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Judicial Activism

By Ravi Kishore | PUBLISHED: 28, Aug 2010, 12:48 pm IST | UPDATED: 15, Apr 2011, 12:48 pm IST

Judicial Activism Judicial activism was made possible in India, thanks to Public Interest Litigation.   Judicial activism is a situation when the judiciary steps out of its traditional and normal role of as an interpreter of law. It is a proactive role played by the judiciary in ensuring that the rights and liberties of the citizens, as enshrined in the constitution, are protected. Through the process of Judicial activism the judiciary acts beyond its role as adjudicator and interpreter of law and lays down rules and guidelines that the executive must abide by so as that the rights and liberties of the citizens are not curtailed in any manner.

Public Interest Litigation, a manifestation of judicial activism, has introduced a new dimension regarding judiciary's involvement in public administration. The sanctity of locus standi and the procedural complexities are totally side-tracked in the causes brought before the courts through Public Interest Litigation. In the beginning, the application of Public Interest Litigation was confined only to improving the lot of the disadvantaged sections of the society who by reason of their poverty and ignorance were not in a position to seek justice from the courts and, therefore, any member of the public was permitted to maintain an application for appropriate directions. The legal doctrine 'Jus tertii' implying that no one except the affected person can approach a court for a legal remedy was holding the field both in respect of private and public law adjudications until it was overthrown by the Public Interest Litigation wave.

The most significant point to note in Public Interest Litigation is that it discards the traditional concept of locus standi, which means that only  the person whose legal and statutory rights are violated can approach the courts for redressal. In Bandhua Mukti Morcha vs Union of India, Supreme Court entertained a matter concerning release of bonded labour which was filed by an organization dedicated to the cause of release of bonded labour. The Supreme Court went on to emphasize that “Public Interest Litigation is not in the nature of adversary litigation but it is a challenge and an opportunity to the Government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social and economic justice which is the signature tune of our constitution”

As Justice Bhagwati reiterated, “A new dimension has been given to the doctrine of locus standi which has revolutionized the whole concept of access to justice”. He further emphasized that there is no limitation that the Fundamental Rights sought to be enforced must belong to the person moving the Court. When there is a violation of the Fundamental Right of a person or a class of person who cannot have retort to the court because of poverty or disability or socially or economically disadvantaged position, the court must allow any member of the public acting bonafide to espouse the cause of such a person or persons can move the court for judicial enforcement of the Fundamental Right of such person or class of person


In Bandhua Mukti Morcha case Supreme Court explained the philosophy underlying Public Interest Litigation as under :
“ .. where a person or class of person to whom legal injury is caused by reason of violation of a Fundamental Right is unable to approach the Court for Judicial redress on account of poverty or disability or economic disadvantaged position, any member of the public acting bona fide can move the court for relief.”

The Supreme Court further emphasized : “ … that the Fundamental Rights may become meaningful not only for rich and the well to do who have the means to approach the Court  but also for the large masses of people who are living a life of want and destitution and who by reason of lack of awareness, assertiveness, and resources are unable to seek judicial redress”

Public Interest Litigation however, now serves much broader function than merely as a tool for safeguarding the interests of the weak and the down trodden. It is now being used as an effective tool to espouse the cause and grievances of the society as a whole rather than an individual.  In S P Gupta vs Union of India, Justice Bhagwati enunciated: “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 provisions of the Constitution  or the law and seek enforcement of such public duty and observance of such constitutional or legal provision.”

However, Public Interest Litigation should not be used by a petitioner as a tool to further his private interests. Before the court entertains a Public Interest Litigation  , it must be satisfied that the person who approaches it has sufficient interest in the matter. Stated differently, the test is whether the petitioner has locus standi to maintain the action? This is intended to avoid unnecessary litigation. However, a writ petitioner who comes to court for relief in public interest must come to court not only with clean hands, like any other writ petitioner but also with a clear heart, clean mind and clean objectives.

The judicial power under our Constitution is vested in the Supreme Court and the High Courts which are empowered to exercise the power of judicial review both in regard to legislative and executive actions. Judges cannot shirk their responsibilities as adjudicators of legal and constitutional matters.  Judiciary’s role as an interpreter of law and dispenser of justice according to law and the constitution should not be allowed to be diminished either because of the perceived notions of the other two wings of the State - the legislature and the executive or any section of the public.

Although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity but the Constitution-makers have meticulously defined the three organs of the State. Legislature, Executive and Judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. Judiciary has to ensure, as a custodial of Constitution that the aforesaid two main organs of the State function within the constitutional limits.  Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social economic justice

It is true that in adjudicating public law matters, the court takes into account the social and economic realities while considering the width and amplitude of the constitutional rights. Touching upon this aspect, the Supreme Court in a decision, speaking through K. Ramaswamy, J., in C. Ravichandran Iyer v. Justice A.M. Bhattacharjee made very pertinent observations:

"In this ongoing complex of adjudicatory process, the role of the Judge is not merely to interpret the law but also to lay new norms of law and to mould the law to suit the changing social and economic scenario to make the ideals enshrined in the Constitution meaningful and reality. Therefore, the judge is required to take judicial notice of the social and economic ramification, consistent with the theory of law."

The permanent values embodied in the Constitution need interpretation in the context of the changing social and economic conditions which are transitory in nature. The constitutional court undertakes the delicate task of reconciling the permanent with the transitory. It is the duty of the executive to implement faithfully the laws made by the legislature. When the executive fails to discharge its obligations, it becomes the duty of the judiciary to compel the executive to perform its lawful functions. . When crimes are committed by men in power and attempts are made to conceal them by rendering the official machinery ineffective, recourse to judiciary becomes inevitable. It becomes the duty of the judiciary to take cognizance of the executive's lapses and issue appropriate directions as to the method and manner in which the executive should act as ordained by the Constitution and the laws..

Judicial activism characterized by moderation and self-restraint is bound to restore the faith of the people in the efficacy of the democratic institutions which alone, in turn, will activate the executive and the legislature to function effectively under the vigilant eye of the judiciary as ordained by the Constitution.

Public Interest Litigation is a weapon which has to be used with great care and circumspection; It is to be used as an effective weapon in the armoury of law for delivering social justice to citizens. The attractive brand name of Public Interest Litigation should not be used for suspicion products of mischief. It should be aimed at redressal of genuine of public wrong or public injury and to be publicly oriented or founded on personal vendetta. The grievance in a public interest action is about the content and conduct of Government action in relation to the constitutional or statutory rights of segments of society and in certain circumstances the conduct of Government Policy. The relief to be granted looks to the future and is, generally, corrective rather than compensatory which. The court has a dynamic and positive role.
 
However, the financial or economic decisions taken by the Government in exercise of its administrative powers cannot be challenged in A PIL unless the same is violative of Article 21 of the constitution and the person adversely affected are unable to approach the court. Though the Supreme Court may exercise its jurisdiction for the protection of the cultural heritage and ecology and environment, but then in discharge of the said duty, should not take upon itself the task of determining the guilt or otherwise of an individual in the criminal proceedings. It should not embark upon an enquiry in regard to the allegation of criminal misconduct so as to form an opinion one way or the other so as to prime facie determine guilt of a person or otherwise. This position was reiterated by Supreme Court in Taj Corridor case


This extraordinary jurisdiction was evolved by the Supreme Court for the enforcement of fundamental rights in its jurisdiction under article 32 in Upendra Baxi v State of U.P, where two law professors addressed letter to the Supreme Court complaining that the fundamental rights of the inmates of the Protective Home under Art 21 were being violated bythe Government Home.

In Gupta S P vs Union of India where Upendra Baxi’s case was referred to, the doctrine of public interest litigation was formulated by the seven judges bench  in a comprehensive judgment form,   to apply to any case of public injury arising from :

•    The breach of any public duty or
•    The violation of some provision of constitution or of the law
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