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ADDING THE DIMENSION OF JUDICIAL ACTIVISM TO THE ROLE OF THE INDIAN JUDICIARY

INTRODUCTION

According to G. Austin, the Supreme Court of India has to safeguard the rights and future of Indian minorities of socio-economic and religious clothing. It needs to play the role of “guardian of social revolution.” In its essence, India’s judiciary with the Supreme Court sitting at the apex are the interpreters of the law of the land. To romanticize it further, they are the defenders of Indian democracy and the holy grail of the land which is the Indian Constitution. An independent judiciary is necessary for the existence of human rights and is a requisite for the federal polity. However, an active and progressive independent judiciary can evolve the status of human rights and can play an instrumental part in achieving equilibrium in society.

WHICH BRINGS US TO THE QUESTION OF WHAT IS JUDICIAL ACTIVISM?

While acquainting ourselves with the concept of judicial activism, it is imperative to note that judicial activism is much more than a concept. It is a state of mind. It has its genesis in the apathy and ignorance of a country’s executive and legislature. It helps the judiciary transcend its traditional operation of settling disputes in accordance with the law of the land. It is a pro-active approach to ensure the welfare of the State and its citizens whilst being in tune with the constitutional framework of the country.

Judicial activism has expanded the role of the Indian judiciary as it allows the latter to exercise certain powers to achieve socio-economic equality through the implementation of the directive principle of state policy laid down in Part IV of the Indian Constitution – which are not enforceable by law – whilst being the guardian of the citizen’s fundamental rights. The active adjudication prowess of India’s judiciary has its source in the nature of the constitution of India itself. However, it took the judiciary, the executive’s barbaric apathy, and a liberal interpretation of the Constitution to realize its unbridled, yet dormant powers. The concept of judicial activism has been around for quite a while in the jurisprudence of common law. One of the first instances was the case of Marbury v. Madison[1] in 1801 where the American Supreme Court, invalidated an Act of Congress.

One of the first hints of judicial activism in India was the case of AK Gopalan v. Madras[2] where the court performed a judicial review where it asserted that judicial review is a power that is inbuilt in the Indian Constitution and that the court always has the power to declare any legislative enactment void if it were to transgress its limits. Judicial review is one of the tools with which the judiciary exercises its judicial activism. “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.”[3]

The use of judicial review has been of great use to advocate progressive ideals in the country, especially in the 1970s and during the emergency, which was a tumultuous period for the country and the judiciary likewise.

To name some of the iconic doctrines and judgements which have been laid down by the use of judicial review:
  1. The doctrine of the basic structure of the constitution was laid down in the judicial review of the 24th and 25th Amendment Act of 1971 in the case of Keshavananda Bharti v. State of Kerela[4] whereby in a 7:6 judgement, the court ruled that the legislation cannot destroy the basic structure of the constitution. That there is a difference between ordinary law and constitutional amendment. A non-exhaustive list of the basic structure was also listed which included, fundamental rights, secular character, federalism, etc.
  2. One of the progressive judgements of the Supreme Court through judicial review would be the one given in Mithu v. State of Punjab[5]. The court noted that section 303 of the Indian Penal Code, 1860 was unconstitutional as it was violative of Article 21 of the Indian Constitution.
  3. In the case of Indira Gandhi Nehru v. Raj Narain[6] and Minerva Mills v. Union of India[7], it was held that judicial review was part of the basic structure of the Indian Constitution, thereby solidifying the extended role of the Indian judiciary to maintain the essence of constitutionality in all the laws governing the nation of India.

PUBLIC INTEREST LITIGATION

The Indian judicial system was introduced to a new dimension in public administration, during the infamous emergency. Justice V.R. Krishna Iyer and Justice P.N. Bhagwati were the torchbearers of the new phenomenon of judicial activism – public interest litigation. It was a novel method to s provide access to justice to the majority of masses that are denied basic human rights. The exposure of the brutality of bonded labour, pollution through industrial effluents in Jamuna, environmental degradation, education capitation racket, etc.

It guarantees justice to a larger section of society, which is deprived of access to justice. In India, social activists and public interest litigants have actively helped the higher judiciary in the promotion of steps to establish the welfare of the underprivileged, exploited, and oppressed class. The Supreme Court as a social activist took into account the problem and the plight of children and women, oppressed and weaker sections of the society, bonded labour, casual labour, mentally and physically handicapped, under trial prisoners, convicted persons held under custody. The judiciary has come to be a reformer whose role can affect the socio-economic scenario.

It aims to protect and enforce individual and collective rights. It is rooted in the argument that on. It is too much to expect from poor and illiterate people that they would come out openly against the infringement of their individual or group rights while fighting with those who are powerful. This argument gives rise to a further question as to what is the way out to get rid of this situation. This situation can be tackled if some public-spirited men think for them and lend support in case of infringement affecting the public adversely.

Indian judiciary has seen some ground-breaking incidence of public interest litigation:
  1. Rural Litigation Entitlement Kendra (RLEK) v. Union of India was the first case of an environmental PIL. A fierce legal battle saw the arguments made by RLEK instrumental in the drafting of the Environment Protection Act in 1986. The case was used as a stepping stone to reconcile the differences between industrialization and conservation.
  2. Parmanand Katara v. Union of India saw the court take cognizance of a newspaper report concerning the death of a scooterist and the apathy of the hospitals which ensued. Thanks, to the activist nature of the judiciary, the case made sure that the primary objective of hospitals was to save lives without fearing legal consequences.

SUO MOTU

It just so happens that there are some incidences where the Indian judiciary cannot afford to observe the violation of individualism or the constitution from the bleachers. It gives in to the urge of trying to make India a more progressive nation. The framers of the Constitution understood the dilemma that would creep into the minds of the Indian judiciary and thusly, framed article 131, article 32, and article 226 of the Indian Constitution which is essentially a right to constitutional remedies but allows the Supreme Court and the High Courts respectively to any directions or refrain from doing an act, thereby practising the concept of epistolary jurisdiction of Suo Motu cognizance.

It allows the judge to pass orders on the matter of public interest on his own accord without being approached by the involved parties. Generally, the court uses this power for cases of contempt of court, reopening an old case, or ordering a probe. However, there have been instances where the court has undertaken its activist role through Suo Motu cognizance,

  1. Recently, the Supreme Court of India of Suo Motu cognizance of the Lakhimpur Kheri violence incident where eight people – reported to be farmers – were mowed down by a vehicle from the convoy of Ajay Mishra who is a member of the Parliament.[8]
  2. Another incident would be the Supreme Court’s Suo Motu cognizance of the killing of an additional district judge of Jharkhand – Uttam Anand. The action taken by the Supreme Court was to safeguard the courts and protect the judges.

The broad-minded interpretations of the law have made the judiciary liable to bridge the social and economic gap that exists in our country. The courts have shown vision and intent in their rulings like a relief to Mumbai Street dwellers in Olga Tellis v. Bombay Municipal Corporation[9] or when it came to the aid of Delhi hawkers in Saudan Singh v. NDMC & Others[10].

The progressive judgements of the judiciary also include provisions for compulsory education for children. However, it must be noted that the Indian judiciary has not been able to successfully yield its powers as they rush towards humanitarian aid. Despite, leading a surge of re-democratization of the Indian polity with the promotion of human rights at the forefront, the Indian judiciary’s stance on big matters has been somewhat incoherent. For example, they would come down heavily on tannery businesses but fail to properly advocate human rights against large-scale irrigation projects and nuclear power plants which would pose a serious threat to the environment.

CONCLUSION

The unevenness of judicial activism in India has brought about a lack of narrative and a purposeful voice to their judgements, even though their hearts are in the right place. To illustrate the point, the case of Visakha v. the State of Rajasthan[11], laid down much-needed judicial legislation for the victims of sexual harassment at workplaces but failed to include any dialogue with the everyday victims. To conclude, judicial activism has extended the role of the judiciary in India, as it allows, inter alia, the judiciary to fill up the legislative vacuum in human rights.

Author(s) Name: Vedant Bhardwaj Singh (Hidayatullah National Law University, Raipur)

References:

[1] Marbury v. Madison 5 U.S.137 (1803)

[2] AK Gopalan v. Madras AIR 1950 SC 27, 34

[3] S.P Sathe, Judicial Activism in India – Transgressing Borders and Enforcing Limits 5 (2002)

[4] Keshavananda Bharti v. State of Kerela AIR 1973 SC 1461

[5] Mithu v. State of Punjab AIR 1983 SC 473.

[6] Indira Gandhi Nehru v. Raj Narain 1975 AIR 1590, 1975 SCC (2) 159

[7] Minerva Mills v. Union of India AIR 1980 SC 1789

[8] THE HINDU https://www.thehindu.com/news/national/supreme-court-takes-suo-motu-cognisance-of-lakhimpur-kheri-violence/article36866470.ece (Last Visited: 29/11/2021)

[9] Olga Tellis v. Bombay Municipal Corporation AIR 1986 SC 180.

[10] Saudan Singh v. NDMC & Others (1992) 2 SCC 45

[11] Visakha v. State of Rajasthan 1997 (5) SCALE 453

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