Disturbing trends in judicial activism

NCERT 6th - 10th Syllabus

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T. R. Andhyarujina
120806 - Lead - Judicial Overreach
Public Interest Litigation is a good thing when it is used to enforce the rights of
the disadvantaged. But it has now been diluted to interfere with the power of the
government to take decisions on a range of policy matters
Judicial activism is not an easy concept to define. It means different things to different persons. Critics denounce
judicial decisions as activist when they do not agree with them. Activism, like beauty, is often in the eye of the
beholder. In India, the opening up of access to courts to the poor, indigent and disadvantaged sections of the
nation through Public Interest Litigation, popularly known by its acronym PIL, is unexceptionable judicial activism.
From 1979, the judiciary led by the Supreme Court in India became relevant to the nation in a manner not
contemplated by the makers of the Constitution and became an active participant in the dispenser of social justice.
It is a matter of concern that over the years this original, beneficial and unexceptionable character of the Courts
activism in PIL has been largely converted into a general supervisory jurisdiction to correct actions and policies of
government, public bodies and authorities. This is a type of judicial activism unparalleled in any other judiciary.
For basic rights
PIL jurisdiction began haltingly with little idea of its potential when the Supreme Court, in 1979, entertained
complaints by social activists drawing the attention of the Court to the conditions of certain sections of society or
institutions which were deprived of their basic rights.
In 1979, Supreme Court advocate Kapila Hingorani drew the Courts attention to a series of articles in a newspaper
exposing the plight of Bihar undertrial prisoners, most of whom had served pretrial detention more than the period
they could have been imprisoned if convicted. Sunil Batra, a prisoner, wrote a letter to Justice Krishna Iyer of the
Supreme Court drawing his attention to torture by prison authorities and the miserable conditions of prisoners in
jails. This was taken up as a petition and the Court passed orders for humane conditions in jails. In 1980, two
professors of law wrote a letter to the editor of a newspaper describing the barbaric conditions of detention in the
Agra Protective House for Women which was made the basis of a writ petition in the Supreme Court. The
exploitation of workmen at construction sites in violation of labour laws was brought to the attention of the
Supreme Court by a letter. The slave-like condition of bonded labourers in quarries was brought to the attention of
the Court by a social activist organisation. A journalist moved the court against the evictions of pavement dwellers
of Bombay. Several cases of this type followed.
In dealing with such cases, the Court evolved a new regime of rights of citizens and obligations of the State and
devised new methods for its accountability. In 1982, Justice P.N. Bhagwati, correctly stated the purpose of PIL as it
originated. He emphasised that PIL a strategic arm of the legal aid movement which is intended to bring justice within
the reach of the poor masses, who constitute the low visibility area of humanity, is a totally different kind of litigation
from the ordinary traditional litigation.
No longer were the Courts clientele drawn from landlords, businessmen, corporations and affluent persons. With
PIL, the common man, the disadvantaged and marginalised sections of society had also easy access to the Court
with the help of social activists.
This unique judicial activism was not found in other countries and leading judges abroad such as Lord Harry Woolf
of the United Kingdom and Justice Michael Kirby of Australia, applauded it.
The new intervention
However, over the years, the social action dimension of PIL has been diluted and eclipsed by another type of
public cause litigation in courts. In this type of litigation, the courts intervention is not sought for enforcing the
rights of the disadvantaged or poor sections of the society but simply for correcting the actions or omissions of the
executive or public officials or departments of government or public bodies. Examples of this type of intervention
by the Court are innumerable. In the interest of preventing pollution, the Supreme Court ordered control over
automobile emissions, air and noise and traffic pollution, gave orders for parking charges, wearing of helmets in
cities, cleanliness in housing colonies, disposal of garbage, control of traffic in New Delhi, made compulsory the
wearing of seat belts, ordered action plans to control and prevent the monkey menace in cities and towns, ordered
measures to prevent accidents at unmanned railway level crossings, prevent ragging of college freshmen, for
collection and storage in blood banks, and for control of loudspeakers and banning of fire crackers.
In recent orders, the Supreme Court has directed the most complex engineering of interlinking rivers in India. The
Court has passed orders banning the pasting of black film on automobile windows. On its own, the Court has taken
notice of Baba Ramdev being forcibly evicted from the Ramlila grounds by the Delhi Administration and censured
it. The Court has ordered the exclusion of tourists in the core area of tiger reserves. All these managerial exercises
by the Court are hung on the dubious jurisdictional peg of enforcing fundamental rights under Article 32 of the
Constitution. In reality, no fundamental rights of individuals or any legal issues are at all involved in such cases.
The Court is only moved for better governance and administration, which does not involve the exercise of any
proper judicial function.
In its most activist and controversial interpretation of the Constitution, the Supreme Court took away the
constitutionally conferred power of the President of India to appoint judges after consultation with the Chief
Justice, and appropriated this power in the Chief Justice of India and a collegium of four judges. In no Constitution
in the world is the power to select and appoint judges conferred on the judges themselves.
The Court is made the monitor of the conduct of investigating and prosecution agencies who are perceived to have
failed or neglected to investigate and prosecute ministers and officials of government. Cases of this type are the
investigation and prosecution of ministers and officials believed to be involved in the Jain Hawala case, the fodder
scam involving the former Chief Minister of Bihar, Lalu Prasad Yadav, the Taj Corridor case involving the former
Chief Minister of Uttar Pradesh, Mayawati, and the recent prosecution of the Telecom Minister and officials in the
2G Telecom scam case by the Supreme Court.
Military operation
The Supreme Court has made an order even in a military operation. In 1993, the Court issued orders on the conduct
of military operations in Hazratbal, Kashmir where the military had as a matter of strategy restricted the food
supplies to hostages. The Court ordered that the provision of food of 1,200 calorific value should be supplied to
hostages. Commenting on this, an Army General wrote: For the first time in history, a Court of Law was asked to
pronounce judgment on the conduct of an ongoing military operation. Its verdict materially affected the course of
operation.
Even proceedings of Legislatures are controlled by the Court. In the Jharkhand Legislative Assembly case, the
Supreme Court ordered the Assembly to conduct a Motion of Confidence and ordered the Speaker to conduct
proceedings according to a prescribed agenda and not to entertain any other business. Its proceedings were ordered
to be recorded for reporting to the Court. These orders were made in spite of Article 212 of the Constitution which
states that Courts are not to inquire into any proceedings of the legislature.
Other examples
Matters of policy of government are subject to the Courts scrutiny. Distribution of food-grains to persons below
poverty line was monitored, which even made the Prime Minister remind the Court that it was interfering with the
complex food distribution policies of government. In the 2G Licenses case, the Court held that all public resources
and assets are a matter of public trust and they can only be disposed of in a transparent manner by a public auction
to the highest bidder. This has led to the President making a Reference to the Court for the Courts legal advice
under Article 143 of the Constitution. In the same case, the Court set aside the expert opinion of the Telecom
Regulatory Authority of India (TRAI) to sell 2G spectrum without auction to create greater teledensity in India.
The Court has for all practical purposes disregarded the separation of powers under the Constitution, and assumed
a general supervisory function over other branches of governments. The temptation to rush to the Supreme Court
and 21 High Courts for any grievance against a public authority has also deflected the primary responsibility of
citizens themselves in a representative self government of making legislators and the executive responsible for
their actions. The answer often given by the judiciary to this type of overreach is that it is compelled to take upon
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political branches of government may, by the same logic, take over the functions of the judiciary when it has failed,
and there can be no doubt that there are many areas where the judiciary has failed to meet the expectations of the
public by its inefficiency and areas of cases.
Justice Jackson of the U.S. has aptly said: The doctrine of judicial activism which justifies easy and constant readiness
to set aside decisions of other branches of Government is wholly incompatible with a faith in democracy and in so far it
encourages a belief that judges should be left to correct the result of public indifference it is a vicious teaching. Unless
the parameters of PIL are strictly formulated by the Supreme Court and strictly observed, PIL which is so necessary
in India, is in danger of becoming diffuse, unprincipled, encroaching into the functions of other branches of
government and ineffective by its indiscriminate use.
(The writer is a senior advocate of the Supreme Court and former Solicitor General of India. This article is an abridged
version of a lecture he recently delivered at the sesquicentennial of the Bombay High Court.)
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