U.S. 713 (1971). 135 (1973) 410 U.S. 113.

Definitions and Expressions

In Oregon Waste Systems Inc. v. Deptt. of Enviourmental Quality of Oregan136, the court held that the “commerce clause” grants Congress plenary authority over inter- State commerce and the degree of differential burden or charge on inter-State commerce.

In Associated Industries v. Lohman,137 the court gave the effect of State regulation in the US. The court held that a purely nominal distinction in a State’s statutes between the methods of regulation of intra-State and inter-State commerce –as long as such distinction is not translated into any difference in the substance of the regulations imposed - does not violate the “commerce clause”, since such distinction cannot be said to provide benefits to intra-State commerce or impose discriminatory burdens on inter-State trade.

In General Motors v. Tracy138, the court stated that with respect to the “Federal commerce clause” under the dormant commerce clause’s prohibition of State regulation that imposes an undue burden on inter-State commerce by favouring the products of an in-State entity over those of an out-of-State entity.

In Reno v. Condon139, the US Supreme Court pointed out that the personal identifying information under the Driver’s Privacy Protection Act, 1994 which generally prohibits any State Department of Motor Vehicles (DMV), or an officer, employer, or contractor thereof, from knowingly disclosing, or otherwise making available to any person or entity, personal information about any individual obtained by the DMV in connection with a motor vehicle is subject-matter of inter-State commerce.

In United States v. Morrison140, the Supreme Court made a modern and expansive interpretation of the commerce clause”. According to this case, the modern jurisprudence relating to the “commerce clause” identifies three broad categories of activity that Congress may properly regulate and protect under Congress’ commerce power. Those categories are: 1) the use of the channels of inter-State commerce; 2) the instrumentalities of inter-State commerce, or persons, or things in inter-State commerce even though the threat may come only from intra-State activities; and 3)

136 128 L Ed 2d 13: 511 US 93 (1994). 137 128 L Ed 2d 639: 511 US 641 (1994). 138 136 L Ed 2d 761: 519 US 278 (1997). 139 145 L Ed 2d 587: 528 US 141 (2000). 140 146 L Ed 2d 658: 529 US 598 (2000).

Definitions and Expressions those activities having a substantial relation to inter-State commerce, that is, those activities that substantially affect inter-State commerce.

Judicial review in the US is quite progressive and innovative, which was not envisaged in the original constitutional scheme, for e.g. Griswold v. Connecticut141 and Flast v. Coben.142 Edmund Randolph had proposed in the Convention that a Council of Revision be constituted consisting of the President and a convenient number of the national judiciary to examine every act of the Congress instead of Presidential veto. James Wilson argued:

“Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet may not be so unconstitutional as to justify the judges in refusing to give them effect. Let them have a share in the revisionary power [in order to counteract] the improper views of the legislature.143

2.4.2 AUSTRALIA

The Commonwealth of Australia Constitution Act, 1900 though was enacted by the British Parliament is the product of the efforts of the Australian people.144The Australian Constitution does not provide for a specific Bill of Rights. What is legitimate in one society may be illegitimate in another. For example, the public interest jurisdiction exercised by Indian courts would probably be seen by Australians, if undertaken by Australian judges, as an unwarranted intrusion into executive functions.

Judicial review in Australia is guided mainly by the UK tradition and in certain respect by the US as well. Judicial review is influenced by the US in view of its federal structure, but in other respects it shows the influence of Australia‘s English legal heritage only. The Australian Constitution assumes that where a statute is enacted by an Australian Parliament that exceeds the powers recognized or conferred by the Constitution, or infringes some express or implied constitutional limitations, the courts (and in practice especially the High Court ) have the power to declare the

141 14 L Ed 2d 510: 381 US 479 (1965), 514. 142 20 L Ed 2d 947: 392 US 83 (1968). 143 Supra note 38 at 176. 144 Vishnoo Bhagwan, & Vidya Bhushan. (eds.), World Constitutions – A Comparative Study 556 (Sterling Publishers Pvt. Ltd., New Delhi, 2007).

Definitions and Expressions enactment to be unconstitutional and therefore invalid.145Thus, Judicial review in Australia hangs between two ideologies - the British legalism and restraintivism, and American activism.

A distinguished Australian political scientist, Professor Brian Galligan wrote:

“Judicial review is by its very nature an activist function since it involves the judiciary in performing a number of key functions that directly affect the institutional shape and powers of the branches and levels of government.”146

In Australia, in view of judicial review of administrative actions, both as to powers and limitations, the English pattern has prevailed. It is governed by the common law and the specific statute - the Administrative Decisions (Judicial Review) Act, 1977.

In Australian Communist Party v. Commonwealth147, Fullager J explained that “in our system, the principle of Marbury v. Madison148 (Madison) is accepted as axiomatic.”149 Lack of Bill of Rights in Commonwealth shield the court from the “boiling brew of politics”, but federal disputes have indulged it in political heat. The High Court has pleaded alibi of separation of powers for its restraintivist approach.

The actual result of judicial review in Australia is that the High Court has observed restrained activism. A debate between the restraintivist approach of Sir Owen Dixon and the activist approach of Sir Anthony Mason has engaged most of the academic discussion on the role of judicial review in Australia.

In 1955, Dixon reacted against the increasing influence of legal realism in the common-law world in his lecture delivered at the Yale University.150 He propagated the long-accepted legal principle that judging is an objective task in the sense that there existed an “external standard of legal correctness.”

Dixonian legalism was least controversial as it minimized the chances of conflict between the courts and the political branches of government.

145 Anthony Blackshield and George Williams, Australian Constitutional Law and Theory: Commentary and Materials 23 (The Federation Press, Australia, 2006). 146 Galligan B, “Judicial Activism in Australia” in Holland KM (ed.), Judicial Activism in Comparative Perspective 71 (Macmillan, 1991). 147 (1951) 83 CLR 1 (Aust). 148 2 L Ed 60: 5 US (I Cranch) 137 (1803). 149 (1951) 83 CLR I, 262 (Aust). 150 Sir Owen Dixon “Concerning Judicial Method” in Woinarski (ed.), Dixon’s Jesting Pilate and Other Papers and Addresses 152 (Law Book Co., 1965).

Definitions and Expressions

Dixon as the “finest lawyer” controverted him by pronouncing Dixon’s legalism as an “incomplete and inadequate” approach to judicial methodology. In Mason’s opinion, it was so because Dixon’s methodology “conceals rather than reveals the reasoning process.”151 He pronounced his commitment to legal realism. His proposition was that judges make law and they have to keep the principles of law up to date.

Dixon-Mason controversy of legalism versus realism was further carried on by Kirby- Heydon debate. Kirby welcomed abandonment of the declaratory theory of judging.152 In Heydon’s view activism had potential to undermine the legitimacy of court and threaten the existence of the rule of law. In turn, Kirby countered such attack as a “counter-reformation” threatening the “entitlement” of the realist perspective of judging.153

Judicial review in Australia has played a great transformative and reformatory role under the leadership of Mason. Mason court moved away from formalism and exercised avowed law-making more openly through policy determination. Innovative role is obviously expressed in four celebrated decisions of the court – Mabo v. Queensland (No.2)154 (Mabo), Australian Capital Television (P) Ltd. v. Commonwealth155 (ACTV), Dietrich v. R.156 (Dietrich), and Wik Peoples v. Queensland157 (Wik Peoples).

In Mabo the Australian High Court creatively interpreted the native title of Merian people, the original inhabitants of Murray Island. Mabo158 heralded the judicial switch over from legalism to realism. It was a decision of the same magnitude as the decision of Earl Warren in Brown v. Board of Education of Topeka159 in 1954. It was a historic turning point.160

151 Sir Anthony Mason “The Centenary of the High Court of Australia” 5 Constitutional Law and Political Rev. 41-42 (2003). 152 M. Kirby, “Courts and Policy: The Exciting Australian Scene” 19 CLB 1794, 1808-09 (1993). 153 Michael Donald Kirby, Judicial Activism: Authority, Principle and Policy in the Judicial Method (Sweet and Maxwell, London 2004). 154 (1992) 175 CLR I. 155 (1992) 177 CLR I06 (Aust). 156 (1992)175 CLR 292. 157 (1996)187 CLR I. 158 (1992)175 CLR I, 217. 159 98 LEd 873: 347 US 483 (1954). 160 Fiona Wheeler and John Williams, “ Restrained Activism in the High Court of Australia” in Brice Dickson (ed.), Judicial Activism in Common Law Supreme Court 19,38 (OUP, 2007).

Definitions and Expressions

International law and especially international human rights have influenced the judicial decisions in Australia. It is viewed that Mason court was not that activist as to be condemned. It took time like Warren CJ in the US, but exercised the restrained activism.161

The Australian Constitution, and various public law statutes, empower and require Australian courts to pass upon the constitutionality of legislation and the validity and lawfulness of executive acts. Section 75(v) of the Constitution confers authority on the High Court to review unlawful executive action in applications for prohibition, mandamus or injunction against officers of the Commonwealth. The like jurisdiction is replicated in statutory form for the federal and State courts by ss 39 and 39B of the Judiciary Act 1903. The Administrative Decisions (Judicial Review) Act 1977 and various State equivalents seek to simplify and make judicial review more accessible than through the processes of the constitutional writs. From some perspectives the very exercise of such jurisdiction is judicial activism.

2.4.3 BRITIAN

The origin of judicial activism through judicial review can be traced back under the unwritten Constitution of Britain during the Stuart period of (1603–1688). Parliamentary sovereignty was established in Britain during the same Stuart period when the British Parliament abolished monarchy through an Act and declared Britain to be a ‘Commonwealth’ or ‘Republic’ in 1649.With monarchy coming to an end, the maxim, “The King can do no wrong” became ‘The Parliament can do no wrong.’162 Till then, the English judges believed that their function was to merely declare the pre–existing law or to interpret the statutory law. S.P. Sathe finds that “the entire common law is the creation of the English courts which is based on the myth that the judges merely found the law.”163 Even with such self–negation perception of their own role, the English judges developed the law of contracts and torts.

Sometime, in the year 1610, the power of judicial review was asserted for the first time in Britain through the activism of Justice Coke. Evolving the principles of

161 Id. at 67. 162 Supra note 144 at 25. 163 Supra note 51 at 28.

Definitions and Expressions judicial review in Thomas Bonham v College of Physicians, commonly known as Dr. Bonham's Case or simply Bonham’s case164 the Court of Common Pleas in England under Sir Edward Coke, the court's Chief Justice, declared that if a law made by the Parliament violated the principles of ‘common law’ and ‘reason’ then the courts might review and adjudge it as void. Coke said that "in many cases, the common law will control Acts of Parliament", and explained why he thought so. Coke's meaning has been disputed over the years; according to one interpretation, Coke intended the kind of judicial review that would later develop in the United States, whereas other scholars contend that Coke only meant to construe a statute without challenging Parliamentary sovereignty.165 Coke’s theory of judicial review was repeated by Sir Henry Hobart in 1615 and again in 1702 by Sir John Holt. The British chief justices asserted the power of the judiciary to review acts of the British Parliament under ‘reason’ and ‘common law’.

It is common knowledge that the system of judicial review in Britain is primarily based on the common law. Courts have inherent power to declare any act which is contrary to law as invalid and grant suitable remedies. As Bernard Schwartz and Sir William Wade point out:

“[A]s a general rule, and in contrast with the United States statutes [UK statutes] say nothing on the subject except for the purpose of limiting the time within which review can be sought. It is taken for granted that there is adequate machinery for dealing with any excess or abuse of power, and in general this assumption is correct.166

In Liversidge v. Anderson167 the majority judges refused judicial scrutiny of the reasonableness of the Home Secretary’s power of preventive detention during a war emergency. Lord Atkin, the lone dissenting judge, however, held that the words ‘reasonable grounds to believe’ must be interpreted to make the satisfaction of the Home Secretary justiciable. Regulation XII B of the Defence of the Realm Act gave power to the Home Secretary to detain a person if he had reasonable grounds to believe that the person was an enemy. The above judicial attitude which involved a

164 (1610) 8 Co. Rep. 114 (118). 165 Available at: https://en.wikipedia.org/wiki/Dr._Bonham%27s_Case (Last visited on 13 September, 2012). 166 Bernard Schwartz and William Wade, Legal Control of Government: Administrative Law in Britain and the United States 219-220 (Clarendon Press, Oxford, 1972). 167 (1942) AC 206.

Definitions and Expressions most beneficial judicial construction of the emergency powers conferred on the administration by statute law was based on the idea of not embarrassing the executive in times of war.

In the recent years, the British courts have adopted an activist approach in promoting the different human rights as fundamental rights such as right against cruel and inhuman punishments168, right against delayed execution of a death sentence169, right of correspondence between a prisoner and his lawyer170, if not objectionable and right against self incrimination.171 The promotion of human rights by the British courts has gained momentum particularly after the implementation of the Human Rights Act, 1998. “Although the Human Rights Act, 1998 (HRA) preserves the formalities of the principle of parliamentary sovereignty, there were many features of the HRA which placed substantial and (substantive) limits on the law–making power of Parliament.”

Judicial activism in the UK shows the following characteristics:

Firstly, it is a positive approach to common law and statutes; an active desire to do justice in accordance with law, but with readiness to stretch law to a certain degree so that justice may be done in a particular case.

Secondly, it requires judicial courage.

Thirdly, it requires a desire to come to grips with the reality of a case, to go by the spirit rather than the letter of the law.

Fourthly, it requires a desire to mould law to meet the needs of the time.

Fifthly, it is not pedantic, but tends to base more on common sense, equity, fair play, and justice.172

During the last two decades, British judges too have preferred to take a more activist stance. They have been keen to adopt judicial activism in the sense of willingness to develop law. During this period, the House of Lords has been willing to expound law. Brice Dickson points out:

168 Schering v. Falkman (1981) 2 All ER 321 (CA). 169 Noel v. A.G. (1982) Cr L Rev 679 (PC). 170 Guifoyle v. Home Office, (1981) AER 943 (947) (CA). 171 Rio Corpn. v. W.E.C (1978) 1 All ER 434 (HL). 172 Id. at p 171.

Definitions and Expressions

“A review of the judgments of the Law Lords in the last dozen or so years suggests that Their Lordships have been keen to assert themselves as an important institution and to ensure that certain values permeate the law as a whole. They have gradually expanded their powers, setting clearer boundaries to what they can or cannot do and when they will or will not do it, and on numerous occasions they have reversed decisions made by the Court of Appeal on important points of principle.”173

2.4.4 CANADA

The Canadian Constitution, 1867 was a colonial constitution enacted through an Act of the British Parliament known as the British North America Act, 1867 – henceforth known as the BNA Act, 1867. The British Parliament alone could amend the Canadian Constitution of 1867.174

The Preamble of Canada formed under the British North America Act, 1867 (BNA Act) stated in clear words that the new nation was to have “a Constitution similar in principle to that of the United Kingdom”. Thus, barring the imperative changes in light of the federal structure adopted, it continued the form and substance prevailing exactly before the commencement of the Constitution.

During the pre–Charter days, the Canadian courts confined its activism in promoting the principles of federalism. The Canadian courts believed that the Constitution of Canada, 1867 has a federal model because of the double enumeration of powers. Consequently, the Canadian courts have rejected the American doctrine of ‘Immunity of Instrumentalities’ and held that there is no immunity from mutual taxation of the civil servants or judges appointed by either government.

In, Attorney General for Ontario v. Attorney General for Canada 175 “the Canadian Supreme Court has held that though the words ‘peace and good government’ in section 91 are quite broad but they are controlled by the words ‘not coming within the classes of subjects … assigned exclusively to the province.’ Thus, the Canadian Supreme Court has held that the ‘Dominion Parliament should not transgress upon the

173 Judicial Activism in the House of Lords 1995-2007” in Brice Dickson (ed.), Judicial Activism in Common Law Supreme Courts 370 (OUP, 2007). 174 Supra note 144 at 504. 175 (1896) AC 348 (P.C.).

Definitions and Expressions provincial subjects with respect to any of the classes of the subjects’ enumerated in section 91.”176

Abbott v. City of St. John177favored a harmonious construction of the legislative powers of both the Dominion and Provincial Legislatures. In Abbott’s case, judicial construction applied the doctrine of ‘colorable legislation’ to ensure that the taxing powers of either legislature are not transgressed by each other.

The feature which could affect judicial review was thought to be that the Supreme Court did not have a place in the Constitution. It was a product of an ordinary statute in 1875, when demand for the establishment of such a court became imperative.178 But, after the abolition of the Privy Council’s jurisdiction in 1949, the Supreme Court became the final Court of Appeal and new rays for the assertion of judicial review started with the adoption of the Constitution Act, 1982, which asserts the supremacy of the Constitution. The Canadian Constitution comprises “the basic law of Canada”. Any law that is inconsistent with the Canadian Constitution is considered to be of “no force or effect.”179

With the incorporation of a Charter of Rights under the amended Canadian Constitution of 1982 judicial activism in Canada entered a new phase. Now, the Dominion Parliament and the Provincial Legislatures cannot make a law infringing any of the fundamental freedoms enumerated in Sections 2 - 6 as a full – fledged judicial review may now be anticipated. The incorporation of the Charter now provides a firmer foundation for judicial review. “The significance of the Charter has increased when the Supreme Court contended that the Charter has the status of a social compact because of the historic decision to entrench the Charter in the Constitution was not taken by the courts but by the elected representatives of the people of Canada.”180

Jurisdictional reach has been extended by liberalising the locus standi in public interest litigations. The standing rule prevailing in the domain of constitutional law

176 Supra note 126 at 280. 177 (1908) 40 SCR 597. 178 The History of the Supreme Court of Canada” in P.W. Hogg, Constitutional Law of Canada (Carswell, Toronto, 4th edn., 1997). 179 Black v. Canada (Prime Minister), (2001) 54 OR (3d) 215 (CA) (Canadian Policy to honour the Queen). 180 In Re B.C. Motor Vehicle Act (1985) 2 SCR 486, 497.

Definitions and Expressions has been extended to the administrative law domain.181 The Supreme Court has recently extended the protection of rights enshrined in the Canadian Charter of Rights and Freedom by including in its protection ambit the non-governmental body performing a truly governmental function and legislative delegation of power.182 Justiciability is no ground for limiting the judicial proceedings183 nor does the doctrine of “political question” finds any place, Policy decisions put some restrictions on judicial review, as the Supreme Court is reluctant to attribute improper motives to the collective bodies, like Cabinet or legislative bodies.184 The polycentric issues like money spending185 and Charter rights cases are avoided,186 but are not clearly out of judicial review. The Supreme Court struck down a provincial statute banning medical insurance on the ground of violation of the right to security of person.187

The “living tree” idea was watered by the recognition of gender justice in Edward v. Attorney General of Canada,188 holding that women were “persons” who were qualified to sit in Canada’s Senate. The “living tree” concept encouraged progressive and generous interpretation,189 which in turn developed the idea of progressive interpretation.

In Partition Reference190 and Quebec Secession Reference,191 the Canadian Supreme Court had justified its capability of extraordinary law-making in federal cases. Commenting on the role of judicial review in Canada, Hogg points out how the court proved to be too willing to undertake the policy-laden tasks, and the new style of decision-making expressed willingness to change outmoded rule in all walks of jurisdiction affecting administrative law, evidence law, criminal law, and even private

181 Finlay v. Canada (Minister of Finance), (1986) 2 SCR 607 (Can SC). 182 Eldridge v. British Columbia, (1997) 3 SCR 624 (Can SC). 183 Lorne Sossin, Boundaries of Judicial Review: The Law of Justiciability in Canada (1991). 184 Consortium Developments (Clear water) Ltd. v. Sarnia (City), (1998) 3 SCR 3 (Can SC). 185 D. Mullan, “Deference from Baker to Suresh and Beyond - Interpreting the Conflicting Signals” in David Dyzenhaus (ed.), The Unity of Public Law (Hart Publishing, 2004). 186 Mount Sinai Hospital Centre v. Quebec (Minister of Health and Social Services), 2001 SCC 41: (2001) 2 SCR 281 (Can SC). 187 Chaouli v. Quebec, (2005) 1 SCR 791 (Can SC). 188 1930 AC 124, 136. 189 Peter W. Hogg, “Canada: From Privy Council to Supreme Court” in Jeffrey Denys Goldsworthy (ed.), Interpreting Constitutions: A Comparative Study 87 (OUP, 1st edn., 2008). 190 Resolution to Amend the Constitution, re, (1981) 1 SCR 753 (Can SC). 191 (1998) 2 SCR 217.

Definitions and Expressions law areas like tort and family law.192 Hogg observes, “The Court now frankly acknowledges a law-making role in all of its work, certainly including constitutional law.”193

Canada has one additional advantage for judicial activism. It has moved closer to the US in the Charter era in respect of judicialisation of politics. In certain respects, it has surpassed the US in terms of deference to the judiciary.194 In addition to the enactment of the Canadian Charter of Rights and Freedom inspiring judicial activism, there is also an element of the willingness of national political actors to transfer policy-making authority from the political sphere to the courts and the willingness of the judiciary to respond positively to demands for activism [which] are important reasons for the expansion of judicial power in Canada during the last two decades.195

According to McWhinney, “the judicial approach to the interpretation of the Canadian Constitution has widely fluctuated between two alternative approaches between two periods. In the first period, from the passing of the BNA Act in 1867 until the middle 1890’s the judicial construction construed the legislative powers of the Dominion Parliament broadly. The second period, beginning about 1896 and often referred to as Lord Watson– Lord Haldane era, the judicial construction was in favour of the contraction of Dominion legislative powers and the concomitant assertion of provincial rights.”196

2.4.5 FRANCE

The Constitution of the Fifth French Republic, 1958 is based on the principle of Parliamentary supremacy. Though the French Constitution operates as the higher law yet the French Parliament enjoys supremacy in the sense that its law-making power cannot be questioned by its judiciary. Under the French Constitution of 1958, the power of scrutinizing the constitutionality of legislations is entrusted to a non –

192 Such was the outcome of the symposium on 125th anniversary of the court. The conclusions are briefly summarized in P.W. Hogg, “The Law-Making Role of the Supreme Court of Canada: Rapporteur’s Synthesis” 80 Canadian Bar Review 171(2001). 193 Supra note 189 at 605. 194 Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism 21 (2007). 195 Id. at 20. 196 Edward McWhinney, Judicial Review in the English Speaking World 64 (University of Toronto Press, Toronto, 2nd edn., 1960).

Definitions and Expressions judicial body known as the Constitutional Council. It is empowered to determine the constitutionality of a Bill. The Constitutional Council (CC) is a non–judicial political body of nine members. All the nine members are appointed, in equal number, by three different authorities, namely, the President of the Republic, the President of the National Assembly (lower House of Parliament) and the President of the Senate (upper House). Besides these nine nominated members, all former Presidents of the Republic shall be ex-officio members. After promulgation, the CC has no power to invalidate a law passed by the National Assembly and the Senate.

“The political importance of the CC increased with the Constitutional Amendment of October 29, 1974.Now a reference regarding the constitutionality of a Bill can be made even by a minority group in either House (i.e., about ⅓ in the Senate or 1/5 in the Assembly).With increased political importance activism of the CC increased as more Bills were referred to it for determination of their constitutionality. “197

“Adopting an activist approach the CC has grown from a rather fragile institution to a stronger body.”198 “Though the CC is not a court, it should be pointed out that its decisions have a judicial flavor and up to 1977 it has pronounced several laws passed by the French Parliament as unconstitutional as it assumed the role of ‘Guardian Angel’ and the ‘Protector of civil liberties and individual’s freedom”.199

2.4.6 GERMANY

In Germany, judicial activism mainly operates on the principle of ‘basic law’. The Federal Constitutional Court (the highest Court of Germany) looks upon the Constitution as the ‘basic law’. The Federal Constitutional Court applies the ‘basic law’ theory either to decide questions relating to the basic rights and the basic federal features of the German Constitution. The Federal Constitutional Council ensures that the basic rights of the German citizens incorporated in the basic law are not violated.

197 Supra note 126 at 368. 198 R. Sridhar, “Judicial Review and the Constitutional Council of France – A Survey.” Vol. 20 (2) Indian Bar Review, (IBR) 179 – 184 (1993). 199 Id. at 180.

Definitions and Expressions

2.4.7 IRELAND

With the Independence of Ireland in 1921 and the adoption of the Constitution in 1922, some changes took place, but no significant role of the judiciary was visible as the Constitution could be easily amended, nullifying the effect of judicial pronouncements, declaring laws inconsistent with the Constitution.200

The promulgation of the 1937 Constitution made some improvements and amendment of the Constitution became difficult, and the Constitution adopted the core of natural law philosophy based on Thomism.201 It was thought that judicial activism would be natural under the Constitution of Eire (Free State), 1937 which lays down express provisions for a Chapter on a Bill of Rights and the Directive Principles of State Policy borrowed from Spanish Republican Constitution of 1931.

Under the Constitution of Ireland describes the various fundamental rights. These fundamental rights are classified into five categories: i Personal rights,202 ii Family rights,203 iii Education rights,204 iv Property rights205 v Religious rights.206

Meskell v. Coras Iompair Eireann207 came as the most revolutionary decision, wherein Walsh J extended the constitutional protection against infringement of rights to cover non-State actors in addition to infringement by the State.

The Irish Supreme Court has largely benefited from the decisions of the US, Indian and South African Supreme Courts, and the German Constitutional Court.208The Irish judiciary has also adopted the policy of judicial self-restraint with respect to

200 Ibid. 201 Id. at 171. 202 Article 40 of the Constitution of Ireland, 1937. 203 Article 41 of the Constitution of Ireland, 1937. 204 Article 42 of the Constitution of Ireland, 1937. 205 Article 43 of the Constitution of Ireland, 1937. 206 Article 44 of the Constitution of Ireland, 1937. 207 1973 IR 121. 208 William Binchy, “The Supreme Court of Ireland” in Brice Dickson (ed.), Judicial Activism in Common Law Supreme Courts 179 (OUP, 2007).

Definitions and Expressions justiciability of socio-economic policy.209 In a nutshell, judicial review in Ireland is parsimonious and does not even have the status of a restrained activist like Australia.

Judicial review in Ireland is not very straight. It is complex in view of the complexities of the Irish culture. Activism and conservatism go hand in hand. Historical facts have been great determinants of the scope of judicial review in Ireland. For a long time, Ireland had maintained “a vibrant indigenous legal system - the Brehan law.”210

According to Durga Das Basu, there has been an occasion when the Irish courts have appealed to the spirit of the Constitution in interpreting the express provisions of the Constitution and such liberal interpretation has been possible due to the presence of certain vague expressions in the Constitution itself. For example, The Preamble uses the nebulous expressions such as “to promote the common good” with due observance of “prudence, justice and charity”. The Irish courts have looked to the Preamble to deduce ‘unenumerated natural rights’ from the sphere of fundamental rights.211

Thus, the Supreme Court of Ireland mainly assumed the role of a literal interpreter though on certain occasions it assumed the role of a liberal interpreter by referring to the Preamble. However, such a judicial approach on the part of the Irish judges sustained less than the Supreme Court of U.S.212

2.4.8 ISRAEL

Israeli Supreme Court has been commended by Lord Wolf, the former Chief Justice of England and Wales, as one of the best courts,213 and as Eli Salzberger comments, “The quality of the judges in Israel has a bearing on their willingness to be activist, and this activism influences the perception of their quality.”214

209 Id at 190-94. 210 William Binchy, “The Supreme Court of Ireland” in Brice Dickson (Ed.), Judicial Activism in Common Law Supreme Courts 170 (OUP, 2007). 211 Durga Das Basu, Comparative Constitutional Law 184 (Wadhwa and Company, Nagpur, 2nd edn., Revised 2008). 212 Supra note 196 at 172. 213 Lord Wolf uttered this appreciation twice – first in his address at the Hebrew University, on 5-12- 2003, and second in his statement honouring President Barak’s retirement from the Supreme Court held in the Faculty of Law, University of Haifa on 27-12-2006. 214 Eli Salzberger, “Judicial Activism in Israel” in Brice Dickson (ed.), Judicial Activism in Common Law Supreme Courts 217 (OUP, 2007).

Definitions and Expressions

In comparison to the British model (of its legacy), courts preferred American flavour, allowing judiciary a great degree of discretion in view of the separation of powers, which did not allow reversal of judicial decisions by the other branches of the government.215

Judicial review played an admirable role in Israel, with judges acting as protectors of freedom even without the constitutional guarantee, and this led to arousing public trust and admiration. The system also ensured a structural independence of judiciary with a high degree of professionalism, free of party politics and corruption.216

Two decisions of the Israeli Supreme Court - Bergman v. Minister of Finance Israel217 in 1969 and United Mizrahi Bank v. Migdal Coop. Village218 (United Mizrahi Bank ) in 1995 - have been regarded to have the same magnitude as the US Supreme Court pronouncement in Madison219 in 1803.

In Zarzevski v. Prime Minister220, the Supreme Court declared a political document justiciable and pronounced part of the agreement null and void.

The creative role of judicial review has come through judiciary’s attempt to create a judge-made Bill of Rights including freedom of expression221 and other derivative liberties, like freedom of assembly and demonstration,222 freedom of press,223 and protection of commercial expression,224 etc. The judiciary has played an equally creative role in matters of security and defence.225

Acute criticism has led the judiciary to bend itself to some extent, and the issues relating to delicate matters are returned as “hot potatoes” to the political branches with an explicit warning that in case of their failure to act, the courts would do so.226

215 Id. at 222 – 23. 216 Ibid. 217 HCJ 98 of 1969 : 1969 Isr SC 23 (I) 693. 218 United Mizrahi Bank Ltd. v. Migdal Coop. Village, CA 6821 of 1993: 1995 Israel SC 49 (4) 221. 219 2 L Ed 60: 5 US (I Cranch) 137 (1803). 220 HCJ 1635 Of 1990: (1991) Isr SC 45 (I) 749. 221 KolHaam v. Minister of Interior, HCJ 25 of 1953: 1953 Isr SC 7 (I) 165. 222 Saar v. Minister of Interior and Police, HC 146 of 1979 : 34 (2) PD 169. 223 Ha’aretz Newspaper Publishing Co. v. Israel Electric Co., CA 723 of 1974: 31(3) Isr SC 281 (1975). 224 Kidum v. IBA, HCJ 606 of 1993: 1994 Isr SC 48 (2) I. 225 Eli Salzberger, “Judicial Activism in Israel” in Brice Dickson (ed.), Judicial Activism in Common Law Supreme Courts 250- 60 (OUP, 2007). 226 Id. at 270.

Definitions and Expressions

Like India, the Israeli Supreme Court’s activism is approved due to the increasing ineffectiveness of decision-making of the political branches - legislature and executive, necessitating more and more delegation to courts resulting in further activist role. But at the same time there is a move to “delegitimise” the legal establishment. Thus, the Israeli system is hanging between the two worlds.

2.4.9 JAPAN

With a specific Chapter on a Bill of Rights, the Japanese Supreme Court often look forward to American precedents in interpreting the fundamental rights of its citizens. As such, the principles of natural justice were promoted by liberally interpreting the ‘due process’ clause. In one such decision, the Japanese Supreme Court has held that to confiscate a person’s property for a statutory offence without giving an opportunity to defend his property rights infringed on his property rights without ‘due process’ thus violating Article 31.227 Judicial activism in Japan is based on the American model but it was much more subtle than its counterpart.

2.4.10 NEW ZEALAND

It is a unitary State with tradition of strong parliamentary sovereignty, like the legal system prevailing in England. But, unlike England, it has a unicameral legislature with the executive formed from within and accountable to it. There is lack of constitutionalism and, therefore, absence of constitutional safeguards like written Constitution and accompanying judicial review of legislation, or Bill of Rights, or second chamber of federalism. But, this tendency has been watered down by the Constitution Act, 1986 and the New Zealand Bill of Rights Act,1990. Up to 1 January 2004, the Privy Council was the highest Court of Appeal. With the enactment of the Supreme Court Act, 2003, the New Zealand Supreme Court became the final court of New Zealand.

Judicial review is restricted and the doctrine of “political question” has full application in New Zealand, rendering certain issues non-justifiable. Though, in

227 In Yoshida v. Japan, (1965).

Definitions and Expressions

Curtis v. Minister of Defense228, the issue of non-justiciability of political question was left open. In Akatere. V. Attorney General229, Keane J was inclined to hold the matter non-justiciable, which related to the Cabinet decision to approve exgratia payments for wrongly convicted persons of crimes.

The reach of judicial review is not limited by putting strict emphasis on locus standi. As observed in De Smith’s Judicial Review, in New Zealand standing at a threshold is at most a dead letter.230Liberalised approach is due to lesser workload. Barker J rightly expressed the view, “Standing as a preliminary requirement remains theoretically available as a filter at the outset for crazy cases and people, but it is rarely invoked.”231

Judicial review in New Zealand has marked a change since 1990. Prior to that, it was termed as “a virtually perfect example of the Westminster model of democracy” and “the only example of the British majoritarian democracy system left.”232 It broke out the traditional British distrust of the American style of judicial review.

The judiciary is expected to fill the gap either deliberately left by the legislature, intending courts to be creative and give greater substance to the enacted rules, or inadvertently left by the legislature, as it could not anticipate at the time of enacting law.233 The court has played a creative role in the area of open texture of the New Zealand Bill of Rights Act and statutory expression “the principles of the Treaty of Waitangi.”234

2.4.11 SOUTH AFRICA

South Africa, after the long ill-experiences, has evolved, adopted and framed latest model of the product of constitutionalisation and judicialisation.

228 (2002) 2 NZLR 744 (CA). 229 (2006) 3 NZLR 705. 230 Stanley A. De Smith, De Smith’s Judicial Review 105 (Sweet & Maxwell,6th edn., 2007). 231 Ibid. 232 Arend Lijphart, Democracies: Patterns of Majoritarian and Consensus Government in Twenty-One Countries 19 (Yale University Press, New Haven, London, 1984). 233 Bruce Harris, “Judicial Activism in New Zealand’s Appellate Courts” in Brice Dickson, Judicial Activism in Common Law Supreme Courts 273-302 (OUP, 2007). 234 Id. at 303.

Definitions and Expressions

In pre-democratic South Africa, for the common-law locus standi rule to apply in strict way required “sufficient and direct personal interest.” But, in post-Constitution period, it is similar to public interest or social action practiced in other countries like India and the US.

The South African court also sails on the same boat, as countries like India, the UK, the US and Canada on the issue of the nature of the exercise of power by private bodies. Even in pre-Constitution era, the nature of the exercise of power mattered and, if private body exercised power of public nature, it was held to be subject to judicial review.

Judicial philosophy, as a whole, in South Africa has shifted from positivistic judicial performance under apartheid regime to activist in new democratic constitutional era. Section 39 of the South African Constitution235 has heralded a new era of judicial activism. It intends courts to interpret it in such a way as to give life to the values of the Constitution. Like Canada, New Zealand and Israel, the constitutionalisation of rights and the fortification of judicial review in South Africa have marked a shift from the traditional principles of parliamentary sovereignty towards a new regime of constitutional supremacy and active judicial review.236

The highest court of South Africa has shown both restraint and courage to deal with complex situations. It played a creative role in consonance with public sentiment and response of the executive leadership, i.e. support from President Nelson Mandela.

The courts have struck an admirable balance between activism and restraint with a little sign of the irresponsible adventurism sometimes associated with activism. But, activism has not crossed the limit so as to invite criticism, like the activist role played by the Canadian judiciary.237 It is nearer to the role of judiciary performed in

235 S. 39 of the South African Constitution reads as follows: (i) When interpreting the Bill of Rights, a court, tribunal or forum (a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; (b) must consider international law; and (c) may consider foreign law. 236 Ran Hirschl, Towards Juristocracy: The origins and Consequences of the New Constitutionalism 30 (Harvard University Press, 2004). 237 Reviewing the performance of the Canadian judiciary:

Definitions and Expressions

New Zealand within the permissible limits of judicial creativity. Corder rightly points out: “South Africa’s top courts have achieved a greater degree of public support precisely through their activism, which has sometimes seemed to provide the only impetus prodding the other branches of government to act to address social needs.”238

2.5 FINDINGS

Thus from the above discussion, it can be concluded that ‘judicial activism’ is not a term but a phenomenon which has enormous facet. The different definitions given by the jurists unveil its manifold concepts. Judicial activism has taken place under most constitutions of the world.

Talking of the other constitutions, in the UK, judicial activism lies in the concept of natural and right reason. In the US, with written Constitution, it does not find explicit base either. The US Constitution does not explicitly give the Supreme Court the power of judicial review.

Judicial activism was not a strait-jacket formula. It had varied from constitution to constitution in respect of form, period and also the source from where it derived its existence.

Even the sources of judicial activism were different. If it was Rule of Law under one Constitution, it was the Preamble under another Constitution. Again, if it was the Bill of Rights under one Constitution, it was Federalism under another Constitution.

Whatever may be the variation, judicial activism was and shall be present, if the supreme law of the land has to be safeguarded from its arbitrary violation by the other two organs. Judicial activism has to be there if the fundamental rights and

The Supreme Court’s decision was greeted with a deluge of public and academic commentary. Activism was the word on most people’s lips. It sounds as if it is something positive – healthy, vital and purposeful. But, when it is used in connection with courts, many hear it only as having disturbing negative resonances – uppity, illegitimate and uncontrolled. [Allan C. Hutchinson, “Judges and Politics: An Essay from Canada” 24 Legal Studies 275, 277 (2004).] 238 Hugh Corder, “Judicial Activism of a special Type: South Africa’s Top Courts Since 1994” in Brice Dickson, Judicial Activism in Common Law Supreme Courts 323, 362 (OUP, 2007).

Definitions and Expressions freedoms of the citizens are to be protected from its arbitrary invasion by the State.

Till now, countries mostly in Western Europe, Latin America, Africa and the Far East had adopted some form of judicial review. Australia, Brazil, Burma, Canada, India, Japan and Pakistan give their courts full measure of judicial review power. Judicial review contributes to stability, judicial independence and political freedom,Separation of powers, judicial independence and political freedom contribute to the effectiveness of judicial review.

Definitions and Expressions

CHAPTER-3

EVOLUTION AND DEVELOPMENT OF JUDICIAL ACTIVISM IN INDIA

A Constitution states or ought to state not rules for the passing hour, but principles for an expanding future.

Benjamin N. Cardozo1

3.1 ORIGIN

The term “judicial activism” came into currency sometime in the twentieth century to describe the act of judicial legislation i.e. Judges making positive law.2Although, the underlying debate on judicial activism has been around since the days of Blackstone and Bentham.

In India, the Regulating Act of 1773, which symbolised the new concept of partnership between the Crown of England and the East India Company, was the first essay in constitution-making for India by the British Parliament. The Act created a Supreme Council in Bengal, comprising the Governor-General and four councillors, which was vested with chief executive authority over the other two provinces of Bombay and Madras. A Supreme Court was also founded consisting of a Chief Justice and three judges. However, the Regulating Act did not spell out the functions of the Supreme Court clearly, which brought it into fierce conflict was the Supreme Council which complained that the judges aimed at running a parallel government. Berating the encroaching spirit of the judges a document of 1781 reads:

They have subjected every zamindar in the country to their jurisdiction. They have granted writs of ejectment against persons who have bought estates by the order of the

1 B.N. Cardozo, The Nature of the Judicial Process 94 (Yale University Press, New Haven, 33rd printing, 1974). 2 Brian Bix, “Positively Positivism” 85 VA LR 889, 907 (1999) (book review) cited from Keenan D. Kmiec, “The Origin and Current Meanings of Judicial Activism”, 92 CALIF LR 1441 (2004) who discusses the divergent philosophies of Blackstone (who favoured judicial legislation) and Bentham (who despised it as “miserable sophistry”).

Definitions and Expressions

Governor-General and Council. They have ordered a writ of habeas corpus against the Naib Subha who would have executed it, to avoid the consequences of such a measure, entreated the Chief Justice to suspend the execution of the writ.”3

The collision between the Council and the court reached hideous proportions threatening to tear asunder the lifelong friendship between Warren Hastings and Sir Elijah Impey, the then Chief Justice. In May 1780 Impey complained that he was being sacrificed to a union between Hastings and Philip Francis. Hastings, however, successfully appeased the Chief Justice by giving him supervisory power over the working of the district courts.

Judicial review of legislative acts was in vogue in the British colonies including India, since colonial legislatures were not supreme as they derived their powers from the legislations enacted by the British Parliament. Thus the Indian courts exercised the power of judicial review of legislation from the first Act by the British Parliament, enacted in 1858. The Calcutta High Court introduced the principle of judicial review in the following words:

The theory of every government with a written Constitution forming the fundamental and the paramount law of the nation must be that an Act of legislature repugnant to the Constitution is void. If void, it cannot bind the courts, and oblige them to give it effect; for this would be to overthrow in fact what was established in theory and make that operative in law which was not law.4

The study of India reveals that the glimpses of judicial activism were visible, even during the pre–independence colonial era, in various judgments of the Privy Council which had the jurisdiction to review the decisions of the Company’s courts and the Crown’s courts in colonial India. In Emperor v. Sibnath Banerjee5, the Privy Council held that the Court can investigate the validity of orders passed under Section 59 (2) of the Government of India Act, 1935. Judicial review of the Privy Council however ended with the abolition of the Privy Council jurisdiction Act on 10th October, 1949.

3 Henry Dodwell (ed.), Warren Hastings’ Letters to Sir John Macpherson 72 (Faber &Gwyer, London, 1927); see V.B. Kulkarni, British Statesmen in India 38 (Orient Longman Limited, Bombay, 1961). 4 Empress v. Burah and Book Singh, I.L.R. 3 Cal. 63, 87-88 (1878). 5 AIR (32) 1945 PC 156, p. 161.

Definitions and Expressions

The High Commissioner for India v. I.M. Hall6, is another case where the Privy Council incorporated the principles of ‘reasonable opportunity to the heard’ within the meaning of Section 240 (3) of the Government of India Act, 1935.

Judgments given by the Federal Court constituted under the Government of India Act, 1935 in Niharendu Dutt Majumdar v. Emperor,7 is yet another example of an activist judiciary. Here, the Federal Court held that mere criticism or even ridicule of the Government does not amount to sedition unless the Act was calculated to undermine respect for the Government so as to make people cease to obey it so that only anarchy can follow. However, the Federal Court constituted under the Government of India Act, 1935 mainly played the role of a literal interpreter. This was because the Constitution of 1935 had no specific chapter on the Bill of Rights and wide discretionary powers were conferred on the executive.

The judicial activism in India could be classified into the following eras or periods to make its historical study easier: -

A. Pre–emergency era (1950 to 1974)

i Nehruvian era (1950 to 1964); and ii post–Nehruvian era (1965 – to 1974); and

B. Emergency era (1975 – 1977).

C. Post –emergency era (1978 onwards)

3.2 PRE-EMERGENCY ERA (1950 – 1964)

An idea for a Constituent Assembly of India was proposed in 1934 by M. N. Roy, a pioneer of the Communist movement in India and an advocate of radical democracy. It became an official demand of the Indian National Congress in 1935, and was accepted by the British in August 1940. Thus, the process of the evolution of the Indian constitution started much before India became independent. It is the product of prolonged debates and discussions in the constituent assembly. The Constitution was adopted by the India Constituent Assembly on 26 November 1949, and came into effect on 26 January 1950.

6 AIR (35) 1948 PC 121, para 21 and 22. 7 29 AIR 1942 FC 22.

Definitions and Expressions

During the speech in the constituent assembly debate, Honourable Shri N.V. Gadgil had stressed that a modern constitution can be tested from five points of view:8 i The nature of the State for which the Constitution is provided; ii The nature of the Constitution itself; iii The nature of the Legislature, iv The nature of the Executive; v The nature of the Judiciary.

A cursory study of the text of our Constitution and of the debates of the Constituent Assembly would reveal the great interest that the Framers took in matters relating to the Judiciary and in envisaging the powers of the Supreme Court. In the opinion of the Framers, a single, integrated Judiciary, along with a uniform system of laws, was "essential to maintain the unity of the country". The Framers took great efforts to vest the Indian Judiciary with the twin concepts of Judicial Review and Judicial Independence.

However, some of the members of the Assembly felt that in some areas of the social revolution, the legislature should have the final say. They expressed the view that in those areas, Judges should have a limited role, restricted to interpreting the written law.

3.2.1 NEHRUVIAN ERA

Pandit Jawaharlal Nehru, the first Prime Minister of India believed in giving limited powers to the Indian Judiciary over the parliament, as said by him in the Constituent Assembly Debates:-

“No Supreme Court and no judiciary can stand in judgment over the sovereign will of the Parliament representing the will of entire community. If we go wrong here and there, it can point it out but in the ultimate analysis, where the future of the community is concerned, no judiciary can come in the way. And it is comes in the way, ultimately the whole Constitution is a creature of Parliament.”9

8 CAD, VOLUME XI, Friday, the 18th November, 1949. 9 Rajeev Dhavan, “ Nehru, Law and Social Change” in Rajeev Dhavan & Thomas Paul, (eds.), Nehru And The Constitution 55 (Indian Law Institute, New Delhi, 1992).

Definitions and Expressions

Speaking on the right to property, Prime Minister Jawaharlal Nehru categorically emphasised:

“Within limits no judge and no Supreme Court can make itself a third chamber [of the legislature.”10

Shri Alladi Krishnaswamy Ayyar, who played a prominent role in drafting the provisions relating to the Judiciary, had said this:

“While there can be no two opinions on the need for the maintenance of judicial independence, it is also necessary to keep in view only important principle. The doctrine of independence is not to be raised to the level of dogma so as to enable the judiciary to function as a kind of super-legislative or super-executive. The judiciary is there to interpret the constitution or adjudicate upon rights.”11

Dr Ambedkar once reflected:

“We are therefore placed in two difficult positions. One is to give the judiciary the authority to sit in judgment over the will of the legislature and to question the law made by the legislature on the ground that it is not good law, in consonance with fundamental principles. Is that a desirable principle? The second position is that the legislature ought to be trusted not to make bad laws. It is very difficult to come to any definite conclusion. There are dangers on both sides. For myself I cannot altogether omit the possibility of a Legislature packed by party men making laws which may abrogate or violate what we regard as certain fundamental principles affecting the life and liberty of an individual. At the same time, I do not see how five or six gentlemen sitting in the Federal or Supreme Court examining laws made by the Legislature and by dint of their own individual conscience or their bias or their prejudices be trusted to determine which law is good and which law is bad.”12

Further he said:

“The Constituent Assembly in making a Constitution has no partisan motive. Beyond securing a good and workable Constitution it has no axe to grind. In considering the articles of the Constitution it has no eye on getting through a particular measure. The

10 B. Shiva Rao, “The Framing of India’s Constitution: A Study” 5 Indian Institute of Public Administration, New Delhi 235 (1968). 11 Aladi Krishnaswami Ayyar. CAD, Vol. XI, P. 837. 12 CAD vol.7, p. 1000.

Definitions and Expressions future Parliament, if it met as a Constituent Assembly, its members will be acting as partisans seeking to carry amendment to the Constitution to facilitate the passing of party measures which they have failed to get through Parliament by reason of some article of the Constitution which has acted as an obstacle in their way. Parliament will have an axe to grind while the Constituent Assembly has none. That is the difference between the Constituent Assembly and the future Parliament. That explains why the Constituent Assembly though elected on limited franchise can be trusted to pas the Constitution by simple majority and why the Parliament though elected on adult suffrage cannot be trusted with the same power to amend it.”13

Traditionally it is not uncommon for a completely independent judiciary to be looked at with suspension by the executive, the fear being that the courts may set themselves above law or as third house of parliament but during the Nehruvian era, not only the politicians but also the courts seemed to be under the sway of parliamentary supremacy. As S.P. Sathe has rightly said:

“The judges of the Supreme Court had been brought up in the English positivist tradition and were reluctant to assume wider powers for the Court. The initial perception of judicial role between the majority of the leaders of the Constituent Assembly and the judges was identical. There was thus no dispute regarding the role of the Court between the political establishment and the Court. Both perceived it as a technocrat responding to legal queries. Therefore it was easy for the political establishment to manage the Court. It simply amended the Constitution and asked the Court to respond to it.”14

Such judicial passivism was mainly due to three reasons. Firstly, the Nehruvian era judges of the Supreme Court were drawn from amongst the judges of the Federal Court and various High Courts of India appointed during the colonial government.15 These judges firmly believed in the supremacy of the Imperial Parliament which acted as the ultimate authority of the colonial government in India.

Secondly, the Nehruvian era courts believed that law was what was declared by the Parliament and it was the duty of the courts to interpret the law as it is and uphold it.

13 Constituent assembly debates, vol. VII, pp. 43-44. 14 S.P. Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits 6 (Oxford University Press, New Delhi, 2nd edn., 2002). 15 Id. at 255.

Definitions and Expressions

Such judicial passivism is based on the Anglo–Saxon tradition which asserts that a judge does not make law; he merely interprets. “Law is existing and eminent; the judge merely finds it. He merely reflects what the legislature has said. This is the photographic theory of the judicial function.”16

Thirdly, the Nehruvian era parliamentarians were statesman and men of unity and integrity. They were politicians who had participated in the national movement and therefore carried the halo of sacrifice. “Between the politicians and the judges, the politicians enjoyed much greater prestige.”17 The Nehruvian era politicians not only commanded respect from the people but also from the courts. The courts, therefore, exercised judicial restraint in invalidating the legislations passed by the Parliament.

The confrontation between Parliament and the Supreme Court began immediately after India because a republic because the elected representatives were emphatic that they had got the mandate to shape the destiny of the nation. However, the judiciary was equally ardent that the government or the legislature must not try to interfere with its independence as is evident from what Chief Justice of India (CJI) Hirala Kania said on 28 February 1950 at the inauguration of the Supreme Court: that judiciary must be quite untouchable by the legislature or executive authority in the performance of its duties.

Judicial activism in India became obvious sometimes from the period of 1950. The Supreme Court’s activist decisions in Romesh Thappar v. State of Madras18, Brij Bhushan v. State of Delhi19 and Champakam Dorairajan v. State of Madras20 invalidating the laws passed by the Parliament set up turmoil in the system of the constitution. Consequently, the Parliament passed the Constitution (1st Amendment) Act, 1951 to counter the judicial decisions. The newly added Ninth Schedule through the Constitution (1st Amendment) Act, 1951 made Acts named therein beyond the challenge of courts for infringement of fundamental rights guaranteed in Articles 14,19 and 31. These amendments were made to prove the supremacy of the parliament over the Judiciary.

16 Chief Justice P.N. Bhagwati, “Judicial Activism in India,” available at: www.law.wisc.edu/alumni/.../ 17- 1/gargoye (last visited on 10 august 2013). 17 Ibid. 18 AIR 1950 SC 124. 19 AIR 1950 SC 129. 20 AIR 1951 SC 226.

Definitions and Expressions

The Supreme Court of India faced its first case of judicial Review in A.K. Gopalan v. Madras.21 The first major constitutional issue arose out of the preventive detention of communist leader A.K. Gopalan, in whose honour the headquarters of CPM is named. A writ of habeas corpus was filed. The contention was whether under this writ and the provisions of The Preventive Detention Act, 1950, there was a violation of his fundamental rights which were article 13, 19, 21 and 22. The counsel on behalf of the petitioner argued that the right to movement was a fundamental right under article 19 and hence the defence counsel must prove that the law of preventive detention was a reasonable restriction as per the five clauses of article 19(2). The issue was whether somebody's detention could be justified merely on the ground that it had been carried out "according to the procedure established by law," as stipulated in Article 21 of the Constitution. Or, would that procedure be valid only if it complied with principles of natural justice such as giving a hearing to the affected person? In the A. K.Gopalan case, the Supreme Court, taking a narrow view of Article 21, refused to consider if the procedure established by law suffered from any deficiencies. It was held that the words ‘procedure established by law’ were different from the ‘substantive due process’ guarantee provided under the 14th amendment to the US Constitution. It was also reasoned that the framers of the Indian Constitution consciously preferred the former expression over the latter. This narrow construction of Article 21 prevailed for several years.

Professor Edward McWhinney in his Judicial Review observed that the Supreme Court of India had adopted a highly positive attitude towards constitutional interpretation. The learned Professor predicted that:

“It seems likely that the Indian Constitution will be subjected to some stress and strain in the future unless the Indian Supreme Court is prepared to adopt a more consciously creative role.”22

Another English commentator observed that the Supreme Court of India had not departed from the well-established rules of law followed by courts in England.23 We have said about that the courts in England for a long time denied that they made law. The tradition of English courts was to read the words contained therein and not to

21 AIR 1950 SC 27. 22 Edward McWhinney, Judicial Review 139 (University of Toronto Press, 4thedn., 1969). 23 Green, “Preventive Detention Act” 44 Indian Law Review 304, 309 (1950).

Definitions and Expressions import extra-legal considerations in their interpretation. This is known as legal positivism. Legal positivism has been defined by Dworkin as ‘a theory which holds that the truth of legal propositions consists in facts about the rules that have been adopted by specific social institutions, and in nothing else’.24Dr Rajeev Dhavan has described the black letter law tradition, which gives rise to legal positivism, in the following words:25

‘The ‘black letter law’ tradition seeks to interpret law as a distinct, relatively autonomous reality. Within this tradition ‘law’ is separated from morality. It is understood and interpreted by esoteric rules known only to the initiated and critiqued on the basis of self constituted legal principles and concepts.”

The interpretational strategy of the Supreme Court of India in Gopalan was positivist because the Court refused to give wider meaning to the words ‘procedure established by law’ or ‘personal liberty’ in article 21 of the Constitution. When a court takes into account the philosophy of law and interprets a statute in terms of not only what it is but also what it ought to be, it is said to have moved towards judicial activism.26

The activism of the Supreme Court which got perceptible from the very first year of its inception in the dissenting opinion of Justice Fazl Ali in Gopalan’s case27, sowed the seed of judicial component in the legislative function. Though Prime Minister Jawaharlal Nehru firmly believed in the independence of the judiciary, he, nonetheless, told the Lok Sabha on 16 May 1951, in no uncertain terms, that the judiciary had no role with respect to great schemes and big social changes. Speaking on the Fourth Amendment, he asserted that the judiciary should not decide about high political, social, economic of other questions which fall in the domain of Parliament. So, in a way he tried to define the perimeter for the judiciary beyond which it should not move.

In Romesh Thappar v. State of Madras28 the petition was filed under Art. 32 of the Constitution by the petitioner against the order of Government of Madras imposing a ban upon the entry and circulation of the petitioner's weekly journal Crossroads,

24 Ronald Dworkin, Taking Rights Seriously vii (Gerald Duckworth and Co., 1977). 25 Rajiv Dhavan, Introduction to Marc Galanter, Law and Society in Modern India xvii (Law in India Series, Oxford University Press, 1997). 26 Supra note 14 at 42. 27 A.K. Gopalan v. State of Madras, AIR 1950 SC 27: 1950 SCR 88. 28 AIR 1950 SC 124.

Definitions and Expressions printed and published in Bombay. The order was passed under the Madras Maintenance of Public Order Act, 1949. The Court found that the ban constituted a violation of the right to freedom of expression. As a response, the parliament added, by the Constitution (First amendment) Act 1951, preservation of ‘public order’ as a ground for imposing restrictions on the freedom of speech and expression.

The Court adopted a rigid attitude in Madras v. Champakam Dorairajan,29 decided in 1951. In the State of Madras (now Tamil Nadu), admissions to medical college were governed by a Communal Government Order that divided the total number of seats by community. The Court while striking down the communal order took a position that in view of a clear prohibition of discrimination on the ground of religion or caste contained in article 15(2), seats in an educational institution could not be allocated on the basis of community. It was argued that since a directive principle of state policy contained in article 46 of the Constitution enjoined the State to promote with special care the educational and economic interests of the weaker sections of the people, and particularly the Scheduled Castes and the Scheduled Tribes, reservation of seats in favour of such weaker section was constitutionally valid. While rejecting that argument, the Court observed that the directive principles of state policy ‘have to conform to and run as subsidiary to the chapter of Fundamental Rights.’30

The question whether an amendment of fundamental rights guaranteed by Part III of the Constitution is permissible under Article 368 came before the Supreme Court as early as in 1951 in Shankari Prasad Singh Deo v. Union of India31. In that case validity of the Constitution (First Amendment) Act, 1951, especially the inclusion of Articles 31-A and 31-B was challenged in a petition under Article 32. It was alleged, inter alia, that as Article 13(2) prohibited making of laws abridging fundamental rights, it prohibited such abridgement even by an amendment because an amendment was also a law. Rejecting the argument, the Court held that the power to amend the Constitution, including the fundamental rights, was contained in Article 368 and that the world ‘law’ in Article 13(2) did not include an amendment of the Constitution which was made in the exercise of constituent and not legislative power.

29 AIR 1951 SC 226. 30 Id at 228. 31 AIR 1951 SC 458: 1952 SCR 89.

Definitions and Expressions

Parliament and the Supreme Court clashed on their interpretations of the provisions on the right to property. Although the Constituent Assembly had taken utmost care to avoid judicial interference with the program of economic reforms to which the Congress Party had been committed since the days of the National Movement, the courts did hold the laws authorizing changes in property relations unconstitutional. Because of clauses (4) and (6) of article 31, the validity of such laws could not be challenged on the ground of their alleged violation of the right to property guaranteed by article 31, it was challenged on the ground of their alleged violation of the right to equality guaranteed by article 14.

In Kameshwar Singh v. State of Bihar,32 the Bihar Land Reforms Act 1950 was challenged on the ground that the classification of zamindars made for the purpose for giving compensation was discriminatory and denied equal protection of laws guaranteed to the citizen under Article 14 of the Constitution. The Patna High Court held this piece of legislation as violative of Article 14. It upheld the objection that the differential rates of compensation provided under the land reform legislation, whereby the rates of compensation tapered down as the value of the land went up, were discriminatory.

Parliament responded to that decision by amending the Constitution, following the procedure laid down under article 368 of the Constitution. The Constitution (First Amendment) Act, 1951 inserted two new articles, 31-A and 31-B, the purpose of both being to exclude judicial review of some types of legislation that abolished certain types of property interests on the ground of their alleged violation of certain fundamental rights. The Ninth Schedule was also added to the Constitution by the 1st Amendment, which came into force on 18 June 1951. The Ninth Schedule to the Constitution of India protects any legislation inserted within it from judicial review.

Article 31-A excluded from judicial review the laws that dealt with the abolition of certain types of estates and their acquisition by the State with reference to the right to equality contained in article 14, rights to various freedoms contained in article 19, and the right to property contained in article 31. Article 31-B conferred immunity on the laws included in the Ninth Schedule from being challenged with reference to any of the fundamental rights guaranteed by part III of the Constitution.

32 AIR 1951 Para 91.

Definitions and Expressions

In Ameerunnissa Begum v. Mahboob Begum 33a five judges’ bench of the Supreme Court through B.K. Mukherjee, J. observed:

“A legislature which must, of necessity, have the power of making special laws to attain particular objects must have large powers of selection or classification of person and things upon which such laws are to operate. Hence mere differentiation or inequality of treatment does not per se amount to discrimination...” 34

In Calcutta, arose Belabanerjee case35,a challenge to the Government’s power to acquire property for the purpose of housing refugees from East Pakistan. The Supreme Court held that compensation payable on acquisition of property in exercise of the power of eminent domain must be equivalent to the market value of such property. Finding his social agenda under threat, Nehru proposed changes in the institution to amend the provisions relating to zamindari abolition and nationalisation of road transport as also those relating to law and order and subversive activities. Nehru is said to have written to the Chief Ministers that the judiciary’s role could not be challenged, “but if the Constitution itself comes in our way, then surely it is time to change that Constitution”.36In State of West Bengal v. Subodh Gopal,37 the court held that compensation was payable even where the property did not vest in the State but was merely regulated or its use restricted, thereby causing deprivation of property to the owner. By the Constitution (Fourth Amendment) Act, 1954, determination of the adequacy of compensation was excluded from judicial review.

The Supreme Court neutralized the effect of those constitutional amendments through K.K.Kochuni v. Madras and Kerala.38The Supreme Court held that any law causing deprivation of property must stand the test of clause (5) of article 19, which permitted only ‘reasonable restrictions’ to be imposed on the right to hold, possess, and dispose of property.

Several Amendments were made to Article 31 and eventually it was abolished. There were two Articles in the 1949 Constitution which provided the right to property, i.e.

33 AIR 1953 SC 91. 34 Id at para 11. 35 State of W.B. v. Bela Banerjee, AIR 1954 SC 170. 36 Madhavigoradia Divan, “Judicial review: Supremacy of the Courts or of the Constitution” 10 SCC J-27 (2009). 37 AIR 1954 SC 92. 38 AIR 1960 SC 1080.

Definitions and Expressions

Art. 19(1)(f) and Art. 3139, but both the articles were deleted from the Indian Constitution by the 44th Amendment Act. After the removal of Art.31 from the list of fundamental rights, we do not find judicial activism on right to property. From the late 1950s, however, the Court started perceiving the larger dimensions of its constitutional role.

In Basheshar Nath v. Commissioner, Income Tax, Justice Subba Rao (as he then was) had held that persons could not even voluntarily waive their fundamental rights. In support of such a proposition, the learned judge defined the role of the Court in a positive manner in the following words:40

“A large majority of our people are economically poor, educationally backward and politically not yet conscious of their rights. Individually or even collectively, they cannot be pitted against the State organizations and institutions, nor can they meet them on equal terms. In such circumstances, it is the duty of this court to protect their rights against themselves.” This was really the beginning of pro-poor judicial activism in India.”

In Ramakrishna Singh v. State of Mysore,41 a Division Bench of the Mysore High Court through S.R. Das Gupta, C.J. observed:

“The decision of the Government that certain classes are ‘socially and educationally backward’ is open to challenge in a Court of law. The Court can consider whether the classification by the Government is arbitrary or is based on any intelligible and tenable principle.”

In Sakal Newspapers Private Ltd v. Union of India42, a private company that published newspapers, its shareholders, and two readers (Sakal) filed petitions against the state. The publishing company challenged the constitutional validity of the Newspaper (Price and Page) Act, 1956 (Newspaper Act), which empowered the central government to regulate the price of newspapers in relation to their pages and the allocation of space for advertising matter. The publishing company also challenged the Daily Newspapers (Price and Page) Order, 1960 (Newspaper Order),

39 Article 31 with sub heading “Right to Property” has been omitted by the Constitution 44th Amendment Act, 1978. 40 AIR 1959 SC 149, 183. 41 AIR 1960 Mys. 338 at para 23. 42 AIR 1962 SC 305.

Definitions and Expressions which was passed by the Government under the Newspaper Act to put in place such regulations. The petitions argued that the Newspaper Act and Newspaper Order violated the freedom of speech and expression guaranteed under Article 19(1)(a) of the Indian Constitution.

While the Indian Constitution does not explicitly guarantee freedom of the press, it is recognized as part of the freedom of speech and expression under Article 19(1)(a), which may be restricted on grounds mentioned in Article 19(2). The right to propagate one’s ideas includes the right to publish them, disseminate them, and circulate them. The Court noted that by providing the maximum number of pages for the particular price charged, the effect of the Newspaper Act and Newspaper Order was to compel newspapers either to reduce the number of pages or to raise the prices. While the former restricted the dissemination of news and views by the newspapers, the latter would have significantly cut down their circulation. Both involved a direct infringement of the newspapers’ right under Article 19(1)(a). The freedom of a newspaper to publish any number of pages and to circulate to any number of persons is an integral part of the freedom of speech. The Court held that the Newspaper Act and Newspaper Order were unconstitutional. In view of this relief, the Court did not consider the grievance of the readers that their right under Article 19(1) (a) was also infringed.

Indian Supreme Court in M.R. Balaji v. State of Mysore,43 wherein the Mysore Government order which further classified the ‘backward classes’ into ‘backward classes’ and ‘more backward classes’ was held to be bad in law and not justified under Article 15(4).

During the Nehruvian period, Kharak Singh v. State of UP,44was the first case of judicial activism on the right to liberty. In Kharak Singh, the petition under Article 32 of the Constitution of India challenged the constitutional validity of Chapter 20 of the Uttar Pradesh Police Regulations and the powers conferred upon police officials by its provisions on the ground that they violate the rights guaranteed to citizens by Articles 19(1)(d) and 21 of the Constitution of India. On the basis of the accusations made against him, he had police constables entering his house and shout at his door, waking

43 AIR 1963 SC 649. 44 AIR 1963 SC 1295.

Definitions and Expressions him up in the process. On a number of occasions they had compelled him to accompany them to the station and had also put restrictions on him leaving the town.

The Court held that ‘personal liberty’ was not only limited to bodily restraint or confinement to person only but something more than mere animal existence. It extends to all those limits and faculties by which life is enjoyed. It equally prohibits the mutilation of the body or amputation of an arm or leg. The majority of judges (through K. Subba Rao, and J.C. Shah JJ.) held that ‘personal liberty’ is a compendious term including within itself all the varieties of rights which go to make up the personal liberty of a man other than those mentioned in Article 19.45

The judges made a breakthrough while interpreting and finding the connection between article 19 and 21 by remarking that:

If a person’s fundamental right under Article 21 is infringed the State can rely upon a law to sustain the action; but that cannot be a complete answer unless they said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 19(1) are concerned. In other words, the State must satisfy that both the fundamental rights are not infringed by showing that there is a law and that it does amount to a reasonable restriction within the meaning of Article 19(2) of the Constitution. But in this petition no such defence is available, as admittedly there is no such law.

So the petitioner Kharak Singh could legitimately plead that his fundamental rights, both under Articles 19(1)(d) and 21, were infringed by the State. Hence, on these grounds the petitioner Kharak Singh was entitled to issue of a writ of mandamus directing the respondent- State of Uttar Pradesh- not to continue visit to his house.

Though the courts assumed the role of the literal interpreter the Nehruvian era saw the rudimentary phase of judicial activism in India. According to Prof S.P. Sathe:

“The Supreme Court of India started off as a technocratic court in the 1950’s but slowly starting acquiring more power through constitutional interpretation. Its transformation into an activist court has been gradual and imperceptible. In fact the roots of judicial review are to be seen in the court’s early assertion regarding the nature of judicial review”46

45 Id. at paras 14, 18. 46 Supra note 14 at 4.

Definitions and Expressions

During the entire Nehru period, Parliament held the initiative and the Court merely responded.

3.2.2 POST–NEHRUVIAN ERA

During Nehru’s time, the Constitution went through seventeen amendments. It was after Nehru’s death (May 27, 1964) that challenge to the constituent power of parliament was renewed. The Seventeenth Amendment which added several legislations to the Ninth Schedule making them immune from attack on the ground of violation of fundamental rights was challenged in Sajjan Singh v. State of Rajasthan.47. The court consisted of five judges, three of the five Judges (Gajendragadkar C.J. &Wanchoo & Dayal JJ.) in that case fully approved Shankari Prasad case. Chief Justice Gajendragadkar speaking on behalf of the majority view of the three judges held that the power to amend the Constitution includes even the power to take away fundamental rights under Part III. That a constitutional amendment was not covered by the prohibition of article 13(2) and hence judicial review of constitutional amendment are not permissible. However, the minority view of two judges comprising J.R. Mudholkar and M. Hidayatullah, JJ. expressed serious reservations about that interpretation. In their separate but concurring opinions they expressed serious doubts whether fundamental rights created no limitation on the power of amendment. Justice Hidayatullah observed that if our fundamental rights were to be really fundamental, they should not become ‘the plaything of the special majority’.48

The idealism that informed earlier legislation particularly during the Nehru years, however, dissipated in later years. Judicial review was excluded and the Parliament was armed with adequate powers for bringing in the land revolution. That, however, did not take place. Instead, there was a green revolution and it further strengthened the hold of the big landlords. It was fashionable to deride the right to property. This ultimately resulted in the deletion of that right from the chapter on fundamental rights by the Constitution (Forty-Fourth Amendment) Act, 1978.49

47 AIR 1965 SC 845 at para 19: (1965) I SCR 933. 48 Supra note 14 at 65. 49 Section 6 of the constitution (forty-Fourth Amendment) Act, 1978 deleted article 31.

Definitions and Expressions

In Vajravelu Mujumdar v. Sp. Deputy Commissioner,50 the Supreme Court held that although adequacy of compensation was not justiciable according to the Fourth Amendment, the very fact that the word ‘compensation’ was retained meant that the equivalent in value of the property acquired must be given. The court said that compensation should not be illusory.

In India, the Supreme Court has invoked the doctrine of basic structure as a counter- majoritarian device to sustain the liberal and democratic character of the Constitution.

In L.C. Golak Nath and others v. State of Punjab and another51, the Supreme Court by a majority of six to five dissented from Sankari Prasad and Sajjan Singh and held that the fundamental rights were outside the amendatory process, if the amendment took away or abridged any fundamental right. In Golak Nath case, three writ petitions were involved. One was filed by the son, daughter, and granddaughters of Golak Nath. In this petition, the inclusion of the Punjab Security of Land Tenures Act, 1953 in the Ninth Schedule was challenged on the ground that the Seventeenth Amendment by which it was so included as well as the First and the Fourth Amendments abridging the fundamental rights were unconstitutional. In the other two petitions, inclusion of Mysore Land Reforms Act (10 of 1962 as amended by Act 14 of 1965) had been attacked on the same grounds. Most of the contentions raised on behalf of the petitioners and respondents summarised in the judgement had already been raised before the Supreme Court in Sankari Prasad and Sajjan Singh cases.

The case was heard by an eleven-Judge bench of the Supreme Court which by a majority of 6:5 held that the fundamental rights were outside the amendatory process if the amendment took away or abridged any of the rights and that Sankari Prasad case and Sajjan Singh case conceded the power of amendment over Part III on an erroneous view of Article 13(2) and Article 368 and to that extent they were not good law. The judgement was, however, given a prospective effect and therefore it did not invalidate any of the amendments disputed in the case.52

The contention that the power to amend is a sovereign power, that the said power is superior to the legislative power, that it does not permit any implied limitations and that amendments made in exercise of that power involve political questions which are

50 AIR 1965 SC 1017. 51 AIR 1967 SC 1643: (1967) 2 SCR 762. 52 Id. at 1669, 1718.

Definitions and Expressions outside the scope of judicial review cannot be accepted. One need not cavil at the description of an amending power as sovereign power, for it is sovereign only within the scope of the power conferred by a particular Constitution. When there are conflicting articles couched in the widest terms, the court has jurisdiction to construe and harmonise then. There is nothing in the nature of the amending power which enables Parliament to override all the express or implied limitations on that power.53

Conscious that the decision could upset the foundations of three constitutional amendments and the constitutionality of about sixty State laws listed in the Ninth Schedule, Justice Subba Rao in Golak Nath case attempted some damage control by resorting to the device of “prospective overruling”, although existing laws and amendments were deemed valid on the basis of prior court decisions, henceforth Parliament would have no power to amend any of the provisions of Part III of the Constitution so as to take away or abridge fundamental rights.

The Golak Nath case54 began the great war, as distinct from earlier skirmished, over parliamentary versus judicial supremacy. It gave fresh life to the issue of property and the Constitution, which had run, and would continue to run, insistently through decades of Indian politics.55

Golak Nath56 decision was received with considerable disquiet in the legal and judicial fraternity at the time. What gave the Court the right to say that the Constitution should not be amended? The Court’s job, after all, was to say what the Constitution provides, and not to say what it should provide. Eminent jurists and scholars expressed a “positivistic” response to the decision at the time. What caused a bigger flutter was Chief Justice Subba Rao’s resignation only a few days after the decision in Golak Nath57 and his plunge into politics by contesting for the office of the President with the support of all opposition parties.

53 Golak Nath v. State of Punjab, AIR 1967 SC 1643, 1658, 1659, 1669, 1707: (1967) 2 SCR 762. 54 Ibid. 55 Ibid. 56 Ibid. 57 Ibid.

Definitions and Expressions

Property rights again became the issue of confrontation between the Parliament and the Judiciary when two Supreme Court’s decisions – the Bank Nationalization case58, and the Privy Purses case59 challenged the government even more sharply.

“Nationalizing banks and ending the privy purses of rulers of the former princely states were populist tools in Indira Gandhi’s policy for dominance and in young Congress activist’s scramble for influence.”60 The advocacy for bank nationalization became more vigorous during the post-Nehruvian period. The plea for nationalization of banks was based on Article 39 of the Directive Principles which provides the distribution of ownership and control of the material resources of the community to the common good and to ensure that the economic system should not result in concentration of wealth and the means of production to the common good. The nationalization of banks was traced to the Congress’s 1954 resolution for a ‘socialistic pattern of society and an ordinance was passed announcing the nationalization of banks on 19 July, 1968.The ordinance was challenged by Rustom Cavasjee Cooper and others who had filed petition in the Supreme Court challenging the President’s competence to promulgate the ordinance and claiming violations of their rights under Articles 14, 19 and 31. Inspite of Attorney General Niren De’s argument that nationalization was a policy decision and therefore not subject to judicial scrutiny, an eight–judge bench issued interim orders restraining the government from removing the chairmen of the banks and giving the banks directions under the Banking Companies Act of 1968.61 Inspite of the Court’s interim orders, the Parliament passed a law nationalizing banks replacing the ordinance of 4 August, 1969. The constitutionality of the Bank Nationalization Act was challenged before an eleven judge bench (consisting of J.C. Shah, S.M. Sikri, J.M. Shelat, V. Bhargava, G.K. Mitter, C.A. Viadialingam, K.S. Hegde, A.N. Grover, A.N. Ray, P. Jaganmohan Reddy and I.D. Dua, JJ.) of the Supreme Court on 10th February 1970. The main petitioner, Rustom Cavasjee Cooper claimed that the Act violated his fundamental right to equality under Article14 and his right to property under Article 19 (1) (f) and Article 31 and that the compensation for property taken was inadequate. Speaking on

58 R.E. Rustom Cavasjee Cooper v. Union of India, AIR 1970 SC 564. 59 Madhav Rao Scindia v. Union of India, AIR 1971 SC 530. 60 Granville Austin, Working a Democratic – Constitution – A History of the Indian Experience 209 (Oxford University Press, New Delhi, 8th impression, 2011). 61 Id. at p. 215.

Definitions and Expressions behalf of the majority ten out of eleven judges, Justice J.C. Shah struck down the Act as unconstitutional. He held that though the Court could not scrutinize whether the amount of compensation was adequate or not but the principles of compensation that a legislature could lay down for the taking of property were not beyond judicial scrutiny.62 Justice A.N. Ray, the single dissident among the eleven judges however held the opinion that the principles for fixing compensation by the legislature cannot be questioned by the Court on the ground that the compensation paid on the basis of these principles is not just or equivalent compensation. In this regard Justice A.N. Ray observed that ‘just equivalent’ cannot be the criterion on finding out whether the principles are relevant to compensation or whether compensation is illusory. If the amount fixed is not obviously and shockingly illusory or the principles are relevant to the determination of compensation there is no infraction of Article 13 (2).63

Thus, Rustom Cavasjee Copper’s64 case was an activist judgment of the post– Nehruvian era wherein the Court questioned the policy-making of the executive and the legislative judgment of the Parliament in laying down the principles for determining compensation for government acquisition of property.

As a result, The Constitution (Twenty-Fifth Amendment) Act, 1971 was passed, which deleted the word ‘compensation’ and substituted in its place a more innocuous expression, ‘amount’. However, the Court persisted with the view that the word ‘amount’ also meant an amount that was a fair return of the value of the property acquired by the State.

In Kesavananda Bharati v. State of Kerala65, is the historic case which evolved the doctrine of basic structure. In this case, a writ petition was filed initially to challenge the validity of the Kerala Land Reforms Act of 1963 as amended in 1969. But as the Act was amended in 1971 during the pendency of the petition and was placed in the Ninth Schedule by the Twenty-ninth Amendment the petitioner was permitted to challenge the validity of the Twenty-fourth, Twenty-fifth petitioner was permitted to challenge the validity of the Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments to the Constitution also. The petition was heard by a Bench of thirteen

62 AIR 1970 SC 564 at para 90. 63 Id. at para 201, 204. 64 Rustom Cavasjee Cooper v. Union of India, AIR 1970 SC 564. 65 Kesavananda Bharati v. Kerala AIR 1973 SC 1461.

Definitions and Expressions

Judges of the Supreme Court. It was urged by the petitioner that if the power of amendment is to be construed as empowering Parliament to exercise the full constituent power of the people and authorising it to destroy or abrogate the essential features, basic elements and fundamental provisions of the Constitution, such a construction must be held unconstitutional. This is so because (i) having only such constituent power as is conferred on it by the Constitution which is given by the people into themselves, Parliament cannot enlarge its own power so as to abrogate the limitation in the terms on which the power to amend was conferred; (ii) being a functionary created under the Constitution, Parliament cannot arrogate to itself the power of amendment so as to alter or destroy any of the essential features of the Constitution; (iii) purporting to empower itself to take away or abridge all or any of the fundamental rights, Parliament does not become competent to destroy the basic human rights and the fundamental freedoms which were reserved by the people for themselves when they gave to themselves the Constitution; and (iv) initially having no power to alter or destroy any of the essential features of the Constitution, and also recognising implied and inherent limitations on the amending power, Parliament has no power to alter or destroy all or any one of the fundamental rights, or, in other words, Parliament cannot abrogate the limits of its constituent power by repealing those limitations and thereby purporting to do what is forbidden by those limitations.

All the Judges were of the view that the Twenty-fourth Amendment is valid, and that by virtue of Article 368, as amended by the Twenty-fourth Amendment, Parliament has power to amend any or all the provisions of the Constitution including those relating to the fundamental rights. However, seven of the Judges (Sikri, C.J., Shelat, Hedge, Grover, Jaganmohar Reddy, Khanna and Mukherjea, JJ.), held that the power of amendment under Article 368 is subject to certain implied and inherent limitations, and that in the exercise of amending power Parliament cannot change the basic structure or framework of the Constitution. Six of them (excluding Khanna, J.) thought that the fundamental rights enshrined in Part III relate to the basic structure or framework of the Constitution and, therefore, are not amendable, Six Judges (Ray, Palekar, Mathew, Beg, Dwivedi and Chandrachud, JJ.) where, by and large, not prepared to accept any limitation on the plenary power of Parliament to amend the Constution. Khanna, J., however, held that the right to property did not form part of

Definitions and Expressions the basic structure or framework of the Constitution and titled the balance in forming the majority with Ray, Palekar, Mathew, Beg, Dwivedi and Chandrachud, JJ.

Sikri, C.J., explained the concept of basic structure by way of giving illustrations, such as: (i) supremacy of the Constitution, (ii) republican and democratic form of government, (iii) secular character of the Constitution, (iv) separation of powers between the legislature, the executive and the judiciary, and (v) federal character of the constitution. This structure, as pointed out by him, is built on the basic foundation, i.e., the dignity and freedom of the individual and this cannot by any form of amendment be destroyed.66 Shelat and Grover, JJ., illustrated the basic elements of the constitutional structure by adding to those already enumerated by Sikri, C.J. (i) the mandate of build a welfare State contained in Part IV of the Constitution, and (ii) the unity and integrity of the nation.67 In the same vein, Hede and Mukherjea, JJ. illustrated the basic elements or fundamental features of the Constitution such as: (i) sovereignty of India, (ii) the democratic character of our polity, (iii) the unity of the country, (iv) the essential features of the individual freedoms secured to the citizens, and (v) the mandate to build a welfare State and egalitarian society.68 Jaganmohan Reddy, J. found elements of the basic structure of the Constitution as indicated in its preamble and translated in its various provisions.

According to the “summary” signed by nine out of thirteen judges in Kesavananda Bharati the majority in that case overruled Golak Nath and held that Article 368 did not enable Parliament to alter the basic structure or framework of the Constitution.69 The majority also invalidated the second part of Article 31-C introduced by the 25thAmendment which excluded the jurisdiction of the courts to inquire whether a law protected under that article gave effect to the policy of securing the directive principles mentioned in that article, viz., the directives in Article 39(b) and (c).

When Kesavananda Bharati was being decided, the Congress party led by Mrs. Indira Gandhi had an overwhelming majority in the new parliament.70The ruling party

66 Kesavananda Bharati v. State of Kerala, (1973) 4 SSC 225, 366 (paras 292-293): AIR 1973 SC 1461. 67 Id. at 454 (para 582). 68 Id. at 637-638 (para 1159). 69 Id. at 1007. For a very powerful critique of Golak Nath particularly of the question of distinction between law and Constitution which was used verbatim by some of the Judges in Kesavananda see P.K. Tripathi: Some Insights into Fundamental Rights, I ff (1972). 70 Supra note 14 at 72.

Definitions and Expressions interpreted Kesavananda Bharati as a coup by the judges to wrest supremacy from Parliament. The government therefore retaliated decisively. Its first strategy was to dissolve the Kesavananda Bharati majority.71

Chief Justice Sikri was to retire within a few days from the day the decision in Kesavananda Bharati was rendered. Till then the practice had been to appoint the senior most judge of the Supreme Court as the Chief justice, if that rule were to be followed, Justice Shelat should have been appointed as chief justice. He, however, would have had a very brief tenure and would have been succeeded by Justice Hegde. But the Government surprised everybody by appointing Justice A.N. Ray as Chief Justice in preference to three judges senior to him, namely Shelat, Hegde, and Grover. These three judges resigned in protest. The Kesavananda majority was therefore reduced by four judges. Justice Mukherjee died and Justice Reddy was to retire soon. Out of the seven judges who subscribed to the basic structure doctrine, only justice Khanna remained.

According to Fali S. Nariman, “To critics of Golak Nath72, I would only say that if there was no Golak Nath, there would have been no Kesavananda Bharati73 - and unbridled powers of amendment being conceded, we would have gone the way of some of our neighbours; since the ruling party always had a massive majority we would almost definitely have institutionalized a dictatorship through a constitutional amendment: by amending the Constitution to provide for a “presidential form of government” : a euphemism used in this part of the world for autocratic rule. And with a dictatorship we would have lost the freedom of the Press and the independence of the Judiciary.”74

3.3 EMERGENCY ERA(1975-1977)

The decision Indra Gandhi v Raj Narain75 came during emergency and it was applauded as being the finest hour in the life of the Supreme Court.76

71 Ibid. 72 I.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643 (1664): 1967 All LJ 813: 1967 (2) SCJ 486, para 40. 73 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225: AIR 1973 SC 1461. 74 Fali S. Nariman, “The Judiciary and the Role of the Pathfinders” in Lokendra Malik (ed.), Judicial Activism India 43 (Universal Law Publishing Co. pvt. Ltd, New Delhi, 2014). 75 AIR 1975 SC 1590. 76 H.M. Seervai, The Emergency, Future safeguards and the Habeas Corpus Case 4 (Tripathi, 1978).

Definitions and Expressions

One event that indirectly precipitated the declaration of emergency in 1975 was the decision of the Allahabad High Court by which the election of Mrs Indira Gandhi to the Lok Sabha was set aside on the ground that she had taken recourse to a corrupt practice as defined in the Representation of the Peoples Act, 1951, known as the Election Law. Her opponents put pressure on her to resign. She had appealed to the Supreme Court against the Allahabad High Court’s judgment and the Supreme Court had admitted her appeal and stayed the execution of the High Court’s decree subject to certain conditions.77

There was already a proclamation of emergency in operation, which had been made in 1971 when India fought a war with Pakistan for the liberation of Bangladesh. While the previous proclamation was for meeting the threat of external aggression, the 1975 emergency was for meeting the situation created by the threat of an internal disorder. Several members of Parliament belonging to the opposition political parties were arrested. Parliament passed several constitutional amendments during that period.78

The Thirty-Ninth Amendment said that all disputes regarding the election to Parliament of the persons holding the offices of the Prime Minister and the Speaker, shall be referred to a body to be appointed by Parliament and this was to apply even to those matters that had been pending or disposed of by the courts according to the law as it stood before the coming into force of amendment. Clause (4) of article 329-A inserted by the Thirty-Ninth Amendment said that no law made by Parliament before the commencement of the Constitution (Thirty-Ninth Amendment) Act, 1975, in so far as it relates to election petitions and matters connected therewith, shall apply or shall be deemed ever to have applied to or in relation to the election of any such person who was holding the office of the Prime Minister or the Speaker to either house of Parliament and such election shall not be deemed to be void or ever to have become void on any ground on which such election could be declared to be void or had before the commencement of the amendment been declared to be void under any law. The clause further said that:

Notwithstanding any order made by any court before such commencement, declaring such election to be void, such election shall continue to be valid in all respects and

77 Indira Gandhi v. Raj Narain AIR 1975 SC 1590. 78 S.P. Sathe, Constitutional Amendments 1950-1988: Law and Politics (1988).

Definitions and Expressions any such order and any finding on which such order is based shall be and shall be deemed always to have been void and of no effect.

That amendment was obviously passed with a view to preventing scrutiny of Mrs Gandhi’s election to the Lok Sabha by the Court. It was introduced in the Lok Sabha on7 August and was passed in that House on the same day; it was passed by the Rajya Sabha on 8 August, was ratified by half the legislatures of states on 9 August, and obtained the president’s assent on 10 August. The appeal of Indira Gandhi was to come up before the Supreme Court for hearing on 11 August.79

When the appeal of Mrs Gandhi came up for hearing before the Supreme Court, the learned Attorney General argued that in view of the above provision of the Thirty- Ninth Amendment, the Court had nothing to hear since the original decision itself had been wiped out. Replying to this Mr Shanti Bhushan, appearing for the respondent, challenged the validity of the above provision of the Thirty-Ninth Amendment on the ground that it destroyed the basic structure of the Constitution.

The Prime Minister Election case was heard by a bench of five judges. They were Chief Justice Ray and Justices Khanna, Beg, Mathew, and Chandrachud. All except Justice Khanna had held in Kesavananda Bharati that there were no limitations upon the power of constitutional amendment. Only justice Khanna had subscribed to the basic structure doctrine.

Chief Justice Ray and Justice Mathew did not uphold the impugned amendment because in their opinion the constituent power could not be employed to exercise judicial power. Justice Beg used the traditional English Law technique used to frustrate the ouster clauses by holding that judicial review on appeal against the Allahabad judgement was not excluded. Justices Mathew, Khanna, and Chandrachud, however, held the impugned amendment invalid on the ground of its compatibility with the basic structure of the Constitution. Although the Court unanimously held that the impugned amendment was unconstitutional and void, only three judges unequivocally said that the amendment violated the basic structure of the Constitution.

They opted for the third alternative of upholding the election but striking down the impugned amendment. This helped the Court to assert its power of judicial review

79 H.M. Seervai, Constitutional Law of India 1519 (N.M. Tripathi, Bombay, vol. 2, 2nd edn., 1976).

Definitions and Expressions over the constituent power of the Parliament while avoiding immediate confrontation with the political establishment. The ruling establishment was happy that the Court had lent moral legitimacy to Mrs Gandhi’s election by dismissing Raj Narain’s petition on merits. Saving her election because of the immunity granted by the Thirty- Ninth Amendment would have been a lesser joy than getting it held valid by Court on merit. Because of the euphoria generated by the decision holding the election valid on merit, the ruling elite connived at the undesirable aspect of that decision, which was the Court’s assertion of its power to review constitutional amendments.

The Prime Minister Election case provided social legitimacy to the basic structure doctrine. When that doctrine was laid down in Kesavananda Bharati, it was judged in the context of the Court-Parliament competition for finality that had been going on since Golak Nath. But the Prime Minister Election case presented it in an entirely different context. The Thirty-Ninth Amendment was reminiscent of the bill of attainder, which had acquired notoriety in English constitutional history. A bill of attainder was a means of punishing a person by using legislative process and was considered to be a high water mark of autocratic arbitrariness. Those who felt that the argument that unlimited power to Parliament to amend the Constitution might be abused was an argument of fear had before them concrete evidence of how majoritarian partisanship could cause total demise of the rule of the law. That also provided legitimacy to the basic structure limitation upon the constituent power of the Parliament. 80

Professor Upendra Baxi has critically analysed the decision in his book The Indian Supreme Court and Politics. According to him the Court had three options: (1) It could have upheld the amendment and consequently upheld the election of Mrs Gandhi without going into the merits of that election: (2) it could have struck down the amendment and also held Mrs Gandhi’s election to be void: and (3) it could have struck down the amendment but after examining the validity of the election on merits, upheld it. The first option might have cost it its prestige as a court. It would have led to erosion of its social esteem. The second option might have led to the destabilization of the Court itself because the executive had the power to appoint the judges. The executive had superseded three senior judges who had decided against the

80 S.P. Sathe, ‘Limitations on Constitutional Amendment: Basic Structure’ Principle Re-examined’ in Jacob, Dhavan (ed.), Indian Constitution Trends and Issue179 (1978).

Definitions and Expressions government in Kesavananda Bharati. Perhaps the instinct of self-preservation persuaded the judges not to tread that path.81

3.3.1 ATTEMPT TO REVERSE THE BASIC STRUCTURE DOCTRINE

Indira Nehru Gandhi v. Raj Narain82, gave an opportunity to the Supreme Court to re- examine the doctrine of basic structure applied Kesavananda Bharati. While the case was pending, the government tried to get the Kesavananda verdict overruled. The Attorney-General and the Advocate-General of Tamil Nadu moved an application before Chief Justice Ray that a number of writ petitions be listed for hearing on 10 November 1975 so as to reconsider the basic structure doctrine. Following Kesavananda Bharati it was argued that the amendment affected free and fair elections and judicial review, these being parts of the basic structure of the Constitution; and therefore, was unconstitutional. It was further argued that Parliament in the exercise of constituent power was not competent to exercise power to validate an election declared void by the High Court.

Chief justice Ray was persuaded to constitute a special bench of thirteen judges to reconsider the majority decision in Kesavananda Bharati. The new bench consisted of Ray himself and Justices Khanna, Beg, Mathew, Chandrachud, Bhagwati, Krishna Iyer, Sarkaria, Goswami, Gupta, Singhal, Fazl Ali, and Untwalia. Khanna alone had committed himself to the basic structure doctrine. Others were not committed. Justice Khanna, whose judgement in the Fundamental Rights case was decisive in tilting the scale in favour of the basic structure doctrine, took this opportunity to clarify his position on the order fundamental rights vis-à-vis the right to property, as discussed earlier. He said that he had clearly hinted in his judgement in Kesavananda that fundamental rights were part of basic structure. This clarification made his judgement in Kesavananda utterly preposterous and self-contradictory as he had upheld two constitutional amendments attracting fundamental rights.So the Chief Justice might have hoped that it would not be difficult to get at least seven judges to vote against the basic structure doctrine.

81 Upendra Baxi, The Indian Supreme Court and Politics 46 (Eastern Book Company, Lucknow, 1980). 82 1975 Supp SCC 1: AIR 1975 SC 2299.

Definitions and Expressions

However, before the hearing could take place on 10 November, a constitution bench of five judges, comprising Chief Justice A.N. Ray and Justices Khanna, Beg, Mathew and Chandrachud, heard the Election case and pronounced its judgement on 7 November itself. The court upheld Mrs. Gandhi’s election, but struck down the amendment as violative of the basic feature of the Constitution.

On 10 November 1975 the hearing began on the reconsideration of the basic structure doctrine. But when the Court asked the Attorney General to establish prima facie that the basic structure limitation on Parliament’s power of constitutional amendment would come in the way of social progress, no satisfactory evidence of such an eventuality was produced and, ultimately, on 12 November the Chief Justice had to dissolve the special bench.

The basic structure doctrine is the high water mark of judicial activism. The Indian Supreme Court alone enjoys such power. It has also been claimed by the Supreme Court of Bangladesh. Such power imposes an onerous burden on the Court. The Court has to allow legitimate changes in the Constitution but prevent the erosion of those enduring values that constitute the essence of constitutionalism. Justice Jackson’s oft- quoted aphorism that the Court is not final because it is infallible but it is infallible because it is final is apt. The people live with the Court’s infallibility as long as they believe that its erroneous decisions can be corrected and that even its errors are not due to its lack of impartiality or lack of objectivity. There is therefore even greater need to examine to whom the Supreme Court is accountable and how such accountability is reinforced.83

The Court held such a positivist stance for a long time, another example of it being its decision during the 1975 emergency in A.D.M. Jabalpur v. Shiv Kant Shukla.84 During the Emergency, leaders of the opposition were put in prison, the press was muzzled and fundamental rights suspended. This case arose out of the appeals filed by the States against the decisions of the different High Courts taking a liberal approach, and allowing habeas corpus petitions filed by the detenus on grounds of non- compliance with law or mala fides. A preliminary objection had been raised by the Union of India (UOI) and/or the States that in view of the Presidential Order dated 27 June 1975 under Article 359 suspending the right of any person to move any court for

83 Supra note 14 at 99. 84 AIR 1976 SC 1207.

Definitions and Expressions the enforcement of his fundamental rights under Articles 14, 19, 21 and 22, the petitioners had no locus standi to maintain the petition. The reason being, in substance, they were seeking to enforce their fundamental right under Article 21. The High Courts of Allahabad, Bombay, Delhi, Karnataka, Madhya Pradesh, Punjab and Rajasthan did not find much force in the preliminary objection of the Union of States and ruled that though the petitioners (detenus) could not move the court to enforce their fundamental right under Article 21, they were entitled to show that the order of detention was not under or in compliance with the relevant law or was mala fide. In appeal, the Supreme Court turned down the stand of the seven High Courts and legitimised the State’s intrusion of the personal liberty of the people.

In that case, the Court held by majority of four against one that during the proclamation of emergency under article 352 of the Constitution, a court was powerless to protect an individual from the action of the State even if such an action was contrary to the law and resulted in total negation of her right to life or liberty. Even Seervai, who had approved of the Court’s positivism in Gopalan,85 was vociferous in condemning the Court’s self-abnegation in Shukla.86

The lone dissenter in this case, Justice Khanna paid a heavy price for his dissension. He was superseded for the post of Chief Justice of India by Beg, J, who had infamously remarked in his judgement in praise of the Government:

“324-A. … We understand that the care and concern bestowed by the State authorities upon the welfare of detenus who are well-housed, well-fed and well-treated, is almost, maternal.”87

For a court that had always stood up for individual rights and liberty, the ruling left a lasting scar.Justice Chandrachud, as he then was, while responding to the argument that unless the presidential order was read down, it might give power to the government to arbitrarily shoot down any person, said:

“Counsel after counsel expressed the fear that during emergency, the executive may whip and strip and starve the detenue and if this be our judgment, even shoot him

85 AIR 1950 SC 27. 86 AIR 1976 SC 1207. 87 Id. SCC at p. 643, para 324-A.

Definitions and Expressions down. Such misdeeds have not tarnished the record of Free India and I have a diamond-bright, diamond-hard hope that such things will never come to pass.”88

Justice Beg, as he then was, went even further than Justice Chandrachud in giving a clean chit to the emergency regime. He said:89

“Further, we understand that the care and concern bestowed by the State authorities upon the welfare of the detenues who are well-housed, well-fed and well-treated, is almost maternal.”

The Supreme Court’s power of review, as means of legitimising governmental action, was once again exercised in State of Rajasthan v. Union of India90 (Rajasthan case). In this case, the constitutionality of the letter issued by the Union Home Minister, Charan Singh, was challenged under Article 131 of the Constitution. The impugned letter was issued to the Chief Ministers of nine States (where the Congress party had suffered a setback in the parliamentary election) urging them to advise their respective Governors to dissolve the State Assemblies in view of the unprecedented defeat n the parliamentary elections.

3.4 FINDINGS

Thus, we can conclude that during the Nehru years, the Court did not cross swords with the executive but on the contrary legitimized State intervention for regulating the economy and enacting social justice, barring a few cases on right to property. On matters such as freedom of speech and protective discrimination, it legislated interstitially. On personal liberty, it adopted various techniques of administrative law to protect the liberty of the individual. Whenever the Court thought that the Executive should not be embarrassed, particularly where questions of national security were involved, it trod cautiously.91

In those days, judicial activism that favored state intervention was welcomed. Since the late 1950s, we find that the court began to perceive that it had a larger role to play in umpiring Indian democracy. But even in these cases, the Court felt bound by the

88 AIR 1976 SC 1207, 1349. 89 Id. at 1319. 90 (1977) 3 SCC 592: AIR 1977 SC 1361. 91 Supra note 14 at 61.

Definitions and Expressions limitations of the text of the Constitution. Whenever it got an opportunity to fill in the interstices, it did. But it did not overtly claim that it had the authority to give a construction that would challenge the positivist approach to constitutional interpretation.92

Between 1950 and 1967 the country had witnessed an agrarian revolution through the various land reform legislations that were passed within this period. All these land welfare legislations were upheld by the Court in Shankari Prasad Singh Deo’s case and Sajjan Singh’s case on the ground that in order to implement the land reforms policy, the Parliament had the power to amend the fundamental rights and such amendments were outside the judicial scrutiny even if they infringed the said rights. At the same time the Court was aware that if the Parliament had the ultimate power to take away fundamental rights without any exception, a time might come when we would gradually and imperceptibly pass under a totalitarian rule.93

By 1966, parliament passed as many as twenty amendments to the constitution. This prompted Chief Justice Hidayatullah, in Golak Nath’s case to say: In our Country amendments so far have been made only with the object of negativing Supreme court decisions.”94

The liability to pay compensation was reiterated in R.C. Cooper v. India.95 Today we see that the right to property is being asserted not by the rich but by the poor. Now it is being asserted by those who are evicted from their lands by the State in order to bring about development.

The Supreme Court struggled to keep itself alive and sustain people’s faith in Indira Gandhi v. Raj Narain,96 but what it managed to save here, it lost in A.D.M. Jabalpur v. Shiv Kant Shukla.97

92 Ibid. 93 Justice V.G. Palshikar, “Judicial Activism” AIR J-201-205(1998). 94 AIR 1967 SC 1643. 95 AIR 1970 SC 564. 96 Indira Gandhi v. Raj Narain AIR 1975 SC 2299. 97 AIR 1976 SC 1207.

Judicial Activism and Separation of Power

CHAPTER-4

JUDICIAL ACTIVISM AND SEPARATION OF

POWER

Power tends to corrupt, and "Absolute power corrupts absolutely"

The phrase arose as part of a quotation by the expansively named John Emerich Edward Dalberg Acton, first Baron Acton (1834–1902). The historian and moralist, who was otherwise known simply as Lord Acton, expressed this opinion in a letter to Bishop Mandell Creighton in 1887. The context of the phrase out rightly supports the doctrine of separation of power.

The ultimate goal of our constitution, enunciated by our worthy founding fathers, in its preamble is to secure ‘welfare state.’ For achieving this goal, the constitution has created three organs - the Legislature, the Executive and the Judiciary.1

A bland justification for the judicial activism is that courts must ensure that justice is done. In this process the boundaries between the Legislature, the Executive and the Judiciary are breached leading to the violation of the doctrine of separation of powers. The question is how to ensure justice. The Roman sentential fiat justicia ruat coelum caused some misconception as it is translated to mean ‘let justice prevail though the heavens fall’. There is an opinion that the translation of ‘justicia’ into modern ‘justice’ is actually a mistranslation. In fact, for the Romans, justice meant their system of law, fiat jus ruat justiciam, ‘let the law prevail though justice may fall’.

This doctrine can be carried to the extreme as was done by a Maltese judge. Malta is a small island which did not have room for more than one judge. In the eighteenth century, there was a judge named Cambro. One early morning while he was looking out of the window, he saw a man running and another frantically chasing him. Ultimately, the victim was overtaken just under the window and brutally stabbed with a knife. Just then the assailant saw a constable at some distance and fled, leaving the knife in sheath in the wound. Soon afterwards a baker happened to pass by with his basket of bread and found the victim lying dead. As he tried to take the knife out of

1 Justice B.P. Jeeven Reddy, “Judicial activism: A perspective” The Hindu (Delhi) April 30, 2008.

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the wound, he saw a constable coming towards him from a distance and was utterly terrified. He took the blood-stained sheath of the knife in his hand, put it into his basket and concealed himself beyond the entrance of a neighbouring house. Judge Cambro saw all this with his own eyes. The constable arrived there and found the dead body warm and still bleeding. He surmised that the murderer must be hiding somewhere close. He searched and soon found the baker with his hands stained with blood and the sheath in his basket fitted with the knife. Frightened, he lost his wit and gave incoherent replies during interrogation. The baker was put on trial before judge Cambro. Since no other judge was present, he had to try him. He found that the circumstantial evidence against the baker was clinching enough to convict him: he was found hiding near the place of occurrence immediately after the murder, his hands were stained with blood and the weapon used for the crime was found in his possession. Despite knowing personally that he was innocent, the judge pronounced him guilty of murder as required by the law, sentenced him to death, and the baker was executed. Later when the truth surfaced and the real story came to be known, a horrified public demanded Cambro’s blood, but there were jurists who supported and lauded his decision. He had done justice according to law notwithstanding his personal knowledge that the baker was innocent. On similar evidence he would have convicted anyone, and so he did with the baker.2

Confrontation between different wings of government is not the result of clarity or ambiguity. It is a function of the struggle for power, and every wing tramples on others when it is strong. Antonio Gramsci has aptly described this:

“The separation of powers …. is a product of the struggle between civil society and political society in a specific historical period … In other words, there takes place within the society what Croce calls the ‘perpetual conflict between Church and State’ in which the Church is taken as representing the totality of civil society (whereas in fact it is only an element of diminishing importance within it) and the State as representing every attempt to crystallize permanently a particular stage of development, a particular situation. In this sense, the Church itself may become State, and the conflict may occur between, on the one hand, secular (and secularizing) civil society, and on the other State/Church …… Unity of the State in the differentiation of

2 Thomas Dunphy and Thomas J. Cummins, Remarkable Trials of All Countries 453 (Ward & Pelouber, New York).

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powers: Parliament more closely linked to civil society: the Judiciary power, between government and Parliament, represents the continuity of the written law (even against the government). Naturally all the three powers are also organs of political hegemony, but in different degrees: 1. Legislature; 2. Judiciary; 3. Executive. It is also to be noted that lapses in the administration of justice make an especially disastrous impression on the public: the hegemonic apparatus is more sensitive in the sector, to which arbitrary actions on the part of the police and political may also be referred.”3

4.1 THE ORIGIN

Aristotle believed that a good government has to be a limited one. The political enlightenment French thinker, Charles-Louis de Secondat, better known as Baron de Montesquieu, in his Spirit of Laws4 propounded the doctrine of the separation powers to maintain checks and balance. He coined the term ‘separation of powers’ which became the guiding principles of the constitutions of modern democratic states. The model is also known at Trias Politica. Aristotle conceived a mixed government comprising the noblest elements of monarchy, aristocracy and democracy, rating none as ideal. The ancient Greeks developed it first and incorporated it into the constitutions that governed their city-state, but it first became prevalent during the Roman Republic. Its constitution expressly provided for separation of powers. The state was divided into branches or estates, each with separate and independent powers and areas of responsibility – the Executive, the Legislature and the Judiciary. In his Oceana, James Harrington refined these ideas to propose systems based on the separation of powers.5

“There is no liberty where judicial power is not separated from both legislative and executive power. If judicial and legislative powers are not separated, power over the life and liberty of citizens would be arbitrary, because the judge would also be a

3 Antonio Gramsci, Selections from the Prison Notebooks 245-246 (Orient Longman, Hyderabad, 1998). 4 Charles De Second at Baron De Montesquieu, The Spirit of Laws (Legal Classics Library, Gryphon Editions Ltd, 1984). 5 James Harrington, The Commonwealth of Oceana 87 (Livewell Chapman, London, 1656).

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legislator. If it were not separated from executive power, the judge would have the strength of an oppressor.”6

“Miserable indeed would be the case, where the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and that of judging the crimes or differences of individuals.”7

“All would be lost if the same man or the same body of principal men, either of nobles, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals.”8

Thus argued Montesquieu, the great political philosopher of the Enlightenment, in favour of a system of governance in which different branches of government exercise different powers to avoid concentration of powers and preserve human liberty—the Legislature should make law, the Executive should execute it, and the Judiciary should settle disputes in accordance with the law. This is the doctrine of separation of powers.

Though supporters of this doctrine believe that it protects democracy by preventing the system from getting tyrannical, its critics refuse to accept it and point out the success of mingling powers in parliamentary democracies. Thomas Hobbes was its carping critic. Walter Bagehot subscribed to Hobbes’ view and opposed the splitting of sovereignty. He thought that it was deleterious to the health of the nation if at time of crisis one person is not in a position to take a final decision.9

The mellowing translation of the “separation of powers” doctrine into one of convenient “division of function” was not to arise till persistent trends compelled it. Before the advent of democracy in its present form, power was concentrated in the hands of the monarch. The monarch’s power was absolute the unqualified. Actually, the role of the monarch evolved from the idea of a single person acting as the leader of the community. The history of Rome tells us that the emperors had absolute control

6 Supra note 4. 7 Ibid. 8 Id. at 157. 9 Walter Bagehor, ‘Its Supposed Checks and Balances’, in The English Constitution 214- 238 (12th Impression, Glasgow: Fontana/Collins, 1976).

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over the empire and its citizens. In Britain, Royal power was limited for the first time when King John Lackland was forced to sign an agreement in June 1215 popularly known as the Magna Carta.

James I believed in the Divine Rights of Kings and defined his prerogative as absolute. In the struggle between the Executive, the Legislature and the Judiciary, it was Chief Justice Edward Coke who, in 1608, displayed his muscles by asserting the power of judicial proclamations whenever he wished.10

As to the supremacy of a king, Bracton in Quod rexnondebetesse sub bomine, sed sub deo et lege, a treatise written in the time of King Henry III, wrote, “That the king should not be under man, but under God and the law.” When King James I expressed his willingness to decide cases himself on the argument that “I always thought and I have often heard the boast that your English Law is founded upon reason, If that be so, why have not I and others reason as well as you the judges ?”, Lord Coke CJ replied :

“True it is, please Your Majesty, that God has endowed Your Majesty with excellent science as well as great gifts of nature; but Your Majesty will allow me to say, with all reverence, that you are not learned in the laws of this your realm of England… which law is an art which requires long study and experience before that a man can attain to the cognizance of it. The law is the golden met-wand and measure to try the causes of Your Majesty’s subjects, and it is by the law that Your Majesty is protected in safety and peace.”11

But Coke was dismissed by James I in 1616 for refusing to give judgements to the king’s linking. History was repeated 10 years later when James’s son Charles I, dismissed another judge Chief Justice Sir Ranulph Crew. When James II, the second son of Charles I, ascended the throne in 1685, he dissolved the Parliament. This triggered off a nationwide movement. The struggle between the monarchy and Parliament culminated in the Bill of Rights (1689) from which originated the fundamental rights. The king lost his power to arrest anyone arbitrarily. It was the most important act after the Magna Carta which trimmed the power of the king.The

10 Thomas Bonham v. College of Physicians (Dr Bonham’s case), (1908) 8 Co Rep 113. 11 Anirudh Prasad, C.P. Singh, Judicial Power and Judicial Review 4 (Eastern Book Company, Firstedn., Lucknow, 2012).

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doctrine of separation of powers in later centuries, John Locke and James Harrington had advocated this principle.

Montesquieu’s writings considerably influenced the views and thoughts of the framers of the Constitution of the United States when they gathered to draft the American Constitution. Thomas Jefferson, one of their founding fathers and the third president of the US, was an ardent proponent of the doctrine of separation of powers in the context of governmental functioning. About 60 years before the American Constitution was drafted, the British had, introduced in 1688 the Bill of Rights, one of the characteristic features of which was the separation of powers between the King and the Parliament and the King and the Common Law courts. The makers of the American Constitution adopted the concept and fitted it into their written Constitution.

This extension has been so dramatic since the Industrial Revolution, and has since 1900 followed so steadily on the growth of legislative intervention in new areas of economic and social relations, that the traditional separation of powers seemed threatened at its foundation. One of the important reasons for this scenario was the development of the concept of welfare state. Now the phrase “welfare state” has become a part of common parlance, but it was probably first used by Archbishop William Temple in his pamphlet “Citizen and Churchman”, published in 1941, in which he says, “In place of the concept of power state we are led to that of the welfare state.” Whatever be its origin, it came into general use in the years after 1945 to describe a phenomenon which everyone recognised as the government’s responsibility for the provision of social services. The term “welfare state” reflects an attitude towards the State which sees it as a positive agent for the promotion of social welfare.12

4.2 THE POSITION OF SEPARATION OF POWER IN THE WORLD

4.2.1 UNITED KINGDOM

The famous English Jurist Blackstone supported the doctrine of Montesquieu. According to him, “wherever the right of making and enforcing the Law is vested in

12 Mamta Rao, Public Interest Litigation Legal Aid and Lok Adalats 3 (Eastern Book Company, Lucknow, 4thedn., 2015).

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the same man or in the same body of men there can be no liberty”. During the 17th century in England Parliament exercised legislative powers. The King exercised executive powers, and the Courts exercised judicial powers, but with the emergence of cabinet system of Government i.e. Parliamentary form of Government, the doctrine remains no good. The renowned constitutional Bagehot observed. “The cabinet is a hyphen which joins, buckle which fastens, the legislative part of the State to the executive part of the State.” According to Wade and Phillips13 the doctrine of separation of powers implies:

(i) The same person should not form more than one organ of the Government.

(ii) One organ of the Government should not exercise the function of other organs of the Government.

(iii) One organ of the Government should not encroach on the function of the other two organs of the Government.

4.2.2 U.S.A.

Usually it is said that the principle of separation of powers finds a good mention in the Constitution of United States; while the Federal Constitution of the United States of America does not expressly provide for the principle of separation of powers. Having reliance on the doctrine of Montesquieu, Madison, the Federalist observed; “The accumulation of all powers legislative, executive and judicial, in the same hands whether of one, a few or many and whether hereditary, self appointed or elective, may justly be pronounced the very definition of tyranny.” The same ideas were expressed by Hamilton in 1788. In American Constitution we find that legislative, executive and judicial powers are vested in separate entities. Section 1 of Article 1 declares: “All legislative powers herein granted shall be vested in a Congress of the United State”. Section 1 of Article II says: “The executive power shall be vested in a President of the United States of America.” Section 1 of Article III reads: “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 ordain and establish.....”

13 Constitutional Law 22-34 (Longmans, UK, 6thedn., 1960).

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So far as judicial organ is concerned the Courts have supervisory control over both the Congress and the President, by way of judicial review. It is true that the Legislature enacts the Law, but it is also true that in dealing with the new problems, where Law is silent, the Courts have to create the Law.

4.2.3 FRANCE

Under the despotic Rule of Louis XIV (1643-1715) France enjoyed a commanding influence in European affairs. Louis XIV had the same Kingship that James I had tried in vain to induce the English people to accept. It was the thinking of Louis XIV that the subject should obey the King absolutely without asking any question or making any criticism. Because of this capricious behavior he was known as an autocrat ruler. Montesquieu, the most profound of the political writers of the eighteenth century, propounded his theory of separation of powers, based on British Constitution and his doctrine of separation of powers was also incorporated in French Declaration of Rights of Man‟. Article 16 of this declaration declares that there could be no constitutional or democratic government without separation of powers, but in practice this attempt has proved unsuccessful.

4.3 THE DOCTRINE OF ‘SEPARATION OF POWER’ IN INDIA

In Constituent Assembly Debates Prof. K.T. Shah a member of Constituent Assembly laid emphasis to insert by amendment a new Article 40-A concerned with doctrine of separation of powers. This Article reads: “There shall be complete separation of powers as between the principal organs of the State, viz; the legislative, the executive, and the judicial.”14

Kazi Syed Karimuddin (a member of Constituent Assembly) was entirely in agreement with the amendment of Prof. K.T. Shah. Shri K. Hanumanthiya, a member of Constituent Assembly dissented with the proposal of Prof. K.T. Shah. He stated that Drafting Committee has given approval to Parliamentary system of Government suitable to this country and Prof. Shah sponsors in his amendment the Presidential Executive. He further commented: “Instead of having a conflicting trinity it is better

14 Constituent Assembly Debates (CAD) 959 Book No.2, Vol. No. VII Second Print 1989.

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to have a harmonious governmental structure. If we completely separate the Executive, the Judiciary and the Legislature, conflicts are bound to arise between these three departments of Government. In any country or in any government, conflicts are suicidal to the peace and progress of the country..... Therefore in a governmental structure, it is necessary to have what is called “harmony” and not this three-fold conflict.”15

Dr. B.R. Ambedkar, one of the important architects of Indian Constitution, disagreeing with the argument of Prof. K.T. Shah, advocated thus: “There is no dispute whatsoever that the Executive should be separated from the Judiciary. With regard to the separation of the Executive from the Legislature, it is true that such a separation does exist in the Constitution of United States; but many Americans themselves were quite dissatisfied with the rigid separation embodied in the American Constitution between the Executive and the Legislature...... There is not slightest doubt in my mind and in the minds of many students of Political Science, that the work of Parliament is so complicated, so vast that unless and until the members of the Legislature receive direct guidance and initiative from the members of the Executive, sitting in Parliament, it would be very difficult for Members of Parliament to carry on the work of the Legislature. I personally therefore, do not think that there is any very great loss that is likely to occur if we do not adopt the American method of separating the Executive from the Legislature.”16

With the aforesaid observations the motion to insert a new Article 40-A dealing with the separation of powers was negative i.e. turned down.

The classic statement of Montesquieu has become one of the cardinal principles of governance in a modern constitutional democracy. While formulating the above proposition, however, Montesquieu was not clear about the inherent salient features that are the pre-requisites for a cohesive and hassle-free governance structure. These inherent salient features include:-

(i) A written constitution which establishes its supremacy over any institution created under it;

(ii) Distribution of powers among the three organs of the State; and

15 Id. at 962. 16 Id. at 967, 968.

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(iii) the co-equal status, along with the coordinating powers of each of the three organs.

With regard to the Judiciary, the noted constitutional scholar, Prof. D.D. Basu explains the essence of the doctrine of separation of powers thus:-

“So far as the courts are concerned, the application of the doctrine may involve two propositions: namely

(a) that none of the three organs of Government, Legislative Executive and Judicial, can exercise any power which properly belongs to either of the other two;

(b) that the Legislature cannot delegate its powers.”

Even Dr. B.R. Ambedkar in his speech before the Constituent Assembly expressed his views regarding putting checks on the authority of the various organs of the Government. To quote:

“In fact, the purpose of a Constitution is not merely to create the organs of the State but to limit their authority, because, if no limitation was imposed upon the authority of the organs, there will be complete tyranny and complete oppression….. It would result in utter chaos”17

The Constitution of India envisages a system of governance based on the separation of powers, even though the Constitution does not expressly mention it. For instance, Article 53(1) expressly vests the executive power of the union in the President, and Article 50 of the Constitution provides that “The State shall take steps to separate the Judiciary from the Executive in the public services of the State.” In the Indian Context, ‘Separation of Power’ is one of the basic features of the Indian Constitution, which has been rightly declared by the Supreme Court of India in the matter of State of Bihar v. Bal Mukund Shah, (2000) 4SCC 640.

The foundation for the separation of powers was laid by Vithalbhai Patel who presided over the then Central Legislative Assembly. He insisted on separation of Executive, Legislature and Judiciary. The British could not accept this scheme but he declared on the floor of the House, ‘as the elected President, I announce that Motilal Nehru will move a resolution for such a separation and Lala Lajpat Rai will second

17 C.A. Deb Vol.IX pp. 1659-63.

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the resolution’.18 Surprisingly, the resolution was adopted unanimously which created the foundation for separation of powers. However, the Indian Constitution does not provide for the absolute separation of powers as in the US, because in India, by becoming ministers, some members of the Legislature are also members of the Executive. However, the Constitution clearly lays down the boundary lines for each organ which must not be breached by anyone.

The Supreme Court ruled in the Prime Minister’s Election case19 that the separation of powers is a basic feature of the Constitution. The issue of the separation of powers came up before the apex court. The doctrine of separation of power has not been adopted in its classical and strict sense.

However, the Constitution of India had attempted to insulate each one of these organs against their powers being trenched upon by the other departments of State. This is very well reflected from the various provisions of the Constitution like Article 121 of the Constitution which puts a kind of restriction on Parliament. It states that no discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties. A similar provision with regard to the State legislatures is Article 211 of the Constitution of India.

The Constitution further reinforces the doctrine of separation of powers thus:

According to Article 122:

"Courts not to inquire into proceedings of Parliament:

(1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure

(2) No officer or member of Parliament in whom powers are vested by or under this

Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers."

18 Madhu Dandavate, “Legacy of the Presiding Officers of Parliament”, in Dr. Yogendra Narain (ed.), Role and Relevance of Rajya Sabha in Indian Polity 11 (Rajya Sabha Secretariat, New Delhi, 2004). 19 Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299.

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According to Article 212:

"Courts not to inquire into proceedings of the Legislature

(1) The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure

(2) No officer or member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers."

Equally, by Articles 122 & 212 of the Constitution, the courts have been prohibited from inquiring into the proceedings of the Parliament and the Legislature respectively.

Additionally, Article 361 of the Constitution grants a kind of immunity to the President or the Governor. It states that the President or the Governor shall not be answerable to any court for the exercise and performance of the powers and duties of his office. Besides this, Article 74 (2) of the Constitution mandates that the question whether any, and if so, what advice was tendered by Ministers to the President shall not be inquired into by any court. These provisions are illustrative enough to reach the conclusion that the Constitution makers took every possible measure to have a robust form of ‘separation of power’ under the Indian Constitutional scheme, thereby upholding the independence of each organ of the state, while at the same time, keeping the mechanism of ‘Checks and Balances’ intact, so as to uphold the flag of the Rule of Law and to maintain the Supremacy of the Constitution.

Subsequently, in L.C. Golak Nath & Ors. v. State of Punjab & Anr.20, the Supreme Court reinforced its view with respect to separation of powers thus:

“The constitution creates the Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits. They should function within the spheres allotted to them”

During the 20th Century the concept of Welfare State arose which has increased the relationship between the parts & functionaries of the state. In order to prevent the concentration of power in one organ the governmental power was basically divided

20 AIR 1967 SC 1643.

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into three wings i.e. the Legislature, the Executive and the Judiciary. The theory of separation of powers says that they must always be kept separate in a free democracy. Each should act in its own sphere i.e. the Legislature cannot exercise executive or judicial power, the Executive cannot interfere in legislative or judicial power, & the Judiciary cannot exercise legislative or executive powers of the government. But it should be noted that today the implication of doctrine of separation of power in its true sense is impossible because enforcement of rigid conception of separation of power would make modern government impossible. This has led to a hectic situation where the three machineries of the state are now trying to overpower each other.

The Separation of Powers principle, propounded by the French political thinker Montesquieu, has been elaborately discussed in the judgment of in Divisional Manager, Aravali Golf Course v. Chander Haas21. Judicial activism is basically a deviation from this principle. Judicial activism is based on the theory of Jurisprudence called Sociological Jurisprudence, which arms the Judiciary with wide legislative and executive powers.

The decision of the Supreme Court of India in the case of State of U.P. vs. Jeet S. Bisht22 has brought into focus this delicate balance between the three organs of the State. The question of judicial activism versus judicial restraint has percolated its way into the debate dealing with the doctrine of separation of powers. Mr. Justice S.B. Sinha and Mr. Justice Markandeya Katju, have expressed their diametrically opposing views in this famous decision. Justice S.B. Sinha has opined as follows:

"20.The judge made law is now well recognized throughout the world. If one is to put the doctrine of separation of power to such rigidity, it would not have been possible for any superior court of any country, whether developed or developing, to create new rights through interpretative process.

21. Separation of power in one sense is a limit on active jurisdiction of each organ. But it has another deeper and more relevant purpose: to act as check and balance over the activities of other organs. Thereby the active jurisdiction of the organ is not challenged; nevertheless there are methods of prodding to communicate the institution of its excesses and shortfall in duty. Constitutional mandate sets the dynamics of this

21 (2008) 1 SCC 683 (vide paragraphs (17 to 40). 22 2007 (6) SCC 586.

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communication between the organs of polity. Therefore, it is suggested to not understand Separation of Power as operating in vacuum. Separation of power doctrine has been reinvented in modern times."

As an integral part of this ongoing debate, the forthright and trenchant views of Justice Katju are also cited from the same decision, i.e. State of U.P. vs. Jeet S. Bisht:

"47. Under our constitution the Judiciary, the Legislature and the Executive have their own broad spheres of operation. It is important that these organs do not encroach on each other’s proper spheres and confine themselves to their own, otherwise there will always be danger of a reaction. Of the three organs of the State, it is only the Judiciary which has the right to determine the limits of jurisdiction of all these three organs. This great power must therefore be exercised by the Judiciary with the utmost humility and self-restraint.

48. The Judiciary must therefore exercise self-restraint and eschew the temptation to encroach into the domain of the Legislature or the administrative or statutory authorities. By exercising self-restraint it will enhance its own respect and prestige. Of course, if a law clearly violates some provision of the Constitution, it can be struck down, but otherwise it is not for the Court to sit in appeal over the wisdom of the Legislature, nor can it amend the law."

Today, the doctrine of separation of powers has strong footing in the constitutional jurisprudence in India. This is evident from the Supreme Court’s observation in State of West Bengal & Ors. v. Committee for protection of Democratic Rights, West Bengal & Ors.,23:

“It is true that in the constitutional scheme adopted in India, besides supremacy of the constitution, the separation of powers between the Legislature, the Executive and the Judiciary constitutes the basic features of the Constitution.”

As a corollary to the doctrine of separation of powers, a judge merely applies the law that it gets from the Legislature. Consequently, the Anglo-Saxon legal tradition has insisted that the judge only reflects the law regardless of the anticipated consequences, considerations of fairness or public policy. He is simply not authorized to legislate law.

23 AIR 2010 SC 1476.

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In this connection, Dr. Surat Singh has taken a review of dominant trends of the Supreme Court decision making over last five decades as under:24

Period of excessive difference towards legislative and executive wings of the government [1950 to 1966]25

Zealous protector of fundamental rights26

Self-declared protector of fundamental values of the constitution27

The implementation of Basic Structure theory against Smt. Indira Gandhi herself [1976]28

The dark period of Emergency and the retreat of Judiciary in its cell29

Post-emergency, liberal interpretation of traditional standards of locus standi30

The Supreme Court in search of its identity - exploring the potential and limitation of its role [late 1980s]31

Attaining the maturity and asserting its self-importance (mid 1990s)32

On December 10, 2007 the Supreme Court added a new chapter to this controversy when the two judge bench consisting of justice A.K. Mathur and Markandey Katju decried the tendency of “ Judicial activism “ betraying overreach that was discernible to them in two earlier pronouncements of the apex court itself.33 Court held that creation, sanction of posts is a prerogative of the executive or legislative authorities, and the court cannot arrogate to itself this purely executive or legislative function and direct creation of post in any organization. Referring Montesquieu the learned judges said that it is not proper for any of three organs to encroach upon the domain of

24 Dr Surat Singh, “Judicial activism- how wise, how otherwise” published in K.M Bishwajit Bhattacharyya (ed.), Judging the judges 133-140 (Gyan Publication House, New Delhi, 1999). 25 A.K. Gopalan v. State of Madras, (AIR 1950 SC 27). 26 Golaknath v. State of Punjab (AIR 1967 SC 1643). 27 Keshvanand Bharti v. State of Kerala (AIR 1973 SC 1461). 28 Smt. Indira Gandhi v. Raj Narain (AIR 1975 SC 2299). 29 See A.D.M Japalpur v. S. Shukla (AIR SC 1207). 30 See Menaka Gandhi v. Union of India (AIR 1978 SC 597). 31 See Mohd. Ahmed Khan v. Shan Bano Begum (1985)2 SCC 556. 32 (a) Supreme Court advocate on Record Association v. Union of India [(1994) 4 SCC 441](b) S.P. Gupta v. Union of India (AIR 1982 SC 149). 33 Prof. Virendra Kumar, “Judges v. Judges” The Tribune (New Delhi) December 21, 2007.

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another, otherwise the delicate balance in the constitution will be upset and there will be a reaction.

Recently, on March 11, 2009 in Vishnu Dutt Sharma v. Manju Sharma34 the two judge bench consisting Justice Markandey Katju and Justice V.S. Sirpurkar denied to grant divorce on the ground of irretrievable breakdown of marriage and observed. “If we grant divorce on this ground, then we shall by judicial verdict be adding a clause to section 13 of the Hindu Marriage Act, 1955. In our opinion, this can be done only by the Legislature and not by the court.” But interestingly, earlier courts have been granting divorce on the same ground.

Supreme Court in the 21st century- utilizing its potential to the fullest extent and acknowledging its limitations35

The relationship between the Judiciary and the Executive has always been a delicate question. A society governed by Rule of law always demands for separation of the Judiciary from the Executive. The rule of law is always exposed to the danger of being encroached by the Executive. It is in this context that proper functioning of a democracy requires a clear separation of the two. The primary function of the Judiciary is the administration of justice and justice can never be rightly administered without the fear or favor unless there is a separation of the Judiciary from the Executive. The intention of the framers of the Constitution was to bring about changes wherever possible and shall be done immediately, without any delay, and where immediate operation of this principle is not possible, it shall nevertheless be accepted as an imperative obligation.

Theoretically, separation of Judiciary from the Executive is always a welcome step. The intention is always to ensure that the Judiciary does not decide cases under the influence of the Executive, rather follows the principle of Rule of Law. But, the real problem comes in practice where its separation is a problematic concern. The role of Judiciary under the British Rule had always cautioned the framers of the Indian Constitution of the inherent limitations of the Judiciary.

The provisions of the Chapter IV of Part V of our Constitution dealing with Union Judiciary provides for a close relationship between the Judiciary and Legislature.

34 Editorial, “Irretrievable breakdown is no ground for divorce” The Hindu (Delhi) March 12, 2009. 35 I.R. Coelho (dead) by L.R. v. state of Tamil Nadu (2007).

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Article 122 of the Indian Constitution provides that the Court shall not call validity of any proceedings in Parliament in question on the ground of any alleged irregularity of procedure. And Article 212 provides that the Court should not enquire into the proceedings of the Legislature. But certain judicial anomaly has been felt in the recent past. The most prominent being the famous Jagdambika Pal case of 1998 involving the Uttar Pradesh Assembly and the Jharkhand Assembly case of 2005. The Interim Order of the Supreme Court in both the cases is a clear violation of the principle of separation of powers between the Judiciary and the Legislature. The Judiciary blames Legislature for not doing anything worthwhile over the past three decades, whereas Legislature accuses Judiciary of doing the job of the Legislature. When Judiciary is not held accountable for the legislative functions then what is the legitimacy behind the exercise of such powers?

There are several instances that show that there has been a tilt of amendment power in favor of Parliament and sometimes Judiciary. The 42nd Amendment Act of the Parliament brought a drastic change in the provisions of the Constitution. Under this amendment Article 368, which gives amending power to the Parliament, was so modified that any further amendment of the Constitution would be immune from being questioned in Court of law. The power tilted in favor of the Legislature. Ultimately in Minerva Mills v. Union of India36 Supreme Court ruled that the ‘judicial review’, being a basic feature of constitution, cannot be taken away by the Parliament by amendment of the Constitution. Apart from this, there are has been several instances where the Judiciary has assumed the role of the Legislature without taking into account the practical difficulties and financial constraints. It has gone to the extent of not only framing guidelines but also the policies.

The cardinal principle of democracy is that power vests in as well as emanates from people; as such, accountability to the people in its entirety holds the key to the success and sustenance of democracy in its varied manifestations.

The centrality of the will of the people finds its best expression in the Preamble itself, which also is the very source of all institutions of governance. The words ‘We, the people of India’ and ‘do hereby Adopt, Enact and Give to ourselves this Constitution’

36 AIR 1980 SC 1798.

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recognize the sovereignty of the people and their primacy in our constitutional system and convey its eternal message.

The supremacy of the Constitution, Parliamentary democracy, the principle of separation of powers, the independence of the Judiciary and the limited amending powers of Parliament, etc., have been spelt out, at different times, as among the basic features of the Constitution. What is important in this context is that all organs of the State have to judiciously look at different perceptions of the specific issues and ensure that the constitutional mandate is not violated. They also have to make efforts to strengthen the linkages between the two organs since if either of the organs gets weakened; the stability of the entire edifice of our democratic structure would be in jeopardy.

Similarly, commenting on the nature of separation of powers delineated by our Constitution, the Supreme Court, in Ram Jawaya Kapur V. State of Punjab37, deemed that the Executive is competent to make laws under Article 162, the Supreme Court, therefore, observed:

“12…..The Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another.”

The Jagadambika Pal case38 of 1998, involving the Uttar Pradesh Legislative Assembly and the Jharkhand Assembly case of 2005, to my mind, point to the deviations from the generally understood constitutional scheme of separation of powers. Many perceived the concept of ‘composite floor-test’ introduced by the Supreme Court in the 1998 and 2005 cases, as an avoidable interference with the powers and privileges of the Legislature by the Judiciary.

The two judgements of the Supreme Court, delivered in Ram Jethmalani v. Union of India39 and Nandini Sundar v. State of Chhattisgarh40 (Nandini Sundar), and directions issued there under have been viewed by the government and many persons

37 AIR 1955 SC 549: 1955 SCA 577: 1955 SCJ 504. 38 Jagdambika Pal v. Union of India, (1999) 9 SCC 95: AIR 1998 SC 998: 1998 AIR SCW 767. 39 (2011) 8 SCC 1: (2011) 3 SCC (Cri) 310. 40 (2011) 7 SCC 547: (2011) 2 SCC (L&S) 762.

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of public concern as an action exceeding constitutional limits, crossing the barrier of separation of powers resulting in judicial overreach.

Doctrine primarily reflects the court’s decision to defer, or not to defer, to another governmental actor. In a polite yet firm reminder to the Judiciary, Katju remarked that very often courts do not realize their own limits. "Apart from the doctrine of separation of powers, courts must realise that there are many problems before the country which courts cannot solve, however much they like to," he said. "The country can ill afford to be governed through court decrees," he said. Arguing that any attempt to pass such writs/orders would not only be "grossly undemocratic" but would be most hazardous as courts do not have the expertise or the resources in the connection, the judge urged the Judiciary to dispense justice according to law and Constitution. "He cannot ask other branches of the State to keep within their constitutional limits if he exceeds his own, he said quoting the famous adage, "Who will guard the Praetorian guards?"41

Deciding on an appeal filed by a Haryana golf club where the court had virtually created a job, he had said: “Judiciary should confine itself to its proper sphere, realizing that in a democracy many matters and controversies are best resolved in non-judicial setting...Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like Emperors.”42

There can be no difficulty in accepting judicial restraint or legal centrism as a judicial philosophy in itself. But this philosophy is very different from judicial activism. Despite the high-sounding words, "judicial restraint" only means that the Judge shall stick by the law and decide legal controversies strictly in accordance with established principles of law without foraging the constitutionally forbidden territories reserved for another branch of the government. That precisely is the role a Judge is called upon to play by reason of the oath that he undertakes. A Judge is not free to render justice as he thinks, but is required to render "justice according to law". As Times of India in an editorial has aptly commented:

"Judges are meant to act as humble interpreters of law, not pose as emperors who adjudicate on a whim. We need faceless, impassive Judges, compassionate but disciplined legislators and an Executive that acknowledges the supremacy of the

41 Available at: http://archive.indianexpress.com/news/court-monitoring-committees-illegal...stop-pil- blackmail-justice-katju-slams-his-own/295916/0 (Last visited July10, 2013). 42 Ibid.

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Legislature and independence of the Judiciary. Sadly, technical Judges are not easy to come by in India. Some arrange marriages between rapists and their victims. Others turn into committed municipal authorities. Courts are meant to be more serious than Bollywood makes them out to be."43

4.4 FINDINGS

Thus we can conclude that as there is much concern expressed by protagonists in the activism debate about judges taking over the functions of the Legislature and the Executive, the doctrine of separation of power can act as a check. Separation is important in promoting uniformity and impartiality in the application of sanctions. If the executing officials had the power to decide when sanctions would be imposed, enforcement policies might reflect the private advantage or prejudice of those officials; policies would also be unpredictable. But when rules are general and formulated by officials who may find it difficult to estimate how their own interests will be affected by the dispositions of particular cases, there is a greater likelihood that the policies adopted will more nearly reflect a broad social judgement about desirable policy than the officials’ own private advantage.

It can be inferred that people themselves do not want one institution to be the repository of all power. There are numerous instances when people have fought against the tyranny of the government they elected. Every system has its inbuilt limitation, and so some sort of mechanism is required to ensure that no institution becomes so all powerful that it can trample on the rights of its own citizens.

Every institution needs to be reined in by the mechanism of separation, and thus balance of powers. If the balance tilts to one side, people suffer immensely as the stronger institution tends to be autocratic. The modern concept of constitutionalism mandates that the government must function strictly in accordance with the provisions of the constitution. Its greatest exponent was John Locke, the ideologue of the glorious revolution of England (1688) that established a constitutional monarchy. So, constitutionalism counters arbitrariness by limiting the power of each wing.

43 Editorial, “The Interpreters: Judiciary should not stray from the rule book”The Times of India, September 17, 2005 at 24.

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Definitions and Expressions

CHAPTER-5

POST-EMERGENCY JUDICIAL ACTIVISM

The inn that shelters for the night is not the journey’s end. The law, like traveler, must be ready for morrow. It must have a principal of growth.1

It was after the Emergency was lifted that there dawned a realisation of the importance of decisions such as Kesavananda and the importance generally of the power of judicial review. The post-emergency era can be termed as a ‘Judicial Activism era’ as we would see the Supreme Court distancing itself away from legal positivism.

5.1 THE INCREASING JURISDICTIONAL REACH OF THE APEX COURT

In India, public law review has not been limited to the enforcement of public rights only, rather it has been extended to keep the administrative actions within proper control. The Supreme Court is the sentinel on the qui vive and gives meaning and life to the constitutionally guaranteed fundamental rights. In doing so, it has expanded its jurisdictional reach enormously so as to cover the authorities which had earlier been considered outside the writ jurisdiction of the court. It has also expanded its jurisdictional reach by making a public law remedy available to victims not only against the State but against individuals too.

In addition to the rights of working women, the rights of general workers relating to employment, promotion and other incidence of employment need more and more protection from different public corporations and establishments. The ‘State’ would have an additional duty to see that the rights of employees of such bodies are not infringed.2 With this view, the Supreme Court has given a liberal and the broadest possible interpretation to the expression “State”, defined under Article 12 of the Constitution.

1 Cardozo Benchamin N, The Growth of law 19, 20 (Yale university Press, New Heaven, 1924). 2 Kapila Hingorani (1) v. State of Bihar, (2003) 6 SCC 1; Kapila Hingorani (2) v. State of Bihar, (2005) 2 SCC 262; 2005 SCC (L&S) 206.

Definitions and Expressions

The first march towards increasing the jurisdictional reach of the Supreme Court which became visible when the court left the traditional principle of ejusdem generis and evolved in Rajasthan SEB v. Mohan Lal,3 the principle of constitutional or statutory body on whom powers were conferred by law. Thus, the expression “other authorities” used in Article 12 was held necessarily to mean an authority engaged in the sovereign functions of the State.

The jurisdictional reach of the Supreme Court, through evolution of the concept of State agency or instrumentality, was further expanded in Ramana Dayaram Shetty v. International Airport Authority of India4 (R.D. Shetty). A three-judge Bench, comprising of Bhagwati, Pathak and Tulzapurkar JJ, came to discuss whether the International Airport Authority was an agency or instrumentality of the State, so as to provide the security of fundamental rights to its employees.

A more radical step to expand the jurisdictional reach of the court was taken in Ajay Hasia v. Khalid Mujib Sehravardi5 (Ajay Hasia). The test propounded by Mathew J in Sukhdev Singh6 and elaborated by Bhgwati J in R.D. Shetty7 was reformulated by the Constitution Bench in Ajay Hasia. It dealt with a challenge under Article 32 of the Constitution to admissions made to a college established and administered by a society registered under the J&K Registration of Societies Act, 1898.

Bhagwati J gave a new angle to justify the court’s increased jurisdictional reach. Said Bhagwati J:

“It is immaterial for this purpose whether the corporation is created by a statute or under a statute. The test is whether it is an instrumentality or agency of the Government and not as to how it is created. The inquiry has to be not as to how the juristic person is born but why it has been brought into existence.”8

The day when Ajay Hasia9 was decided, a three-judge Bench decided Som Prakash Rekhi v. Union of India10 (Som Prakash Rekhi). The majority decision was

3 AIR 1967 SC 1857: (1967) 3 SCR 377. 4 (1979) 3 SCC 489: AIR 1979 SC 1628. 5 (1981) 1 SCC 722: AIR 1981 SC 487. 6 (1975) 1 SCC 421: 1975 SCC (L&S) 101. 7 (1979) 3 SCC 489: AIR 1979 SC 1628. 8 Id. at para 11. 9 Ibid. 10 (1981) 1 SCC 449: AIR 1982 SC 212 (Krishna Iyer J).

Definitions and Expressions pronounced by Krishna Iyer J (for himself and Reddy J), and Pathak J delivered a separate judgement. A similar line of reasoning was adopted by Krishna Iyer J in Som Prakash Rekhi as was adopted by Bhagwati J in Ajay Hasia.11 Declaring the Bharat Petroleum Corporation as “State” within the meaning of Article 12, Krishna Iyer J pointed out that it is immaterial whether the Corporation is formed by a statute or under a statute. He emphasised, “The true test is functional. Not how the legal person is born but why it is created.”

In Pradeep Kumar Biswas v. Indian Institute of Chemical Biology,12 a seven-judge Bench of the Supreme Court, comprising S.P. Bharucha CJ and S.S. Mohammad Quadri, R.C. Lahoti, S. Santosh Hegde, Doraiswamy Raju, Ruma Pal and Arijit Pasayat JJ, by 5:2 majority declared the Council of Scientific and Industrial Research (CSIR) an instrumentality of the State and, thereby, brought it within the definition of “State” under Article 12.

5.2 DIMENSIONAL EXPANSION ADDED TO ARTICLE 21

After independence, India adopted its Constitution which, inter alia, guaranteed Fundamental Rights to its citizens. Democracy, in any sense, cannot be established unless certain minimal rights, which are essential for existence, are assured to every citizen of the country. The Preamble to the Constitution depicts these aspirations and Part III of Indian Constitution provides these rights to every citizen within territory of India. Part III of the Indian Constitution dealing with fundamental rights, weaves a "pattern of guarantee" on the basic structure of human rights and imposes negative obligations on the State not to encroach on individual liberty in its various dimensions.

Every activity which facilitates the exercise of the life and personal liberty may be considered integral part of this right. Simultaneously, the judicial approach towards the interpretation of the right to personal liberty under Article 21 has moved from narrow restricted view to the border view.

11 (1981) 1 SCC 722: AIR 1981 SC 487. 12 (2002) 5 SCC 111: 2002 SCC (L&S) 633; CBI v. R.S. Pai, (2002) 5 SCC 82: AIR 2002 SC 1644. R.C. Lahoti J dissented and wrote dissenting judgment for himself and Doraiswamy Raju J.

Definitions and Expressions

In Part III of the Constitution of India, the Right to Life and Personal Liberty has witnessed different phases at different point of time13. Restructured Article 21 is a byproduct of judicial dynamism and activism of the Supreme Court of India. The emergence of the Indian Supreme Court as a custodian of people’s right in a democratic way is the most significant and important development in the judicial history of independent India. It is being envisaged not as a redressal forum of the elite class in the society, but it is perceived as a forum for raising, redressing and articulating the problems of have-nots, deprived, oppressed, downtrodden, women and children, environmental groups, exploitation and abuse of powers and position by persons holding high public office.

A major breakthrough came in Maneka Gandhi‘s case14. It was a landmark example of amplifying the law to enhance personal rights and fundamental rights. There, the legislation governing grant of passport was interpreted in a manner so as to enhance the rights of personal freedom and personal liberty. In the instant case, the passport of Maneka Gandhi had been impounded and she challenged the validity on the ground that action violated her personal liberty. No hearing had been given to her as to why her passport should not be impounded. The Supreme Court not only gave wider meaning to the words ‘personal liberty’ but also brought in the concept of ‘procedural due process’. While giving wider meaning to the words ‘personal liberty’ the Court held that the earlier view that ‘personal liberty’ included all attributes of liberty except those mentioned in Article 19 stood rejected. Where a law restricted personal liberty, a court would also examine whether such restriction on personal liberty also imposed restrictions on any of the rights given by Article 19. The Court held that the right to go abroad was part of ‘personal liberty’. ‘Personal liberty’ a variety of rights which go to constitute the personal liberty of man, in addition to those mentioned in Article 19. The Court held that impounding of her passport without giving her a hearing was not according to procedure established by law. The procedure that a must provide must be a just and fair procedure.

The rules of natural justice which is a term used for a fair hearing, are the essential requisites of fair procedure. These rules are:

13 Article 21 of the Constitution lays down “No person shall be deprived of his life or personal liberty except according to procedure established by law.” 14 AIR 1978 SC 597,(1978) 1 SCC 248.

Definitions and Expressions

(1) That no one should be a judge in his own cause and

(2) That no one should be condemned unheard.

In the present case, the Court was called upon to decide whether Mrs. Maneka Gandhi was entitled to a hearing before her passport was impounded. The Court conceded that in some situations where urgent action was needed, a prior hearing might not be feasible. In such exceptional situations if a prior hearing was not given, the authorities must give a post decisional hearing. On the assurance of the learned Attorney General that a post-decisional hearing would be given soon, the majority, barring Justice Beg, held that the government ‘sanction need not be stuck down. Justice Beg held that the Government‘s action was unconstitutional and void. In Maneka Gandhi, the Court clearly overruled Gopalan on the following issues:

(1) The law authorizing deprivation of personal liberty would have to be valid not only under article 21 but also under article 19(1) (d);

(2) The words ‘life’ and ‘personal liberty’ had wider meanings that would be discovered from time to time; they were open-textured expressions;

(3) The words ‘procedure established by law’ meant not the procedure prescribed by law but procedures considered to be just and fair in civilized countries.

The most significant aspect of Maneka Gandhi was that the Court laid down a seminal principle of constitutional interpretation. There cannot be a mere textual construction of the words of the Constitution. Those words are pregnant with meanings that unfold when situations arise. This opened the Pandora‘s Box which resulted in flooding of litigations further expanding Art 21.

The scope and extent of the application of the doctrine of basic structure again came up for examination in Minerva Mills Ltd. V. Union of India15. In this case the petitioners challenged the validity of Sections 4 and 55 of the Constitution (Forty- second Amendment Act, 1976) on the ground of violation of the basic structure of the Constitution as laid down in Kesavananda Bharati. These sections amended respectively Articles 31-C and 368. In Article 31-C laws implementing any Directive Principle were exempted from challenge on the ground of violation of Article 14, 19 and 31 and 31 and in Article 368 clauses (4) and (5) validated all invalidated and

15 (1980) 3 SSC 625: AIR 1980 SC 1789; see also Woman Rao v. Union of India, (1981) 2 SCC 362: AIR 1981 SC 271.

Definitions and Expressions existing amendments and removed all limitations on future amendments. While the court unanimously invalidated the amendment of Article 368, it invalidated the amendment of Article 31-C by 4:1. Applying the basic structure doctrine with respect to Article 368 it held that:

“Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. Indeed, a limited amending power is one of the basic features of our Constitution and therefore, limitations on the power cannot be destroyed”.16

In Waman Rao v. Union of India17, the Supreme Court re-examined and upheld the validity of original and amended Article 31-A and of Article 31-B and the Ninth Schedule with reference to the basic structure doctrine. About the First Amendment introducing these articles and the schedule into the Constitution the Court also said that instead of weakening, the Amendment strengthens the basic structure because it “made the constitutional ideal of equal justice a living truth.”18 The Court also said the same thing about the unamended Article 31-C as it stood before the Constitution (Forty-second Amendment) Act, 1976.19

5.3 ARTICLE 32 AND THE SUPREME COURT

The declaration of fundamental rights in the Constitution is meaningless unless there is effective machinery for the enforcement of the rights. It is the remedy, which makes the right real. If there is no remedy there is no right at all. The founding fathers of the Constitution, therefore, provided for an effective remedy for the enforcement of these rights under Article 32 and 226 of the Constitution.

Article 32 says about remedies for enforcement of rights conferred by Part III of the Constitution. It is established that remedy under Article 32 is available only for the violation of Fundamental Rights guaranteed by it. As a result of the liberalized view

16 AIR 1980 SC 1789, 1798. 17 (1981) 2 SCC 362: AIR 1981 SC 271. Also see Ambika Prasad Mishra v. State of UP, (1980) 3 SCC 719: AIR 1980 SC 1762. 18 AIR 1981 SC 271, 285. 19 AIR 1981 SC 271, 292.

Definitions and Expressions taken by the Supreme Court in the interpretation of Article 21, a new approach to protect the interest of the aggrieved person has been developed by it.

The power of the Supreme Court to deviate from traditional concepts and to formulate new rules for granting effective relief for violation of fundamental rights is traceable to Article 32. Regarding the ambit of clause (1) of Article 32, Bhagwati, J. in Bandhua Mukti Morcha20 observed:

“There is no limitation in regard to the kind of proceeding envisaged in Article 32(1) except that the proceeding must be "appropriate" and this requirement of appropriateness must be judged in the light of the purpose for which the proceeding is to be taken, namely, enforcement of a fundamental right. The Constitution-makers deliberately did not lay down any particular form of proceeding for enforcement of a fundamental right. They did not stipulate that such proceeding should conform to any rigid pattern or straitjacket formula as in England. They knew that in a country like India where there is so much of poverty, ignorance, illiteracy, deprivation and exploitation, any insistence on a rigid formula of proceeding for enforcement of a fundamental right, would become self-defeating and it would place enforcement of fundamental rights beyond the reach of common man. The entire remedy for enforcement of fundamental rights which the Constitution-makers regarded as so precious and invaluable, and elevated to the status of fundamental right, would become a mere rope of sand so far as the large masses of the people of this country are concerned.”21

Article 32(2) expressly provided that, the Court may grant "appropriate" remedy for enforcing the rights. Hence the power can be traced to "appropriate" remedy under Article 32(2) of the Constitution of India.

The Court in Bandhua Mukti Morcha’s case emphasised that while interpreting the article the approach must be guided not by any verbal or formalistic canons of construction but by the paramount object and purpose underlying the article and its interpretation must receive illumination from the trinity of provisions which permeate and energise the entire Constitution viz. the preamble, fundamental rights and directive principles of State policy.

20 Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161. 21 Id. at 186-87, para 12.

Definitions and Expressions

Regarding the power of the Supreme Court for the enforcement of fundamental rights the Supreme Court observed:

"It is not only the high prerogative writs of mandamus, habeas corpus, prohibition, quo warranto and certiorari which can be issued by the Supreme Court but also writs in the nature of these high prerogative writs and therefore even if the conditions for issue of any of these high prerogative writs are not fulfilled, the Supreme Court would not be constrained to fold its hands in despair and plead its inability to help the citizen who has come before it for judicial redress, but would have power to issue any direction, order or writ including a writ in the nature of any high prerogative writ.”22.

5.4 EVOLUTION OF COMPENSATORY JURISPRUDENCE

In view of the interpretation given to Article 21 by the Indian judiciary, relevant and coherent approach of the compensatory jurisprudence is not only the demanding task of the day but it also consonance with the constitutional spirit.

Subsequent to 1977, several cases of unlawful detention and custodial death reached the Supreme Court by way of writ petitions under article 32 of the Constitution, or in appeal against the decisions of the High courts under article 226. Wherever the arrest was found unlawful or wherever it was found that the custodial death had occurred on account of ill-treatment by, or gross negligence on the part of, the police officers, compensation was awarded to the injured person (or to his legal representatives). Under these articles not only the victim gets his rights enforced in an expeditious manner but can also claim compensation for the violation of the Fundamental Rights by the State.

In Khatri v. State of Bihar23 popularly known as the Bhagalpur binding case Justice Bhagwati countered the question of compensation. A new interpretation was accorded to Article 21 and 32 of the Constitution, the Court ordered the State to meet the expense of housing those men in blind homes in Delhi. The question posed before the Court was whether a person who has been deprived of his right to life or personal liberty by the State, could be compensated by granting monetary relief. The Supreme Court got the opportunity to discuss whether the State is liable for blinding of

22 Id. at 187-88, para 13. 23 (1981) 1 SCC 627.

Definitions and Expressions prisoners in Bhagalpur by its prison officials. It ordered that all the blinded prisoners be sent by the Bihar government to the All India institute of Medical Sciences, New Delhi. In this way the medical relief at state’s cost was granted for an action done in the exercise of sovereign function.

Bhagwati, J. answered it in the affirmative by raising a counter thus:

"Why should the court not be prepared to forge new tools and devise new remedies for the purpose of vindicating the most precious of the precious fundamental right to life and personal liberty."24

Regarding the liability of the State to pay compensation for infringing Article 21, the Court answered in the affirmative saying that if it were not so, Article 21 will be denuded of its significant content. The Court further observed that where there are issues of the gravest constitutional importance involving as they do the exploration of a new dimension of the right to life and personal liberty, it has to lay down the correct implications of the constitutional right in Article 21 in the light of the dynamic constitutional jurisprudence, which the Court is evolving.

In India, the judgment in Rudul Sah v. State of Bihar25 added a new dimension to judicial activism and raised a set of vital questions, such as, liability of State to compensate for unlawful detention, feasibility of claiming compensation from the State under Article 32 for wrongful deprivation of fundamental rights, propriety of the Supreme Court passing an order for compensation on a habeas corpus petition for enforcing the right to personal liberty. The petitioner Rudal Sah was detained illegally in prison for more than fourteen years. He filed Habeas Corpus before the court for his immediate release and inter alia prayed for his rehabilitation cost, medical charges and compensation for illegal detention. After his release, the question before the court was "whether in exercise of jurisdiction under Article 32, the court can pass an order for payment of money? Whether such order is in the nature of compensation consequential upon the deprivation of fundamental right? The court answered this query in the affirmative; this affirmation was a real acceleration and giant leap in the compensatory-cum-constitutional tort jurisprudence in our legal history.

24 Id. at 630. 25 (1983) 4 SCC 141.

Definitions and Expressions

The decision of Rudal Sah was important in two respects. Firstly, it held that violation of a constitutional right can give rise to a State liability enforceable in a civil court and; Secondly, it formulates the basis for a theory of liability under which a violation of the right to personal liberty can give rise to a State liability. The decision focused extreme concern to protect and preserve the fundamental right of a citizen than sovereign and non-sovereign dichotomy.

The locus classicus is the judgement of the Supreme Court in this case, where the petitioner detenue complained that his detention subsequent to his release by sessions court for a period of fourteen years was illegal: the detention was based on the ground that he was of “unsound mind”. In a searching analysis of the state affidavit of this “grave injustice perpetuated upon the petitioner”, the Court ruled:

“We see no effective answer to it save the stale and sterile objection that the petitioner may, if so advised, file a suit to recover the damages from the State Government.... The petitioner could have been relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial in the sense that a civil court may or may not have upheld his claim.... In these circumstances, the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip service …”

Chandrachud C.J. observed that:

“The important question for our consideration is whether in the exercise of its jurisdiction under Art.32, this Court can pass an order for the payment of money if such an order is in the nature of compensation.”

The Supreme Court in the above case observed: (SCC p. 147, para 9)

"It is true that Article 32 cannot be used as a substitute for the enforcement of rights and obligations which can be enforced efficaciously through the ordinary processes of courts, civil and criminal. A money claim has therefore to be agitated in and adjudicated upon in a suit instituted in a court of lowest grade competent to try it. But the important question for our consideration is whether in the exercise of its jurisdiction under Article 32, this Court can pass an order for the payment of money if such an order is in the nature of compensation consequential upon the deprivation of a fundamental right."

Definitions and Expressions

The Court further observed:

“In the circumstances of the case the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip service to his fundamental right to liberty which the State Government has so grossly violated. Article 21, which guarantees the right to life and liberty, will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation.”

It was pointed out that Article 21 would be denuded of its significant content if the power of the Court was limited to passing of orders of release from illegal detention. The Supreme Court reasoned:

“One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the state as a shield. If civilization is not to perish in this country as it has perished in some others, too well-known to mention, it is necessary to educate ourselves into accepting that respect for the rights of individuals is the true bastion of democracy. Therefore, the state must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers.”26 Although the action amount of compensation (Rs. 35,000) is too meager to “mulct” the violators, and it is doubtful whether it would at all assist Rudul Sah to pursue his rights through the labyrinthine legal system (since the legal profession in India is a seller's market), the Court innovates cautiously, lest to a lawless executive, any step towards justice seem “radical”.27

The Supreme Court has observed on this point-

26 Id. at 147-48. 27 Ibid.

Definitions and Expressions

“However it cannot be understood as laying a law that in every case of tortious liability recourse must be had to a suit. When there is negligence on the face of it and infringement of Art.21 is there it cannot be said that there will be any bar to proceed under Art.226 of the Constitution.”28

Hence, compensatory jurisprudence took a clear shape in Rudal Sah Case although the foundation was laid down in Khatri’s case. The Supreme Court of India by way of compensatory jurisprudence gave a different color to right to life as a human right under Article 21 and provided an opportunity to the judicial managers to show a ray of hope to victims in the form of compensation to negate a wrong and injustice heaped upon them by them by the State and its officers.

In Sebastian M. Hongray v. Union of India29, the Court considered the case of two missing persons alleged to have been illegally kept under army custody and issued a writ of habeas corpus. In fact the truth was that these two persons who were taken into custody by the military had met unnatural death. The Court, in the circumstances, keeping in view the torture, the agony and mental oppression undergone by the wives of the persons directed to be produced, instead of imposing fine on the Government for civil contempt of the Court, required that "as a measure of exemplary costs as is permissible in such cases", the Government must pay rupees one lakh to each one of the aforesaid two women.

Nilabal Bahera alias Lalita Bahera v State of Orissa30 the Supreme Court once again reiterated that in case of violation of fundamental rights by State's instrumentalities or servants, the Court can direct the State to pay compensation to the victim or his heir by way of "monetary amends" and redressal. The principle of "sovereign immunity" shall be inapplicable in such cases.31

In this case a letter sent to the Supreme court by Smt. Nilabal Bahera alias Lalita Bahera, was treated as a writ petition under Article. 32 of the constitution for determining the claim of compensations made therein consequent upon the death of

28 M.P. Jain, Indian Constitutional Law 1535 (Wadhwa & Nagpur Co., New Delhi, 5th edn.,Reprint 2007). 29 (1984) 1 SCC 339. 30 (1993) 2 SCC 746. 31 (1993) 2 SCC 746. See also Dalip Singh v. State of Haryana, 1993 Supp (3) SCC 336; Bhuwneshwar Singh v. Union of India, (1993) 4 SCC 327; N. Nagendra Rao & Co. v. State of A.P., (1994) 6 SCC 205.

Definitions and Expressions petitioners son Suman Bahera, aged about 22 year in police custody. The said Suman Bahera was taken from his home in police custody at about 8 am. On 1/2/1987 by Sarat Chandra Barik, Assistant sub-inspector of police of Faraikela police outpost under police station Bisra, Distt. Sundergarh in Orissa, in connection with the investigation of an offence of theft and detained at the police outpost. At about 2 p.m. the next day on 2- 12-1987, the petitioner come to know that the dead body of her son Sumar Bahera was found on the Railway track near a bridge at some distance from the Jaraikela railway station. There were multiple injuries on the body of Suman Behera when it was found and obviously his death was unnatural, caused by those injuries. The allegation made is that it is a case of custodial death since Suman Behera died as a result of the multiple injuries inflicted to him, while he was in police custody and thereafter his dead body was thrown on the railway track. The prayer made in the petition was for award of compensation to the petitioner, the mother of Suman Behera for contravention of the fundamental right to life guaranteed under Article 21 of the Constitution of India. The defence of the respondent was that Suman Behera managed to escape from the police custody about 3 a.m. on the night between the 1st and 2nd Dec. 1987 from the police outpost Jeraikela, where he was detained and guarded by police constable Chabi Kujur, he could not be apprehended thereafter in spite of a search; and the dead body of Suman Behara was found on the railway track the next day with multiple injuries which indicated that he was run over by a passing train after he had escaped from police custody. In short, on this basis the allegation of custodial death was denied and consequently the respondents' responsibility for the unnatural death of Suman Behera.

In this case an inquiry was been set upon the part of District Judge on the direction of the court. The finding of the report was based on the evidence that Suman Behera had died on account of multiple injuries inflicted on him while he was in police custody at the police outpost Jeraikela. But this report was taken as disputed by the court. So additional solicitor general relied on the respondent’s defence that Suman had managed to escape from the custody and he was run by a passing train when he sustained the fatal injury. In case it was found to be a custodial death the argument was that factual foundation for such liability of state is absent. Shri M.S. Ganesh who was a amicus curiae for the petitioner, however, contended that the evidence adduced during the inquiry does not support the defence of respondents and there is no reason

Definitions and Expressions to reject the finding of the learned District Judge that Suman Behera died in police custody as result of injuries inflicted on him.

In Nilabati Behera ‘s case the Supreme Court observed:

"It may be mentioned straight away that award of compensation in a proceeding under Article 32 by this Court or by the High Court under Article 226 of the Constitution is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort."32

The Court held that its powers of enforcement imposed a duty to "forge new tools", of which compensation was an appropriate one where that was the only mode of redress available. This was not a remedy in tort, but one in public law based on strict liability for the contravention of fundamental rights to which the principle of sovereign immunity does not apply.

Anand J. emphasized:

“It is an obligation of the state to ensure that there is no infringement of the indefeasible right of a citizen to life except in accordance with law while the citizen is in its custody. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, under trials or other prisoners in custody, except according to procedure established by law. There is a great responsibility on the police or prison authorities to ensure that the action in its custody is not deprived of his right to life. His liberty is in the very nature of things circumscribed by the very fact of his confinement and therefore his interest in the limited liberty left to him is rather precious. The duty of car on the part of the State is strict and admits of no exception.”

The Supreme Court in M.C. Mehta v. Union of India33 reiterated its stand taken in Rudul Sah, that apart from issuing directions it can under Article 32 forge new remedies and fashion new strategies designed to enforce the fundamental rights.34 The Court went on to say35 that the power under Article 32 was not confined to preventive

32 Id. at 758. 33 (1987) 1 SCC 395. 34 Id. at 405. 35 Id. at 408.

Definitions and Expressions measure when the rights were violated. The court further observed that a contrary position would rob Article 32 of the entire efficacy and render it impotent and futile.

The most important point considered by the Bench was whether the Supreme Court could entertain claims for damages in respect of violation of fundamental rights and it was held that the Court had the power to award compensation in appropriate cases where: (SCC p. 408, para 7).

"The infringement of the fundamental right must be gross and patent, that is, incontrovertible and ex facie glaring and either such infringement should be on a large scale affecting the fundamental rights of a large number of persons, or it should appear unjust or unduly harsh or oppressive on account of their poverty or disability or socially or economically disadvantaged position to require the person or persons affected by such infringement to initiate and pursue action in the civil courts."

Yet in another case, Kanaka Rana v. State of Orissa36 , the facts and circumstances giving rise to this case are that petitioner claims herself to be a poor woman. Her husband is a mechanic and earns his livelihood by running truck repairing garage at Jajpur. After having two baby girls, petitioner and her husband decided not to have a third child and opted for family planning operation of the petitioner. Tubectomy was conducted by the medical officer, Jajpur road, in 1994. However, she gave birth to a female child, in 2000. Husband of the petitioner reported the matter to the various authorities of the health and family welfare Department and asked for damages but no action was taken. Therefore, this writ petition has been filed seeking compensation for conducting unsuccessful tubectomy. In exceptional circumstances inspite of successful operation a sterilized woman can become pregnant due to natural causes and in such cases the best remedy available to her is to get the pregnancy terminated as it is permissible under the provisions of the Medical Termination of pregnancy Act, 1971. The Court further observed as under: “the cause of action for claiming compensation in cases of failed sterilization operation arises on account of negligence of the surgeon and not an account of child birth. Failure due to natural causes would not provide any ground for claim. It is for the woman who has conceived the child to go or not to go for medical termination of Pregnancy. Having gathered the knowledge of conception inspite of having undergone the sterilization operation, if the couple

36 AIR 2009 Orissa 17.

Definitions and Expressions opts for bearing the child, it ceases to be an unwanted child. Compensation for maintenance and upbringing of such child cannot be claimed.”37

The power given to the Supreme Court under Article 32, which itself is a fundamental right, imposes a constitutional obligation on the Court to forge such new tools, which may be necessary for doing complete justice and enforcing the fundamental rights guaranteed in the Constitution, which enable the award of monetary compensation in appropriate cases, where that is the only mode of redress available. The contrary view would not merely render the Court powerless and the constitutional guarantee a mirage, but may, in certain situations, be an incentive to extinguish life, if for the extreme contravention the Court is powerless to grant any relief against the State, except by punishment of the wrongdoers for the resulting offence, and recovery of damages under private law, by the ordinary process. If the guarantee that deprivation of life and personal liberty cannot be made except in accordance with law, is to be real, the enforcement of the right in case of every contravention must also be possible in the constitutional scheme, the mode of redress being that which is appropriate in the facts of each case. This remedy in public law has to be made readily available when invoked by the have-nots, who are not possessed of the wherewithal for enforcement of their rights in private law, even though its exercise is to be tempered by judicial restraint to avoid circumvention of private law remedies, where more appropriate.

In S.P. Sampath Kumar v. Union of India38 upheld the validity of Article 323-A which provides for Administrative Tribunals free from the jurisdiction of all courts except the Supreme Court on the ground that Parliament can make effective alternative institutional mechanisms or arrangements for judicial review without violating the basic structure of the Constitution if such arrangements or mechanisms are no less effective than the High Courts.

In Kihoto Hollohan v. Zachillhu39 para 7 of the Tenth Schedule to the Constitution, which bars the jurisdiction of the courts in respect of any matter connected with the disqualification of a member of a House under that Schedule, has been invalidated by

37 Id. at para 6. 38 (1987) 1 SCC 124: AIR 1987 SC 386. 39 1992 Supp (2) SCC 651; AIR 1993 SC 412. Also see Prakash Singh Badal v. Union of India, AIR 1987 P&H 263.

Definitions and Expressions the Court because it has the effect of amending the powers of the Supreme Court and the High Courts without following the procedure required in the proviso to Article 368(2). While the Court was unanimous in respect of the invalidity of para 7, it was divided 3 to 2 on the effect of such invalidity on the rest of the Tenth Schedule. Applying the doctrine of severability the majority held that para 7 was severable from the rest of the Schedule and therefore its invalidity did not affect the rest of the Schedule. The minority, however, was of the view that firstly, para 7 was not severable from the rest of the Schedule and secondly, even if it was, the doctrine of severability could not be applied to an amendment which required observance of the procedure laid down in the proviso to clause (2) of Article 368 but in fact did not observe such procedure. This is the first instance of an amendment having been invalidated for non-compliance with the procedure laid down in the proviso to clauses (2) of Article 368.

In Raghunathrao Ganpatrao v. Union of India40 the Supreme Court unheld the Constitution (Twenty-sixth Amendment) Act, 1971 which derecognised the former Indian rulers and abolished their privy purses and other privileges by repealing Articles 291 and 362 and inserting Article 363-A. The Court conceded that the repealed provisions were an integral part of the Constitution but did not agree that every integral provision constituted a basic structure of the Constitution. It rather found the amendment in consonance with republicanism, human dignity and equality proclaimed in the Preamble and running through the constitutional provisions.

In L. Chandra Kumar v. Union of India41, the Supreme Court held that to the extent Articles 323-A and 323-B excluded the jurisdiction of the Supreme Court under Article 32 and of the High Courts under Article 226 they were unconstitutional. The Court emphasised that judicial review was a basic feature of the Constitution which could not be diluted by transferring judicial power to the administrative tribunals and excluding the review of their determinations under Article 32 or 226. In view of this decision and availability of judicial review under Article 226 against the decisions of the tribunals, the Court held that if a retired Judge of a High Court was appointed Chairman of a tribunal in consultation with the Chief Justice of the High Court or a sitting Judge is so appointed after nomination by the Chief Justice of the High Court

40 1994 Supp (1) SCC 191: AIR 1993 SC 1267. 41 (1997) 3 SCC 261: AIR 1997 SC 1125.

Definitions and Expressions with the concurrence of the Chief Justice of India and the other judicial and non- judicial members were appointed without such consultation or nomination, the constitution of the tribunal would be valid.42

The expansion of jurisdictional reach is beneficial to the holders of fundamental rights in general and to the weaker sections in particular. The Apex Court laid down exhaustive guidelines for preventing sexual harassment of working women in place of their work until legislation is enacted for this purpose. The Supreme Court in Vishaka v. State of Rajasthan43 held that it is duty of the employer or other responsible person in work place and other institutions, whether public, private, to prevent sexual harassment of working women. The Court laid down as under: “sexual harassment includes such unwelcome sexually determined behavior as physical contacts and advances, showing pornography of sexual demands, whether by words or actions. Such conduct can be humiliating and constitute a health and safety problem, it is discriminatory when a woman has reasonable ground to believe that her refusal would disadvantage her in connection with her employment, including recruiting or promoting or when it create a hostile working environment. Remedies including compensation should be provided.”

Thus, in Vishaka,44 speaking for the Supreme Court, J.S. Verma CJ made clear that “gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognised basic human right. The common minimum requirement of this right has received global acceptance.”

A.S. Anand CJ observed in Apparel Export Promotion Council v. A.K. Chopra45 (Apparel Export):

“There is no gainsaying that each incident of sexual harassment at the place of work, results in violation of the fundamental right to gender equality and the right to life and liberty—the two most precious fundamental rights guaranteed by the Constitution of India.”46

42 State of A.P. v. K. Mohanlal, (1998) 5 SCC 468. 43 (1997) 6 SCC 141: AIR 1997 SC 3011. 44 Ibid. 45 (1999) 1 SCC 759. 46 Ibid.

Definitions and Expressions

In I.R. Coelho v. State of T.N.,47 a nine judge bench led by Sabharwal CJ, unanimously reaffirmed the law laid down in Waman Rao. It gave certain clarifications with respect to the tests to be applied for judging the validity of amendments.

In Ashok Kumar v. Union of India48 the Court upheld the validity of Constitution Ninety third Amendment which inserted clause (5) in Article 15 in so far it applies to public educational institutions. The majority of four judges did not test its application to private institutions because no such institution approached it. The dissenting single judge, however, invalidated it insofar as it applies to private unaided institutions.

“Judicial activism properly so-called” is viewed by R.A. Posner as “a view of the capacity and responsibility of courts relative to other agencies of government”.49

5.5 THE JUDGES’ CASE AND THE PARLIAMENT

A system works. If there is a crack in that system, patchwork can never do. Same was the case without our judicial system. To quote Mehr Chand Mahajan, “Nehru has always acted in accordance with the advice of the CJI.”50 However, when the system cracked, problems raised their ugly heads and unwritten norms were blurred. The judiciary, which was in a quandary, finally declaring the law under Article 141, found that the CJI did not have primacy over a governmental decision, in the appointment of superior court judges.51 But after a decade, the Supreme Court started to repair the harm done to the institution, curing its self-inflicted wounds. In doing so, however, it went to another extreme. We know that the Constitution is supreme in our system and all the organs, including the judiciary, are bound by it and are under an obligation to obey it. But knowing well that the Constitution has a specific procedure for the appointment of Supreme Court and High Court judges, the court devised a super procedure for such appointments. Article 124(2) provides clearly provides for the

47 (2007) 2 SCC 1. Also see I.R. Coelho v. State of T.N., (1999) 7 SCC 580. 48 (2008) 6 SCC 1. 49 Richard A. Posner, Overcoming Law 5 (Universal Law Publishing Co. Pvt. Ltd., New Delhi, 2007). 50 A Pillar of Justice, 384-86, quoted from G. Austin, Working a Democratic Constitution 131 (OUP, New Delhi, 2006). 51 S.P. Gupta v. Union of India, 1981 Supp SCC 87: AIR 1982 SC 149.

Definitions and Expressions appointment of Supreme Court judges52 and Article 217(1) specifies for the High Courts’ judges53.

In the Judges’ case,54 the question of public interest immunity (Indian Law of Crown Privilege) arose as the Union Law Minister’s circular dated 18 March 1981, asking Chief Ministers to inquire of additional judges in the High Courts of their states whether they would consent to their transfer as judges to the High Court outside their states, was challenged. Two of the three additional judges of Delhi High Court were not confirmed. The government refused to place the correspondence claiming public immunity privilege but six of the seven judges, following Convay v. Rimmer,55 ordered the documents to be disclosed after examining them privately. Justice Bhagwati categorically ruled that non-disclosure of documents would put the government in an invincible position and the harm that would be caused to the public interest by non-disclosure would far outweigh any harm that would be caused by disclosure. He also ruled that non-confirmation of an additional judge could be challenged on two grounds only, viz. that the consultation by the Union government with the Chief Justice of the High Court, the State government and the Chief Justice of India was not full and effective, and that the decision not to confirm him was mala fide.

In appointing a judge to the Supreme Court, “the Chief Justice of India shall be consulted”.56 The Constitution is quite clear and unambiguous. The power of the President is not unfettered. In the popular case of Supreme Court Advocates-on- Record Assn. v. Union of India57 (Second Judges case), the Supreme Court nine- judges Bench through its majority decision delivered by Verma J (for himself and on behalf of Dayal, Ray, Dr. Anand and Bharucha JJ) added two novel concepts regarding the appointment of Supreme Court and the High Court judges. First, the CJI

52 124. Establishment and constitution of Supreme Court.—(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose …. 53 217. Appointment and conditions of the office of a Judge of a High Court.—(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Government of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court…. 54 AIR 1982 SC 149: (1981) Supp SCC 87. 55 (1967) 1 W.L.R. 1031. 56 Poviso to Art. 124 (2) of the Constitution of India. 57 (1993) 4 SCC 441: AIR 1994 SC 268.

Definitions and Expressions means not only the Chief Justice with absolute power of veto in the appointments, but a colleguim; and second, the CJI shall have primacy in the decision of appointment over the President or the Executive of the day.

The Supreme Court fortified judicial appointments. Of course, some conventions like appointment of the senior most judge as the Chief Justice and elevation to the Supreme Court on the basis of inter se seniority of High Court judges was also suggested, which can be said to be a healthy trend. But this procedure of ensuring judicial independence could not function unblemished—the CJI ignored the seniormost judges in appointments, which necessitated a Presidential reference under Article 143 of the Constitution.58 The reference was heard by a nine-judge Bench. Bharucha J delivered the opinion of the court. The court had to further clarify its position, making it obligatory for the Chief Justice to consult senior most judges and raising the number of consultees from two to four, in the case of the appointment of a judge of the Supreme Court, but retaining the requirement of consultation with two senior judges of the Supreme Court in case of appointment of a judge of the High Court, and making it obligatory for consultees to give their opinion in writing.

Thus, in Supreme Court Advocates-on-Record Association v. Union of India,59 known as the Second Judges’ case, the court completely snatched the power of appointment and transfer of judges of the superior judiciary from the executive. It laid down that the provision for consultation with the Chief Justice of India meant his concurrence and, thus, vested the power in the collegiums of judges comprising the Chief Justice of India and two senior-most judges. It was expanded to five, Chief Justice of India and four senior judges, for appointment to the Supreme Court, when it was referred to it by the President.60

It was a blatant usurpation of power by the judiciary in the name of its independence and totally against the constitutional scheme as envisaged by the founding fathers. It has been rightly described by many as the most dangerous judgement after the Habeas Corpus case. In fact, the Habeas Corpus and Second Judges’ cases are two poles between which the Supreme Court has moved with remarkable flexibility is

58 Special Reference No. 1 of 1998, re, (1998) 7 SCC 739: AIR 1999 SC 1. 59 (1993) 4 SCC 441: AIR 1994 SC 286. 60 In re Article 143 of the Constitution, Presidential Reference 1998, (1998) 7SCC 739: AIR 1999 SC 1.

Definitions and Expressions perpetuating illegality. In the former, it cringed before the Executive in the name of express law, while in the latter, it went against the express provision and intentions of the Constitution makers which are crystal clear from the debates and proceedings of the Constituent Assembly.

In the Second Judges case,61 the divided court evolved a new concept of collegiums and the Special Reference No. 1 of 1998, re62 (Third Judge case) affirmed it, but the number of judges in the collegiums was increased. Actually there have been three Judges cases—the first, decided by seven judges; the second, decided by nine judges; and the third, also decided by nine judges. Thus, on the whole 25 judges have applied their mind to the vital issues relating to judicial independence.

Thus, the present position is that the Chief Justice’s view has primacy over the government’s view. The President / government does not have power to veto; the proposed name can be remitted for reconsideration to the CJ/collegiums, but when returned and again proposed, the President/government cannot veto it.

In Vinay Chandra Mishra, re,63 Mr. V.C. Mishra, Chairman, Bar Council of India, faced contempt of court charges for “obstructing the course of justice by trying to threaten, overawe and overbear the Court by using insulting, disrespectful and threatening language”. During a hearing of a case, Mr. Mishra had become furious on some question put to him by S.K. Keshote J (who was a junior judge on the Bench) and began shouting, saying that he would get the judge transferred and see that an impeachment motion was brought against him in Parliament. Keshote J wrote to the acting Chief Justice of the High Court noting that such an incident was of concern to the whole system and not simply an insult to a judge.

The acting Chief Justice of the High Court forwarded the letter to the Chief Justice of India who entertained it and constituted a three-judge Bench, consisting of K.N. Singh, Sawant and Verma JJ. In the counter-affidavit, Mr. Mishra counter-charged Keshote J with committing contempt of his own court. Meeting out the preliminary objections of Mr Mishra, the Supreme Court found the contemner guilty of committing criminal

61 Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC, 441: AIR 1994 SC 268. 62 (1998) 7 SCC, 739: AIR 1999 SC 1. 63 (1995) 2 SCC 584: AIR 1995 SC 2348.

Definitions and Expressions contempt of the court, for having interfered with and “obstructing the course of justice by using insulting, disrespectful and threatening language”.

Invoking its power under Article 129 and 142 of the Constitution, the Supreme Court passed the order:

55….

(a) The contemner Vinay Chandra Mishra is hereby sentenced to undergo simple imprisonment for a period of six weeks. (b) The contemner shall stand suspended from practising as an advocate for a period of three years from today. The Supreme Court Bar Association filed a petition under Article 32 against the order of suspension. Keeping in view the seriousness of the issue, a Constitution Bench was constituted on reference of the Division Bench. Both Kapil SIbal and Dr. Rajeev Dhavan argued that the Supreme Court could not pass any order either under Article 142 or Article 129 to suspend a licence of an advocate contemner, for which statutory provision otherwise exists (Advocates Act, 1961). The Supreme Court speaking through Anand J went on the back foot. The Supreme Court said: It, however, needs to be remembered that the powers conferred on the Court by Article 142 being curative in nature cannot be construed as powers which authorise the Court to ignore the substantive rights of a litigant while dealing with a cause pending before it. This power cannot be used to “supplant” substantive law applicable to the case or cause under consideration of the Court.64

The decision based on a literalistic and restrictive interpretation of the expression “between the parties”, used in Article 142, appears to give birth to many misgivings. In Vinay Chandra Mishra, re, the contempt proceedings started on the initiative of Keshote J, where the dignity of the judiciary was at state: “In the case dignity of judiciary is not restored, then it is very difficult for the Judges to discharge their judicial function without fear or favour”. Was not the UOI standing for the court? It is submitted that taking a real and functional approach it is clear that it was the court whose interest and dignity was involved, and the Supreme Court refused to do justice to the judiciary on technicality of an express statutory provision. The Supreme Court itself realised the seriousness of the matter, and in that situation judicial hands-off was

64 Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409, 431-32.

Definitions and Expressions not the proper remedy for the vindication of the court’s dignity, threatened by the mighty power that might be. It presents an example of judicial activism; and thereafter the judiciary going on the back foot.

Similarly, overstepping its jurisdiction, the Supreme Court directed the government to create an all-India judicial service in order to bring about uniformity in the service conditions of judges of the subordinate judiciary.65 Again, in another PIL to improve their service conditions, the Supreme Court issued direction to increase their pay and the perks considerably, causing severe financial burdens on state governments.66 Eight state governments filed affidavits in the Court expressing inability to bear so much burden on their exchequers, but the Court rejected their pleas saying that financial crunch was no grounds for not implementing its directions. This is a clear case of encroachment as salaries, perks and service conditions are subjects that fall in the arena of the government. Moreover, the court does not care about financial implications of its orders but only philosophises. Hard realities of finance cannot be overlooked.

5.6 JUDICIAL ACTIVISM AND HUMAN RIGHTS JURISPRUDENCE

Judicial activism has proved as the backbone of human rights jurisprudence. And the process of transformation of non-beings into human-beings and what it involved is eloquently described in the beautiful lines of Rabindranath Tagore:

Into the mouths of these dumb, pale and weak, We have to infuse the language of the soul, Into the hearts of these weary and worn, dry and forlorn, We have to minstrel the language of humanity.67

There is no doubt that the term “human rights” is a 20th century phraseological invention. However, the idea of the inalienable rights of man is much older and in fact was often articulated by poets, philosophers and politicians since antiquity. The genesis of human rights is the utopian concept of natural rights traceable from the days of the Greeks or even earlier. The doctrine of natural rights rests on a belief in

65 All India Judges’ Association v. Union of India, (1992) 2 SCC 428. 66 All India Judges’ Association v. Union of India, (1998) 2 SCC 204. 67 Mamta Rao, Public Interest Litigation Legal Aid and Lok Adalats 21 (Eastern Book Company, Lucknow, 4th edn., 2015).

Definitions and Expressions

“Nature” as the original creating force which gave to every man the power of finding, by reason, the right principles on which to organise his life. Natural rights refer to some conditions, situation or conduct that is right as opposed to being neutral or wrong for human beings. For example, if we have the natural right to be free, then being free is right not wrong for us by nature.

The Magna Carta (1215), the Petition of Rights (1628), and the English Bill of Rights (1689) were proof of the increasingly popular view that human beings are endowed with certain eternal and inalienable rights.

The remarks of Justice Felix Frandfurter addressed to the problems of the thirties are relevant to 21st century India which is still in a developing stage:

“It is idle to feel either blind resentment against ‘Government of Commission’ or sterile longing for the golden past that never was. Profound new forces call for new social inventions or fresh adaptations of old experience. The ‘great society’ with its permeating influence of technology, large scale industry and progressive urbanisation presses its problems; the history of political and social liberty admonishes us of its lessons. Nothing less is our task than fashioning instruments and processes at once adequate for social needs and the protection of individual freedom.”68

According to the theory of jurisprudence:

“A right is distinguished as positive or negative according to the nature of the correlative duty. In case of a positive right, the person subject to duty is bound to do something here as in case of negative right, the person subject to duty is restrained from doing something.”69

Both negative and positive rights are the outcome of judicial activism during the post– emergency era to achieve the preambular objectives of securing justice – social, economic and political.

M.C. Mehta v. State of Tamil Nadu70 As observed by Prof. Sathe, M.C. Mehta v. State of Tamil Nadu was an instance where a Public Interest Litigation was filed to highlight the condition of child labourers working in the match factories in Sivakasi in

68 P.M. Bakshi, Public interest Litigation 556 (Ashoka Law House, New Delhi, 3rd edn., 2012). 69 N.V. Paranjape, Studies in Jurisprudence and Legal Theory 237 (Allahabad: Central Law Agency, Allahabad, 2nd edn., 2007). 70 AIR 1997 SC 699: (1996) 6 SCC 756.

Definitions and Expressions

Tamil Nadu, but the Court thought it fit to travel beyond the confines of Sivakasi and to deal with the issue in wider spectrum and broader perspective taking it as a national problem.71

The Court seems to be guided by the sociological jurisprudence and through its judgment preferred a social transformation in the society. The Court refused to confine its role to a passive observer merely awaiting the efforts of the other two organs of the government to bring about social transformation visualized in the directive principles of the state policy. Instead, it advocated an active role on its part to bring social transformation visualized in the directive principles of state policy. In this regard Justice Hansaria said:

“It is the duty of all the organs of the State [according to Article 37] to apply these principles. Judiciary being also one of the three principal organs of the State, has to keep the same in mind when called upon to decide matters of great public importance. Abolition of child labour is definitely a matter of great public concern.”72

5.7 THE APEX COURT: A CRITIC OF ACTIVIST APPROACH OF JUDICIARY

To remind the critics of activist approach of Judiciary, reference can be made of the outlook of the Supreme Court in M.P. Oil Extraction v. K.N. Oil Industries,73 as it explained:

The supremacy of each of the three organs of the State, i.e., Legislature, Executive and Judiciary in their respective field of operation needs to be emphasized. The power of judicial review of the executive and legislative action must be kept within the bounds of constitutional scheme so that there may not be any occasion to entertain misgivings about the rule of Judiciary in out-stepping its limit.

The concept of judicial restraints was further developed comprehensively in State of U.P. v. Johri Mal,74 where the Supreme Court laid down following guidelines for the courts to invoke judicial review:

71 S.P. Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits 242 (Oxford University Press, New Delhi, 2nd edn., 2002). 72 M.C. Mehta v. State of Tamil Nadu AIR 1997 SC 699. 73 (1997) 7 SCC 592: AIR 1998 SC 145P: 1997 AIR SCW 4104.

Definitions and Expressions

The limited scope of judicial review, succinctly put, is:

1. Courts, while exercising the power of judicial review, do not sit in appeal over the decisions of administrative bodies. 2. A petition for a judicial review would like only on certain well-defined grounds. 3. An order passed by an administrative authority exercising discretion vested in it, cannot be interfered in judicial review unless it is shown that exercise of discretion itself is perverse or illegal.75 4. A mere wrong decision without anything more is not enough to attract the power of judicial review; the supervisory jurisdiction conferred on a Court is limited to seeing that the Tribunal functions within the limits of its authority and that its decisions do not occasion miscarriage of justice. 5. The Court cannot be called upon to undertake the Government duties and functions. The Court shall not ordinarily interfere with a policy decision of the State. Social and economic belief of a judge should not be invoked as a substitute for the judgment of the legislative bodies. Apart from above guidelines, the Supreme Court also justified its restrictive role in policy matters and declined the prayer of issuing the writ of Mandamus. In Binny Ltd. V. V. Sadasivan,76

The move of the judiciary to legitimise the Union law is also to be found in Kuldip Nayar v. Union of India77 (Kuldip Nayar). The texualist, legalist and positivistic approach of the Supreme Court, adopted in the Bearer Bonds case78 and Habeas Corpus case79, prevailed while declaring the Member of Parliament Local Area Development Scheme (MPLAD Scheme) constitutional, in view of the literal interpretation of Article 282 of the Indian Constitution. Article 282 reads, “The Union or a State may make any grants for any public purpose, notwithstanding that the purpose is not one with respect to which Parliament or the Legislature of the State, as

74 AIR 2004 SC 3800: 2004 AIR SCW 3888: (2004) 4 SCC 714. 75 See also State of NCT of Delhi v. Sanjeev Alias Bittoo, AIR 2005 SC 2080: 2005 AIR SCW 1987: 2005 Cr LJ 2179. 76 AIR 2005 SC 3202: 2005 AIR SCW 3774: (2005) 6 SCC 657. 77 (2006) 7 SCC 1: AIR 2006 SC 3127. 78 (1981) 4 SCC 675. 79 AIR 1976 SC 1207.

Definitions and Expressions the case may be, may make laws.” The constitutionality of the MPLAD Scheme was challenged in Bhim Singh v. Union of India80.

In Rajesh Maan v. Delhi Metro Rail Corporation,81 the High Court restrained itself from exercising the power of judicial review on the issue of allotment of spaces of Metro station and license fee. The Court expressed its limitation by clarifying that it is the matter of State policy. The same view was reiterated by same Court in Ashwini Kumar Chopra v. Union of India.82 Restraining itself from interfering in the matter of allocation of dam water between the districts of a State, the Supreme Court in Kachchh Jal Sankat Nivaran Samiti v. State of Gujarat83 clearly held that there must be judicial restraint in such matters.84

The Supreme Court of India in Union of India v. Dr. Kushala Shetty85 reiterated that scope of judicial review is limited, while holding its limitations in exercising the power of judicial review.

No doubt the Judiciary derives its strength from the constitutional wisdom. This approach has been applied by the Supreme Court in its recent judgment in Gridco Ltd. V. Sadananda Doloi.86 The beauty of the judgment lies in the balanced approach of the Court as it said that it cannot sit in the armchair of the Administrator to decide whether a more reasonable decision or course of action could have been taken in the circumstances. So long as the action taken by authority is not shown to be vitiated by the infirmities referred to above and so long as the action is not demonstrably in outrageous defiance of logic, the writ Court would do well to respect the decision under challenge.87

80 (2010) 5 SCC 538. 81 AIR 2010 Del 396 (NOC). 82 AIR 2011 Del 154. 83 AIR 2011 SC 2747: 2011 AIR SCW 4336: (2011) 8 SCALE 26. 84 Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683: AIR 2008 SC (Supp) 360: 2008 AIR SCW 406. 85 AIR 2011 SC 3210: 2011 AIR SCW 4460: (2011) 7 SCALE 654. 86 AIR 2012 SC 729. 87 AIR 2012 SC 729 (738).

Definitions and Expressions

5.8 JUDICIARY AS NEGATOR OF LEGISLATIVE INITIATIVE

Framers of the Constitution had a clear vision: they gave prestige to the courts, but intended co-ordinate status based on cooperation with the other two branches of government. They had greatly circumscribed the judiciary’s power of review where the rights to property and personal liberty were concerned.

Pt. Jawaharlal Nehru felt the same. He elaborated:

Within limits no judge and no Supreme Court can make itself a third chamber [of the legislature]. No Supreme Court and no judiciary can stand in Judgement over the sovereign will of Parliament representing the will of the entire community. If we go wrong here and there it can point it out, but in the ultimate analysis, where the future of the community is concerned, no judiciary can come in the way. And if it comes in the way, ultimately the whole Constitution is a creature of Parliament.88

V.B. Patel too was apprehensive of the role of conservative judges. He showed his weariness saying, “There is danger that certain old type of Judges may misinterpret this new process of law.”89 The Supreme Court also started with a restraintivist approach only. In A.K. Gopalan v. State of Madras90 (Gopalan), the Supreme Court adopted a positivistic/restraintivist interpretation.

A major negativising role was played in Golak Nath v. State of Punjab,91 wherein the Constitution 1st, 4th and 17th Amendment Acts were declared illegal. Parliament made different amendments, i.e. 24th and 25th, to nullify the effect of judicial decisions, which were upheld in the famous case of Kesavananda Bharati v. State of Kerala92 (Kesavananda Bharati).

However, the scope of the post-1978 property right is not very different from the earlier one, as in view of Maneka Gandhi v. Union of India93 (Maneka Gandhi) “just, fair and reasonable” requirement has become the test on the basis of which the validity of a law under which property is acquired shall be determined.

88 Constituent Assembly Debates, Vol. IX, 1195. 89 Proceedings of the Advisory Committee Meeting, B. Shiva Rao, Select Documents, Vol. II. 90 AIR 1950 SC 27: 1950 SCR 88. 91 AIR 1967 SC 1643: (1967) 2 SCR 762. 92 (1973) 4 SCC 225: AIR 1973 SC 1461. 93 (1978) 1 SCC 248: AIR 1978 SC 597.

Definitions and Expressions

The Supreme Court’s decision in State of Kerala v. Peoples Union For Civil Liberties94 reveals that the compensation jurisprudence evolved by the Supreme Court during the first decade is still the same, irrespective of the purpose of the legislative enactment.

Education was once a pious means of enlightenment and humanism with a scientific temper. However, judicial expansion of the right to education and of the consequent right to establish educational institutions, and conversion of education into a right to occupation of unaided educational institutions,95 with the added dimension of the idea that the right to occupation forms a part of the basic structure of the Constitution,96 threatens social egalitarianism.

5.9 THE RISING GLORY OF THE APEX COURT

One reason for the higher profile of the judges and the consequent legitimacy of the Court is the decline in the profile of the politicians. During the Nehru regime, the politicians enjoyed a high profile and were held in high public esteem. Many of them had suffered while fighting for independence and that halo of sacrifice gave them prestige. Judges, on the other hand, had been appointed by the colonial government and were considered mere technocrats. Nehru himself had a very narrow vision of judges and the judicial process. He thought that they would merely act as umpires deciding according to the pre-determined rules of the game. Further, the pro-property decisions of the court gave it a status quoist image. Over the years, however, the image of the politicians suffered because of a lack of ideological commitment and a tendency to use power for personal aggrandizement. The emergency of 1975 was a watershed and the post-emergency activism of the Court changed the equation between the judges and the politicians. All over the world, a feeling seems to have grown that judges are better guardians of people’s rights than the representative legislatures.97

94 (2009) 8 SCC 46. The Division Bench comprised of S.B. Sinha and Dr. M.K. Sharma JJ. 95 T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481: AIR 2003 SC 355; P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537: AIR 2005 SC 3226; Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1. 96 Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1. See also for further study, “Judicial Review as Innovator in Policy Making”, 571. 97 Supra note 71 at 20, 21.

Definitions and Expressions

Jackson J very aptly pointed out:

“The people have seemed to feel that the Supreme Court, whatever its defects, is still the most detached, dispassionate, and trustworthy custodian that our system affords for the translation of abstract into concrete constitutional commands.98

Professor Abraham Chayes of Harvard Law School has this to say:-

‘The characteristic features of the public law model are very different from those of the traditional models. The party structure is sprawling and amorphous and subject to change over the course of litigation. The traditional adversary relationship is suffused and intermixed with negotiating and mediating process at every point. The Judge is the dominant figure in organising and guiding the case and he draws for support not only on the parties and their counsel but on a wide range of outsiders – masters, experts and oversight personnel. Most important, the trial Judge has increasingly become the creator and manager of complex forms of ongoing relief which have wide spread effects on persons not before the Court and require the Judge’s continuing involvement in administration and implementation.”99

In the name of the rule of law, High Courts and the Supreme Court started questioning the legalities of several government decisions. In Common Cause v. Union of India (Petrol Pump I case),100 the issue of the abuse of power in the allotment of petrol pumps was raised, while in Shiv Sagar Tiwari v. India (Shiv Sagar II),101 arbitrary allotments of houses was questioned. The Court went to the extent of slapping exorbitant fines of Rs. 50 lakh and Rs. 60 lakh on Satish Sharma and Sheila Kaul respectively, the then Union ministers of the concerned departments.

The Court also directed the Central Bureau of Investigation (CBI) to register a case against Captain Sharma for a criminal breach of trust or any other offence under the law for his arbitrary and mala fide action. The Court explained that it was entitled, under its write jurisdiction, as well as under the principles of public law, to impose damages for malfeasance.

98 Robert H. Jackson, The Supreme Court in the American System of Government 23 (Harvard University Press, Cambridge 1955). 99 Abraham Chayes , “The Role of the Judge in Public Law Litigation” 87 Har Law Rev 1281 (1984). 100 (1996) 6 SCC 530. 101 (1996) 6 SCC 599.

Definitions and Expressions

In the Jain Hawala case,102 the Supreme Court directed the CBI to probe payments made to several politicians on the basis of entries made in the Jain diaries, impartially, and submit progress reports directly to it. The court monitored the investigations conducted by the CBI and clarified that it had done so only because the superior authorities to whom the investigating officers were to report were themselves suspects, and that the monitoring was to continue only till the filing of the chargesheet. Due to judicial activism, corruption has been exposed in high offices and penal action has been initiated against politicians and public servants. The hawala diaries would have gathered dust in the archives of the CBI if the Supreme Court had not forced the agents to take action against the recipients of illegal money. The Supreme Court then prodded the CBI to push the proceedings. On March 1, 1996 the Court ordered the CBI to refrain from reporting the progress of investigations in the hawala scam to higher administrative authorities including the Prime Minister. In the Fodder Scam case103 in Bihar, the Court gave similar directions for monitoring. In Vineet Narain v. Union of India (1998),104 it went to the extent of suggesting how the CBI should be structured to remain immune to extraneous influences and how its chief should be selected:

The constitution and working of investigation agencies revealed the lacuna of its inability to perform whenever powerful persons were involved. For the reason, a close examination of the constitution of these agencies and their control assumes significance. No doubt, the overall control of the agencies and responsibility of their functioning has to be in the executive, but then a scheme giving a needed insulation from extraneous influences even of the controlling executive, is imperative.105

The Supreme Court has justified that the laid back approach of the Executive and that of the legislature propels its activism:

It is the duty of the Executive to fill the vacuum by executive order because its field is coterminous with that of the legislature and where there is inaction even by the executive, for whatever reason, the judiciary must step in, in exercise of its constitutional obligations under the aforesaid provisions [Article 32 and Article 142

102 Vineet Narain v. Union of India, (1996) 2 SCC 199. 103 Union of India v. Sushil Kumar Modi, (1997) 4 SCC 771: (1998) 8 SCC 661. 104 (1998) 1 SSC 226. 105 (1998) 1 SSC 243.

Definitions and Expressions of the Constitution] to provide a solution till such time as the legislature acts to perform its role by enacting proper legislation to cover the field.106

In Swami Shraddhananda @ Murali Manohar Mishra v. State of Karnataka,107 the Supreme Court created a third category of punishment in murder cases – lifelong imprisonment. The Court, in this case, found that the crime fell just short of the ‘rarest of rare’ category in which the death sentence could be awarded but life imprisonment, which meant 14 years of jail, was too inadequate keeping in view the horrendousness of the crime.

Through Ram Jethmalani & Others v. Union of India,108 the issue of black money rocked the country before the 2009 Lok Sabha elections and reports suggested that Indians spirited away anything between $500 billion and $1.5 trillion outside the country and deposited in banks in Switzerland and Liechtenstein. The BJP made it a poll issue that if voted to power it would bring the money back. The issue again created storm by the fag end of 2010, and some eminent citizens like Ram Jethmalani, Subhash C. Kashyap, et al. filed a PIL in the Supreme Court.109 In the whole scandal pertaining to black money, it surfaced that Hasan Ali Khan, a Pune-based stud farm owner, had allegedly stashed away $8 billion in Swiss banks. The Court frowned upon the government as to why no action was being taken against Khan.110 After strong verbal observations by the Court, Khan was arrested by the ED on 7 March 2011.

Four days after his arrest, Hasan Ali was granted bail by city civil court, Mumbai. However on 17 March, the Supreme Court, in a rare step, admitting special leave petition directly against the order of the district court, cancelled the bail of Khan and sent him to four days of custodial interrogation.111

106 Vineet Narain v. Union of India, (1998) 1 SCC 226, 266. 107 AIR SC 2008 3040: (2008) 11 SCR 93. 108 Ram Jethmalani & Others v. Union of India, Writ Petition (Civil) No(s). 176 of 2009 with SLP (C) no. 11032 of 2009. 109 Ram Jethmalani & Others v. Union of India, Writ Petition (Civil) No(s). 176 of 2009 with SLP (C) no. 11032 of 2009. 110 ‘What the hell is going on: SC on Hasan Ali’, The Times of India, New Delhi, 4 March 2011; ‘Why is Govt. soft on Hasan Ali, asks SC’, The Indian Express, New Delhi, 4 March 2011. 111 Assistant Director, Directorate of Enforcement v. Hasan Ali Khan, Petition for Special Leave to Appeal (Crl) No. 22455/2011.

Definitions and Expressions

Ultimately, on 4 July 2011, the Supreme Court set up a Special Investigation Team (SIT) with Justices B.P. Jeevan Reddy and M.B. Shah as the chairman and the vice- chairman to probe the black money. It is for the first time that the Court took over investigation by appointing a former judge of the Court as the chairman of the SIT.

After over 13 years, the Supreme Court adopting an activist posture quashed the appointment of P.J. Thomas as the CVC, in Centre for PIL & Anr. V. Union of India & Anr.,112 rejecting the argument of the Union government that it is the prerogative of the government to appoint any one. Never before did any court set aside the appointment of such a high functionary. On 3 September 2010, the High Powered Committee (HPC) recommended the name of Thomas for the post of CVC. The HPC comprised the Prime Minister, the Home Minister and the Leader of the Opposition. Sushma Swaraj, the Leader of the Opposition, put her dissent saying that Thomas was not fit to head the watchdog against corruption as he was chargesheeted in the palmolein import case. Ignoring the dissent, the government recommended Thomas’s name to the President and he was immediately appointed. Declaring the recommendation of the government to appoint Thomas ‘non-est in law’, the Court stressed on transparency and the integrity of the decision-making process.

The Supreme Court again ordered that the investigations into the 2G Spectrum Scam would be done under its monitoring.113 The Court directed that the CBI would conduct through investigation into various issues highlighted in the report of the CVC (which was forwarded to the Director, CBI) and the report of the Comptroller and Auditor-General (CAG), who prima facie found serious irregularities in the grant of licences to 122 applicants, majority of whom are said to be ineligible, the blatant violations of the terms and conditions of licences and huge loss to the exchequer running into several thousand crores.

On 2 February 2012, the division bench of the Supreme Court, comprising Justices G.S. Singhvi and A.K. Ganguly, cancelled all 122 2 G licences granted after 10 January 2008 during the tenure of A. Raja, declaring it as ‘illegal’. Indicating A. Raja, the Court directed that the licences in 22 circles be sold by auction, and the Telecom Regulatory Authority of India (TRAI) would make fresh recommendations.

112 (2011) 4 SSC 1. 113 Centre for Public Interest Litigation & Others v. Union of India & Others, (2011) 1 SCC 560: 2010 (13) SCALE 501: 2010 INDLAW SC 1086.

Definitions and Expressions

The claim that the judiciary is the most vigilant defender of democracy, democratic values and constitutionalism is hyperbolic and open to challenge. The judiciary has encroached on the domain of others disregarding the doctrine of separation of powers which itself goes against the spirit of democracy. Further, the reasoning that the judiciary is the only institution which is sensitive and redresses the grievances of the people who otherwise would have taken to streets is flawed. If we accept that it is acting as the safety valve, how do we explain the mass unrest in the form of Naxalism – where naxalites have their parallel courts – extremism and even terrorism in several parts of the country? Tardiness of the legislature and that of the executive is reprehensible but the problem of judicial delays is no less appalling and forces people to take recourse to extra-constitutional means.

In Nandini Sundar,114 the Supreme Court declared the appointment of Special Police Officers (SPOs) unconstitutional which had been done under Sections 9 and 23 of the Chhattisgarh Police Act, 2007. The facts and situations which led to appointments of the SPOs in Chhattisgarh were like this. In Chhattisgarh, the Maoist/naxal violence had increased. With a view to encounter and resist such activities, an organisation named Salwa Judum started in 2006 to operate in rural areas. This movement got bipartisan support from both opposition and ruling parties. Later, the Chhattisgarh government adopted Salwa Judum and it appointed the SPOs/Koya commandos from among the tribals who became part of Salwa Judum. Maoists activities had spread over Chhattisgarh and neighbouring States like Jharkhand, Orissa, Andhra Pradesh, Maharashtra, Bihar, U.P. and W.B. In 2009, the Central Government announced its plan for simultaneous coordinate counter-operations in naxal hit States. Salwa Judum had started with a high mission to counter naxalites but later became increasingly violent and out of control. Salwa Judum had to be disbanded.

The SPOs took the place of Salwa Judum. The Chhattisgarh government had recruited the SPOs under the Chhattisgarh Police Act, 2007 to counter naxalite terrorism. Earlier, such SPOs had been appointed by District magistrate under Section 17 of the Police Act, 1861. Chhattisgarh appointees were paid Rs. 3000 per month of which 80 percent was contributed by the Government of India.

114 (2011) 7 SCC 547: (2011) 2 SCC (L&C) 762.

Definitions and Expressions

The much debated decision of the Supreme Court outlawing Salwa Judum and disbanding SPOs came in Nandini Sundar115 on 5 July 2011. The case arose out of a writ petition filed in 2007 by 1) Dr Nandini Sundar, 2) Dr. Ram Chandra Guha, 3) E.A.S. Sarma. The main allegation in this petition veered around the widespread violation of human rights of people of Dantewada district and neighbouring areas. It was alleged that the government promoted activities of the group called “Salwa Judum”, an armed rebellion vigilante group. In another reference, fresh allegation had been made that Swami Agnivesh, a renowned social worker, was allegedly attacked by the members of Salwa Judum while he was on his way with others to visit villages to provide humanitarian aid to the victims of the violence.

The court tried to locate the problem of Maoist terrorist activities elsewhere and solution in other ways. The court felt that the problem can be tackled by fulfilling the socio-economic aspiration of the people through constitutional visions of development. The court put main emphasis on human rights violation of youngsters employed as SPOs on low pay without sufficient security. It also found utter violation of the right to personal liberty under Article 21 of the Constitution. The court warned the government “[t]o pursue policies whereby guns are distributed among barely literate youth amongst the poor to control the disaffection in such segments of the population would be tantamount to sowing of suicide pills that could divide and destroy society”.116 The Supreme Court issued orders that 1) the State of Chhattisgarh shall immediately cease and desist from using the SPOs in any form in any activities; 2) the Union Government shall desist from providing any find for recruitment of the SPOs; 3) the State Government shall recall all fire arms issued to the SPOs; 4) the State Government shall make necessary arrangement for security in the State; and 5) the government shall take measures to prevent operation of groups like Salwa Judum and Koya commandos and investigate the file FIR against them.

The Division Bench itself was conscious of the impact of these decisions on the executive policy and, therefore, made clear that while striking down the State policies designed to combat terrorism and extremism, judiciary does not seek to interfere with the security consideration which are within the purview of the executive and the

115 Ibid. 116 Id. at 563.

Definitions and Expressions legislature. In intervenes in such matters only to enforce constitutional values and goals.117

The Central Government filed a review petition in the second week of August in 2011 (8 August 2011). The objection of the UOI was based against the order of the Supreme Court issued in para 90(ii), that is to say, “The Union of India to cease and desist, forthwith, from using any of its funds in supporting directly or indirectly the recruitment of SPOs for the purposes of engaging in any form of counter insurgency activities against Maoist/Naxalite group”. The UOI maintained that the Supreme Court order was against the spirit of the Constitution. It pleaded that under the Constitution, the policy was exclusively in the domain of the executive and the judiciary could not interfere in it.

The Centre also brought to the notice of the court that the broad ramification and impact of the court order, disbanding and disarming tribals deployed as SPOs, would affect not only anti-naxal operations but also its fight against militants in Jammu and Kashmir as well as other States, particularly the North East States where similar groups of people were engaged by the State Government.

The courts recognised the serious impact of the law declared by the Supreme Court which became binding on all courts within the territory of India. The court enquired from the petitioners who had filed public interest litigation (PIL) on the matter, whether the petition referred to the entire country or was restricted to just Chhattisgarh. On their reply that the petition was only for Chhattisgarh, the Court passed the order saying that 5th July order would apply only to Chhattisgarh. Thus, the Review Court spared like States from being affected by the decision.

In A Parent of a Student of Medical College, Shimla v. The State of HP,118 the Supreme Court overturned the High Court’s decision directing the government to make a law to curb ragging in colleges. The Court ruled that the High Court did not have the power to give such a direction as it fell within the purview of the legislature. This was followed in Asif Hameed v. State of Jammu & Kashmir119 in which the Supreme Court struck down the High Court’s direction to the state government to

117 Id, at 583-84, paras 81-82. 118 (1985) 3 SCC 169. 119 AIR 1989 SC 1899.

Definitions and Expressions make a statutory admission committee. The Supreme Court again ruled that it cannot direct the government to create posts of tractor driver.120

A nine-judge Constitution Bench of the apex court, with a majority of six, ruled that presidential satisfaction for dismissing state governments is judicially reviewable.121 In 2006, it declared the dissolution of the Bihar Assembly as unconstitutional.122 The Supreme Court went to the extent of ruling that even the president’s or the governor’s decision in cases of pardon of convicts sentenced to death would be subject to the judicial review.123

In the name of upholding the rule of law and the independence of the judiciary, some judgements of the apex court clearly breach the boundary line usurping the role assigned to others. It is on this ground that the apex court gave directions which have the force of law. It laid down principles and norms to be followed in adoption of Indian children by foreigners124 and procedure to be followed for allowing passive euthanasia.125 In Vishakha and Others v. State of Rajasthan,126 it gave directions to stop sexual harassment of women at work places and laid down its own guidelines in the form of law which would remain in force as long as an Act was not made by Parliament. Similarly, in D.K. Basu v. State of West Bengal,127 the Supreme Court gave detailed guidelines to be observed while making arrests, defined the arrestee’s rights including the right against torture. However, this was a welcome decision as it was essential to check the barbarism of the police. Further, it ruled that if there is a legislative vacuum, the Executive should fill it, and if it does not do so, the Judiciary should do so.

Even for police reforms, it gave seven sweeping directions one for the Union and six for the states, to give fixed tenures to police officials, and the creation of security

120 Divisional Manager, Aravali Golf Club v. Chander Hass, (2007) 14 SCALE 1: (2008) 1 SCC 683: (2008) 1 SCC (L&S) 289. 121 S.R. Bommai v. Union of India, (1990) 3 SCC 1: AIR 1994 SC 1918. 122 Rameshwar Prasad & Others (VI) v. Union of India & Anr., (2006) 2 SCC 1. 123 Kehar Singh & Anr. V. Union of India & Anr., AIR 1989 SC 653: 1`989 Cri LJ 941: JT 1988 (4) SC 693: 1988 (2) SCALE 1965: (1989) 1 SCC 204. 124 Lakshmikant Pandey v. Union of India, (1984) 2 SCC 244: AIR 1984 SC 469. 125 Aruna Ramchandra Shanbaug v. Union of India, (2011) 4 SCC 454. 126 AIR 1997 SC 3011: JT 1997 (7) SC 384: 1997 (5) SCALE 453: (1997) 6 SCC 241. 127 (1997) 1 SCC 416: 1997 SCC (Cri) 92: AIR 1997 SC 610.

Definitions and Expressions commissions at state and central levels, amongst others.128 It did so in the name of upholding the rule of law. It is true that police officials are frequently transferred for political reasons and several times for protecting criminal politicians or hoodlums close to the powers, that is if they are likely to be chargesheeted. Several police commissions and the law commission made such recommendations, but it does not give the apex court a carte blanche to issue directions to give police officials fixed tenures. It also gave detailed guidelines as to how the CVC shall be selected.129

The post-Kesavananda Bharti130 period was not a very happy one. The Executive passed orders resulting in three Supreme Court judges being superseded; judges of the High Courts who had decided habeas corpus cases in favour of the detenus were either being transferred or their names were being leaked , so on and so forth.

In Sarla Mudgal v. Union of India131 (Sarla Mudgal), a Division Bench of the Supreme Court consisting of K. Singh and R.M. Sahai JJ made a very appreciable attempt to vitialise the efforts to develop and enact a uniform civil law. The learned judge wished that the State must retrieve Article 44 “from the cold storage where it is lying since 1949”.132

Lord Woolf feels that the conflict caused by the judicial review is desirable and necessary to enforce the rule of law:

The tension created by judicial review is acceptable because it demonstrates that the courts are performing their role of ensuring that the actions of the government of the day are being taken in accordance with the law. The tension is a necessary consequence of maintaining the balance between the Legislature, the Executive and the Judiciary upon which our constitution depends.133

Judicial review or opinion is also helpful to government when it does not want to take a contentious decision. The Constitutions of India (Article 143) and Canada (Supreme Court Act, 1875) provide that the government can refer any matter of paramount

128 Union of India v. Prakash Singh & Others, JT 2006 (12) SC 225: 2006 (9) SCALE 444: (2006) 8 SCC 1. 129 Centre for PIL & Anr. V. Union of India & Anr., (2011) 4 SCC 1. 130 (1973) 3 SCC 225. 131 (1995) 3 SCC 635: AIR 1995 SC 1531. 132 Id. at 639. 133 Lord Woolf, ‘Judicial Review: The Tension between the Executive and the Judiciary’, in Christopher Campbell-Holt (ed.), The Pursuit of Justice 133 (Oxford University Press, 2008).

Definitions and Expressions public importance to the Supreme Court for its advisory opinion. Its opinion is not binding but it has considerable persuasive value. In India, the Ayodhya imbroglio eluded any solution, and so the government referred the dispute to the Supreme Court which finally returned the reference.

5.10 FINDINGS

It abundantly clear that the Judiciary in India, in general and Supreme Court in particular have vast powers under the Constitutional scheme, and that in turn provide enough scope for the judiciary to play activist role.

The Supreme Court has played the role of a saviour in the protection as well as the promotion of human rights in India. The Court’s jurisprudence has ensured that the nation’s promises to respect the human rights on an international level do not remain on the papers. Where the Constitution was found unclear about mentioning certain human rights, the Court through its dynamic interpretation mentioned the unenumerated human rights within the framework of Article 21 of the Constitution. Where the Legislature was lagging in dealing with the core issues of human rights the Court laid down guidelines to deal with those core issues until the Parliament made a law in respect with it.

In case of governmental inactions or institutional failures, the power of superior Judiciary to issue a writ of mandamus or other suitable direction to the concerned public authority commanding performance of its legal obligation is the remedy. However, there stands a clear distinction between commanding performance by such public authority and the Judiciary taking over such function on its own. The former, and not the latter, is legitimate judicial intervention.

Definitions and Expressions

CHAPTER-6

JUDICIAL ACTIVISM AGAINST ABUSE OF ADMINISTRATIVE POWER

The judicial policy changed from the late 1950s in the United States as well as India and the courts adopted a more critical attitude towards administrative action. In England, the courts also developed a critical attitude towards the exercise of administrative discretion. In Associated provincial picture Houses Ltd. v. Wednesbury’s Corporation,1 the House of Lords laid down limits of judicial review of administrative discretion. The Court made it clear that the public functionary could never have absolute discretion and the exercise of discretion would be subjected to strict judicial scrutiny. But judicial review of the exercise of administrative discretion was subject to judicial restraint. If an administrative authority had acted within its powers, had acted in accordance with the rules of natural justice, had taken all relevant factors into consideration, and had not acted mala fide, the court would not interfere. The court would not substitute its opinion for that of the administrative authority if the administrative authority had arrived at its opinion in accordance with the above parameters. This is known as the Wednesbury principle. In later years, however, the courts have gone beyond the Wednesbury principle into the question of proportionality, which means whether an action was proportionate to the mischief, where violation of any of the rights given by the European Convention on Human Rights was alleged to have been violated.2 Administrative law in India has developed along similar lines.3

6.1 JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS IN INDIA

Judicial review is normally sensed to have a negative impact. But, as sensed by the great sociological jurist, Leon Duguit, nearly a century ago:

1 (1948) 1 K. B. 223. 2 Wade and Forsyth, “ Administrative Law” 379-453 OUP Indian reprint (1997). 3 S.P. Sathe, Judical Activism in India, Transgressing Borders and enforcing Limits 139, 140 (Oxford University Press, New Delhi, 2nd edn., 2002).

Definitions and Expressions

Any system of public law can be vital only so far as it is based on a given sanction to the following rules: first, the holders of power cannot do certain things; second, there are certain things they must do.4

The first part guides the courts to declare what the political branches “cannot do” in view of constitutionalism and constitutional limitations, which prompted Thomas M. Cooley to name his classic text: Constitutional Limitations.5 The role of the State has now changed to that of a welfare state, and a socio-legal, politico-economic and fundamental or human rights guarantor. This requires the construction of a set of affirmative constitutional doctrines mandating what the political branches “must do”. The judiciary energizes the conscience of the people for whom and by whom the system is built, and also helps in the creation of welfare jurisprudence to give effect to the programmes of the positive state.6 In doing so, the courts have to perform their constitutional duty of injecting life in the letters “designed to approach immortality as nearly as human institutions can approach it”. In view of this sense of the consciousness of posterity, the judiciary’s application of the constitutional norms contemplates not only what has been, but of what may be.7 It has very well been pointed out by Miller and Scheffin that “a Supreme Court pronouncement in a constitutional case delegates authority to others—legislature, executives, administrators, and judges in lower courts—to carry out the terms of the edict in other situations.”8

Judicial review of administrative actions is a part of enforcing the constitutional discipline over the administrative agencies, while they exercise their powers. It originated in England and travelled to common-law countries. India too inherited the idea of judicial review from England, India had laid its structure on English prerogative writs, which were issued by the Court of King’s Bench with a view to exercise general superintendence over the due observance of law by officials or authorities, while performing judicial or non-judicial functions.

4 Frida Laski and Harold Joseph Laski (trs.), Leon Duguit, Law in the Modern State 26 (B.W. Huebsch 1919). 5 Cooley, Constitutional Limitations (Legal Classics Library, 1868). 6 Pekelis, “The Case for a Jurisprudence of Welfare” in Konvitz (ed.), Law and Social Action 77 (DaCapo Press, 1970). 7 Paul Weems v. United States, 54 L Ed 793: 217 US 349, 373 (1909). 8 Miller and Scheffin, “The Power of the Supreme Court in the Age of the Positive State” (1) Duke LJ 273, 522 (1967).

Definitions and Expressions

In Election Commission v. Saka Venkata Subba Rao,9 the Supreme Court explained the purpose of the Indian Constitution is conferring the writ-issuing power in the following words:

The makers of the Constitution, having decided to provide for certain basic safeguards for the people in the new set up, which they called fundamental rights evidently thought it necessary to provide also a quick and inexpensive remedy for the enforcement of such rights and, finding that the prerogative writs which the Courts in England had developed and used whenever urgent necessity demanded immediate and decisive interposition, were peculiarly suited for the purpose, they conferred, in the States’ sphere, new and wide powers on the High Courts of issuing directions, orders, or writs primarily for the enforcement of fundamental rights, the power to issue such directions, etc. ‘for any other purpose’ being also included’.10

Prior to inauguration of our constitutional set-up on 26 January 1950, only the three Presidency High Courts at Calcutta, Madras and Bombay exercised writ-issuing powers. Now, all the 21 High Courts stand on the same footing and are armed with power to issue writs for the enforcement of fundamental rights and also “for any other purpose” under Article 226 of the Constitution.

In the absence of any constitutional restrictions, the Court applied the Wednesbury’s principles to examine the validity of the administrative orders of the executive. This was done in Makhan Singh Tarsikka v. State of Punjab 11 where the majority of seven judges bench of the Supreme Court applied the Wednesbury’s principles to examine the validity of a Presidential order under Article 359.

In Makhan Singh’s case the main issue was whether personal liberty of a citizen could be put to stake during emergency. Whether a Presidential proclamation under Article 359 (1) can deprive a citizen from seeking a remedy in a court of law to enforce his ‘personal liberty’? Whether judicial review of such Presidential order under Article 359 (1) is barred under the Constitution of India? Relating to the above questions the Supreme Court made a very cautious approach in Makhan Singh’s case. It interpreted that a Presidential Proclamation under Article 359 (1) can preclude a citizen from enforcing his fundamental rights mentioned in the order. But an order made under

9 AIR 1953 SC 210. 10 Ibid. 11 AIR 1964 SC 381.

Definitions and Expressions

Article 359 (1) is not immune from judicial review. The validity of a Presidential order under Article 359 (1) can be questioned on the ground that the detention had been ordered malafide or suffered from excessive delegation or that the fundamental rights deprived have not been mentioned in the Presidential order.12

Thus, in Makhan Singh’s case though the Supreme Court gave a literal interpretation of a Article 359 (1) it upheld its power of judicial review of a Presidential order made under Article 359 (1) by applying the principles of administrative law.

6.2 JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS UNDER ARTICLES 32 AND 136: SUPREME COURT’S REVIEW JURISDICTION

Since the judicial review of administrative actions is inherited from the English system, Indian courts do follow the broad principles evolved there by the courts. But, Indian courts are not to bother about the technicalities developed in the course of time there. Delivering the unanimous judgement of the Supreme Court in T.C. Basappa v. T. Nagappa,13 B.K. Mukherjea J observed:

In view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law.

Article 32, which in the words of Dr. Ambedkar “is the very soul of the Constitution and the very heart of it”,14 speaks in so many specific words that “the Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate”.

12 Id. at 36, 37, 38. 13 AIR 1954 SC 440. 14 C.A.D. Vol. VII, 953.

Definitions and Expressions

The Supreme Court’s role is envisaged of a “sentinel on the qui vive”15 In Minerva Mills Ltd. v. Union of India16 (Minerva Mills), P.N. Bhagwati J characterised the power of judicial review conferred by Articles 32 and 226 as “part of the basic structure of the Constitution” and declared that “judicial review is a vital principle of our Constitution and it cannot be abrogated without affecting the basic structure of the Constitution”.17

The provision was held unconstitutional in A.K. Gopalan v. State of Madras18 because it intended to render the court’s power under Article 32 ineffective. In Express Newspaper (P) Ltd. v. Union of India,19 the Working Journalists (Conditions of Service and Miscellaneous Provisions) Act, 1955 was declared unconstitutional as it did not require the Wage Board to give reasons for its decisions under the Act and thereby, render the task of judicial review nugatory. The Supreme Court does not recognise any limitation on review power to grant remedy under Article 32.

Article 136 is another article which provides for judicial review of administrative actions. It is in the nature of a residuary reserve power of judicial review in the area of public law. It lays down that the Supreme Court may, in its discretion, grant special leave to appeal from any judgement, decree, determination, sentence or order in any cause or matter passed or made by any court of tribunal. In the very beginning, in Bharat Bank Ltd. v. Employees20 (Bharat Bank), the Supreme Court had to pronounce upon an appeal from the order of the Industrial Tribunal. The Supreme Court refused to give a restricted meaning to the expression “tribunal”, which was understood to ber the same meaning as the word “court”. Instead of allowing a strict and limited meaning to the word “tribunal”, the majority court observed that “the functions and duties of the Industrial Tribunal [constituted under the Industrial Disputes Act, 1947] are very much like those of a body discharging judicial functions, although it is not a Court”, and under Article 136 of the Indian Constitution, the Supreme Court “does not contemplate a determination given by the Industrial Tribunal”.

15 Patanjali Sastri CJ in State of Madras v. V.G. Row, AIR 1952 SC 196, 199. 16 (1980) 3 SCC 625: AIR 1980 SC 1789, 1826. 17 Id. at para 87. 18 AIR 1950 SC 27: 1950 SCR 88. 19 AIR 1958 SC 578. 20 AIR 1950 SC 188: 1950 SCR 459.

Definitions and Expressions

In Jayantilal Amritlal v. F.S. Rana,21 the Supreme Court pronounced that it was well settled that functions which did not fall strictly within the legislative or judicial domains were covered under the residuary class and had to be regarded as executive. Justice Shah referred to the following passage from Halsbury:

‘Executive functions are incapable of comprehensive definition, for they are merely the residue of the functions of government after legislative and judicial functions have been taken away’22

The Supreme Court has recognised its wide range of power under Article 136. In Raj Krushna Bose v. Binod Kanungo,23 the Supreme Court asserted:

It is sufficient to say that the powers conferred on us by Article 136 of the Constitution and on the High Courts under Article 226 cannot be taken away or whittled down by the legislature. So long as these powers remain, our discretion and that of the High Courts is unfettered.24

While discussing the nature of the power of judicial review under Article 136, the court observed:

The powers given by Article 136 of the Constitution however are in the nature of special or residuary powers which are exercisable outside the purview of ordinary law, in cases where the needs of justice demand interference by the Supreme Court of the land. It vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing appeals, by granting of special leave, against any kind of judgement or order made by a court of tribunal in any cause or matter and the powers could be exercised in spite of the specific provisions for appeal contained in the Constitution or other laws.25

21 (1964) 5 SCR 294: AIR 1964 SC 648. 22 Viscount Hailsham (ed.), VII Halsbury’s Laws of England 192 (LexisNexis Butterworths, London, 1932). 23 AIR 1954 SC 202: 1954 SCR 913. 24 Id. at 16. 25 (1953) 1 SCR 267.

Definitions and Expressions

6.3 JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS UNDER ARTICLE 226 AND 227

The Supreme Court has equated the power of judicial review of the High Courts under Article 226 with that of the Supreme Court under Article 32 of the Constitution. Of course, looking into the higher position of the Supreme Court, clause (4) of Article 226 says, “The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32”.

Article 226 makes clear that the High Courts enjoy writ-issuing power on the pattern of Crown Court’s prerogative powers. It is wider than the power of the Supreme Court, as it authorises the High Courts to issue writs for the enforcement of fundamental rights plus any other purpose. Normally, the High Courts’ powers are exercised against public authorities. But it may also be exercised against private individuals for the enforcement of fundamental rights with human rights dimensions. The Indian Constitution has changed the earlier position – first, the position of the King’s Bench writ-issuing powers has been changed by our written Constitution; second, now all the High Courts equally enjoy the power to issue writs (before the Constitution came into force, such power was limited to the Chartered High Courts of Bombay, Calcutta and Madras); and third, the procedure to issue writs is now governed by the Civil Procedure Rules relating to judicial review. However, the powers of the High Courts under Article 226 are supervisory and not appellate. Courts have to decide illegalities. They do not enjoy power of an appellate court.

In State of Gujarat v. Vakhatsinghji Vajesinghji Vaghela,26 the Supreme Court explained the role of judicial review under superintending capacity and said that the supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of that authority and ensuring that they obey the law.

The judiciary has evolved certain principles governing the superintending power of the High Courts, viz.:

1. The superintending power is not fettered by the fact that there is no provision for appeal or revision in the High Court. 2. Alternative remedy with deter superintending power’s exercise.

26 AIR 1968 SC 1481.

Definitions and Expressions

3. The court has to see the limit of the exercise of power by the tribunal. It will interfere where there is a) a want or excess of jurisdiction;27 b) a failure in exercise of jurisdiction;28 c) a violation of procedure of disregard to the principle of natural justice;29 and d) an error apparent on the face of record.30 4. While exercising superintending jurisdiction, it does not act as an appellate tribunal, Syed Shah Mohammed Quadri J in one of his extra-judicial writings on “Judicial Review of Administrative Action”31 has very well drawn a distinction between judicial review and appeal. The distinction between the two is: The right of appeal is a statutory right which can be invoked when it is so provided in the relevant Act whereas the right to seek judicial review is available even when there is a finality clause or ouster clause in an Act.

In L. Chandra Kumar,32 the Supreme Court ruled that Article 226 along with Article 227 form part of the basic structure of the Constitution and, therefore, cannot be taken away even by an amendment of the Constitution.

Judiciary has evolved self-regulatory discipline or restraint with a view to avoid counter charge of usurpation of powers. In North Wales v. Evans,33 Lord Hailsham LC observed:

Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court [the same may be true of tribunal] is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power.34 In India, executive powers of the Union and the States are co-terminus with legislative power. Likewise Article 162 provides for the extent of the executive power of the State.

27 Gulab Singh v. Collector, AIR 1953 All 585. 28 Waryam Singh v. Amarnath, AIR 1954 SC 215. 29 Narayan Deju v. Labour Appellate Tribunal, AIR 1957 Bom 142. 30 Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675. 31 (2001) 6 SCC J-1. 32 (1997) 3 SCC 261: 1997 SCC (L&S) 577. 33 (1982) 1 WLR 1155: (1982) 3 All ER 141 (HL). 34 (1982) 1 WLR 1155: (1982) 3 All ER 143 (HL).

Definitions and Expressions

The broad contour of judicial review of administrative actions was clarified by Lord Diplock in Council of Civil Service Union v. Minister for the Civil Service35 in the following words:

…. one can conveniently clarify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call ‘illegality’, the second ‘irrationality’ and the third ‘procedural impropriety’. That is not to say that further development on a case-by-case basis may not in course of time add further grounds.

It means that judicial review of administrative actions will be based on the grounds of 1) illegality, 2) irrationality, and 3) procedural impropriety, having chances of further addition according to the need of hour. Illegality covers the main substantive areas of ultra vires; irrationality may be equated with the Wednesbury unreasonableness; and procedural impropriety embraces both aspects of procedural wrong-doing – failure of follow the prescribed statutory procedure or the rules of natural justice.36 From another point of view there are three standards of review:

1. Wednesbury test. 2. Heightened scrutiny test, when fundamental rights are in issue. 3. “Proportionality test”, where European community or European Human Rights law is in issue.37 Judicial review of administrative actions has been further widened by a number of non-statutory rules. Such rules are:

1. Wednesbury rule of reasonableness 2. Violation of the rule of natural justice. 3. Principle of proportionality 4. Promissory estoppel 5. Legitimate expectation. The examination and details of the above rules are rescheduled, and the rule of natural justice and promissory estoppels are discussed under legitimate expectations. The concept of reasonableness has different connotations in different branches of law. To quote Bernard Schwartz and H.W.R. Wade:

35 1985 AC 374: (1984) 3 WLR 1174: (1984) 3 All ER 935 (HL). 36 V. Sudhish Pai, “Is Wednesbury on the Terminal Decline” 2 SCC J-15, 16 (2008). 37 Anand Byrareddy, “Administrative Law” 7 SCC J-29. (2008).

Definitions and Expressions

Confusion has perhaps arisen because the test of reasonableness in this context is different from the standard of the reasonable man so familiar in the law of tort and elsewhere. In applying the latter standard the judge merely enforces what he thinks is reasonable. But in condemning unreasonable administrative action he asks himself whether the decision is one which a reasonable body could have reached. In other words, he allows some latitude for the range of differing opinions which may fall within the bounds of reasonableness.38

6.4 THE WEDNESBURY TEST

The Wednesbury test was evolved and applied in the context of administrative reasonableness and the review of executive action. In Associated Provincial Picture Houses Ltd. V. Wednesbury Corpn.,39 Lord Green explained the test:

A person entrusted with the discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting ‘unreasonably’. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority.

This administrative law test has to be applied to the testing of the validity of any action in the constitutional context, as we have a written Constitution.

6.5 PRINCIPLE OF PROPORTIONALITY

In recent years, a new ground vitiating administrative action has emerged in the form of the principle of proportionality. The rule found its form footing in German law, gained ground in the European Community, and has travelled to the KU. The proportionality test is more exacting and intrusive than the Wednesbury test.

In India, proportionality has been treated as a facet of equality enshrined in Article 14. In Bhagat Ram v. State of H.P.,40 the Supreme Court applied the principle of

38 Bernard Schwartz and H.W.R. Wade, Legal Control of Government: Administrative Law in Britain and the United States 253 (Clarendon Press, Oxford, 1972). 39 (1948) 1 KB 223: (1947) 2 All ER 680 (CA).

Definitions and Expressions proportionality and quashed the order of the removal of a forest guard for a very minor infraction of duty leading to a trivial charge of negligence in performance of duty of checking hammer marks of tree. In Surendra Prasad Shukla v. State of Jharkhand,41 Supreme Court held decision of the administrative bodies must be supported by valid reasons. The Supreme Court has applied the principle of proportionality in labour cases.

Venkatchaliah J reiterated:

The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court-martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review.42

Wednesbury principle of unreasonableness and the principle of proportionality both are helpful in asserting judicial review of the acts of coordinate branches. The doctrine of proportionality has neither subsumed the test of Wednesbury reasonableness nor rendered it redundant. The proportionality test is a more intense test than Wednesbury, but both are helpful in examining reasonableness.

6.6 DOCTRINE OF LEGITIMATE EXPECTATION

“Doctrine of legitimate expectation” originates as an offshoot of judicial discourse on procedural impropriety. In Tata Cellular v. Union of India,43 the court clarified that judicial review is not concerned with the merits of the decision but with the decision- making process itself. And, legitimate expectation is one of the aspects of procedural fairness. It first stepped into the English Law in Schmidt v. Secy. Of State for Home Affairs,44 wherein the Chancery Court ruled that an alien who had been given leave to enter the UK for a limited period had a legitimate expectation of being allowed to stay for the permitted time, and if that permission was revoked before the time expires, that alien ought to be given an opportunity of making a representation. Thus, a person

40 (1983) 2 SCC 442: 1983 SCC (L&S) 342. 41 (2011) 8 SCC 536. 42 (1987) 4 SCC 611. 43 (1994) 6 SCC 651. 44 (1969) 2 Ch 149: (1969) 2 WLR 337: (1968) 3 All 795 (CA).

Definitions and Expressions may have a legitimate expectation of being treated in a certain way by an administrative authority.

6.7 JUDICIAL REVIEW OF PRESIDENTIAL POWER: “BOMMAI” CASE45

Different appeals from the Madhya Pradesh, Gauhati and Karnataka High Courts decisions challenging the imposition of President’s rule in BJP ruled States – U.P., Rajasthan and Himachal Pradesh, soon after the demolition of Babri Masjid at Ayodhya – were heard in Bommai by a nine-judge Bench comprising of Pandian, Ahmadi, Verma, Dayal, Sawant, Kuldip Singh, K. Ramaswamy, Jeevan Reddy and Agrawal JJ. Majority judgments were delivered by Sawant, Kuldip Singh, Reddy, Agrawal and Pandian JJ, and minority judgements were pronounced by Ahmadi, Verma, Dayal and K. Ramaswamy JJ.

Kulwant Singh and Swarnt JJ very neatly summed up the implication of Article 74(2):

The main object of Article 74(2) was not to exclude any material or documents from the scrutiny of the courts but to provide that an order issued by or in the name of the President could not be questioned on the ground that it was either contrary to the advice tendered by the Ministers or was issued without obtaining any advice from the Ministers. Its object was only to make the question whether the President had followed the advice of the Ministers or acted contrary thereto, non-justiciable.46

The opinion of Sawant, Kuldip Singh, Reddy Agrawal and Pandian JJ formed the majority, allowing judicial review of President proclamation unhampered by Article 74(2).

6.8 POST “BOMMAI”47 SCENARIO: EXCESSIVE JUDICIAL REVIEW AND OVERACTIVISM

The majority decision of the Supreme Court in Rameshwar Prasad (6) v. Union of India48 (Rameshwar Prasad) affirms beyond doubt the exercise of judicial power with

45 (1994) 3 SCC 1: AIR 1994 SC 1918. 46 Id. at para 83. 47 (1994) 3 SCC 1: AIR 1994 SC 1918.

Definitions and Expressions respect to the application of Article 356. It is remarkable and distinguishable in many ways. A quite novel situation had arisen where a newly elected Assembly was not able to meet due to lack of the choice of Chief Minister to form a government, and before the formation of the government the Assembly was dissolved. It had only one precedent, i.e. 1964 Kerala Assembly.49 Bihar had experienced a peculiar situation of political embroil in 2005 brought no single party or coalition capable of forming the government. On 6 March 2005, the Governor informed the President about the uncertain situation with a request of taking “such appropriate action/decision, as required”.

In view of “Bommai”, President’s rule was imposed in Bihar on 7 March 2005, but the Assembly was kept in suspended animation. After more than one-and-a- half month, i.e. on 27 April 2005, the Governor again informed the President about the situation with no solution on forming the government, again with a request “for taking such action as deemed appropriate”. On 27 April 2005, after getting news of horse-trading attempts, he sent a report to the President. Again, on 21 May 2005, finding no chance of formation of a government and foul practice of alluring MLAs becoming talk of the town, the Governor reported to the President as the suspended Assembly was becoming a source of the malpractice of alluring MLAs.

The Gubernatorial report was received by the Union Cabinet on 22 May 2005, which met at about 11:00 pm and decided to accept the decision of the Governor and sent a fax message to the President of India, who was abroad in Moscow, recommending the dissolution of the legislative assemble in Bihar. The President accepted the recommendation, accorded approval and, accordingly, a proclamation dissolving the Bihar legislative assembly was issued on 23 May 2005. The constitutionality of this decision was challenged before a Constitution Bench. The Court held that the proclamation dated 23 May 2005, dissolving the Bihar legislative assembly, in unconstitutional. Sabharwal CJ held:

The Governor cannot refuse formation of the Government and override the majority claim because of his subjective assessment that the majority was cobbled by illegal and unethical means. No such power has been vested with the Governor. Such a

48 (2006) 2 SCC 1: AIR 2006 SC 980. 49 K.K. Aboo v. Union of India, AIR 1965 Ker 229.

Definitions and Expressions power would be again the democratic principles of majority rule. The Governor is not an autocratic political ombudsman. If such a power is vested in the Governor and/or the President, the consequences can be horrendous. The ground of maladministration by a State Government enjoying majority is not available for invoking power under Article 356. The remedy for corruption or similar ills and evils lies elsewhere, and not in Article 356(1).50

Majority decision51 does not appeal to be too much appreciable. First, it pulls the judiciary in the reverse direction of the 21st century judicial search light, pressing cleansing in the political process.52 Second, it creates a constitutional vacuum. Third and the most exposing impact of Rameshwar Prasad53 is that the Governor was targeted but he is nowhere to act on his own – he acts either on behalf of the State Government or the Centre.

The court concedes the exalted status of the Legislature as a coordinate branch of the Government in Raja Ram Pal v. Hon’ble Speaker, Lok Sabha54 (Raja Ram Pal) and observed that the exercise of power or privilege by the legislature ought not to be tested on traditional parameters, as applicable to an administrative action. But, in actuality it narrated all the grounds which are applied to an administrative action minus recent developments in the area of judicial review of administrative actions – the principle of proportionality.

B.P. Singhal v. Union of India55 (B.P. Singhal), the issue involved related to the question of public importance – whether the removal of the Governors in exercise of the doctrine of pleasure is open to judicial review? Of course Governors are appointed by the President and hold office during the pleasure of President. The surface reading of Article 156 gives impression of absoluteness in Presidential withdrawal of pleasure from a Governor. It reads, “(1) The Governor shall hold office during the pleasure of the President.” The Constitution Bench of five judges – K.G. Balakrishnan CJ and S.H. Kapadia, Ravendran, B. Sudershan Reddy, and

50 (2006) 2 SCC 129, para 165. 51 Rameshwar Prasad (6) v. Union of India, (2006) 2 SCC 1: AIR 2006 SC 980. 52 B.R. Kapur v. State of T.N., (2001) 7 SCC 231: AIR 201 SC 3435; Union of India v. Assn. for Democratic Reforms, (2002) 5 SCC 294: AIR 2002 SC 2112; Peoples’ Union for Civil Liberties (PUCL) v. Union of India, (2003) 4 SCC 399: AIR 2003 SC 2363. 53 (2006) 2 SCC 1. 54 (2007) 3 SCC 184. 55 (2010) 6 SCC 331.

Definitions and Expressions

P. Sathashivam JJ was constituted on reference of a Division Bench in a public interest litigation (PIL). The PIL invited filing of the writ petition in the wake of the removal of the Governors of the States of U.P., Gujarat, Haryana and Goa on 2 July 2004 by the President of India on the advice of the Union Council of Ministers. Looking into the importance of the issue involved, the unanimous court preferred to decide the issue, even though it dismissed the petition on the grounds – first, petitioners lacked locus standi; and second, time-barred. Since the four removed Governors did not seek any relief and accepted their removal without protest, the court was of the view that no member of the public could bring a PIL for grant of relief to them. The speciality of this case is that it is unanimous court decision. It asserts judicial review but restrained judicial review and not broad scope of judicial review. The unanimous decision in B.P. Singhal56 is welcomed, as it expresses the view that change in a government at Centre will not be ground for removal of Governors, so as to pave way for others favoured by the new government.

The jurisdiction of the Court to issue a writ of continuous mandamus is only to see that proper investigation is carried out. Once the Court satisfies itself that a proper investigation has been carried out, it would not venture to take over the functions of the Magistrate or pass any order which would interfere with its judicial functions.57

6.9 FINDINGS

“Fifty years have passed since India won independence and these years have no doubt, been momentous and eventful. The nation has faced dangers and conquered them. The nation has made progress in socio-economic matters. But judged by the yardstick of the objectives of the Constitution, the progress is and smaller places, feel frustrated and angry that the promise of giving them social and economic justice still remains to be fulfilled. Laws have been passed covering socio-economic needs of the country, but many of them have not been fully implemented and the implementation of some other has been totally inadequate. Poverty still stalks abroad; unemployment is faced by many people both educated and uneducated; communal differences and

56 (2010) 6 SCC 331. 57 P.M. Bakshi, Public interest Litigation 9 (Ashoka Law House, New Delhi, 3rd edn.,2012).

Definitions and Expressions suspicions have not been banished, and the Indian community as a whole still continues to be a fragmented traditional community which, loves to look back and leans on tradition rather than look forward and lean on reason. The growing impatience, frustration and anger of large masses of this country poses a very serious challenge to the progress of Indian democracy.”58

Professors U. Baxi, I.P. Massey and Friedmann show concern with the legitimacy of administrative process rather than the legitimacy of judicial review of administrative actions since administrative law is not a branch of philosophy of law but sociology of law inasmuch as it runs very close to the lives which we daily live (from cradle to the grave). The nature and purpose of judicial review is not the review of decision of the administrative adjudicating authority but of the decision- making process. Judicial review is an armour to check two lawlessnesses – Legislative as well as Executive. Whether it has succeeded to protecting the “little man” or lowly and lost from the arbitrary exercise of public power, or, to providing any effective check on “recidivist administrative deviance”59, are hypotheses for empirical generalisations. Thus every State action whether it be of the Legislature or of the Executive or of an administrative authority that does not comply with the requirement of reasonableness shall be struck down by the judiciary on the grounds of illegality, irrationality, procedural impropriety, proportionality, and unreasonableness.60

In a democratic country committed to the task of establishing socio-economic equality, the centre of gravity of law is not so much Legislatures, though the Legislatures pass the law; nor court-rooms, though judges interpret the laws and consider their validity; nor the chambers of jurists, though the jurists formulate principles of jurisprudence which guide the Legislatures and help the Judges. The centre of gravity of law lies basically in the unsatisfied but legitimate hopes and aspirations of the common citizens of the country.61

58 Pooja Khattar, “Evolution of concept of social justice and judicial activism”iIn K. Mahesh Bishwajit Bhattacharyya (ed.), Judging the judges 161 (1999). 59 I.P. Massey, Administrative Law 6 (Eastern Book company, Lucknow, 2008). 60 K.L Bhatia, Judicial review and Judicial activism: A comparative study of India & Germany from an Indian perspective 6,7 (Deep & Deep Publications, New Delhi,1997). 61 Dr. P.B. Gajendragadkar, Law, lawyer and social change 26 (National forum of lawyers and legal aid, New Delhi, 1976).

Definitions and Expressions

CHAPTER-7

THE PUBLIC INTEREST LITIGATION REGIME: A HEYDAY OF JUDICIAL ACTIVISM

Judicial activism can be compared with legislative activism. The latter is of two types: activist law-making and dynamic law-making. Activist law-making implies that the legislature takes the existing ideas from the consensus prevailing is society. Dynamic law-making surfaces when the legislature creates an idea outside the consensus and before it is formulated, propagates it. Dynamic law-making always carries with it legitimacy because it is the creation of legislators who have the popular mandate. Judges cannot play such a dynamic role; no idea alien to the constitutional objectives can be metamorphosed by judicial interpretation into a binding constitutional principle. Without resorting to a preference in favour of any particular value choice and thereby inviting criticism into the constitutionally forbidden area of judicial activism, the court can always draw lines at new angles by dexterously resorting to innovative processes. The resultant situation may sometimes bring credit to the judicial institution and sometimes prove counterproductive. It will not be an exaggeration to assert that the expanding horizon of judicial review has taken in its fold the concepts of social and economic justice. One sphere where the Judiciary has won accolades is the area of public interest law or public interest litigation (PIL) as it is known in India, where it has proved to be a tool to secure social justice to large masses of people by liberalising the principle of locus standi.1

The expression ‘litigation’ means a legal action including all proceedings therein, initiated in a Court of law with the purpose of enforcing a right or seeking a remedy. Therefore, lexically the expression ‘PIL’ means a legal action initiated in a Court of law for the enforcement of public interest or general interest in which the public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected.

1 Mamta Rao, Public Interest Litigation Legal Aid and Lok Adalats 9 (Eastern Book Company, lucknow, 4th edn., 2015).

Definitions and Expressions

“Public interest” means an act beneficial to the general public. It means action necessarily taken for public purpose. It is intended to bring justice within the reach of the poor masses.2

It is often said that the genesis of judicial activism lies in the evolution of Public Interest Litigation and the consequent liberalization of the locus standi rule. In 1979 in Hussainara Khatoon v. State of Bihar,3 the Supreme Court first took up a PIL action on behalf of prisoners awaiting trial who had been languishing in jails for periods longer than the maximum punishment prescribed for the offences concerned. The Court in this case issued directions ensuring appropriate relief to the prisoners.

Public interest litigation (PIL) and judicial activism go hand in hand. PIL itself is the result of judicial activism. Under Article 32, violation of fundamental rights can be directly brought before the Supreme Court in private matters and PIL matters. Of course, there are no set standards for judging the legitimization of the activist approach of the Supreme Court, however it seems to be only fair to comment that discordant notes have been sounded from several quarters. It requires on independent study to evaluate and assess the legitimisation that the PIL associated activism has received in the country.

7.1 THE CONCEPT OF LOCUS STANDI

“Locus Standi” is the right of a party to appear and be heard on the question before any tribunal, frequently disputed in private bill legislation. The origin of Public Interest Litigation lies in the liberalisation of locus standi by the Supreme Court. For Public Interest Litigation to exist, someone else should be able to approach the courts on behalf of others who cannot come, and that person cannot be a ‘person aggrieved’ in the traditional sense.

Black’s Law Dictionary, defines ‘Locus Standi’ as a place of standing. It is the right to bring an action or to be heard in a given forum.4

2 Babu Ram Verma v. State of Uttar Pradesh, (1971) All LJ 653; (1971) Serv LR 649: (1971) 2 Lab LJ 235: (1971) Lab IC 1162 (All). 3 AIR 1979 SC 1360: Cr LJ 1036: (1980) 1 SCC 81. 4 Black’s Law Dictionary 952 ( 7th edn., 1999).

Definitions and Expressions

In case of People’s Union for Democratic Rights v. Union of India,5 when the question of locus standi was considered, the Supreme Court had taken into consideration the poverty, illiteracy and the ignorance obstructing and impeding accessibility of the judicial, process and on that ground the writ petition can be filed.

Ordinarily, the party aggrieved by an order has the right to seek relief by questioning the legality, validity and correctness of an order. A person who brings a petition even for invocation of a fundamental right must be a person having some direct or indirect interest in the outcome of the petition on his behalf or on behalf of some person under a disability or unable to have access to the justice system for patent reasons. There are cases where a public spirited person bona fide brings petition in relation to violation of fundamental rights, particularly in habeas corpus petitions, but even in such cases, the person should have some demonstrable interest or relationship to the involved persons, personally or for the benefit of public at large, in a PIL. But in all such cases, it is essential that the petitioner must exhibit bona fides, by truthful and cautious exercise of such right.6

Locus standi means the legal capacity to invoke the jurisdiction of the court. If the petitioner has no locus standi, he cannot be heard in a Court of Law.7 The traditional view in regard to locus standi in writ jurisdiction has been that, only such person has locus standi who – i. has suffered a legal injury by reason of violation of his legal right or legally protected interest; or ii. is likely to suffer a legal injury by reason of violation of his legal right or legally protected interest.

Thus, before a person acquired locus standi, he had to have a personal or individual right which was violated or threatened to be violated.8 He should have been a ‘person aggrieved’ in the sense that he had suffered or was likely to suffer some prejudice, pecuniary or otherwise.9

5 AIR 1982 SC 1473: (1982) 2 SCC 494: (1982) 2 SCWR 202. See also, Janata Dal v. H.S. Chawdhary, (1992) 4 SCC 305: 1993 Cr LJ 600: (1992) 5 SCR 226. 6 Kishore Samrite v. State of Uttar Pradesh, (2013) 2 SCC 398 (para 52). 7 Charan Lal Sahu v. Giani Zail Singh, (1984) 1 SCC 390: AIR 1984 SC 309: 1984 UJ (SC) 873. 8 Calcutta Gas Co. Ltd. v. State of West Bengal, 1962 Supp (3) SCR 1: AIR 1962 SC 1044: 1963 (1) SCJ 106. 9 Adi Pherozshah Gandhi v. H.M. Seervai, (1970) 2 SCC 484: AIR 1971 SC 385: (1971) 1 SCR.

Definitions and Expressions

The traditional principles of locus standi are based on the theory that rights and remedies are correlative and, therefore, only a person whose own right is in jeopardy, is entitled to seek a remedy. This rule gives rise to these propositions of law:

i. Only be can take recourse to the jurisdiction whose own legal rights of person or property are directly and substantially injured. ii. When a person suffers along with other members of the public by administrative action, he cannot challenge the action in question, unless he can show some special injury to himself over and above what others have suffered. iii. Where a person challenging an administrative action is a total stranger (courts call them meddlesome interloper), the court will not ordinarily entertain his petition.10

Pro bono public (for the good of the public)

The courts intervened in pro bono proceedings when there had been:

(i) callous neglect as a policy of State;

(ii) a lack of probity in public life;

(iii) abuse of power in control and destruction if environment;

(iv) protection needed for inmates or persons and homes;

(v) restrained exploitation of labour practices.

7.2 FROM TRADITIONAL DOCTRINE OF LOCUS STANDI TO PUBLIC INTEREST LITIGATION

One of the important method by which Courts saved themselves from spurious or vicarious litigation was of ascertaining that the person who approached the Court had the locus standi to do so. Such persons must show that he or she is adversely affected by the impugned action and his or her right has been violated.

According to the traditional rule, locus standi is that judicial redress available only to a person who has suffered a legal injury by reason of violation of his legal right or legally protected interest by the impugned action of the State or public authority or

10 Jasbhai Motibhai Desai v. Roshan Kumar, (1976) I SCC 671.

Definitions and Expressions any other person or who is likely to suffer a legal injury by reason of threatened violation of his legal right or legally protected interest by any such action. Thus a qualitative twist has been taken by the Court to the traditional rule of locus standi and paved the way for Public Interest Litigation.

Whenever a legal wrong or legal injury is caused to a person by reason of violation of any constitutional or legal right and such person or determinate class of a person is by reason of poverty, helplessness or disability or socially or economically disadvantaged position unable to approach the Court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 of the Constitution. Further for the violation of any Fundamental Right of such person or determinate class of person remedy lies in the Supreme Court under Article 32 for seeking judicial redress for the legal wrong or injury caused to such person or determinate class of a persons. Article 32(1)11 provides for the right to move the Supreme Court by appropriate proceedings for the enforcement of the fundamental rights.

The Supreme Court under Article 32(2)12 is free to devise any procedure for the enforcement of fundamental right and it has the power to issue any process necessary in a given case. In view of this constitutional provision, the Supreme Court may even give remedial assistance, which may include compensation in "appropriate cases".

The liberal approach of locus standi allowed Public Interest Litigation against the violations of human rights, on behalf of the victims of political oppression, social tyranny and economic exploitation to be made by persons or organization. Traditionally, the writ jurisdiction was supposed to be exercised only for stopping or preventing a mischief, not for providing relief for the mischief already done. If a person was illegally detained, a Court could set him free but could not provide compensation for wrongful confinement or punishment for the wrongdoer. The persons concerned have to prosecute or sue the police or any other authority responsible for such illegal detention.

11 "32. Remedies for enforcement of rights conferred by this Part.-(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. 12 32 (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

Definitions and Expressions

After analysing various propositions, it can be deduced that the law relating to locus standi¸ in India, is based on the following: i. Individual standing; ii. Statutory standing, i.e., where statutes confer standing on an association as persons who have no personal standing in the matter, for example, trade unions etc.; iii. Public interest litigation (PIL), i.e., when a person initiates proceedings to enforce not his personal rights but public or general interest of society or a section of it; and iv. Representative of class action which may be initiated by any member of the class so affected.13 In Ancient Rome, the doctrine of action popularis permitted any citizen to bring an action in respect of public delict, but most of the common-law and civil-law systems today exclude such action popularis and require the applicant to show some sort of a direct and personal interest in the subject-matter of litigation before permitting him to maintain that action.

The words “person aggrieved” were given a rather narrow meaning by James LJ in ex parte Sidebotham, re14 when he held that “the applicant must be a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something”. This definition held the field for a almost three quarters of a century till it was rejected by Lord Denning in Attorney General of Gambia v. N’ Jie15, where he held:

The phrase ‘person aggrieved’ is of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busy-body … but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests.

In Liverpool Taxi Owners’ Assn., re,16 standing was accorded to a taxi licence holders’ association, to obtain prohibition to restrain the implementation of a

13 M.A. Fazal, Judicial Control of Administrative Action in India, Pakistan and Bangladesh: A Comparative Study 77 (Butterworths India, New Delhi,3rd edn., 2000). 14 (1880) LR 14 Ch D 458. 15 1961 AC 617. 16 (1972) 2 QB 299: (1972) 2 All ER 589.

Definitions and Expressions resolution to increase the number of licences without first hearing representations of behalf of interested persons.

R. v. Commissioner of Police of Metropolis, ex p Blackburn17 was brought to secure enforcement by the police of the obscene films. The applicant was given standing as an inhabitant and as parent of children likely to be harmed by viewing obscene films. In fact Lord Denning MR had been the leading proponent of liberalisation of the rules of standing by widening the scope of the words “person aggrieved” in some statutes. In R. v. Commissioner of Police of Metropolis, ex p Blackburn,18 he held that a member of public could obtain mandamus to compel the police to enforce the law against the gambling clubs also.

In Attorney General Ex rel. Mcwhirter v. Independent Broadcasting Authority,19 an action was brought by a member of the public for an injunction to prevent the telecast of a film on the basis that it was likely to be offensive to public feelings. The applicant was accorded standing on the ground that he had sufficient interest as he owned a TV set and had paid his licence fee. Lord Denning held:

In the light of all this I am of the opinion that, in the last resort, if the Attorney General refuses leave in a proper case, or improperly or unreasonably delays in giving leave, or his machinery works too slowly, then a member of the public, who has a sufficient interest, can himself apply to the Court itself.

Relaxation of Rule in PIL

In an adversial litigation, the requirement of locus standi of a party to a litigation is mandatory, because the legal capacity of the party to any litigation whether in private or public has to be primarily ascertained on his capacity to take action in relation to any specific remedy sought for.20

The locus standi rule has been relaxed in PIL. The relaxation of the rule of locus standi does not give anybody right to approach the Court under the guise of PIL. The

17 (1968) 2 QB 118: (1968) 2 WLR 893: (1968) 1 All ER 763 (CA). 18 Ibid. 19 1973 QB 629: (1973) 2 WLR 344: (1973) 1 All ER 689. 20 Janta Dal v. H.S. Chaudhary (1992) 4 SCC 305: 1993 Cr LJ 600: (1992) 4 SCR 226.

Definitions and Expressions

Court must not allow its process to be abused for personal gain, private profit, political motivation or any other oblique consideration.21

To understand more clearly the concept of locus standi and its relaxation in the case of PIL, one must understand the meaning of “PIL” first. Public Interest Litigation: “PIL” means:

(i) legal action initiated in a court of law;

(ii) for the enforcement of public interest or general interest;

(iii) in which the public or a class of the community;

(iv) have pecuniary or some interest by which their legal rights or liabilities are affected22

The application of the busybody should be rejected as they do not have any locus standi to file PIL. An applicant may ordinarily fall in any of the following categories:

(i) person aggrieved;

(ii) stranger;

(iii) busybody or meddlesome interloper.

“Public interest law” has been a uniquely American development. It has been defined in many ways.23

The high powered committee constituted by the Government of India, which included two very distinguished Judges of the Supreme Court of India, viz., Justice P.N. Bhagwati and Justice V.R. Krishna Iyer observed:-

“We have injustice, inherited and acquired ….. The victims are large numbers of the community …… The Community suffers the hardships ……. In our expensive Court system, it is impossible for the lower income groups and the poor to enforce rights……. The people of a village may be prevented from walking alone a public pathway by a feudal chief, Harijan workers may be denied fair wages, women workers as a class may be refused equal wages. Collective wrongs like this call for class action……. There may be representative suits necessary when one man’s wrong

21 S.P. Gupta v. Union of India (1991) 3 SCC 161. 22 Janta Dal v. H.S. Chaudhary (1992) 4 SCC 305: 1993 Cr LJ 600: (1992) 4 SCR 226. 23 Jeffrey M. Berry, Lobbying for the People: The Political Behaviour of Public Interest Groups 6 (Princeton University Press, New Jersey, 1977).

Definitions and Expressions is typical (of many like consumer interests). Each one being driven to Court on his separate cause of action is itself a public wrong……….. The rule of locus standi requires to be broad-based and any organization (or individual) must be able to start such legal action …….. Community proceedings public interest litigation, class action and the like before Courts, tribunals and other authorities must be financed and/or undertaken by legal aid organizations and public interest lawyers. [Report on National Juridicare (1977) Ministry of Law, Justice and Company Affairs, Government of India, p. 61]”24

Janata Dal v. H.S. Chowdhury,25 indicates that in defining the rule of locus standi no rigid litmus test can be applied as the law is still developing:

‘Though we have, in our country, recognised a departure from the strict rule of locus standi as applicable to a person in private action and broadened and liberalised the rule of standing and thereby permitted a member of the public, having no personal gain or oblique motive to approach the Court for enforcement of the constitutional or legal rights of socially or economically disadvantaged persons who on account of their poverty or total ignorance of their fundamental rights are unable to enter the portals of the Courts for judicial redress, yet no precise and inflexible working definition has been evolved in respect of locus standi of an individual seeking judicial remedy and various activities in the field of PIL. Probably, some reservation and diversity of approach to the philosophy of PIL among some of the Judges of this Court as reflected from the various decisions of this Court, is one of the reasons for this Court finding it difficult to evolve a consistent jurisprudence in the field of PIL. True, in defining the rule of locus standi no ‘rigid litmus test’ can be applied since the broad contours of PIL are still developing space seemingly with divergent view of several aspects of the concept of this newly developed law and discovered jurisdiction leading to a rapid transformation of judicial activism with a far-reaching change both in the nature and form of the judicial process”.

In Janata Dal v. H.S. Chowdhury,26 the Supreme Court held thus:

24 P.M. Bakshi, Public interest Litigation 95 (Ashoka Law House, New Delhi, 3rd edn., 2012). 25 AIR 1993 SC 892: (1992) 4 SCC 305 quoted in State v. Union of India, AIR 1996 Cal 191 at 200: (1996) 1 Com LJ 258. 26 AIR 1993 SC 892: quoted in State v. Union of India, AIR 1996 Cal 181 at 196, 197: (1996) 1 Com LJ 258 (Samresh Banerjee, J.).

Definitions and Expressions

‘Though it is imperative to lay down clear guidelines and propositions; and outline the correct parameters for entertaining a Public Interest Litigation particularly on the issue of locus standi, yet no hard and fast rules have yet been formulated and no comprehensive guidelines have been evolved. There is also one view that such adumbration is not possible and it would not be expedient to lay down any general rule which would govern all cases under all circumstances’.

In paras 60, 61, and 62 of Janta Dal Case27, it was pointed out as follows:

“Be that as it may, it is needless to emphasis that the requirement of locus standi of a party to a litigation is mandatory, because the legal capacity of the party to any litigation whether in private or public action in relation to any specific remedy sough for has to primarily ascertained at the threshold”.

In para 96 of the said judgement, it has further been pointed out as follows:

“While this Court has laid down a chain of notable decisions with all emphasis at their command about the importance and significance of this newly developed doctrine of PIL, it has also hastened to sound a red alert and a note of sever warning that Courts should not allow its process to be abused by a mere busy body or a meddlesome interloper or way farer or officious intervener without any interest or concern except for personal gain or private profit or other oblique consideration”.

In subsequent para of the said judgement, it was observed as follows:

“It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have as locus standi and can approach th Court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly a vexatious petition under the colour of PIL, brought before the Court for vindicating any personal grievance, deserves rejection at the threshold”.

The definition of public interest as given in Stroud’s Judicial Dictionary28:

Public Interest: A matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement; but that in

27 Janta Dal v. H.S. Chowdhury, 1993 AIR SCW 248. 28 Stroud’s Judicial Dictionary Vol. IV (4th edn.), quoted in State of W.B. v. Union of India, AIR 1996 Cal 181, 196: (1996) I Com LJ 258.

Definitions and Expressions which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected.

“Public interest law” has been a uniquely American development. It has been defined in many ways.29 The Council for Public Interest Law set up by the Ford Foundation in the US, in its report,30 has opted for a broad definition:

‘Public Interest Law’ is the name that has recently been given to efforts to provide legal representation to previously unrepresented groups and interests. Such efforts have been undertaken in recognition of the fact that the ordinary market-place for legal services fails to provide such services to significant segments of the population and to significant interest. Such groups and interests include the poor, environmentalists, consumers, racial and ethnic minorities, and others.

Rajeev Dhawan has defined “public interest law” as:

Public Interest Law is part of the struggle by, and on behalf of, the disadvantaged to use ‘Law’ to solve social and economic problems arising out of differential and unequal distribution of opportunities and entitlements in society. In an effort to procure ‘justice between generations’, it is also concerned with preventing the present and future needless exploitation of human, natural and technological resources.31

The expression ‘Public Interest’ has not been defined either in the Constitution of India or in any statute. It, however, finds mention in the Constitution and certain statutes. It is used in the context of the subject-matters related to the constitutional provision or the statute e.g. i. Article 302 of the Constitution lays down that: “Parliament may be law impose such restrictions on the freedom of trade, commerce or intercourse between one State and another or within any part of the territory of India as may be required in the public interest”. ii. Section 124 of Indian Evidence Act mentions ‘Public Interest’ as-

29 Jeffrey M. Berry, Lobbying for the People: The Political Behaviour of Public Interest Groups 6 (Princeton University Press, New Jersey 1977). 30 A Report by the Council for Public Interest law, “Balancing the Scales of Justice – Financing Public Interest law in America” 6-7 (1976). 31 Supra note 1 at 12.

Definitions and Expressions

“No public officer shall be compelled to disclose communications made to him in official confidence when, he considers that the public interests would suffer by the disclosure”. iii. Section 396 of the Companies Act provide for amalgamation of companies in public interest. No attempt has been made to define what public interest is, in this context in the statute. iv. Section 397 of Companies Act defines ‘Public Interest’ as - “Any member of a company who complain, that the affair of the company are being conducted in a manner prejudicial to public interest or in a manner oppressive to any member or members (including any one or more of themselves) may apply to the Tribunal for an order under this section, provided such members have a right so to apply in virtue of section 399”.

7.3 INDIAN PERSPECTIVE

The seed of the concept of PIL were initially sown in India by Krishna Iyer, J. in 1976 (without assigning the terminology) in Mumbai Kamgar Sabha v. Abdulhai,32 he while disposing an industrial dispute in regard to the payment of bonus, has observed (Para 7 of AIR):

“Our adjectival branch of jurisprudence, by and large, deals not with sophisticated litigants but the rural poor, the urban lay and the weaker societal segments for whom law will be an added terror if technical misdescriptions and deficiencies in drafting pleadings and setting out the cause-title create a secret weapon to non-suit a part. Where foul play is absent, and fairness is not foulted, latitude is a grace of processual justice. Test litigations, representative actions, pro bono public and like broadened forms of legal proceedings are in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to by-pass the real issues on the merits by suspect reliance on peripheral procedural shortcomings. Even Article 226, viewed on wider perspective, may be amenable to ventilation of collective or common grievances, as distinguished from assertion of individual rights, although the traditional view, view, backed by precedents has opted for the narrower alternative. Public interest is promoted by a spacious construction of locus standi in

32 AIR 1976 SC 1455: (1976) 3 SCC 832.

Definitions and Expressions our socioeconomic circumstances and conceptual latitudinarianism permits taking liberties with individualisation of the right to invoke the higher Court where the remedy is shared by a considerable number, particularly when they are weaker. Less litigation, consistent with fair process, is the aim of adjective law”.33

In Fertilizer Corporation Kamgar Union v. Union of India,34 the terminology “Public Interest Litigation” was used. In that decision, Krishna Iyer, J. delivering his opinion for Bhagwati, J. (as the learned Chief Justice then was) and himself used the expression [‘epistolary’ jurisdiction. However, this rule on gaining momentum day by day, burgeoned more and more expanding its branches in the cosmos of PIL and took its root firmly in the Indian Judiciary and fully blossomed with fragrant smell in S.P. Gupta v. Union of India.35

In Bar Council of Maharashtra v. M.V. Dabholkar,36 it was stated that the Bar Council has a very important part to play, first, in the reception of complaints, second, in forming reasonable belief of guilt of professional or other misconduct and finally in making reference of the case to its disciplinary committee. The initiation of the proceeding before the disciplinary committee is by the Bar Council of a State. The most significant feature is that no litigant and no member of the public can straightway commence disciplinary proceedings against an advocate.

The Bar Council is “a person aggrieved” for these reasons. First, the words “person aggrieved” in the Act are of wide import in the context of the purpose and provisions of the statute. In disciplinary proceedings before the disciplinary committee there is no lis and there are no parties. Therefore, the word “person” will embrace the Bar Council which represents the Bar of the State. Second, the Bar Council is “a person aggrieved” because it represents the collective conscience of the standards of professional conduct and etiquette. The Bar Council acts as the protector of the purity and dignity of the profession. Third, the function of the Bar Council in entertaining complaints against advocates is when the Bar Council has reasonable belief that there is a prima facie case of misconduct that a disciplinary committee is entrusted with such inquiry. Once an inquiry starts, the Bar Council has no control over its decision.

33 Janata Dal v. H.S. Chowdhury, AIR 1993 SC 892 at 906, 907, 908: 1993 Cri LJ 600: 1993 SCC (Cri) 36:(1992) 3 Crimes 199: (1992) 4 SCC 305 (Del) (S. Ratnavel Pandian and K. Jayachandra Reddy, JJ.). 34 (1981) 2 SCR 52: AIR 1981 SC 344. 35 AIR 1982 SC 149. 36 (1975) 2 SCC 702: AIR 1975 SC 2092.

Definitions and Expressions

7.4 FEATURES OF PIL IN INDIA

The evolution of PIL in India has the features:

i. a written Constitution; ii. provisions emphasising a welfare State; iii. provisions of Part IV of the Constitution; iv. a unique fusion and congruence of constitutional guarantees and fundamental freedom and of constitutional obligations providing for balance of conflicting interests; v. the fundamental right to move the Supreme Court; vi. the judicial review powers conferred on the Supreme Court and the High Courts.

A true PIL is one in which a selfless citizen having no personal motive of any kind, except either compassion for the weak and disabled or deep concern for stopping serious public injury, approaches the court for either of the following purposes:37 i. Enforcement of Fundamental Rights of those who genuinely do not provisions, incorporating the Directive Principles of State Policy for amelioration of their condition; and ii. Preventing or annulling executive acts and omissions violative of the Constitution or laws resulting in substantial injury to the public interest.

In State of Uttaranchal v. Balwant Singh Chanfal,38 the Supreme Court has referred to three phases of the origin and development of PIL in India. Phase I deals with cases of the Supreme Court where directions and orders were passed primarily to protect Fundamental Rights under article 21 of the Constitution in respect of the marginalized groups and sections of the society who because of extreme poverty, illiteracy and ignorance cannot approach Supreme Court or the High Courts. Phase II deals with the cases relating to protection, preservation of ecology, environment, forests, marine life, wildlife, mountains, rivers, historical monuments etc. Phase III deals with directions issued by the Courts in maintaining the probity, transparency and integrity in governance.

37 D.K. Parihar v. Union of India, AIR 2005 Raj 171, also see, Ranjit Singh v. State of Orissa, AIR 2009 NOC 1047 (Ori). 38 AIR 2010 SC 2550 para 45; 2010 AIR SCW 1029: (2010) 3 SCC 402.

Definitions and Expressions

7.5 GUIDELINES FOR PIL AS LAID DOWN BY THE SUPREME COURT

In order to preserve the purity and sanctity of the PIL the following guidelines have been laid down: i. The Courts must encourage genuine and bona fide PIL and effectively discourage and crush the PIL field for extraneous considerations. ii. Instead of every individual Judge devising his own procedure for dealing with the PIL, it would be appropriate for each High Court to properly formulate rules for encouraging and discouraging the PIL filed with oblique motives. Consequently the Supreme Court requests the High Courts which have not firmed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the Rules prepared by the High Court is sent to the Secretary-General of the Supreme Court immediately thereafter. iii. The Court should prima facie verify the credentials of the petitions before entertaining a PIL. iv. The Court should prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL. v. The Courts should be fully satisfied that substantial public interest is involved before entertaining the petition. vi. The Courts should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions. vii. The Courts before entertaining the PIL should ensure the PIL is aimed at redressal of genuine public harm or public injury. The courts should also ensure that there is no personal gain, private motive or oblique motive behind filing the PIL. viii. The Courts should also ensure that the petitions filed by busy bodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations.39 In P. v. Paddingtom Valuation Officer Ex. P. Peachey Property Corporation Limited:40

39 State of Uttaranchal v. Balwant Singh Chanfal, AIR 2010 SC 2550: (2010) 3 SCC 402 (para 181). 40 (1966) 1 QB 380(400).

Definitions and Expressions

“Every citizen has standing to invite the Court to prevent some abuse of power and in doing so, he may claim to be regarded not as a meddlesome busybody but as a public benefactor. A rate-prayer, likewise, has a particular grievance if the rating list is invalidly made, even though the defects will make no difference to him financially”.

In the landmark cases of S.P. Gupta v. Union of India,41 People’s Union for Democratic Rights v. Union of India,42 and Bandhua Mukti Morcha v. Union of India,43 the Supreme Court evolved a new rule viz., any member of the public, acting bona fide and having sufficient interest can maintain an action for redressal of public wrong or public injury. Such action can be brought by individuals, groups, voluntary agencies, etc. However, the member of the public should not be a mere busybody or a meddlesome interloper but one who has sufficient interest in the proceeding.44

Bhagwati J in the S.P. Gupta case,45 popularly known as the Judges’ Appointment and Transfer case, which was heard by a seven-judge Bench, clearly defined “what public interest litigation means and is” and expressed his views in meticulous detail in the following terms:

We must hasten to make it clear that the individual who moves the court for judicial redress in cases of this kind must be acting bona fide with a view to vindicating the cause of justice and if he is acting for personal gain or private profit or out of political motivation or other oblique consideration, the court should to allow itself to be activised at the instance of such person and must reject his application at the threshold, whether it be in form of a letter addressed to the court or even in the form of a regular writ petition filed in court. We may also point out that as a matter of prudence and not as a rule of law, the court may confine this strategic exercise of jurisdiction to cases where legal wrong or legal injury is caused to a determinate class or group of persons or the constitutional or legal right of such determinate class or

41 AIR 1982 SC 149: (1982) 2 SCR 365: 1981 (Supp) SCC 87. 42 AIR 1982 SC 1473: (1982) 2 SCR 494: (1982) 2 SCWR 202. 43 AIR 1984 SC 802: (1984) 3 SSC 161: 1984 Lab IC 560. 44 Bihar Legal Support Society v. Chief Justice of India, AIR 1987 SC 38: (1986) 4 SCC 767: 1986 (4) Supreme 264, the Supreme Court Laid down “ordinarily only a person whose rights are violated can more a court for redress. However, where there is likelyhood of any Government action injuring the interests of many persons. Any one may move the court for relief. 45 S.P. Gupta v. Union of India, 1981 Supp SCC 87: AIR 1982 SC 149.

Definitions and Expressions group of persons is violated and as far as possible, not entertain cases of individual wrong or injury a the instance of a third party, where there is an effective legal-aid organisation which can take care of such cases.

After having elaborately explained the concept of PIL, the learned judge held:

... any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision. This is absolutely essential for maintaining the rule of law, furthering the cause of justice and accelerating the pace of realisation of the constitutional objectives.

Justice Bhagwati in S.P. Gupta v. Union of India,46 stated:

“Today a vast resolution is taking place in the judicial process, the theatre of law is fast changing and the problems of the poor are coming to the forefront. The Court has to innovate new methods and devise new strategies for the purpose of providing access to justice to large masses of people who are denied their basic human rights and to whom freedom and liberty have no meaning. The only way in which this can be done is by entertaining writ petitions and even letters from public spirited individuals seeking judicial redress for the benefit of persons who have suffered a legal wrong or a legal injury or whose constitutional or legal rights have been violated, but who by reason of their poverty or socially or economically disadvantaged position are unable to approach the court for relief”.

Lord Denning M.R. observed:-

“If he has not sufficient interest, no other citizen has. Unless any citizen has standing therefore, there is often no means of keeping public authorities within the law unless the Attorney-General will act-which frequently he will not. That private persons should be able to obtain some remedy was therefore ‘a matter of high constitutional principle’. The Court will not listen, of course, to a mere busybody who was interfering in things which did not concern him. But it will listen to any one whose interests are affected by what has been done.”47

46 AIR 1982 SC 149: (1982) 2 SCR 365: 1981(Supp) SCC 87. 47 Supra note 24 at 560.

Definitions and Expressions

Lord Diplock affirmed the principle when he said:

“It would, in my view, be a grave lacuna in our a system of public law if a pressure group, like the federation, or even a single public-spirited tax-payer were prevented by out-dated technical rules of locus standi from bringing the matter to the attention of the Court to vindicate the rule of law and get the unlawful conduct stopped”.48

As enunciated by Lord Diplock:

‘The Court has not only the power but also the duty to weigh the public interest of justice to litigants the public interest asserted by the public authority contrary to its actual conduct. Considering the duty which such bodies owe to the members of the pubic, it would not be unjust to observe that no public interest immunity could be attached to such bodies”.49

Lord Denning M.R. reiterated:

“I regard to it as a matter of high constitutional principle that if there is a good ground for supposing that a Government department or a public authority is transgressing the law, or is about to transgress it, in a way which offends or injures thousands of Her Majesty’s subjects, then anyone of those offended or4 injured can draw it to the attention of the Court of law and seek to have the law enforced, and the Courts in their discretion can grant whatever remedy is appropriate.”50

7.6 THE DIFFERENT PHASES OF PIL

The first phase of PIL essentially focused on the plight of the downtrodden, especially prisoners, as Rajeev Dhavan has rightly commented:

The first phase of Indian PIL had been concerned with the conditions in which men, women and children were incarcerated in prison and other places of detention. However, this did not result in the court developing a criminal due process, even though it made rapid strides in advancing a much more rigorous review of administrative action. With increasing confidence, the court concerned itself with

48 Id. at 556. 49 Ibid. 50 Ibid.

Definitions and Expressions questions of social justice, including the exploitation of bonded labour and conditions of work and pay of unorganised workers.51

In the second phase, governance came under the court’s scanner and it gave several landmark judgements giving fresh interpretation of several constitutional provisions to make the government more accountable. In D.C. Wadhwa v. State of Bihar,52 the Supreme Court pronounced that the re-promulgation of the ordinance was a fraud of the Constitution. Professor Wadhwa wrote a book Re-promulgation of Ordinances: A Fraud on the Constitution,53 published in 1983, in which he pointed out how the power to promulgate ordinances was being abused.

7.7 JUDICIAL ACTIVISM AND ENVIRONMENTAL JURISPRUDENCE

Rule of law and environment formed a large corpus of PILs in the second and third phases. The steady growth of principles and doctrines that have enriched environmental jurisprudence owe their existence to PIL cases and the accompanying activist approach of the Judiciary. In the Oleum gas leak case54, the Supreme Court formulated the doctrine of absolute liability for harm caused by hazardous and inherently dangerous industries.

Thereafter, right from the Rural Litigation Kendra case,55 the Court has been propounding principles such as “sustainable development”, the “polluter pays” principle, and also adopting certain other principles from international instruments such as the Stockholm Declaration, Rio Declaration, Kyoto Protocol, Biodiversity Convention, the various United Nations Environmental Programmes, etc. In the Narmada Bachao Andolan case,56 the Court has ensured that development by way of building of dams does not take its toll on the employment, shelter and the homes of people. It has directed the State Governments concerned to rehabilitate the displaced people before going ahead.

51 Rajeev Dhavan, ‘Law as Struggle: Public Interest Law in India’, 36 JILI 308 (1994). 52 AIR 1987 SC 579: (1987) 1 SCC 378. 53 D.C. Wadhwa, Re-promulgation of Ordinances: A Fraud on the Constitution of India, Pune: Gokhale Institute of Politics and Economics, 1983. 54 M.C. Mehta v. Union of India, AIR 1987 SC 1086: (1987) 1 SCC 395: 1987 ACJ 386. 55 AIR 1987 SC 2426: JT 1987 (5) 122. 56 Narmada Bachao Andolan v. Union of India (1999) 8 SCC 308: AIR 1999 SC 3345: 1999 AIR SCW 3841.

Definitions and Expressions

The Hon’ble Supreme Court has given recognition to the ‘polluter pays’ principle that has revolutionized the movement for environmental protection by holding the polluter responsible to make reparations for the damage caused by him on the principle of absolute liability. This has been applied in cases involving shrimp farms,57 tanneries,58 chemical industries in Rajasthan59 and Andhra Pradesh,60 each of which were found discharging untreated effluents into water bodies or the soil.

M.C. Mehta filed several petitions and environment was acknowledged as part of the right to life. The Court gave a number of directives to keep the environment free from pollution: liability of the polluter to pay for pollution,61 duty of the government to spread awareness about the environment through slides in cinema halls or special lessons in the syllabi of schools and colleges,62 phasing out of polluting vehicles,63 protection and conservation of forests,64 urban and solid waste management,65 corrosion of the Taj Mahal,66 pollution in Delhi by slaughterhouses,67 and pollution of the Ganga by Kolkata tanneries.68

7.8 RELEVANT QUOTES FROM SUPREME COURT JUDGMENTS

S.P. Gupta v. Union of India69: In Public interest litigation, litigation is undertaken for the purpose of redressing public injury, enforcing public duty, protecting social, collective, diffused rights and interests or vindicating public interest, any citizen who is acting bona fide and who has sufficient interest, has to be accorded standing. What is sufficient interest to give standing to a member of the public would have to be

57 Vellore Citizens’ Welfare Forum v. Union of India (1996) 5 SCC 647: 1996 AIR SCW 3399: AIR 1996 SC 2715. 58 Indian Council for Enviro-Legal Action v. Union of India (1996) 3 SCC 212: AIR 1996 SC 1446: 1996 AIR SCW 1069. 59 Indian Council for Enviro-Legal Action v. Union of India, 1995 (6) SCALE 578. 60 In Re Bhavani River-Sakthi Sugars Ltd. (1998) 2 SCC 601: AIR 1998 SC 2059: 1998 AIR SCW 1918. 61 M.C. Mehta v. Union of India (also called Oleum Gas case), AIR 1987 SC 965: (1986) 2 SCC 325. 62 M.C. Mehta v. Union of India, AIR 1992 SC 382: (1992) 1 SCC 358. 63 M.C. Mehta v. Union of India, AIR 1999 SC 291: (1999) 6 SCC 12. 64 T.N. Godavarman Thirumulpad v. Union of India, (1997) 2 SCC 267; 3 SCC 312; 7 SCC 440; (1998) 2 SCC 341: AIR 1998 SC 1153. 65 Almitrah Patel v. Union of India, (1998) 2 SCC 416: AIR 1998 SC 1153. 66 M.C. Mehta v. Union of India, (1997) 2 SCC 353: AIR 1997 SC 734. 67 Buffalo Traders’ Welfare Association v. Maneka Gandhi, (1996) 11 SCC 35: 1996 (8) SCALE 665. 68 M.C. Mehta v. Union of India, (1997) 2 SCC 441. 69 AIR 1982 SC 149: 1982 Raj LR 389: 1981 (Supp) SCC 87.

Definitions and Expressions determined by the Court in each individual case. It has necessarily to be left to the discretion of the Court.

People’s Union for Democratic Rights v. Union of India70: Public interest litigation is a strategic arm of the legal aid movement and which is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity. Public interest litigation, as we conceive it, is essentially a co-operative and collaborative effort on the part of the petitioner, the State of public authority and the Court to secure observance of the constitutional or level rights, benefits and privileges conferred upon the vulnerable sections of the community and to make social justice reach them.

Sheela Barse v. Union of India71: The proceedings in a public interest litigation are intended to vindicate and effectuate the public interest by prevention of violation of the right, constitutional or statutory, of sizable segments of the society, which owing to poverty, ignorance, social and economic disadvantages cannot themselves assert and quite often not even aware of those rights. The technique of public interest litigation serves to provide an effective remedy to enforce these group rights and interests.

Janata Dal v. H.S. Chaudhary72: The expression ‘litigation’ means a legal action including all proceedings therein, initiated in a court of law with the purpose of enforcing a right or seeking a remedy. Therefore, lexically the expression ‘PIL’ means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected.

7.9 FROM PUBLIC INTERSEST LITIGATION TO SOCIAL INTEREST LITIGATION

As observed by Justice Bhagwati in his Article “Social Action Litigation The Indian Experience” quoted with approach in para 56 of the Janata Dal’s case.73

70 (1982) 3 SCC 235: AIR 1982 SC 1473: (1982) 2 SCWR 202. 71 (1988) 4 SCC 226: AIR 1988 SC 2211: JT 1988 (3) SC 765. 72 (1992) 4 SCC 305: AIR 1993 SC 892: 1993 AIR SCW 248: 1993 Cr LJ 600. 73 AIR 1993 SC 892 quoted in AIR 1996 Cal 181 at 219.

Definitions and Expressions

“The judiciary has to pay a vital and important role not only in preventing and remedying abuse and misuse of power but also in eliminating exploitation and injustice. For this purpose it is necessary to make procedural innovations in order to meet the challenges posed by this new role of an active and committed judiciary. The summit judiciary in India, keenly alive to its social responsibility and accountability to the people of the country, has liberated itself from the shackles of western thought, made innovative use of the power of judicial review, forged new tools, devised new methods and fashioned new strategies for the purpose of bringing justice for socially and economically disadvantaged groups.”

The manner in which the Supreme Court has dealt with the problem of ascertaining true facts has been analysed and explained, at length, by Prof. Upendra Baxi in his article on Social Action Litigation in the Supreme Court of India74. By using the expression Social Action Litigation, SAL instead of PIL he has opined as follows:

“Problems of proof are most severe in cases of state repression, and there seems emergent a common pattern or augmentation by state counsel which make these problems more acute. First, State counsel deny on affidavit any or all allegations of torture or terror. Secondly, they contest if no longer the standing, the bona fides or the degree of reliable information of the social activists who come to the Court. Often wildest ulterior motives are attributed to them. Thirdly, they decry the sources on which the SAL Petitioners rely: mostly media and social science investigating reportage. Fourthly, they raise all kinds of claims under the law of evidence and procedure to prevent the disclosure of documents relevant to the determination of violation of fundamental rights. Fifthly, even when disclosed there is always the possibility of impugning their evidentiary value. This is made possible by the device of multiple investigations; the state sets up many panels, one after another, and often consents in addition to any investigation by the Central Bureau of Investigation. When despite all this, the state is likely to lose the proceedings in favour of the SAL petitioners, it proceeds to give concessions and undertakings, thereby avoiding a decisions on the merits”.

The Court is experimenting with several different strategies to overcome the problems of disputed facts, without having to take evidence itself. First, Justice Bhagwati has

74 Printed in the Review No. 29, Dec. 1982, International Commission of Jurists.

Definitions and Expressions initiated the idea of socio-legal commissions of enquiry. The Court asks social activists, teachers and researchers to visit particular locations for fact finding and to submit a quick, but complete, report which may also contain suggestions and proposals. So far, this device of commissions has been invoked at least thrice. The commissions are, under the Courts orders, to be financed by the state. Second, the Court has in a number of cases of torture or ill-treatment called upon medical specialists to submit comprehensive reports and suitable therapy at state cost. Third, the Court has used on one or two occasions the services of its own officials or those of the High Court. In some cases, it has asked the District Judge not merely to ascertain facts but also to monitor the implementation of the various directions given by the Court.

“The modes of fact finding are somewhat novel and will raise, as the many SAL matters proceed to completion, rather difficult issue of evidence and procedure. But the Court is experimenting with new methods to go beyond the notoriously electric affidavit evidence”.75

Under the caption ‘Social Action Litigation’ The Indian Experience thus:

‘The judiciary has to pay a vital and important role not only in preventing and remedying abuse and misuse of power but also in eliminating exploitation and injustice. For this purpose it is necessary to make procedural innovations in order to meet the challenges posed by this new role of an active and committed judiciary. The summit judiciary in Indian, keenly alive to its social responsibility and accountability to the people of the country, has liberated itself from the shackles of Western thought, made innovative use of the power of judicial review, forged new tools, devised new methods and fashioned new strategies for the purpose of bringing justice for socially and economically disadvantaged groups ………… During the last four or five years however, judicial activism has opened up a new dimension for the judicial process and has given new hope to the justice starved millions of India”.76

The Supreme Court in Sunil Batra (2) v. Delhi Admn.77 Had accepted a letter addressed to it by one Sunil Batra, a prisoner from Tihar Jail, Delhi complaining that the jail warden had subjected another prisoner serving life term in the same jail to

75 P.V. Kapoor v. Union of India, 1992 Cri LJ 128 at 137, 138 (Del). 76 Supra note 24 at 4. 77 (1980) 3 SCC 488: AIR 1980 SC 1579.

Definitions and Expressions inhuman torture. The court treated that letter as a writ petition by an elaborate judgement, allowed the petition and issued certain directions for taking suitable action against the erring official to the Ministry of Home Affairs and all State Governments on the ground that prison justice has pervasive relevance. The court, thereby enlarged the scope of habeas corpus by making is available to a prisoner not only for seeking his liberty but also for the enforcement of a constitutional right to which he was entitled to even while in confinement.

In Veena Sethi v. State of Bihar,78 the Supreme Court treated a letter addressed to a judge of the Supreme Court by the free Legal Aid Committee at Hazaribag, Bihar as a writ petition.

Similarly in Upendra Baxi (1) v. State of UP,79 the Supreme Court entertained a letter sent by two professors of Delhi University seeking enforcement of the constitutional right of the inmates in a Protective Home at Agra who were living in inhuman and degrading conditions in blatant violation of Article 21 of the Constitution. The said letter was treated as a writ petition and the two professors were permitted to maintain an action for an appropriate writ.

Treating a letter sent by an organisation demanding the release of bonded labourers as a writ petition, the Supreme Court in Bandhua Mukti Morcha v. Union of India80 issued several directions to the Central Government and State of Haryana not only for the release of the bonded labourers but also for their future improvement and betterment.

In National Textile Workers’ Union v. P.R. Ramakrishnan,81 Bhagwati J., speaking for the majority, expressed his view that the workers of a company are entitled to appear at the hearing of the winding-up petition whether to support or to oppose it and they have a locus standi to appear and be heard, both, before the petition is admitted and an order for winding up the company.

In A.R. Antulay v. Ramdas Sriniwas Nayak,82 the Supreme Court observed that “locus standi of the complainant is a concept foreign to criminal jurisprudence save and

78 (1982) 2 SCC 583: AIR 1983 SC 339. 79 (1983) 2 SCC 308. 80 (1984) 3 SCC 161: AIR 1984 SC 802: (1984) 2 SCR 67. 81 (1983) 1 SCC 228: AIR 1983 SC 75. 82 (1984) 2 SCC 500: AIR 1984 SC 718.

Definitions and Expressions except that, where the statute creating an offence provide for the eligibility of the complainant, by necessary implication one general principle gets excluded by such statutory provision”.

In Shri Sachidanand Pandy v. State of West Bengal,83 a note of caution was administered by the Supreme Court for PILs (at page 1134 of 1987):

“………. Today public spirited litigants rush to Courts to life cases in profusion under this attractive name. They must inspire confidence in Courts and among the public. They must be above suspicions. See the facts of this case and the end results”.

In B. Singh v. Union of India,84 once again the rule of locus standi was restated:

A person acting bona fide and having sufficient interest in the proceeding of public interest litigation will alone have a locus standi nd can approach the court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or political motive or any oblique consideration. A writ petitioner who comes to the court for relief in public interest must come not only with clean hands like any other writ petitioner but also with a clean heat, clean mind and and clean objective. The court must not allow its process to be abused for oblique considerations by masked phantoms who monitor at times from being.

Summing up the concept and development of PIL, the Supreme Court in BALCO Employees’ Union v. Union of India85 observed:

Public interest litigation, or PIL as it is more commonly known, entered the India judicial process in 1970. It will not be incorrect to say that it is primarily the judges who have innovated this type of litigation as there was a dire need for it. At that stage it was intended to vindicate public interest where fundamental and other rights of the people who were poor, ignorant or in socially or economically disadvantageous position and were unable to seek legal redress were required to be espoused. PIL was not meant to be adversarial in nature and was to be a cooperative and collaborative effort of the parties and the court so as to secure justice for the poor and the weaker sections of the community who were not in a position to protect their own interests.

83 AIR 1987 SC 1109. 84 (2004) 3 SCC 363: 367. 85 (2002) 2 SCC 333: AIR 2002 SC 350.

Definitions and Expressions

Public interest litigation was intended to mean nothing more than what words themselves said, viz., litigation in the interest of the public.

7.10 FINDINGS

Thus to conclude, we can say, Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong public injury and not publicity oriented or founded on personal vendetta, As indicated above, Court must be careful to see that a body of persons or member of public, who approaches the Court is acting bona fide and for personal gain or private motive or political motivation or other oblique consideration. The Court must not allow its process to be abused for oblique considerations.

Public interest litigations have of course added to the growth of Judicial activism and vice- versa. Through PILs, judiciary may step in where it finds the actions on the part of the Legislature or the Executive are illegal or unconstitutional.

It is also observed, that judicial activism manifested in the strategy of PIL paves the way for the participation of public spirited and enlightened people in India's development process and displays the potentiality of the legal system to offer justice to the poor and the oppressed. The attempt has been made to show how in taking up such cases, the Supreme Court is emerging as the guardian of the rights and liberties of the victims of repression, cruelty and torture. Hence the Supreme Court of India in its activist role vis-a-vis PIL has taken a goal-oriented approach in the interest of justice by simplifying highest technical and anachronistic procedures.

In the hands of the Supreme Court, public interest litigation in India has taken multidimensional character. The age-old adversarial system has been given a go-by. With the advent of judicial activism, letters,86 newspaper reports, 87complaints by

86 D.K. Basu v. State of W.B., (1997) 1 SCC 416. 87 Parmanand Katara v. Union of India, (1989) 4 SCC 286.

Definitions and Expressions public-spirited persons,88 social action groups89 bringing to the notice of the Court regarding violation of fundamental rights were dealt with treating them as writ petitions and the relief of compensation was also granted through writ jurisdiction under Article 32 of the Constitution.

Thus, Judicial activism is necessary as if there is judicial inactivism, the dice will be loaded heavily against the citizen who challenges state action or inaction of the public authorities and there is a fear that Courts may in the process become cheer-leaders for the Government in the dock, rather than guardians of public interest and individual’s rights. The real thrust stems form a jurisprudence of public duties and faith that the rule of law is used as a formula for expressing the fact that the laws of the Constitution are not the source but the consequences of the rights of the individuals as defined and expressed by Courts.

88 M.C. Mehta v. Union of India, (1987) 1 SCC 395. 89 Common Cause v. Union of India, (1996) 6 SCC 593; Shiv Sagar Tiwari v. Union of India, (1996) 6 SCC 599.

Definitions and Expressions

CONCLUSION

“;rks /keZLrrks t;%AA (Yato dharmas tato jayah) whence law (dharma), thence victory.”1

During the study of this research, we have observed that the apex court, being the highest judicial body, has tried hard to be an epitome of justice, thus following its motto.

The initial chapter conceptualized the various terms and expressions associated with judicial activism. Where a judge interprets the law or the Constitution not merely by giving effect to the literal meaning of the words of the statute, or the Constitution but, by giving such meaning, as he thinks, is in consonance with its spirit, he is said to be an activist judge. But in this sense, the judges who developed the common law were also activists. The doctrine of negligence in torts or the doctrine of public policy in contract, are obvious examples of judicial activism under the common law. Even statutory interpretation often involves choice of an interpretation based upon the choice of principles, value judgments, and role perception.2

Under the heading of the third chapter, we also observed as to how the power of judicial review grew into judicial activism. The judicial activism in India dates back from the commencement of the Constitution. From 1950 to 1977 judicial activism in India underwent two phases of transformation – firstly during the pre–emergency period from 1950 to 1974 and secondly during the emergency period from 1975 to 1977. During these two phases, the Supreme Court transformed itself from a literal interpreter to a liberal interpreter during the pre–emergency era and then again to a literal interpreter during the emergency era. As the savior of people’s rights, the Court also indulged in a new role of law making. The Supreme Court’s new role was however, not acknowledged and there were occasions of confrontation between the Court and the Parliament. This was particularly during the post–Nehruvian period of the pre-emergency era when the judiciary invalidated the land reforms of the

1 The motto of the Supreme Court of India. 2 S.P Sathe, Judical Activism in India, Transgressing Borders and enforcing Limits 30, 31 (Oxford University Press, New Delhi, 2nd edn., 2002).

Definitions and Expressions government. Sometimes judicial activism also had a tendency to become judicial populism and pro–rich.

In many hard cases having political ramifications, the Supreme Court has stood with the government of the day and legitimised its activities. The story starts with Gopalan.3 Then came the extreme measure of the government during the Emergency of 1975-77, which got judicial approval in ADM, Jabalpur v. Shivakant Shukla4 (Habeas Corpus case).

The Indian judges were brought up in British tradition and seldom admitted that they made the law. Even a creative judge such as Hidayatullah defined the judicial function in restrictive terms in one of his out-of-court public speeches. He said:5

“The judiciary as a rule is not interested in the policy underlying a legislative measure. The Court is only concerned with jurisdiction and constitutionality.”

The study of the debates of the Constituent Assembly makes it clear that constitution- makers were in favour of the primacy of the legislature and wanted the British model of judicial review which scrutinised whether the legislature acted within its parameters and reviewed the acts of the executive to ensure that they were in consonance with the law.

The essential element of the framers’ foresight was their concept of the seamless web, the interdependence of the nation’s three grand goals, and their building into the Constitution, the institutions and processes for their pursuit.6

Pandit Nehru once said, “I will not allow the Supreme Court to be the third house of the parliament.”

We have also observed that by evolving the doctrine of Basic Structure of the Constitution, the Hon’ble Supreme Court of India has limited the power of Parliament to amend the constitution. The court’s increased activism has been good and contributed a lot for India’s democracy. The expensive, technical justice now

3 AIR 1950 SC 27. 4 (1976) 2 SCC 521: AIR 1976 SC 1207. 5 M. Hidayatullah, Demoracy in India and the judicial Process, The Lala Lajpatrai Memorial Lectures 70 (Asia, 1966). 6 Granville Austin, The Indian Constitution: Cornerstone of a Nation xii (Oxford University Press, New Delhi, 26th impression, 2015).

Definitions and Expressions becomes inexpensive and non-technical through the growth of Public Interest Litigations.

In fourth chapter, we have seen how the discussion of 'judicial activism' is inclusive of separation of legislative, executive and judicial power and the reciprocal restraints that accompany that separation. In the Indian context, it is recognized that separation is not defined by bright lines and that the restraint involved is, in part, conventional.

There are many examples where judiciary had encroached upon the turf which was unwarranted. The Jagdambika Pal case of 1998 involving UP legislative assembly and the Jharkhand assembly case of 2005 are the two glaring examples of deviations from the clearly provided constitutional scheme of separation of powers, said bench.

The chapter covering the post- emergency era highlighted the instances which added to the glory of Indian Judiciary. Post-Emergency activism by the courts was also inspired by the desire to shake off the elitist image that the Supreme Court had acquired in the earlier years. The courts opened up their doors to the poor and voiceless and acquired, in time, the role of a social auditor, becoming, in Justice Goswami’s famous words, “the last resort for the bewildered and the oppressed”.7

Another interesting feature about judicial activism in India was that it was not an isolated case. In fact, it was a continuing process of what was already happening under some constitutions of the world. Now, we are in an era, where every moment newer directions are coming from the courts. These directions encompass the whole gamut of issues like environment, corruption, cleaning of drains, food security, maintenance of airports, education etc. It is often said that we are in an era of “Judicial Activism”, where the Judiciary being the Bastion of individual liberty and social progress has come up to lead from the front. Judiciary is praised by some, while condemned by others. At the same time we have also witnessed times when the highest judges of India have felt the need for accountability, responsibility and transparency in the judicial system in the wake of rampant corruption and populism among the judges.

From the study of some cases, it was also observed that rising judicial activism has been hindering governance in the country and impacting growth. Nowhere in the world would we see ideal balance between legislature and judiciary. But in India, we

7 State of Rajasthan v. Union of India, (1977) 3 SCC 592.

Definitions and Expressions have seen intensifying judicial activism, which had impacted the balance of governance.

Judicial review power of the judiciary aims at activising herself in retaining her domain of judicial activity over the State inactivity – the Legislative and the Executive. This judicial activism is twofold, viz., first, judicial policy, and second, legal services or access to justice or social action litigation or public interest litigation or third party litigation or actio popularis or private attorneys of law which clearly shows that any public minded citizen can approach the court with grievances of the poor and the illiterate.

As discussed in the seventh chapter, Judicial activism prompted by the PILs today has wide range. In some cases the courts have assumed the role of issuing directions- a job of the executive. The judicial system, which is currently unable to handle ordinary litigation, as it faces a huge backlog of undecided cases, has to now contend with non- traditional types of litigation in the form of public interest litigation (PILs) that are attempts to use Judges as "social engineers". Abrogating the principle of locus standi in the name of ushering in social justice and the upliftment of the downtrodden sections of society, the courts opened their doors so wide that they find it difficult to control the influx today.

Judiciary in India is one of the important limbs of the Government and as such an integral part of good governance. Indian judicial system is coming down through the ages and harnessing traditions for wisdom from generation to generation for the edification of the present and future ones. The Tradition demands that irrespective of the political debate, the Judges maintain a neutral stance in their decision-making. They should be guided only by accepted legal principles and the dictates of their conscience. The Judge being human, the social ambience in which he operates is likely to affect his judgment, but the extent to which he disallows this to happen determines his mettle.

Judiciary exercises judicial review as an ongoing or continuous constitutional convention. Constitutions are created with many compromises. Something is written but most is left unwritten. The judiciary has to give a living touch to the unwritten norms through creative interpretations.

Definitions and Expressions

Judicial Activism today is used as a negative connotation though it is not the truth. It involves interpretations of the nuances of law. The role of judiciary in interpreting existing laws according to the needs of the times and filling in the gaps appears to be the true meaning of judicial activism. In other words, it is judicial activism that helps to advance the cause of law. It is, in fact, an essential part of judicial review.

When political democracy was established after Independence, free elections to Parliament and Legislative Assemblies were held. But political democracy cannot last long unless there lies at the base of it, socio-economic democracy. Our judiciary is made independent of the Legislature and Executive by the provisions of the Constitution, but it is not independent of the Nation and the Constitution. It is also accountable to the people through the Constitution. Out of three organs of the State, the most respected organ is the Judiciary. It has become increasingly effective and powerful in its role as the arbiter of justice because of the confidence the common man has placed in it.

Political instability in our country is still the major concern as a result of which coalition governments have to be established at the centre with the support of some regional political parties in the states. Most of the regional political parties lack rational outlook and are able to get undue advantage of Government machinery and resources by threatening to quit. In coalition politics, for any government, irrespective of the party in power survival has become more important than probity in public life. In such circumstances, the Legislature and the Executive are unable to perform their obligations towards the people and therefore the people look towards the Judiciary to redress their grievances against the government.

The lack of concern by the Legislature for some pressing problems of the people and the near disappearance of the responsible and responsive Executive have compelled the courts to enforce the rights of citizens through novel and innovative strategies to meet the needs of the times. Whether it is environmental or the scam cases, the court is upholding constitutional rights. The decline in the role played by the other two institutions of the state has inexorably changed the role of the court from being a “sentinel on the qui vive” to a savior on call.

Former Justice of India, A.M. Ahmadi explained the current phase of activism in his Zakir Hussain memorial lecture in February, 1996, when he said, “courts would never

Definitions and Expressions have resorted to (activism) had the other two democratic institutions functioned in an effective manner.”8

As Soli Sorabjee has pointed out:

"that it is the executive's failure to perform its duty and the notorious tardiness of legislatures that impels judicial activism and provides its motivation and legitimacy. When gross violations of human rights are brought to its notice, the judiciary cannot procrastinate".9

However, the governance cannot be replaced by the judicial institutions. There is a need to discover a balance between Judicial and Executive Institutions. We need to reassert the balance between reforms, development and institutions. Judicial Activism should not be used to lead to the Constitutional principles of separation of power getting eroded. Our Hon’ble Judges should not cross their limits in the name of Judicial Activism and not to try to take over the functions of other organs of administration. Judicial pronouncements must respect the boundaries that separate the Legislature, the Executive and the Judiciary. The Judicial Activism has touched almost every aspect of life in the present times. Be it the case of bonded labor, illegal detentions, torture and maltreatment of women, the implementation of various provisions of the Constitution, environmental problems, health, sports etc. 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. However, the politicians and some constitutional experts criticize judicial activism and on the other hand, the lawyers and the public have welcomed it with warm hands. Judicial Activism has so many merits but it has certain demerits. The important question today is not whether the Supreme Court could activate its judicial role, but to what extent the concepts of Judicial Activism and creativity are exercised.

We cannot lead the government on judicial basis only. Frequent confrontation between the Legislature, the Executive and the Judiciary will also damage our well established democratic system of governance. Both sides should maintain and respect the line of demarcation of power under the Constitution and should not allow a conflict to develop between them. A balance between the powers of the Judiciary, the

8 Report, “Judiciary takes over” Outlook, March 6, 1996, p. 13. 9 Quoted in Michael Kirby AC CMG, Bar Council of India Lecture, 1997 on Judicial Activism, New Delhi, 6-1-1997.

Definitions and Expressions

Legislature and the Executive is necessary to carry the nation on the true path of democracy. Countries like China, Brazil and Mexico, with a stronger executive authority, have exhibited better growth trajectory.

This is not to say that all is well with the judicial wing. There is the high cost of litigation and awesome delays involved in getting justice through the courts. As of 2011, 17% of the cases before the Supreme Court had been languishing for over 5 years; close to 50% of pending cases were over two years old.10 As of 2013, a staggering 32 million cases were pending in Indian courts.11 Of these, close to 62000 cases are pending in the Supreme Court.12 This is, by any measure, a gigantic backlog.

Given this context, it is not surprising that the 2013 World Bank Doing Business Report ranked India 186th out of the 189 surveyed countries on the ease of enforcing contracts, an indicator measuring the effectiveness of national judicial systems.13 India ranked nowhere close to other major economic powers such as China (rank 19) or Russia (rank 10), and lags far behind the South Asian average rank (rank 137). Its closest peers included Afghanistan and Malawi, countries that are vastly poorer, whether in terms of economic performance, political stability or human development indicators.14

The former Chief Justice of India, S.P. Bharucha seemed to be echoing the lament in Hamlet, “Something is rotten in the state of Denmark” when he moaned recently that integrity of about 20% of higher judiciary was in doubt. There are credible complaints against the higher judiciary.15

We are still saddled with archaic laws, cumbersome procedures, Judges drawn from affluent backgrounds with their status quo attitude, who do not understand and are not sometimes sympathetic to the problems of the teeming millions, understaffed courts etc. etc.

10 Ibid. 11 See Freedom House, “Freedom in the World Report, 2013” available at http://www.freedomhouse.org/ report/freedom-world/2013/india. 12 Supreme Court – Monthly Statement, March 2015, available at http://www.sci.nic.in/p_stat/ pm01032015.pdf 13 World Bank Doing Business Report (2013), available at http://www.doingbusiness.org/~/media/ GIAWB/Doing%20Business/Documents/Annual-Reports/English/DB14-Full-Report.pdf. 14 Ibid. 15 Essays, “Need for Judicial Accountability and Restraint in the era of Activism”, Competition wizard, November 10.

Definitions and Expressions

Judicial activism and judicial restraint are two sides of the same coin. It is therefore essential to remember that judicial restraint in the exercise of its functions, is of equal importance for the Judiciary while discharging its obligations under the Constitution. Judicial Activism should not become Judicial Adventurism and thus, the courts must act with caution and proper restraints. They must remember that Judicial Activism is not an unguided missile and failure to bear this in mind would lead to chaos.

It is always meaningful to ask whether a judge has exceeded his or her proper function by laying down legislative rules beyond that permitted interstitial law- making which is necessary to dispose of the matter before the Court. The question may properly be asked in the context of judicial review of executive action, whether a judge or a court has entered upon the rather ill-defined territory of 'merits review' and sat in the seat of the executive to substitute its own view of the correct or preferable decision rather than stay within the boundaries of review of process and lawfulness. The question may also be asked whether the judge or a court has applied to the task of constitutional or statutory interpretation, the principles generally regarded as accepted or legitimate and, if not, why they have been departed from. Each of these questions raises a different kind of legitimate concern.

Where does Judicial Activism stop and Judicial Overreach begin? The thick line between the two gets totally blurred here. It is one thing for the courts to be sympathetic to people but quite another to suggest, even faintly, of resistance to what is unpopular. Moreover, as the Court itself admitted, granting authority for fixing prices of petroleum products was a policy matter of the Central Government and it cannot interfere in the present hike. Clearly, things are going a bit too far. There are indications that the courts are getting inclined to exceeding their mandate and transgressing into areas they should be staying off as matter of propriety. The judges are entitled to their personal views. But that should come out in personal space. There is no specific need why they should stray from the facts of the particular case and evidence at hand while judging a case. Institutional decorum stipulates no-go areas for each arm of the democracy. If every institution thinks it fit to encroach upon the territory of the other, the end result would be a chaos.

There’s no denying that PILs, which started after the Emergency of 1975 — have been instrumental in protecting the rights of individuals and have ensured even- handed justice in a lop-sided democracy. But for the Judicial Intervention, the 2G

Definitions and Expressions scandal and the Commonwealth Games financial irregularities won’t be as big issues as they are today. Nor would the Executive and the Investigative Agencies fall in line to deliver what they are supposed to.

PILs and the Judiciary have played a salutary role in our democracy. But there has to be a line between activism and overreach. Overreach disturbs the institutional balance of power and responsibilities. The courts are not supposed to run the country; it’s the job of the Government. The courts must sympathize with people but not by taking a call on policies and bringing into question every decision of the government. The government is ultimately accountable to the people.

Justice Markandey Katju in Minor Priyadarshini’s case16 has explained thus:

Under the Constitution, the Legislature, the Executive and the Judiciary have their own broad spheres of operation. It is, therefore, important that these three organs of the State do not encroach upon the domain of another and confine themselves to their own, otherwise the delicate balance in the Constitution will be upset... The Judiciary must therefore exercise self-restraint and eschew the temptation to act as a super Legislature. By exercising restraint, it will only enhance its own respect and prestige... Judicial restraint is consistent with and complementary to the balance of power among the three independent branches of the State. It accomplishes this in two ways. First, it not only recognizes the equality of the other two branches with the Judiciary, it also fosters that equality by minimizing inter-branch interference by the Judiciary... Second, it tends to protect the independence of the Judiciary... If Judges act like legislators or administrators, it follows that Judges should be elected like legislators or selected and trained like administrators. The touchstone of an independent Judiciary has been its removal from the political and administrative process... Thus, judicial restraint complements the twin, overarching values of the independence of the Judiciary and the separation of powers.17

16 2005 (3) CTC 449. 17 Lokendra Malik (ed.), Judicial Activism in India 81(Universal Law Publishing Co., New Delhi, 2014).

Definitions and Expressions

A former Solicitor-General of India, Mr. Dipankar P. Gupta, wrote (Hindustan Times, June 15, 2007):

There is a real danger that the activism of the courts may aggravate the activism of the authorities. Today, inconvenient decisions are left by the Executive for the courts to take. Extensive use of judicial powers in the administrative field may well, in the long-run, blunt the judicial powers themselves. This is not a healthy situation.

What then is the solution? The task of the Court should be to compel the authorities to act and to pass appropriate executive orders rather than substitute judicial orders for administrative ones. They must be told how their duties are to be properly discharged and then commanded to do so. For this, they must be held accountable to the Court.

In the words of Justice J.S. Verma (former Chief Justice of India):

The Judiciary should only compel performance of duty by the designated authority in case of its inaction or failure, while a takeover by the Judiciary of the function allocated to another branch is inappropriate. Judicial activism is appropriate when it is in the domain of legitimate judicial review. It would neither be judicial ‘adhocism’ nor judicial tyranny.18

The acknowledgement of this difference between “Judicial Activism” and “Judicial Overreach” is vital for the smooth functioning of a constitutional democracy with the separation of powers as its central characteristic and supremacy of the Constitution as the foundation of its edifice.

Many objections to the court’s power of judicial review have become issues of the past. Counter majoritarian arguments have become weak in view of the threat by majoritarianism to the cherished basic rights of subjects—be it the experience of Nazi Germany or the 1975 Emergency in India—and separation of powers has become the source of checks and balances against majoritarian excess. Now the greatest politics is how to feed the starved masses, how to raise the hopes of the deprived and bewildered. And in this politics, if it can be said, the Judiciary is stealing the show as

18 Ibid.

Definitions and Expressions it has no axe to grind and, while in contrast, democratic branches are losing ground due to their corruptible credences. Ran Hirschl rightly comments:

“Judicial power does not fall from the sky; it is politically constructed. I believe that the constitutionalization of rights and the fortification of judicial review results from a strategic pact led by hegemonic yet increasingly threatened political elites who seek to insulate their policy preferences against the changing fortunes of democratic politics, in association with economic and judicial elites who have compatible interests. The changes that emerge reflect a combination of the policy preferences and professional interests of these groups.”19

It is beyond controversy that judicial power is ever-expanding in view of the felt necessities of time and future nation-building, with a view to wipe out a tear from every eye by making the Constitution—the Constitution of “We the People” of the country, and not the constitution of “we the politicians or few privileged”.

It is a widely acknowledged fact that glory of the Judiciary has been eroding fast and it is the need of the hour to restore the glory of the Judiciary. A number of initiatives are being taken to revamp the Judiciary under the title of “Judicial Reforms.” The various measures being adopted under “Judicial Reform” is laudable but equally important is to bring reforms in thinking and perception of the stakeholders in the Justice Delivery System of this country.

A hundred years ago, Francis Bacon in his essay on judicature, emphasized that “the place of justice is a hallow palace” and therefore not only the bench but also the foot pace, precincts and purpose, therefore ought to be preserved without scandal or corruption.

Indian Judiciary still has a better image, as compared to the other two organs, with its record of impartiality. It still enjoys the confidence of not only the people but also of the coordinate branches, and justices (including retired CJs) enjoy due respect and honour. Parliament has made it mandatory by statute that such judges be appointed as

19 Ran Hirschl, Towards Juristocracy: The Origin and Consequences of the New Constitutionalism 49 (Harvard University Press, 2007).

Definitions and Expressions chairpersons of some commissions20 or tribunals21 or forums22, and executive by convention appoints them to such bodies.23

The Indian Judiciary has enjoyed the confidence of the people because judges had chosen to be above suspicion, and have had no hesitation in quitting office even on a slightest allegation against them.

The analysis reveals that despite judicial equalitarianism and egalitarianism, the lot of the have-nots has not changed substantially. Judicial concern and sensitivity is expressed in a handful of cases, but agony of the little men is unbounded. No doubt public interest litigation (PIL) and its offshoot, locus standi liberalism, has changed the outlook of the courts to some extent. Three decades after the functioning of our Constitution, a seminar was organised to discuss issues like “judicial process and social change” and handouts circulated started with the sentence: “It is surprising but true that thirty years since independence, the juristic community in India has yet to develop an adequate set of approaches to the linkages between judicial process and social change.”24 The situation has not in any way changed after an elapse of 60 years.

We are still nowhere near fulfilling Gandhiji's dream of wiping the tears from the eyes of every Indian. A lot needs to be done. The Judiciary and the Government have to work hand in hand to redeem the preamble’s promise of justice—social, economic and political. There is no time for pious platitudes but concerted action by all wings of the Government to remove the scourges of poverty, illiteracy, casteism in a spirit of cooperation and humility, occasioned by the magnitude of the task at hand.

Judicial activism has become as much fascinating as the Judicial Review, of course, with certain amount of hostility, controversy, and apprehension. Judicial Activism,

20 National Human Rights Commission in constituted under the Protection of Human Rights Act, 1993. The HR Act, 1993 provides that the Chairperson of the Commission must be a former Chief Justice of India and, consequently, the former Chief Justices have been appointed as Chairpersons of the Commission. 21 National Green Tribunal constituted under the National Green Tribunal Act, 2010 provides: [A] person shall not be qualified or appointed as the Chairperson or judicial member of the Tribunal unless he is, or has been, a judge of the Supreme Court of India or Chief Justice of a High Court: Provided that a person who is or has been a judge of the High Court shall also be qualified to be appointed as a Judicial member. [S. 5(1) of the National Green Tribunal Act, 2010]. 22 Consumer Forums at all level—National, State and District—are headed by the hon’ble judges. 23 By convention, the Union Government appoints the Chairman of the Law Commission of India from amongst the sitting or retired Chief Justices or judges of the Supreme Court or Chief Justices of the High Court. 24 O. Chinnappa Reddy J, “Judicial Process and Social Change”, (1981) 1 SCC J-4.

Definitions and Expressions therefore, has been viewed, both with reverence and suspicion; reverence inasmuch as the judicial review is the creative element of interpretation which serves as a potentially omnipotent check on the Legislative and the Executive branches of government.25 It is a means of harmonising the constitutional culture, constitutional value and constitutional democracy.26

However, ‘activism’ should not become populism, nor should it lead the Judiciary to assume the mantle of arrogant righteousness, which can graduate despotism and corruption. Self discipline is to be exercised by the members of the judiciary and they should refrain from speaking on policies. Judicial Activism is not an unguided missile. It has to be controlled and properly channelized. Courts have to function within established parameters and constitutional bounds.

In discharging its function “judges are not required to bend their knee to governments, to particular religions, to the military, to money, to tabloid media or to the screaming mob. Judges serve neither majority nor any minority either”.27 The Judiciary need not struggle for its credibility and people’s faith in it. People will have to repose their faith in it. But the Judiciary must also prove its mettle without a cry for touch-us-not. In some hard cases, the Judiciary has been super conscious about its image and unquestioned position. It has resulted in self-created barriers. This tendency is visible through the primacy given to the CJI, without any constitutional provision. The Judiciary has raised the veil of secrecy around its working—avoiding direct disposal of cases involving the conduct of hon’ble justices of the superior courts—while it has pressed for transparency everywhere else.

Sounding a note of caution on judicial activism, The President of India Mr. Pranab Mukherjee has said that judicial pronouncements must respect the boundaries that separate the Legislature, the Executive and the Judiciary. President Mukherjee has also said that everything must be done to protect the independence of the Judiciary from any form of encroachment. Addressing the valedictory function of the 150th

25 For an informative approach see Henry J. Abraham, The Judicial Process, (5th Ed.), 1986, pp. 293 et al.; see also Cappelletti Mauro, Judicial Review in the contemporary World 1971, pp. 98-100 views that constitutional lawyers talk of the dangers, or advantages, of judicial activism, of the creative aspect of the judicial interpretation of the right of the accused, and so on. 26 K.L Bhatia, Judicial review and Judicial activism: A comparative study of India & Germany from an Indian perspective 115 (Deep & Deep Publications, New Delhi, 1997). 27 Justice Michael Kirby, Judge, High Court of Australia in Cyrus Das and K. Chandra (eds.), Judges and Judicial Accountability, Second Indian Reprint, 44 (Universal Law Publishing Co. Pvt. Ltd., New Delhi, 2005).

Definitions and Expressions anniversary celebrations of the Madras High Court, he urged the Judiciary to keep reinventing itself through a process of introspection and self-correction at the same time. In his address, Mukherjee touched upon various issues that dominate legal discourse including judicial accountability and the appointment of judges. The President referred to Judicial Activism and said the judges through innovation and activism have contributed enormously to expanding the frontiers of justice and providing access to the poorest of the poor.28

Justice T.S. Thakur, a senior Supreme Court judge said if the apex court’s actions to save nature amounted to judicial overreach, then the practice would continue for a long time. Citing as example the deforestation carried out to set up power, transmission lines, justice Thakur said the Judiciary did not stand between development and environment, but had “every right to monitor” whether a judgment passed by a court is implemented. 29

Endorsing the same approach, Justice A.S. Anand observed:

“The courts must not shy away from discharging their constitutional obligations to protect and enforce human rights. While acting within the bound of law they must always rise to the occasion as guardians of the Constitution, criticism of judicial activism notwithstanding.”30

At the same time, Justice Anand cautioned that while expounding and expanding the law, judicial enthusiasm and judicial restraint are two sides of the same coin and with a view to see that judicial activism does not become judicial adventurism and lead a judge going in pursuits of his own notions of justice and beauty. We should not ignore the limits of law. It should develop a consistent and firm path”, he added. In other words, according to him, “…….judicial authoritarianism cannot be permitted. The Courts have to be very careful to see that their exercise of judicial creativity for attaining social change is not allowed to run amuck and every court functions within bounds of its own prescribed jurisdiction…….”.31

28 Pranab Mukherjee's note of caution on judicial activism PTI Sep 8, 2012, 07.33PM IST. 29 “Judge Slams Judicial Activism Jibe” The times of India, New Delhi edition, March 16, 2015, page 10. 30 Dr. Justice A.S. Anand, “Protection of Human Rights: Judicial Obligation or Judicial Activism” 7 SCC (Jour) 11(1997). 31 Ibid.

Definitions and Expressions

The judicial creativity has reached the destination of judicial activism. Now, the problem is how to keep it in bounds - originalists view to meet the present day problems by attaching flexibility in the form of moderate originalism, but have an eye on limit of the interpretative role of the judges.

Under the Constitution, wide powers are conferred on Courts and, therefore, a corresponding, heavy obligation is placed on the Judges to exercise jurisdiction with utmost care and caution, so as never to give the impression that they are viewing things upon preconceived notions. Care has to be taken at all times to ensure that the discretionary jurisdiction is exercised on the basis of well-defined and consecrated legal principles, and at no time during the course of the proceedings should an impression be given that the Judge has yielded to spasmodic sentiments, or is carried away by emotion or bias. He must so handle the proceedings that even the respondent at the receiving end goes with the feeling that he has had a fair trial. Fairness is the hallmark of judicial process which also guarantees impartiality.

According to S.A. de Smith:

All developed legal systems have had to face the problem of adjusting conflicting interests between two aspects of public interest – the desirability of encouraging individual citizens to participate actively in the enforcement of the law and the undesirability of encouraging the professional litigant and meddlesome interloper to invoke the jurisdiction of the courts in matters that do not concern him.

As Chief justice John Marshall has said, a Constitution is framed for ages to come, but ‘its course cannot always be tranquil.’33

The framers may have been geniuses, but the ratifiers were not. They were, on the whole, ordinary citizens. The Constitution, as Franklin Roosevelt asserted, is “a

32 Supra note 6 at xi. 33 Id. at xii.

Definitions and Expressions layman’s document, not a lawyer’s contract,” intended to be read and understood by citizens.34

Honourable Shri N.V. Gadgil35 says “After all the Constitution is merely an instrument, and the main test is whether it is good enough to secure those economic and social ends which we have in view. If it is not then it must be rejected, whether it is drafted by the greatest constitutionalists or greatest lawyers or jurists in this country, whether they have taken part in the struggle or not makes no difference. The main point is whether this is an instrument which is of such a nature as to secure those social and economic ends which have been very beautifully worded and embodied in the Preamble of this Constitution. The Constitution is an instrument and not an end in itself. In the hands of a good workman, it is a good tool to work with.”

For all the criticism against judicial activism through the power of judicial review, there is much to be said in its defence. The argument that the power of judicial review is undemocratic is countered by the assertion that democracy was never meant to translate into a tyranny of the majority. Meaningful democracy is not about majoritarianism. A successful democracy must carry with it all its citizens, protecting the rights of the marginalised and the voiceless and it is in this context that the power of judicial review was developed and expanded in the early years of public interest litigation in India.

In response to the counter-majoritarian argument, argues Ruma Pal, J.:

When the Constitution says, “We, the people of India” it does not mean the majority. It means that every individual Indian is entitled to its protection. By this token how democratic are the legislators or the executive, both of which protect and speak for the majority? By this token they are not accountable to the minority or the individual and in the absence of political accountability what possible redress can the minorities or the individual get politically against the “tyranny of the majority”? If any limb of the Government is capable of destroying democracy in this sense, it is the executive and transient majorities in the legislatures as the events during the last emergency amply illustrate.

34 Kermit Roosevelt III, “The myth of Judicial Activism” 40 (universal Law Publishing Co. pvt. Ltd, New Delhi,2011) 35 CONSTITUENT ASSEMBLY OF INDIA DEBATES (PROCEEDINGS) - VOLUME XI, Friday, the 18th November, 1949.

Definitions and Expressions

Judicial accountability in a rights-democracy context does not mean political accountability to effectuate majority will or answerability to the majority. It means the assurance to each individual that the process of determining his or her individual right is transparent, impartial and objective. To this end, Judges are required to be independent and untouched by partisan politics. The fact that Judges are unelected ensures this in some measure. A relatively short tenure of a Judge without the possibility of reappointment also has the advantage of disallowing entrenched personal philosophies to develop.36

To quote N.R. Madhava Menon, judicial review is a weapon to discipline abuse of executive power. Any institution with such vast powers can become a threat if it does not have Judges of the highest integrity, sensitivity to constitutional values and great professional competence.37

Justice V.R. Krishna lyer Says about judicial activism.”It is not opium but a pervasive power and a brooding omnipresence.”38

In the absence of judicial activism, a constitution would become stultified and devoid of any inner strength to survive and provide normative order for the changing times. In this context, we have the following quotation from Justice Oliver Wendell Holmes of the US Supreme Court, which should guide any constitutional court:39

“While we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being, the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in light of our whole experience and not merely in that of what was said a hundred years ago.”

36 Justice Ruma Pal “Judicial Oversight or Overreach: The Role of the Judiciary in Contemporary India”. (2008) 7 SCC J-9 at pp. 26-27. 37 N.R. Madhava Menon, ‘Committed to Judiciousness’, The Daily Telegraph (Calcutta Ed.) 11.8.1997. 38 Quoted by Justice V.R. Krishna lyer, ”JURISPRUDENCE STRUCTURES” In LEGALLY SPEAKING(ed.)(2004 ) p.259(supra note). 39 Missouri v. Holland 252 U.S. 416, 433 (1920).

Definitions and Expressions

The Judiciary’s role in intervening wherever its support was needed to get certain directives implemented for the public good, Justice Anand affirmed:

Intervention in such areas is because of the people’s perception that a judicial intervention is perhaps the only feasible correctional remedy available.40

“Activism is related to change in power relations. A judicial interpretation that furthers the rights of the disadvantaged sections or imposes curbs on absolute power of the state, or facilitates access to justice is a positive activism. Judicial activism is inherent in judicial review. Whether it positive or negative activism depends upon one’s own vision of social change. Judicial activism is not an aberration but is a normal phenomenon and judicial review is bound to mature into judicial activism. Judicial activism also has to operate within limits. These limits are drawn by the limits of institutional viability, legitimacy of judicial intervention, and resources of the court. Since, through judicial activism, the court changes the existing power relations, judicial activism is bound to be political in nature. Through judicial activism, the constitutional court becomes an important power center of democracy.”41

As Dr. Baxi very well says, “There is a need for wise accommodation between Parliament and the Supreme Court.”42 He is also right when he says, “What is needed now is clarity and certainty”.43 We may add that the relation between Parliament and the Supreme Court must be based on mutual trust and deference. Every judgment should not be reacted to by amendatory nullification, and increase in the number of saving Acts under the 9th Schedule; the court should take up the challenge of resolving this impasse, as it has done in past. With a little elaboration, we fully endorse the following suggestions of Dr. Baxi, proffered more than three decades ago:

1. The Indian Supreme court in some opportune cases must constitute the largest possible Bench of the Supreme Court out of 31 members (excluding vacancies unfilled) to finalise the list of basic structure which may be known

40 AIR 1992 SC 382. 1991 AIR SCW 2989: (1992) 1 SCC 358. 41 Supra note 2 at 5,6. 42 Upendra Baxi, “Some Reflections on the Nature of Constituent Power” in Jacob and Dhavan (Eds.), Indian Constitution: Trend and Issues (N.M. Tripathi, 1978) 122-143. 43 Id. at 142-143.

Definitions and Expressions

in advance to Parliament as what is not to be done through an amending process. The Supreme Court may seek representation from different groups and thereafter decide the matter finally. 2. The Executive of the day may advise the President of India to seek an advisory opinion from the Supreme Court, under Article 143 of the Constitution, so that the list of articles forming the basic structure may be chalked out. 3. Instead of accusing judicial obscurantism, Parliament should take the lead. Many countries have amended their amending process making certain provisions inviolate and permanent. Indian Parliament should leave its apathy. However, its record in this matter is not good. In 60 years, no law has been enacted under Article 105(3), nor under Article 300. As Dr. Baxi has given in footnote 101 of his article,44 a 45th Amendment Bill, seeking to amend Article 368, was introduced in Parliament, but nothing has come of it yet.

Professor Upendra Baxi had famously described judicial activism as “chemotherapy for a carcinogenic body politic”.45

Professor S.P. Sathe, has also advocated the practice of controlled Judicial activism in the following ways:

One, the basic constitutional framework of separation of powers must be respected and adhered to; public interest litigations are not opportunities to legislate or administer.

Two, public interest litigations should be entertained only when the petitioner has been refused redress from the authority concerned and is left with no other recourse.

Three, the directions of the courts in its exercise of the power of judicial review must be practical and capable of implementation. The courts have to rely on the goodwill and cooperation of the government machinery to ensure implementation of orders.

44 Ibid. 45 Supra note 2.

Definitions and Expressions

In a democratic country committed to the task of establishing socio-economic equality, the centre of gravity of law is not so much Legislatures, though the Legislatures pass the law; nor Court-rooms, though judges interpret the laws and consider their validity; nor the chambers of jurists, though the jurists formulate principles of Jurisprudence which guide the legislatures and help the Judges. The centre of gravity of law lies basically in the unsatisfied but legitimate hopes and aspirations of the common citizens of the country.46

Time has come when we have to bring back those old glories by strengthening the co-ordination and harmonization between the stakeholders of the Justice Delivery System of our country with the help of harnessing our extraordinary ability by adopting and practicing in day- today life the attributes possessed in our legal and political heritage.

Thus, the study concludes with the enlightening words of Karl Marx:

“Philosophers have interpreted the world; our task is to change it. I would add in a similar strain, judges have adjudicated disputes but their constitutional task is to transform society too.”47

46 Dr. P.B. Gajendragadkar: op. cit., p. 26. 47 Justice V.R. Krishna Iyer, “Jurisprudence structures” in legally speaking 259 (2004).

Definitions and Expressions

BIBLIOGRAPHY

BOOKS 1. Andhyarujina, T.R., Judicial Activism and Constitutional Democracy in India (N.M Tripathi, Pvt. Ltd., Bombay 1992). 2. Austin, Granville, Working A Democratic Constitution, (2000) Oxford University Press, New Delhi 3. Basu, Durga Das, Shorter Constitution of India (Wadhwa & Co., Nagpur 2006). 4. Baxi Upendra, The Indian Supreme Court and Politics (Eastern Book Co., Calcutta, 1980). 5. Baxi, Upendra, Courage, Craft and Contention: The Indian Supreme Court in the Eighties (Tripathi, Bombay 1985). 6. Baxi, Upendra, Introduction to K.K. Mathew’s Democracy, Equality and Freedom (1978). 7. Bhagwati, P.N, Judicial Activism, and Public Interest Litigation (Jagrat Bharat, Dharwad 1985). 8. Bhagwati, P.N., Law Freedom and Social Change (1979). 9. Bhagwati, P.N., The Role of the Judiciary in Democratic Process-Balancing Activism and Justice Restraint in Developing Human Rights Jurisprudence, Vol. 5 (Fifth Judicial Colloquium on the Domestic Application of Human Rights Norms 1992). 10. Bhatia, K.L., Judicial Activism and Social Change (Deep & Deep, New Delhi 2006). 11. Cardozo, B.N., The Growth of Law (Yale University Press, New Haven 1964). 12. Cardozo, B.N., The Nature of Judicial Process (Yale University Press, New Haven 33rd printing 1974). 13. Dhavan Rajeev, Sudarshan R. and Khurshid Salman (eds.). Judges and the Judicial Power (London, Sweet and Maxwell, 1985). 14. Dicey, A.V., An Introduction to the study of the law of the Constitution, Liberty Fund ( Mac Millan& Co. Ltd., 1968).

Definitions and Expressions

15. Diwan, Paras, Adminstrative Law, (Allahabad Law Agency 1995). 16. Dworkin, Ronald, Law’s Empire (Belknap Harvard, London 1986). 17. Encyclopedia of social science, (Vol. 15, 1999), Oxford University press, Washington. 18. Frank, Jerome, Law and the Modern Mind (Sweet & Maxwell, London 1950). 19. Freeman, M.D.A. (ed.), Lloyd’s Introduction to Jurisprudence (Sweet & Maxwell, London 1994). 20. Friedman, W., Law in a Changing Society (Universal Publishing Co., New Delhi 2003). 21. Gajendragadkar. The Indian Parliament and Fundamental Rights (Tagore Law Lectures-University of Calcutta, Calcutta 1972). 22. Garner, Bryan A (ed.). Black’s Law Dictionary (West Group, St. Paul Minn 1999). 23. Granville, Austin. The Indian Constitution: Cornerstone of a Nation (Clarendon Press, Oxford 1972). 24. Gwyn, G.B., The meaning of Separation of Powers (The Hague 1965). 25. Hacker, P.M.S.(ed.) &Raz, J.(ed),Law, Morality and Society: Essays in the honour of H.L.A. Hart (Clarendon Press, London 1977). 26. Hart, H.L.A., The Concept of Law (Oxford University Press, New Delhi 2005). 27. Hasan, Shariful, ‘Supreme Court – Fundamental Rights and Directive Principles’, 1981, Deep & Deep Publications, New Delhi 28. Hidaytulla, M., Democracy in India and the Judicial Process (Tripathi, Bombay 1972) 29. Holland, Jurisprudence, (13th ed.) 2008. 30. Jaffe, L. L. &Nathanson, N.L., Administrative Law (Little Brown, Boston 1961). 31. Jain, M.P., ‘Indian Constitutional Law’, (5th ed. Reprint 2007), Wadhwa& Nagpur Co., New Delhi 32. Jois, M.Rama, ‘Legal and constitutional History of India’, (1st ed.,1984), Universal Law publication Co. Pvt. Ltd, New Delhi 33. Kelsen Hans., General Theory of Law and State (University of California Press 1961).

Definitions and Expressions

34. Khanna, H.R., Judiciary in India and Judicial Process, (1st ed. Tagore Law Lectures, University of Calcutta, Ajay Law House 1985). 35. Khanna, H.R., Making of the Indian’s Constitution (Eastern Book Co., Lucknow 1981). 36. Kirby, Michael. Judicial Activism (Sweet & Maxwell, London 2004). 37. Lahoti, R.C., Sulekhnidevi Memorial Lecture on Values in a Democracy (ILI, New Delhi 2008). 38. Langon, P.St. J. (Ed.)., Maxwell on the Interpretation of Statute, (12th ed. London, 1969). 39. Llewellyn, K.N., Jurisprudence: Realism in Theory and Practice (University of Chicago Press, Chicago 1962). 40. M.M. Sankhdher, ‘Politics in India’, (2005) Deep & Deep, New Delhi. 41. Maitland, F.W. The Constitutional History of England (Cambridge University Press, Cambridge 1961). 42. Massey, I P, ‘Administrative law’, (6th ed., 2005), Eastern Book Co., Lucknow 43. Micheal J. “The Constitution, the Courts and Human Rights”, (1986). 44. Miller Arthur Selwlyan., Toward Increased Judicial Activism: The Political role of the Supreme Court (West Court: Comn). 45. Munshi, K.M., The Indian Constitutional Documents, (BharatiyaVidyaBhawan, Bombay, 1967). 46. Munshi, K.M., The President under the Indian Constitution (BharatiyaVidyaBhawan, Bombay 1963). 47. P.J. Fitzerald, ‘Salmond on jurisprudence’, (12th ed., 1966 , reprint 1996), Sweet & Maxwell Ltd., U.K. 48. Pal, D.P., ‘State Sovereignty at the cross-road’, 1961, S.C. Sarkar& Sons Pvt. Ltd., Calcutta 49. Pandey, J.N., ‘Constitutional Law of India’, (39th ed., 2003), Central Law Agency, Allahabad. 50. Paton, G.W., Textbook of Jurisprudence (Oxford University Press, London 1964). 51. RadhaBinod Pal, ‘The History of Hindu law’, (1958) Calcutta:University of Calcutta.

Definitions and Expressions

52. Rao, Shiva B., ‘The Framing of India’s Constitution’, (1967,reprint 2004), Universal law publication Co. Pvt. Ltd., New Delhi 53. Raoul Berger Government by Judiciary: The Transformation of the Fourteenth Amendment, (Cambridge: Harvard University Press, 1977). 54. Rawls, John “A Theory of Justice” (Oxford University Press, 1978). 55. Reddy, G.B., Judicial Activism in India (Gogia Law Agency Hyderabad 2001). 56. Sathe S.P., JudiciaL Activism in India: Transgressing borders and enforcing limits, (2002), Oxford University Press, New Delhi. 57. Sathe, S.P., Judicial Activism in India (Gogia Law Agency, Hyderabad 2002). 58. Seervai, H.M., ‘Constitutional law of India’, 4th ed., Vol.1, Universal Law publishing Co. Pvt. Ltd., New Delhi. 59. Seervai, H.M., Constitutional Law of India: A Critical Commentary ( Tripathi , Bombay, 1993). 60. Seervai, H.M., Position of the Judiciary under the Constitution of India (Tripathi, Bombay 1970) 61. Simon, James and Chantal, Stebbings (ed.), A dictionary of Legal Quotations, (Universal Law Publishing, Delhi 1997). 62. Singh, G.P., Principles of Statutory Interpretation (Wadhwa& Co., Nagpur 2006). 63. Sripati, Vijayashri, Toward Fifty Years of Constitutionalism and Fundamental Rights in India (1950-2000). 64. Takwani C.K., Lectures on Administrative Law (Eastern Book Co. Lucknow 2008). 65. Thakker C.K., Administrative Law (1992). 66. Tripathi, B.N.M., ‘Jurisprudence & Legal Theory’, 14th ed, Allahabad Law Agency, Faridabad. 67. V.N. Shukla, ‘Constitution Of India’, (11th ed., 2008) , edited by Mahendra P. Singh, Eastern Book Company, Lucknow. 68. Verma, S.K. & Kusum (ed.), Fifty Years of Supreme Court of India-Its Grasp and Reach (Oxford University Press, New Delhi 2000). 69. Vile, M.J.C., Constitutionalism and Separation of Powers (Oxford University Press, London 1967).

Definitions and Expressions

70. Wade, E.C.S. & Philips, G.G., Constitutional Law (Glencoe Press, California 1960).

JOURNALS 1. Ukais, Kilep, ‘Human Rights and Judicial Activism in India’, CULR, Vol. XXI, 1997. 2. M.B. Ahmad, ‘The Administration of Justice in Medieval India’, Aligarh University: Studies in History, 1941. 3. V. VENKATESAN (2007), “Judicial challenge”, in Frontline Magazine, February Issue 2007.

REPORTS/BILLS 1. C.A.D Vol. IX. 2. C.A.D Vol.VII. 3. Compact Oxford Dictionary-Thesaurus – Indian Edition – 2003. 4. Conference of Chief Ministers and Chief Justices, New Delhi, 08th April, 2007. 5. Constitution Assembly Debates, LokSabha Secretariat, 2003. 6. Encyclopedia of American Constitution, Vol. 3 (New York – 1986).

NEWSPAPERS 1. Editorial, The Interpreters: Judiciary should not stray from the rule book, TIMES OF INDIA, 17-9-2005 at p. 24. 2. India Today, 22nd January, 2007. 3. The Hindu, 27th April, 1999. 4. The Hindu, Tuesday, February 17, 2009, Delhi ed. 5. The Hindu, Tuesday, Wednesday, April 30, 2009, Delhi ed. 6. The Indian Express, 04th August, 1999. 7. Times of India, 27th December, 2008.

ARTICLES

Definitions and Expressions

1. Ahmedi A.M., “Judicial Process: Social Legitimacy and Institutional Visibility” (1996) 4 SCC (Jour) 1996. 2. Akhtar Majeed, “Separation of Powers Vs Judicial Activism: Crisis of Governance”, Indian Journal of Federal Studies, 2008. 3. Anand, A.S., “Judicial Review-Judicial Activism-Need for Caution”42 JILI 149 (2000). 4. Ashraf, Md. Ali, “Judicial Legislation and the Doctrine of Separation of Powers” 2(2) Bangalore Law Journal 160 (2008). 5. Barak, Aharon, “Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy” 116 Harvard Law Review 16, (2002). 6. Baxi, Upendra (ed.), Mathew K.K. on Democracy, Equality and Freedom I (1978), UpendraBaxi who bothers about the Supreme Court? The problem of Impact of Judicial Decision, 24 JILI, (1982). 7. Baxi, Upendra “Judicial Discourse: Dialectics of the Face and the Mask” 35 JILI 9(1993). 8. Baxi, Upendra, “On the Problematic Distinction between Legislation and Adjudication: A Forgotten Aspect of Dominance” 12 Delhi Law Review 3 (1990). 9. Bhagwati, P.N., Judicial Activism and Public Interest Litigation, 23 Columbia Journal of Transnational law 1 (1985). 10. Bhambhri, C.P. “Separation of Powers Vs Judicial Activism: Crisis of Governance”, Indian Journal of Federal Studies, 2008 11. Bradley, James, “The Origin and Scope of the American Doctrine of Constitutional Law.” VII, Harv. L. Rev. (1893-94). 12. Cassels, Jamie, “Multinational Corporations and Catastrophic Law” 31 Cumberland Law review 311(2000), Parmanand Singh, “State, Market and Economic Reforms” in Parmanand Singh et al. (eds.), Legal Dimensions of Market economy (New Delhi: Universal Book Traders, 1997). 13. Chaterji, Susnata, “For Public Administration”, Is Judicial Activism Really Deterrent to Legislative Anarchy and Executive Tyranny? Article published in the Book entitled “Judicial activism-Dimensions and Directions” edited by D. Banerjea, A Subrahmanyam, V. Vijaykumar, 2002.

Definitions and Expressions

14. Chatterjee Somnath, “Scheme of Separation of Powers and checks and Balances in the Constitution” 33 Indian Advocate 9(2005). 15. Chatterjee Somnath, “Separation of Powers and Judicial Activism in India” 35 Indian Advocate 1(2007). 16. Cohn, Margit & Kremnitzer Mordechai, “Judicial Activism: A Multidimensional Model” 18 Canada Journal of Law & Jurisprudence 333 (2005). 17. Coope, “Poverty and Constitutional Justice” 44 Mercer Law Review 611(1993). 18. Craig, P.P. & Deshpande, S.L., “Rights, Autonomy and Process: Public Interest Litigation in India” 9 Oxford Journal of Legal Studies 356(1989). 19. D. Rajeev, “Separation of powers and judicial activism: Tradition versus modernity”, Cochin University Law Review, vol. 21, 1997 20. Deva, Surya, “Public Interest Litigation in India: A Critical Review” 28(1) Civil Justice Quarterly 19(2009). 21. Dorf, Micheal C. & Sabel, F., “A Constitution of Democratic Experimentalism” 98 Columbia Law Review 267(1998). 22. Dr. APJ Abdul Kalam, “Harmonious Relationship among Legislature, Executive and Judiciary”, Indian Advocate, vol. 32-33, 2004-2005 23. Dwivedi, S.P., “Doctrine of Separation of Powers” 29 Journal of Constitutional and Parliamentary Studies 252(1996). 24. Ervin, Sam. J., “Separation of Powers: Judicial Independence” 35(1) Law and Contemporary Problems 108(1970). 25. Fairlee, “The Separation of Powers” 21 Michigan Law Review 393(1922). 26. Gadbois, George H., Jr. and Sharma, Mool Chand, “Law Student Evaluate the Supreme Court – A case of Enchantment”, Journal of the Indian Law Institute Vol. 31: No.1 1989. 27. J.C. Khurana, “Separation of the Judiciary from the Executive”, Journal of Bar Council of India, vol. 3, 1974. 28. Jain, M.P., “Justice Bhagwati and Indian Administrative Law” The Banaras Law Journal (1980). 29. Justice J.N. Bhatt, “Separation of Powers: The Role of Judicial Review Juristic or Forensic? Evolving or Elusive?” vol. 86, AIR 1999.

Definitions and Expressions

30. Khanna, H.R., „Independence of the Judiciary”, 3 SCC 1981 (J). 31. Khosla, Madhav, “Addressing Judicial Activism in the Indian Supreme Court: Towards and Evolving Debate” 32 Hastings Int’l & Comparative Law Review 55(2009). 32. Kirby, Michael, The role of Judges in Advocating Human Rights by referring to International Human Rights Norms. A paper presented at Judicial Colloquium in Bangalore (1988). 33. Krishnaswami, Sudhir & Khosla, Madhav, “Reading A.K. Thakur v. Union of India: Legal Effect and Significance” 43 Eco. & Pol. Weekly 53 (2008). 34. Laxminath, A. & Namballa, Aruna, “Jurisprudence of Judicial Activism and Judicial Restraint” 2 Andhra University Law Journal 125(1996). 35. Madhav, Kholsa, “Judicial Activism: Towards an Evolving Debate” 32 Hastings Int’l & Comparative Law Review 55 (2009). 36. Mehta, Pratap Bhanu, “Judicial Overreach: Its Overwhelming Evidence cannot be ignored” 35 Indian Advocate 79(2007). 37. Mehta, PratapBhanu, “The Rise of Judicial Sovereignty” 18 Journal of Democracy 70 (2007). 38. Murthy B.S., Prescription of social Policy in Exercise of Judicial Power, opportunities and constraints, JILI, Vol.25:2(1983). 39. Puneeth, P, “Administrative Law” XLIII Annual Survey of Indian Law 1(2007). 40. Puneeth, P., “Administrative Law” The Indian Polity: Separation of powers” 35 Indian Advocate 32 (2007). 41. Rajeev, D., “Separation of Powers and Judicial Activism: Tradition versus Modernity” 21 Cochin University Law Review 329(1997). 42. Rao, M., “Judicial Activism”8 SCC Journal 2 (1997). 43. Rao, Pola Koteswar, “Paradox of Judicial Function Theory and Practice; Doctrine of judicial Colourable Amendatory Negative and positive Constitutional Legislation”. Article published in Judicial Activism- Dimensions and Directions. 44. Sathe, S.P. “Judicial Activism: The Indian Experience” 6 Washington University Journal of Law & Polity 29(2001).

Definitions and Expressions

45. Seervai, H.M., „The Fundamental Rights case at the Cross Roads “LXXV Bombay Law Reporter (Journal) 1937. 46. Shah, Sheetal B., “Illuminating the Possible in the Developing World Guaranteeing the Human Right to Health in India” 32 Vanderbilt Journal of Transnational Law 435, 463(1999). 47. Sharma, G.S. “Horizons of Indian Legal Philosophy” 2 Jaipur Law Journal 180(1962). 48. Shubhankar, Dam, “Lawmaking beyond Law makers: Understanding the Little Right and the Great Wrong (Analyzing the Legitimacy of the Nature of Judicial Law making in India‟s Constitutional Dynamic)” 13 Tulane Journal of International and Comparative Law 109, (2000). 49. Somnath Chatterjee, “Separation of Powers and Judicial Activism in India”, Indian Advocate, vol. 34-35, 2006-2007. 50. Sripati, Vijayashri, “Human Rights in India Fifty Years after Independence” Denver Journal of International Law and Policy 93(1997). 51. Swamy, Maheswara, N: “Environment pollution by Industries: Measures of Control through Judicial; Activism – A Critical Analysis”, Articles published in the Book entitled “Judicial Activism-Dimensions and Directions”, edited by D. Banerjee, A. Subramanyam, V. Vijaykumar, 2002. 52. Swamy, Maheswara, N: “Judicial Activism Vis-à-vis Needs of the People of India- A Critical Appraisal”, Article published in the Book entitled “Judiciary in India Constitutional Perspectives” edited by Prof. G, Manohar, Rao, SDr. G.B. Reddy & V. Geeta Rao, Asia Law House, Hyderabad, 2009. 53. T.C.A. Ramanujam, “The Judiciary and legislature”, in Financial Daily from THE HINDU group of publications Friday, Sep 02, 2005 54. Tripathi, P.K., “Rule of Law, Democracy and Frontiers of Judicial Activism”, 17JILI (1975) p.33. 55. Verma, J.S., “The Indian Polity: Separation of Powers” 35 Indian Advocate 29(2007). 56. Wechsler, Herbert, “Toward Neutral Principles of Constitutional Law”, Harward Law Review 73 (November, 1959): 1-35; and Louis Henkin, “Some reflections on current Constitutional controversies”, University of Pennsylvania Law Review 109 March 1961.

Definitions and Expressions

WEBLIOGRAPHY 1. http://en.wikipedia.org/wiki/Separation_of_powers 2. http://districtcourtallahabad.up.nic.in/articles/9th%20schedule.pdf. 3. http://www.thehindubusinessline.com/2006/03/29/stories/2006032900421100. htm 4. Amy Mookerji, Rule of law for healthy democracy in India, available at : http://www.merinews.com/article/rule-of-law-for-healthy-democracy-in India/139150.shtml. 5. Aravin S/o Ganeshan, Adoption of Rule of Law in India & Supreme Court Judgments, available at : http://www.lawyersclubindia.com/artciles/Adoption- of-Rule-of-law-in-India-And-Supreme-Court-Judgement-2901.asp. 6. Arpita Batra, Rule of Law in India, available at : http://www.scribd.com/doc/26791089/Rule-of-law-in India. 7. Cyrus Das and K. Chandra “ JUDGES AND JUDICIAL ACCOUNTABILITY”, Universal Law Publishing Company Ltd., C-FF-A, Ansals Dilkhush Industrial Estate, G.T. Karnal Road, Delhi – 110033. Varinder Bhatia (2007) on “Judicial accountability move yet to take off, available at : Yahoo! India News. 8. Dhurjati Mukherjee “Corruption in Judiciary”, available at : http://www.sarkaritel.com/news_and_features/infa/november2008/12corruptio n_judiciary.htm. (2008). 9. en.wikipedia.org/wiki/Public_Interest_Litigation. 10. http://www.indianexpress.com/story/27579.html. 11. http://www.lawyersclubindia.com/articles/JUDICIAL-ACTIVISM-IN-INDIA- 604.asp. 12. http://www.legalserviceindia.com/article/l16-Separation-Of-Powers.htm. 13. http://www.legalserviceindia.com/articles/juju.htm 14. http://www.preservearticles.com/.../6-essential-functions-of-the-judiciary- system in India. 15. http://www.publishyourarticles.org/eng/articles/functions-of-judiciary.html. 16. http://www.wisegeek.com/what-is-judicial-activism.htm.

Definitions and Expressions

17. J.Bryce, modern Democracies 391 (1921) cited in Sam.J.Ervin, Separation of Powers: Judicial Independence”, available at : http://www.jstor.org/stable/1191032. 18. Judicial Activism in India, available at : http:// www.ksl.edu.np/cpanel/pdf/jua.pdf. 19. Justice A D Mane, Judicial Activism: “A Theory of Judicial Philosophy”, available at : http:// www.nigerianlawguru.com. 20. Justice Bhagawati, P.N., “Enforcement of Fundamental rights – Role of the Courts”, Indian Bar Review Vol24, (1997), available at : http;//www.h.cour.gov.au/speeches.kerbyj.indialt.htm. 21. Justice Shah, Mohit S., Gujarat High Court, Study of the American Legal System for Procedural Reforms in Civil Courts in India, available at : http://www.lawcommissionofindia.nic.in. 22. Rao, M.N., “Judicial Activism”, available at : http://www.geocities.com/bo/borrosia/jud.html . 23. Suman, Meen, “Judicial Accountability”, available at : http;//www.legalindia.in/%E2%80%9Cjudicial.accountability%E2%80%9D. 24. www.dictionary.sensagent.com. & also see http:// www.scribd.com/doc/53149742/judicial Activism-vs.-judicial-Restraint. 25. www.xomba.com/writs_constitution_india http://en.wikipedia.org/wiki/Independence_of_the_judiciary.

NEWSPAPERS 1. Editorial, The Interpreters: Judiciary should not stray from the rule book, TIMES OF INDIA, 17-9-2005 at p. 24. 2. India Today, 22nd January, 2007. 3. The Hindu, 27th April, 1999, 4. The Hindu, Tuesday, February 17, 2009, Delhi ed. 5. The Hindu, Tuesday, Wednesday, April 30, 2009, Delhi ed 6. The Indian Express, 04th August, 1999. 7. Times of India, 27th December, 2008.

Definitions and Expressions

REPORTS/BILLS 1. C.A.D Vol. IX. 2. C.A.D Vol.VII. 3. Compact Oxford Dictionary-Thesaurus – Indian Edition – 2003. 4. Conference of Chief Ministers and Chief Justices, New Delhi, 08th April, 2007. 5. Constitution Assembly Debates, Lok Sabha Secretariat, 2003 6. Encyclopedia of American Constitution, Vol.3 (New York – 1986).

PREFACE

Dr. Rajendra Prasad said on the date of adoption of the Constitution:

(Rachna Singh)

iii