Longish Term Paper
Name : - Ankit P. Mohta Subject : - Constitution Topic : - A Critical Critical Study of Independence Independence of Judiciary In India
Synopsis 1) Introduction 2) Meaning 3) Need for the Independence of Judiciary 1) To check the Functioning of the Organs 2) Interpreting the Provisions of the Constitution 3) Disputes referred to the Judiciary 4) Constitutional Provisions 1) Security of Tenure 2) Salaries & Allowances 3) Powers & Jurisdiction of Supreme Court 4) No discussion on conduct of Judge in state Legislature or Parliament 5) Power to Punish for Contempt 6) Separation of the Judiciary from the Executive 5) Role of Judiciary in Modern Constitution 6) Judicial Review under the Indian Constitution 1) Judicial Review’s two prime functions a) Legitimizing government action b) To protect the constitution against any undue encroachment by the government 2) Judicial Review of Legislative Enactment & Ordinances 3) Principles of Judicial Review 7) Public Interest Litigation And Judicial Activism
a) Public Interest Litigation b) Judicial Activism 8) Origin & Development of Public Interest Litigation 9) Problems regarding the Exercise of Judicial Activism through Public Interest Litigation 10)Conclusion
Synopsis 1) Introduction 2) Meaning 3) Need for the Independence of Judiciary 1) To check the Functioning of the Organs 2) Interpreting the Provisions of the Constitution 3) Disputes referred to the Judiciary 4) Constitutional Provisions 1) Security of Tenure 2) Salaries & Allowances 3) Powers & Jurisdiction of Supreme Court 4) No discussion on conduct of Judge in state Legislature or Parliament 5) Power to Punish for Contempt 6) Separation of the Judiciary from the Executive 5) Role of Judiciary in Modern Constitution 6) Judicial Review under the Indian Constitution 1) Judicial Review’s two prime functions a) Legitimizing government action b) To protect the constitution against any undue encroachment by the government 2) Judicial Review of Legislative Enactment & Ordinances 3) Principles of Judicial Review 7) Public Interest Litigation And Judicial Activism
a) Public Interest Litigation b) Judicial Activism 8) Origin & Development of Public Interest Litigation 9) Problems regarding the Exercise of Judicial Activism through Public Interest Litigation 10)Conclusion
INDEPENDENCE OF JUDICIARY IN INDIA : A CRITICAL ANALYSIS INTRODUCTION:-
The framers of the Indian Constitution at the time of framing of our constitution were concerned about the kind of judiciary our country should have. This concern of the members of the constituent assembly was responded res ponded by Dr. B.R. Ambedkar 1 in the following words : "There can be no difference of opinion in the House that our judiciary must be both independent of the executive and must also be competent in itself. And the question is how these two objects can be secured ".
The question that arises at first instance in our minds is that what made the framers of our constitution to be so much concerned about providing the separate entity to the judiciary and making it self competent. The answer to this question lies in the very basic understanding that so as to secure the stability and prosperity of the society, the framers at that time understood that such a society could be created only by guaranteeing the fundamental rights and the independence of the judiciary to guard and enforce those fundamental rights. Also in a country like India, the independence of the judiciary is of utmost importance in upholding the pillars of the democratic system hence ensuring a free society. It is a well-known fact that the independence of the judiciary is the basic ba sic requisite for ensuring a free fr ee and fair society under the rule of law. Rule of law that is responsible for good governance of the country can be secured through unbiased judiciary. 1
CDA Vol 8
The doctrine of Separation of Powers which was brought into existence to draw upon the boundaries for the functioning of all the three organs of the state: Legislature, Executive and the Judiciary, provides for a responsibility to the judiciary to act as a watchdog and to check whether the executive and the legislature are functioning within their limits under the constitution and not interfering in each others functioning. This task given to the judiciary to supervise the doctrine of separation of powers cannot be carried on in true spirit if the judiciary is not independent in itself. An independent judiciary supports the base of doctrine of separation of powers to 2 a large extent. It is theoretically very easy to talk about the independence of the judiciary as for which the provisions are provided for in our constitution but these provisions introduced by the framers of our constitution can only initiate towards the independence of the judiciary. The major task lies in creating a favorable environment for the functioning of the judiciary in which all the other state organs functions in cooperation so that the independence of the judiciary can be achieved practically. The independence of the judiciary has also to be guarded against the changing economic, political and social scenario. Whenever there is a talk regarding the independence of the judiciary, there is also a talk of the restrictions that must be imposed on the judiciary as an institution and on the individual judges that forms a part of the judiciary. In order to ensure smooth functioning of the system there must be a right blend of the two.
2
S.P Sathe’s “Administrative Law”
MEANING:-
The meaning of the independence of the judiciary is still not clear after years of its existence. Our constitution by the way of the provisions just talks of the independence of the judiciary but it is no where defined what actually is the independence of the judiciary.The primary talk on the independence of the judiciary is based on the doctrine of separation of powers which holds its existence from several years. The doctrine of separation of powers talks of the independence of the judiciary as an institution from the executive and the legislature. The other meaning of the judicial independence can be found out by looking at the writings of the scholars who have researched on the topic. Scholars have followed the "constituent mechanism" (i.e. what constitutes the judiciary) to define the independence of the judiciary. Scholars try to define judiciary by talking about the independence of the judges which constitutes judiciary. Therefore the independence of the judiciary is the independence of the exercise of the functions by the judges in an 3 unbiased manner i.e. free from any external factor. Shetreet in his work tries to explain the words "Independence" and "Judiciary" separately, and says that the judiciary is "the organ of the government not forming a part of the executive or the legislative, which is not subject to personal, substantive and collective control, and which performs the primary function of adjudication". The final outcome that can be derived from Shetreet's writings is that the independence of the judiciary as an institution and the independence of the individual judges both have to go hand in hand as the independence of the judiciary as an institution is not possible without the independence of the individual judges and is the institution of the judiciary is not independent, there is no question of the independence of the individual judges. 3
Bhattacharya’s , “Judging The Judge”
NEED FOR THE INDEPENDENCE OF THE JUDICIARY
The basic need for the independence of the judiciary 4 rests upon the following points: 1.
To check the functioning of the organs: -
Judiciary acts as a watchdog by ensuring that all the organs of the state function within their respective areas and according to the provisions of the constitution. Judiciary acts as a guardian of the constitution and also aids in securing the doctrine of separation of powers. 2.
Interpreting the provisions of the constitution:-
It was well known to the framers of the constitution that in future the ambiguity will arise with the provisions of the constitution so they ensured that the judiciary must be independent and self-competent to interpret the provision of the constitution in such a way to clear the ambiguity but such an interpretation must be unbiased i.e. free from any pressure from any organs like executive. If the judiciary is not independent, the other organs may pressurize the judiciary to interpret the provision of the constitution according to them. Judiciary is given the job to interpret the constitution according to the constitutional philosophy and the constitutional norms. 3.
Disputes referred to the judiciary:-
It is expected of the Judiciary to deliver judicial justice and not partial or committed justice. By committed justice we mean to say that when a judge emphasizes on a particular aspect while giving justice and not considering all the aspects involved in a particular situation. Similarly judiciary must act in an unbiased manner.
4
B.L Hansaria’s “The Judiciary and the Law”
CONSTITUTIONAL PROVISIONS
Many provisions are provided in our constitution to ensure the independence of the judiciary. The constitutional 5 provisions are discussed below:1.
Security of Tenure:
The judges of the Supreme Court and High Courts have been given the security of the tenure. Once appointed, they continue to remain in office till they reach the age of retirement which is 65 years in the case of judges of Supreme Court (Art. 124(2)) and 62 years in the case of judges of the High Courts (Art. 217(1)). They cannot be removed from the office except by an order of the President and that too on the ground of proven misbehavior and incapacity. A resolution has also to be accepted to that effect by a majority of total membership of each House of Parliament and also by a majority of no less than two third of the members of the house present and voting. Procedure is so complicated that there has been no case of the removal of a Judge of Supreme Court or High Court under this provision. 2.
Salaries and Allowances:
The salaries and allowances of the judges is also a factor which makes the judges independent as their salaries and allowances are fixed and are not subject to a vote of the legislature. They are charged on the Consolidated Fund of India in case of Supreme Court judges and the Consolidated Fund of state in the case of High Court judges. Their emoluments cannot be altered to their disadvantage (Art. 125(2)) except in the event of grave financial emergency. 3.
Powers and Jurisdiction of Supreme Court:
Parliament can only add to the powers and jurisdiction of the Supreme Court but cannot curtail them. In the civil cases, 5
Gogia Law Agency’s, “Judicial Activism”
Parliament may change the pecuniary limit for the appeals to the Supreme Court. Parliament may enhance the appellate jurisdiction of the Supreme Court. It may confer the supplementary powers on the Supreme Court to enable it work more effectively. It may confer power to issue directions, orders or writs for any purpose other than those mentioned in Art. 32. Powers of the Supreme Court cannot be taken away. Making judiciary independent. 4.
No discussion on conduct of Judge in State Legislature / Parliament:
Art. 211 provides that there shall be no discussion in the legislature of the state with respect to the conduct of any judge of Supreme Court or of a High Court in the discharge of his duties. A similar provision is made in Art. 121 which lays down that no discussion shall take place in Parliament with respect to the conduct of the judge of Supreme Court or High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the judge. 5.
Power to punish for contempt:
Both the Supreme Court and the High Court have the power to punish any person for their contempt. Art. 129 provides that the Supreme Court shall have the power to punish for contempt of itself. Likewise, Art. 215 lays down that every High Court shall have the power to punish for contempt of itself. 6.
Separation of the Judiciary from the Executive:
Art. 50 contains one of the Directive Principles of State Policy and lays down that the state shall take steps to separate the judiciary from the executive in the public services of the state. The object behind the Directive Principle is to secure the independence of the judiciary from the executive. Art. 50 says that there shall be a separate judicial service free from executive control.
Role of Judiciary in Modern Constitution
The role of the Judiciary in India has recently come under considerable attack, particularly from the Legislative branch, which feels that the courts have been exceeding their authority in interpreting the law, and that they have become an extra-constituional lawmaking body. In this paper, the author takes the position that judicial activism in general, and the role of the judiciary in particular, has in fact been critical in protecting and preserving the fundamental rights and basic dignities that the people of the country are entitled to and the rule of law, thanks to the power of judicial review that is embedded in the basic structure of the Constitution of India. Indeed, despite the linguistic, ethnic and political divisions that making up the dizzying mosaic of India’s polity, the author argues that it is the Constitution and the judiciary’s role in upholding the word of law to protect the people from political and bureaucratic excess that has fostered the very idea of being Indian. •
•
•
•
It is a balancing wheel of the federation; It keeps equilibrium between fundamental rights and social justice; It forms all forms of authorities within the bounds; It controls the Administrative Tribunals. Social justice is the main concept on which our constitution is built. 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. In other sense, they are under an obligation to do so. While applying judicial discretion in adjudication, judiciary should be so cautious. And prime importance should be 6 to promote social justice. Supreme Court had itself suggested in one of the early 7 and landmark case (Bandhu Mukti Morcha v Union of India) 6
V.N Shukla’s , The Constitution of India
7
1984 I SCC 161, 234
There is a great merit in the court proceedings to decide an issue on the basis of strict legal principle and avoiding carefully the influence of purely emotional appeal. For that alone gives the decision of the court a direction which is certain and unfaltering, and that especial permanence in legal jurisprudence which makes it a base for the next step forward in the further progress of the law. Indeed both certainty of substance and certainty of direction are indispensable requirement in the development of the law and invest it with credibility which commands public confidence in its legitimacy. The Court must take care to see that it does not overstep the limits of its judicial function and trespass into areas which are reserved to the executive and the legislature by the constitution. If a considered policy decision has been taken which is not in conflict with any law or is not malafide, it will not be in Public Interest to require the court to go into and investigate those areas which are the function of the executive. When two or more options or views are possible and after considering them the government takes a policy decision it is then not the function of the court to go into the matter a fresh and in a way, sit in appeal 8 over such a policy decision (Balco v. Union of India) whatever method adopted by judiciary in adjudication, it must be the procedure known to the judicial tenets. . It is proper to conclude with the note adopted by Justice Ranganatha Misra in the case of Dr. P. Nalla Thampy Thera v.Union of India as follows “But how noble will be the boast of the citizens of free India of today when they shall have it to say that they found law dear and left it cheaper; found it sealed book and left it a living letter; found it the patrimony of the rich and left if the inheritance of the poor; found it the two edged sword of craft and oppression and left it the staff of honesty and the shield of innocence.“It is only in a country of that order that the common man will have his voice heard”. 2002( 2) SCC 333
8
Judicial Review under the Indian constitution
The power of Judiciary to review and determine validity of a law or an order may be described as the power of "Judicial Review." It means that the constitution is the Supreme law of the land and any law in consistent there with is void. The term refers to "the power of a court to inquire whether a law executive order or other official action conflicts with the written constitution and if the court concludes that it does, to declare it unconstitutional and void." 9
Judicial Review has two prime functions :
(1) Legitimizing government action (2) To protect the constitution against any undue encroachment by the government. The most distinctive feature of the work of United States Supreme Court is its power of judicial review. As guardian of the constitution, the Supreme Court has to review the laws and executive orders to ensure that they do not violate the constitution of the country and the valid laws passed by the congress. The power of judicial review was first acquired by the Supreme Court in Marbury vs. Madison case. 1803. The constitution of India, in this respect, is more a kin to the U.S. Constitution than the British. In Britain, the doctrine of parliamentary supremacy still holds goods. No court of law there can declare a parliamentary enactment invalid. On the contrary every court is constrained to enforce every provision" of the law of parliament. Under the constitution of India parliament is not Supreme. Its powers are limited in the two ways. First, there is the division of powers between the union and the states. Parliament is 9
D.D Basu’s, “The Shoter Constitution of India”
competent to pass laws only with respect to those subjects which are guaranteed to the citizens against every form of legislative encroachment. Being the guardian Fundamental Rights and the arbiter of-constitutional conflicts between the union and the states with respect to the division of powers between them, the Supreme Court stands in a unique position where from it is competent to exercise the power of reviewing legislative enactments both of parliament and the state legislatures. This is what makes the court a powerful instrument of judicial review under the constitution. As Dr. M.P. Jain has rightly observed: "The doctrine of judicial review is thus firmly rooted in India, and has the explicit sanction of the 10 constitution." In the framework of a constitution which guarantees individual Fundamental Rights, divides power between the union and the states and clearly defines and delimits the powers and functions of every organ of the stat^ including the parliament, judiciary plays a very important role under their powers of judicial review. The power of judicial review of legislation is given to the judiciary both by the political theory and text of the constitution. There are several specific provisions in the Indian constitution, judicial review of legislation such as Art 13, 32, 131136, 143, 226, 145, 246, 251, 254 and 372. Article 372 (1) establishes the judicial review of the pre-constitutional legislation similarly. Article 13 specifically declares that any law which contravenes any of the provision of the part of Fundamental Rights shall be void. Even our Supreme Court has observed, even without the specific provisions in Article 13.
10
M.P Jain’s, “Constitutional Law of India”
The court would have the power to declare any enactment which transgresses a Fundamental Right as invalid. The Supreme and high courts are constituted the protector and guarantor of Fundamental Rights under Articles 32 and 226. Articles 251 and 254 say that in case of in consistent if between union and state laws, the state law shall be void. The basic function of the courts is to adjudicate disputed between individuals and the state, between the states and the union and while so adjudicating, the courts may be required to interpret the provisions of the constitution and the laws, and the interpretation given by the Supreme Court becomes the law honoured by all courts of the land. There is no appeal against the judgement of the Supreme Court. 11
In Shankari Prasad vs. Union of India the first Amendment Act of 1951 was challenged before the Supreme Court on the ground that the said Act abridged the right to property and that it could not be done as there was a restriction on the amendment of Fundamental Rights under Article 13 (2). The Supreme Court rejected the contention and unanimously held. "The terms of Article 368 are perfectly general and empower parliament to amend the constitution without any exception whatever. In the context of Article 13 law must be taken to mean rules or regulations made in exercise of ordinary legislative power and amendments to the constitution made in exercise of constituent power, with the result that Article 13 (2) does not affect amendments made under Article 368." 12
In Sajan Singh's case , the corupetence of parliament to enact 17th amendment was challenged before the constitution. Bench comprising of five judges on the ground that it violated the Fundamental Rights under Article 31 (A).
11 12
AIR 1951 SC 458 AIR 1964 SC 464
Supreme court reiterated its earlier stand taken in Shankari sad's case and held, "when article 368 confers on parliament the right to amend the constitution the power in question can be exercised over all the provisions of the constitution, it would be unreason about to hold that the word law' in article 13 (2) takes in amendment Acts passed under article 368. Thus, until 1967 the Supreme Court held that the Amendment Acts were not ordinary laws, and could not be struck down by the application of article 13 (2). The historic case of Golak Nath vs. The state of 13 Punjab was heard by a special bench of 11 judges as the validity of three constitutional amendments (1st, 4th and 17th) was challenged. The Supreme Court by a majority of 6 to 5 reversed its earlier decision and declared that parliament under article 368 has no power to take away or abridge the Fundamental Rights contained in chapter II of the constitution the court observed. (1) Article 368 only provides a procedure to be followed regarding amendment of the constitution. (2) Article 368 does not contain the actual power to amend the constitution. (3) The power to amend the constitution is derived from Article 245, 246 and 248 and entry 97 of the union list. (4) The expression 'law' as defined in Article 13 (3) includes not only the law made by the parliament in exercise of its ordinary legislative power but also an amendment of the constitution made in exercise of its constitution power. , (5) The amendment of the constitution being a law within the meaning of Article 13 (3) would be void under Article 13 (2) of it
13
AIR 1967 SC 1643
takes away or abridges the rights conferred by part III of the constitution. (6) The First Amendment Act 1951, the fourth Amendment Act 1955 and the seventeenth Amendment Act. 1964 abridge the scope of Fundamental Rights and, therefore, void under Article 13 (2) of the constitution. The constitutional validity of the 14th, 25th, and 29th Amendments was challenged in the Fundamental Rights case. The Govt. of India claimed that it had the right as a matter of law to change or destroy the entire fabric of the constitution through the instrumentality of parliament's amending power. In Minerva Mills case (1980) the Supreme Court by A majority decision has trunk down section 4 of the 42nd Amendment Act which gave preponderance to the Directive Principles over Articles 24, 19 and 31 of part III of the constitution, on the ground that part III and part IV of the constitution are equally important and absolute primacy of one over the other is not permissible as that would disturb the harmony of the constitution. The Supreme Court was convinced that anything that destroys the balance between the two part will IpsoTacto destroy an essential element of the basic structure of our constitution. 1)Judicial Review of Legislative Enactment and ordinances:
One of the first major case A.K. Gopalan Vs. State of Madras that came up before the Supreme Court in which the preventive Intention Act, 1950 was challenged as invalid.The court by a unanimous decision declared section 14 of the Act invalid and thus manifested its competence to declare void any parliamentary enactment repugnant to the provisions of the constitution.In Champakan Dorairajan's case, the Supreme Court held that the order of the state government fixing proportionate 14
14
AIR 1950 SC 27
scales, for different communities for admission to medical colleges was unconstitutional. The presidential order de-recognising privy purses was also challenged in the Supreme Court which declared the order as unconstitutional and void. Between 1950-1980 parliament passed as many as 1977 Acts and out of them, the Supreme Court invalidate laws passed on 22 occasions. 2)Principles of Judicial Review:
Justice VS Deshpande in his book propounded a thesis that Judicial Review of legislation in India should rest merely on Article 245 (1) and not on Article 13. According to him, Article 245 (1) interpreted broadly would ensure the supremacy of the constitution over all kinds of laws. Thus, a law to be valid must conform with the constitutional forms. The grave responsibility of deciding upon the validity of laws, is laid up on the judges of the Supreme Court. If a statue isn't within the scope of legislative authority or it offends some constitutional restriction or prohibition, that statue is unconstitutional and hence invalid. The Statue is not held unconstitutional by the court in a light vein. Both the 'felt necessities of the time' and 'constitutional fundamentals' are balanced by the court. Accordingly, the Supreme Court has evolved certain canons, making and norms. H.M. Seervai has enumerated following rules 15 in this regard. (1) There is a presumption in favour of constitutionality, and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt; and the on us to prove that it is unconstitutional lies upon the person who challenges it. (2) Where the validity of a statue is questioned and there are two interpretations, one of which would make the law valid, and the 15
The Position Of Judiciary under the Constitution Of India, “ H.M. Seervai
other void, the former must be preferred and the validity of the law upheld. (3) The court will not decide constitutional questions of a case is capable of being decided on other grounds. (4) The court will not decide a larger constitutional question than is required by the case before it. (5) The court will not hear an objection as to the constitutionality of a law by a person whose rights are not affected by it. (6) Ordinarily, courts should not pronounce on the validity of an Act or part of an Act, which has not been brought into force because till then the question of validity would be merely academic.
Public Interest Litigation And Judicial Activism 1) Public Interest Litigation:-
The words `Public Interest' mean "the common well being also public welfare (Oxford English Dictionary 2nd Edn. Vol.Xll) and the word '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." Thus, the expression `Public Interest Litigation' means "some litigations conducted for the benefit of public or for removal of some public grievance." In simple words, public interest litigation means. any public spirited citizen can move/approach the court for the public cause (or public interest or public welfare) by filing a petition in the Supreme Court under Art.32 of the Constitution or in the High Court under Art.226 of the Constitution or before the Court of Magistrate under Sec. 133 of the Code of Criminal Procedure, 1973.
16
The seeds of the concept of public interest litigation were initially sown in India by Krishna Iyer J., in 1976 in Mumbai Kamagar Sabha vs. Abdul Thai
17
and was initiated in
i
Akhil I3/taratiya Sos/ail Karnuu:hari Sangh (Raihvaiy vs, Union of India, wherein an unregistered association of workers was permitted to institute a writ petition under Art.32 of the 16 17
Gogia Law Agency’s, “Judicial Activism” (AIR 1976 SC 1455; 1976 (3) SCC 832)
Constitution for the redrcssal of common grievances. Krishna lyer J., enunciated the reasons for liberalization of the rule of Locus Standi in Fertilizer Corporation Kamgar vs. Union of India
18
and
the ideal of 'Public Interest Litigation' was blossomed in S.F. Gupta and others vs. Union of India
19
2) 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. The Judicial Activism in India can he witnessed with reference to the review power of the Supreme Court under Article 32 and I (belt Courts under Article 226 of the Constitution particularly in Public Interest Litigation. Earlier, in England there were two kinds of courts namely. Equity Courts (Court of Chancery) and Common Law Courts. Equity Courts used to decide cases applying the principles of equity i.e. Justice. equity and good conscience. Whereas the common law courts used to decide cases basing on common law i.e. the principles' rules evolved by the Judge; during judicial pronouncements. Hence. the common law is also known as the 'Judge-made-law:' The courts of Equity / Chancery played significant role in formulating the new piles of tart. The common 18 19
AIR 1981 SC 149; 1981 (2) SCR 52 AIR 1982 SC 149
law originated in England was spread in British Colonies including India. In India, almost all laws are originated ham the fairish Common law. In the absence of existing rules for relief in certain cases and predictive procedure, the court' of equity or chancery took the initiative to draw up new rules. 'The new rules to settle the conflicting positions that had arisen in certain cases is called 'Judicial Activism'. The equity court- and common law courts were merged with the passing of the Judicature .Act, I875. ORIGIN AND DEVELOPMENT OF PUBLIC INTEREST LITIGATION IN INDIA
It should be noted at outset that PIL, at least as it had developed in India, is different from class action or group litigation. Whereas
the
latter
is
driven
primarily
by
efficiency
considerations, the PIL is concerned at providing access to justice to all societal constituents. PIL in India has been a part of the constitutional litigation and not civil litigation. Therefore, in order to appreciate the evolution of PIL in India, it is desirable to have a basic understanding of the constitutional framework and the Indian judiciary. After gaining independence from the British rule on August 15, 1947, the people of India adopted a Constitution in November 1949 with the hope to establish a ‘‘sovereign socialist secular democratic republic’’. Among others, the Constitution aims to secure to all its citizens justice (social, economic and political), liberty (of thought, expression, belief, faith and
worship) and equality (of status and of opportunity). These aims were not merely aspirational because the founding fathers wanted to achieve a social revolution through the Constitution. The main tools employed to achieve such social change were the provisions on fundamental rights (FRs) and the directive principles of state policy (DPs), which Austin described as the ‘‘conscience of the Constitution’’. In order to ensure that FRs did not remain empty declarations, the founding fathers made various provisions in the Constitution to establish an independent judiciary. As we will see below, provisions related to FRs, DPs and independent judiciary together provided a firm constitutional foundation to the evolution of PIL in India. Part III of the Constitution lays down various FRs and also specifies grounds for limiting these rights. ‘‘As a right without a remedy does not have much substance’’, the remedy to approach the Supreme Court directly for the enforcement of any of the Pt III rights has also been made a FR. The holder of the FRs cannot waive them. Nor can the FRs be curtailed by an amendment of the Constitution if such curtailment is against the basic structure of the Constitution.12 Some of the FRs are available only to citizens while others are available to citizens as well as non-citizens, including juristic persons. Notably, some of the FRs are expressly conferred on groups of people or community. Not all FRs are guaranteed specifically against the state and some of them are expressly guaranteed against non-state
bodies. Even the ‘‘state’’ is liberally defined in art.12 of the Constitution to include, ‘‘the Government and Parliament of India and the Government and the legislature of each of the states and all local or other authorities within the territory of India or under the control of the Government of India’’. The expression ‘‘other authorities’’ has been expansively interpreted, and any agency or instrumentality of the state will fall within its ambit.
The DPs find a place in Pt IV of the
Constitution. Although the DPs are not justiciable,
they are,
‘‘nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws’’. After initial deviation, the Supreme Court accepted that FRs are not superior to DPs on account of the latter being non-justiciable: rather FRs and DPs are complementary and the former are a means to achieve the goals indicated in the latter. The issue was put beyond any controversy in Minerva Mills Ltd v Union of India where the Court held that the, ‘‘harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution’’. Since then the judiciary has employed DPs to derive the contents of various FRs. The founding fathers envisaged ‘‘the judiciary as a bastion of rights and justice’’. An independent judiciary armed with the
power of judicial review was the constitutional device chosen to achieve this objective. The power to enforce the FRs was conferred on both the Supreme Court and the High Courts —the courts that have entertained all the PIL cases. The judiciary can test not only the validity of laws and executive actions but also of constitutional amendments. It has the final say on the interpretation of the Constitution and its orders, supported with the power to punish for contempt, can reach everyone throughout the territory of the country. Since its inception, the Supreme Court has delivered judgments of far-reaching importance involving not only adjudication of disputes but also determination of public policies and establishment of rule of law and constitutionalism. PROBLEMS REGARDING THE EXERCISE OF JUDICIAL ACTIVISM THROUGH PUBLIC INTEREST LITIGATION
It seems that the misuse of PIL in India, which started in the 1990s, has reached to such a stage where it has started undermining the very purpose for which PIL was introduced. In other words, the dark side is slowly moving to overshadow the bright side of the PIL project. (1) Ulterior purpose: Public in PIL stands substituted by private or publicity. One major rationale why the courts supported PIL was its usefulness in serving the public interest. It is doubtful, however, if PIL is still wedded to that goal. As we have seen
above, almost any issue is presented to the courts in the guise of public interest because of the allurements that the PIL jurisprudence offers (e.g. inexpensive, quick response, and high impact). Of course, it is not always easy to differentiate ‘‘public’’ interest from ‘‘private’’ interest, but it is arguable that courts have not rigorously enforced the requirement of PILs being aimed at espousing some public interest. Desai and Muralidhar confirm the perception that: ‘‘PIL is being misused by people agitating for private grievances in the grab of public interest and seeking publicity rather than espousing public causes.’’122 It is critical that courts do not allow ‘‘public’’ in PIL to be substituted by ‘‘private’’ or ‘‘publicity’’ by doing more vigilant gate-keeping. (2) Inefficient use of limited judicial resources : If properly managed, the PIL has the potential to contribute to an efficient disposal of people’s grievances. But considering that the number of per capita judges in India is much lower than many other countries and given that the Indian Supreme Court as well as High Courts are facing a huge backlog of cases,123 it is puzzling why the courts have not done enough to stop non-genuine PIL cases. In fact, by allowing frivolous PIL plaintiffs to waste the time and energy of the courts, the judiciary might be violating the right to speedy trial of those who are waiting for the vindication of their private interests through conventional adversarial litigation. A related problem is that the courts are taking unduly long time in finally disposing of even PIL cases. This might
render ‘‘many leading judgments merely of an academic value’’.124 The fact that courts need years to settle cases might also suggest that probably courts were not the most appropriate forum to deal with the issues in hand as PIL. (3) Judicial populism: Judges are human beings, but it would be unfortunate if they admit PIL cases on account of raising an issue that is (or might become) popular in the society. Conversely, the desire to become people’s judges in a democracy should not hinder admitting PIL cases which involve an important public interest but are potentially unpopular. The fear of judicial populism is not merely academic is clear from the following observation of Dwivedi J. in Kesavnanda Bharathi v State of Kerala:‘‘The court is not chosen by the people and is not responsible to them in the sense in which the House of People is. However, it will win for itself a permanent place in the hearts of the people and augment its moral authority if it can shift the focus of judicial review from the numerical concept of minority protection to the humanitarian concept of the protection of the weaker section of the people.’’125 It is submitted that courts should refrain from perceiving themselves as crusaders constitutionally obliged to redress all failures of democracy. Neither they have this authority nor could they achieve this goal.
(4) Symbolic justice: Another major problem with the PIL project in India has been of PIL cases often doing only symbolic justice. Two facets of this problem could be noted here. First, judiciary is often unable to ensure that its guidelines or directions in PIL cases are complied with, for instance, regarding sexual harassment at workplace (Vishaka case) or the procedure of arrest by police (D.K. Basu case). No doubt, more empirical research is needed to investigate the extent of compliance and the difference made by the Supreme Court’s guidelines.126 But it seems that the judicial intervention in these cases have made little progress in combating sexual harassment of women and in limiting police atrocities in matters of arrest and detention. The second instance of symbolic justice is provided by the futility of overconversion of DPSPs into FRs and thus making them justiciable. Not much is gained by recognising rights which cannot be enforced or fulfilled. It is arguable that creating rights which cannot be enforced devalues the very notion of rights as trump.127 Singh aptly notes that, ‘‘a judge may talk of right to life as including right to food, education, health, shelter and a horde of social rights without exactly determining who has the duty and how such duty to provide positive social benefits could be enforced’’.128 So, the PIL project might dupe disadvantaged sections of society in
believing that justice has been done to them, but without making a real difference to their situation. (5) Disturbing the constitutional balance of power : Although the Indian Constitution does not follow any strict separation of powers, it still embodies the doctrine of checks and balances, which even the judiciary should respect. However, the judiciary on several occasions did notexercise self-restraint and moved on to legislate, settle policy questions, take over governance, or monitor executive agencies. Jain cautions against such tendency: ‘‘PIL is a weapon which must be used with great care and circumspection; the courts need to keep in view that under the guise of redressing a public grievance PIL does not encroach upon the sphere reserved by the Constitution to the executive and the legislature.’’129 Moreover, there has been a lack of consistency as well in that in some cases, the Supreme Court did not hesitate to intrude on policy questions but in other cases it hid behind the shield of policy questions.130 Just to illustrate, the judiciary intervened to tackle sexual harassment as well as custodial torture and to regulate the adoption of children by foreigners, but it did not intervene to introduce a uniform civil code, to combat ragging in educational institutions, to adjust the height of the Narmada dam and to provide a humane face to liberalization-disinvestment
polices. No clear or sound theoretical basis for such selective intervention is discernable from judicial decisions.131 It is also suspect if the judiciary has been (or would be) able to enhance the accountability of the other two wings of the government through PIL. In fact, the reverse might be true: the judicial usurpation of executive and legislative functions might make these institutions more unaccountable, for they know that judiciary is always there to step in should they fail to act. (6) Overuse-induced non-seriousness : PIL should not be the first step in redressing all kinds of grievances even if they involve public interest. In order to remain effective, PIL should not be allowed to become a routine affair which is not taken seriously by the Bench, the Bar, and most importantly by the masses: ‘‘The overuse of PIL for every conceivable public interest might dilute the original commitment to use this remedy only for enforcing human
rights
of
the
victimized
and
the
disadvantaged
groups.’’132 If civil society and disadvantaged groups lose faith in the efficacy of PIL, that would sound a death knell for it.
CONCLUSION
The independence of the judiciary as is clear from the above discussion hold a prominent position as far as the institution of judiciary is concerned. It is clear from the historical overview that judicial independence has faced many obstacles in the past specially in relation to the appointment and the transfer of judges. Courts have always tried to uphold the independence of judiciary and have always said that the independence of the judiciary is a basic feature of the Constitution. Courts have said so because the independence of judiciary is the pre-requisite for the smooth functioning of the Constitution and for a realization of a democratic society based on the rule of law. The interpretation in the Judges Case giving primacy to the executive, as we have discussed has led to the appointment of at least some Judges against the opinion of the Chief Justice of India. The decision of the Judges Case was could never have been intended by the framers of the Constitution as they always set the task of keeping judiciary free from executive and making it self-competent. The decision of the Second Judges Case and the Third Judges Case is a praiseworthy step by the Court in this regard.
BIBLOGRAPHY
1) Gogia Law Agency’s, “Judicial Activism” 2) B.L Hansaria’s, “The Judiciary and the Law” 3) V.N Shukla’s, “The Constitution Of India” 4) D.D Basu’s, “The Shorter Constitution of India” 5) B. Bhattacharya’s, “Judging the Judge” 6) S.P Sathe’s, “Administrative Law” 7) Hans Raj Bhardwaj’s, “Law, Lawyers & Judge” 8) M.P Jain’s, “Constitutional Law of India” 9) The Position Of Judiciary under the Constitution Of India, “H.M. Seervai” 10) CDA Vol 8 / Law Journals
