Assignment
Judicial Activism
Submitted By:
Name: Utsav Singh
BA LLB (H), Sem-3 (B)
Roll No. 2101088
Submitted To:
Ms. Shubhanginee
Assistant Professor in Political Science
Department of Political Science
Dr. B. R. Ambedkar National Law University
Acknowledgment
On completion of this project, it is my privilege to acknowledge my heartfelt gratitude
and indebtedness towards my teachers for their valuable suggestion and constructive
criticism.
I wish to express my sincere gratitude towards my teacher Ms. Shubhanginee Mam for
his constant support and guidance throughout. Without his support, I would have never
been able to complete this project. Thank you.
I am also thankful to my institute for they have provided me with all the necessary E-
books, journals, and articles via sources like Manupatra, SSC etc.
Thank you.
Index
Introduction
Under the Indian Constitution, the State is under the prime responsibility to ensure justice,
liberty, equality and fraternity in the country.1 State is under the obligation to protect the
individuals’ fundamental rights and implement the Directive Principles of State Policy. In
order to restrain the State from escaping its responsibilities, the Indian Constitution has
conferred inherent powers, of reviewing the State’s action, on the courts. In this context, the
Indian judiciary has been considered as the guardian and protector of the Indian Constitution.
Considering its constitutional duty, the Indian judiciary has played an active role, whenever
required, in protecting the individuals’ fundamental rights against the State’s unjust,
unreasonable and unfair actions/inactions.
Black’s Law Dictionary defines judicial activism as: “a philosophy of judicial decision-
making whereby judges allow their personal views about public policy, among other factors,
to guide their decisions, usually with the suggestion that adherents of this philosophy tend to
find constitutional violations and are willing to ignore precedent”.
Judicial activism and shift from locus standi to public interest
litigation
Access to justice is a fundamental aspect of rule of law. If the justice is not accessible to all,
establishment of the rule of law is not possible. The individuals fail to reach justice system
due to various reasons including lack of basic necessities, illiteracy, poverty, discrimination,
privacy, poor infrastructure of the justice system, etc.
The Supreme Court of India has recognised in many landmark judgments that access to
justice is a fundamental right.12 Indian Judiciary has played an active role in ensuring access
to justice for the indigent persons, members belonging to socially and educationally
backward classes, victims of human trafficking or victims of beggar, transgender, etc. Since
Independence, the Courts in India have been adopting innovative ways for redressing the
grievances of the disadvantaged persons. In many cases, the Supreme Court exercised its
epistolary jurisdiction13 and took suo motto actions on mere postal letters disclosing the
human rights violations in society. Human rights violations, which published in the
newspapers, were taken into judicial consideration. The court entertains the petitions which
are being filed by the public spirited persons in the public interest. By doing so, the superior
courts have liberated themselves from the shackles of the principle of locus standi and given
the birth to the Public interest litigation in India.
The shift from locus standi to public interest litigation made the judicial process “more
participatory and democratic.”14 S.P. Sathe says: “The traditional paradigm of judicial
process meant for private law adjudication had to be replaced by a new paradigm that was
polycentric and even legislative. While under the traditional paradigm, a judicial decision
was binding on the parties (res judicata) and was binding in personam, the judicial decision
under public interest litigation bound not only the parties to the litigation but all those
similarly situated.”15
The Supreme Court in People’s Union for Democratic Rights v. Union of India16 held that
public interest litigation is different from the traditional adversarial justice system. The court
said that public interest litigation is intended to promote public interest. Public interest
litigation has been invented to bring justice to poor and socially or economically
disadvantaged sections of the society. The violations of constitutional or legal rights of such
large number of persons should not go unnoticed.
In Fertilizer Corporation Kamgar Union v. Union of India,17 the court held that public
interest litigation is part of the participative justice.
Furthermore, the Supreme Court in Bandhua Mukti Morcha v. Union of India18 has justified
the public interest litigation on the basis of “vast areas in our population of illiteracy and
poverty, of social and economic backwardness, and of an insufficient awareness and
appreciation of individual and collective rights”.
The Supreme Court of India in Sheela Barse v. Union of India19 said: “The compulsions for
the judicial innovation of the technique of a public interest action is the constitutional
promise of a social and economic transformation to usher-in an egalitarian social-order and a
welfare-State”. While passing any order under public interest litigation, the intention of the
court is to enforce constitution and rule of law in the society.
One of the landmark cases relating to the public interest litigation was Hussainara Khatoon
(I) v. State of Bihar.21 A series of articles exposing the plight of under trial prisoners in the
State of Bihar was published in a prominent newspaper. Many of the under trial prisoners had
already served the maximum sentence without even being charged for the offence. A writ
petition drawing the Court’s attention to the issue was filed by an advocate. While accepting
it as public interest involved, the Supreme Court held that right to speedy trial is a
fundamental right under Article 21 of the Indian Constitution. The court directed the State to
provide free legal facilities to the under trials so that they could get bail or final release.
In another case of Sheela Barse v. State of Maharashtra,22 a letter alleging custodial
violence of women prisoners in jail was addressed to the Supreme Court. The letter was
written by a journalist who had interviewed some women prisoners in jail. Treating the letter
as a writ petition, the Supreme Court took cognizance and issued directions to the concerned
authority. Similarly, epistolary jurisdiction was exercised by the Supreme Court in Sunil
Batra v. Delhi Administration23 when a prisoner’s letter was treated as writ petition. The
prisoner alleged in the letter that Head Warder brutally assaulted another prisoner. The Court
said that the technicalities cannot stop the court from protecting the civil liberties of the
individuals.
In Municipal Council, Ratlam v. Vardichand,24 the Court admitted the writ petition filed by
a group of citizens who sought directions against the local Municipal Council for removal of
open drains. The Court said that if the “centre of gravity of justice is to shift as indeed the
Preamble to the Constitution mandates, from the traditional individualism of locus standi to
the community orientation of public interest litigation, the court must consider the issues as
there is need to focus on the ordinary men.” Similarly, a petition seeking court’s directions
for protecting the lives of the people who made use of the water flowing in the river Ganga,
was accepted as public interest litigation by the Supreme Court of India in the case of M.C
Mehta v. Union of India.25 In this case, the court directed the local bodies to take effective
measures to prevent pollution of the water in the river Ganga.
In Parmanand Katara v. Union of India,26 a writ petition seeking court’s directions, in order
to provide immediate medical treatment to the persons injured in road or other accidents
without going through the technicalities of the criminal procedure, was filed by an advocate.
The Supreme Court accepted the application of the advocate and directed the medical
establishments accordingly.
Another good example of public interest litigation is S.P. Gupta v. Union of India.27 In this
case, the court recognized the locus standi of bar associations to file writs by way of public
interest litigation. It was said that questioning the executive’s policy of arbitrarily transferring
High Court judges is in the public interest. Explaining the significance of public interest
litigation, the court observed that: “It must now be regarded as well-settled law where a
person who has suffered a legal wrong or a legal injury or whose legal right or legally
protected interest is violated, is unable to approach the court on account of some disability or
it is not practicable for him to move the court for some other sufficient reasons, such as his
socially or economically disadvantaged position, some other person can invoke the assistance
of the court for the purpose of providing judicial redress to the person wronged or injured, so
that the legal wrong or injury caused to such person does not go un-redressed and justice is
done to him.”28
However, the public interest litigation should not be abused by anyone.29 It cannot be
allowed to be used for creating nuisance or for obstructing administration of justice. 30
Judicial activism and fundamental rights jurisprudence
In India, the judiciary has developed the fundamental rights jurisprudence while giving the
liberal interpretation to the ‘right to life and personal liberty’. In its landmark judgments, the
Supreme Court recognized prisoners’ rights including access to court and legal facilities, 31
right to meet his or her family relatives and friends,32 freedom of speech and expression,33
right to compensation,34 mental privacy,35 etc.
The judiciary in India is again responsible for the fundamental right to live in healthy
environment,36 implementing Precautionary and Polluter Principles as basic features of the
sustainable development,37 the application of doctrine of public trust for the protection and
preservation of natural resources,38 etc.
The Supreme Court recognized the fundamental right to education to children. In Bandhua
Mukti Morcha v. Union of India,39 the Supreme Court held that right to education is implicit
in and flows from the right to life guaranteed under Article 21.
The Hon’ble Supreme Court of India in Mohini Jain v. State of Karnataka40 said that the
cumulative effect of Articles 21, 38, Articles 39 (a) and (b), 41 and 45 bind the State to
provide education to all of its citizens.41 The Supreme Court declared that the right to
education flows directly from right to life. The right to life under Article 21 and the dignity of
an individual cannot be assured unless it is accompanied by the right to education. Finally,
the Court announced that the State Government is under an obligation to make endeavor to
provide educational facilities at all levels to its citizens.42
The Constitutional validity of right to education was again discussed by the Supreme Court in
J.P. Unnikrishnan v. State of A.P.43 The Supreme Court held that the right to education
under Article 21 must be read with the directive principles in Part IV of the Indian
Constitution. The Court said that right to education means: “(a) every child/citizen of this
country has a right to free education until he completes the age of fourteen years and (b) after
a child/citizen completes the age of 14 years, his right to education is circumscribed by the
limits of the economic capacity of the State and its developments.”44
By the Constitution (Eighty-sixth Amendment) Act of 2002, three new provisions i.e., Article
21A, new Article 45 and 51-A(k) were inserted into the Indian Constitution. Currently, Right
of Children to Free and Compulsory Education Act, 2009 enforces fundamental right to
education in India.
Due to judicial intervention only, the government was directed to rehabilitate the children of
prostitutes.45 It was ordered that the children of prostitutes should not be allowed to live with
their mothers in the undesirable surroundings of prostitute homes. They require
accommodation and rehabilitation in reformatory homes. Increasingly, the Supreme Court of
India in Vishal Jeet v. Union of India,46 again issued directions to the government to
rehabilitate such children.
In Bachpan Bachao Andolan v. Union of India,47 the Supreme Court directed the
government to prohibit the employment of children in circuses in order to implement the
fundamental right to education. The government was ordered to raid in theses circuses to free
children. The court directed the government to provide shelter and rehabilitation to all
rescued children at care and protective homes until they attain the age of 18 years.
Judicial activism or judicial intervention
At many places, the Parliament has accused the judiciary on the ground of judicial
intervention. Parliament has said that the judiciary overreaches its constitutional power.
In Prakash Singh v. Union of India,48 the petitioners sought directions against the Union of
India and State Governments to constitute various Commissions and Boards laying down the
policies and ensuring that police perform their duties and functions free from any pressure
and also for separation of investigation work from that of law and order.
Similarly, in Vineet Narain v. Union of India,49 the Supreme Court invoked Articles 32 and
142 of the Indian Constitution and issued directions to the government in order to bring
transparency and accountability in the Central Bureau of Investigation (CBI).
On May 11, 2016, the Hon’ble Supreme Court of India in Swaraj Abhiyan-(I) v. Union of
India & Ors.,50 directed the Ministry of Agriculture in the Union of India to update and
revise the Drought Management Manual. The apex court also directed the Union government
to set up a National Disaster Mitigation Fund within three months.
Nevertheless, Finance Minister, Arun Jaitley expressed the difficulty to create a third fund
outside the National Disaster Response Fund and the State Disaster Response Fund, keeping
in view that the Appropriation Bill is being passed. He also raised concern about India’s
budget-making being subject to judicial review.51
Recently, on 16 October 2015 the Constitution Bench of Supreme Court in Supreme Court
Advocates-on-Record-Association v. Union of India,52 in a majority of 4:1 declared the
National Judicial Appointments Commission (NJAC) Act and the Constitutional Amendment
unconstitutional as violating judicial independence. The Court said that the existing
collegium system relating to appointment and transfer of judges would again become
“operative.” Justice Khehar said that the absolute independence of judiciary, from other
organs of governance, protects the rights of the people.
The Supreme Court’s rulings on National Eligibility-cum-Entrance Test (NEET) i.e., single
test for admissions in medical courses, reformation in Board for the Control of Cricket in
India (BCCI), filling up the judges’ post, etc. have been considered as the judicial
intervention by the government.53
There is no dispute on the fact that the judiciary should also self- regulate itself. It should also
put some restraints on its powers, whenever it is required. The Supreme Court in Divisional
Manager, Aravali Golf Course v. Chander Haas54 observed that: “Judges must know their
limits and must not try to run the Government. They must have modesty and humility, and
not behave like Emperors. There is broad separation of powers under the Constitution and
each organ of the State-the legislature, the executive and the judiciary- must have respect for
the others and must not encroach into each other’s domains.”
However, it is submitted that NJAC decision should not be read as if the judiciary has crossed
its Laxmanrekha. The Supreme Court is also welcoming the full-fledged debate on the
existing collegium system and wants it to be updated. Indian Constitution has given the
special status to the Supreme Court and High Courts. Indian higher judiciary has power to
review any legislative, executive and administrative action of the State. The Higher Courts in
India entertain the petitions which are being filed by the public spirited persons in the public
interest. Again, one should not forget that it is all because of the judicial activism that the
indigent persons, members belonging to socially and educationally backward classes, victims
of human trafficking or victims of beggar, transgender, etc. have somehow been provided
with the adequate legal assistance in the process of the enforcement of their fundamental
rights. Furthermore, Article 142 of the Indian Constitution gives the Supreme Court a power
to pass suitable decree or order for doing complete justice in any pending matter.
Reference
1. Manupatra
2. SCC
3. Britannica
