Introduction
Securing justice is the fundamental duty of our polity. The founders of the constitution have accorded justice, the highest position. The ideology behind drafting the constitution is to give justice, social, economical and political security. People look forward to the Judiciary as the stronghold of protection and justice in times of any injustice.
The Political system of India has introduced Parliamentary form of government that consists of three administrative bodies: The Executive, the Legislative and the Judiciary. These three bodies are independent and have equal significance according to the constitution.
India is, therefore, a federal or representative democracy where administration of justice has special importance regarding protection of the rights of the individuals against the Executive and the Legislative. Judiciary has been kept independent and supreme—with a view to executing this responsibility—from the rest two administrative bodies and which is a must because there is a constitutional division of powers between Centre and States, a functional division of power between the Executive, the Legislative and the Judiciary. Only an independent and impartial judiciary can handle the charge of ensuring rights of the individuals and protecting democracy, and also effectively protect and interpret the meaning of the constitution.
Provisions of the Constitution
According to the direction of Article 50, the Constitution makes Judiciary independent from the Executive and the Legislative, and also directs the Executive and the Legislative not to interfere in the proceedings of the Judiciary.
According to Article 13 of the Constitution of India, the inconsistent laws relating to the derogation of any of the fundamental rights shall be invalid. It means that regarding such cases only the Supreme Court and the High Courts have the power and right to execute a judicial review and also to issue writs.
Article 13(2), the ‘heart of the Indian Constitution’, prescribes—the provision regarding judicial activism—that the Union or the States shall not make any law that contravenes any of the Fundamental Rights included in Part III of the Constitution, or any law made in contravention of the aforestated mandate shall, to the extent of the contravention, be void.
Article 14 of the Indian Constitution guarantees, to every citizen of India, the right to ‘equality before law’ and ‘equal protection of laws’ i.e. all are equal before law and will be equally protected by law. It also prohibits unreasonable discrimination between persons.
Difference between Judicial Review and Judicial Activism
As the guardian of the Indian Constitution, judiciary plays the role of an interpreter and observer over the Legislature. The judiciary can declare any act or action ultravirus provided it proves to be so in parlance of the interpretation of the Constitution, and can also prevent the Legislature from any steps, if it transgresses the powers provided to it by the Constitution. This process is called Judicial Review (JR).
On the other hand, the process of readily validating the values of the constitution by the judiciary in exercising its power to perform the act of JR actively, quickly and impartially is called Judicial Activism (JA). The quick, accurate and impartial performance of the judiciary proves that JR has gradually acquired the form of Judicial Activism in India.
Judicial Activism is the fundamental duty of the courts to exercise their power of Judicial Review. So, there is a considerable difference between JR and JA.
The Supreme Court and many High Courts of India were given the power to consider the constitutionality of legislative and administrative actions so as to protect and enforce the fundamental rights guaranteed in Part III of the Constitution. Meanwhile, judicial review over administrative action has developed gradually on the lines of common law doctrines such as ‘legitimate expectation’, ‘proportionality’, ‘reasonableness’ and principles of natural justice. Article 246 of the Constitution read with the seventh schedule, contemplates a clear distinction and a zone of junction between the lawmaking powers of the Union Parliament and the many State Legislatures. So, the High Courts are also approached to consider the questions of legislative competence, mostly in the context of Centre-State relations.
Consequently, the extent of judicial review before Indian courts has, developed gradually in ensuring fairness in administrative action, protecting the fundamental rights of citizens guaranteed by the Constitution of India and considering questions of legislative competence between the Centre and the States. According to Article 32 of the Constitution, the Supreme Court of India has the power to enforce these fundamental rights, and citizens have the right to directly approach it seeking justice against the contravention of any of the fundamental rights.
Evaluation of Fundamental Rights
The emergency period and the disreputable Habeas corpus formed exemplary moment in history of judicial review in India. The vehement criticism of the judgment resulted in firm base to judicial review succeeded by the extension of fundamental rights. Article 21 of the Constitution of India reads: ‘No person shall be deprived of his life or personal liberty except according to procedure established by law’. The exclusive interpretation of this article in the early years of the Supreme Court in A.K. Gopalan’s case was altered in Maneka Gandhi’s case. In that resolution, it was held that restraints of the government on ‘personal liberty’ should be en masse assessed against the guarantees of fairness, non-arbitrariness and reasonableness prescribed under Articles 14, 19 and 21 of the constitution. The Court developed a theory of ‘inter-relationship of rights’ to hold that governmental action which curbed either of these rights should meet the entitled threshold for restraints on all of them. In this manner, the courts consolidated the guarantee of substantive due processes of the United States of America (USA) into the language of Article 21 and were followed by a series of decisions, where the ideas of ‘life’ and ‘personal liberty’ were interpreted liberally to put in rights excluded explicitly in Part III. In this regard Justice Bhagwati said, “We think that the right to life includes the right to live with human dignity and all that goes along with it, namely the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms.”
Public Interest Litigation
The impeccable judicial activism of India is that the poor, penurious and disadvantaged sections of our nation can access to courts through Public Interest Litigation (PIL). The Supreme Court of India led the judiciary, from 1979, in such a way that it became pertinent to the nation and actively took part in the dispenser of social justice far beyond the contemplation of the founding fathers of the Constitution.
Through letters written to sitting judges—in countless occasions—the court took suo moto cognisance of matters that include the abuse of bonded labourers, prisoners, and inmates of mental institutions. This practice of legal initiating proceedings based on letters has now been streamlined and has been known as ‘epistolary jurisdiction’, the nature of proceedings itself does not absolutely fix into the recognised commonlaw framework of adversarial litigation, in (PIL). The courtroom proceedings differ significantly from ordinary civil or criminal appeals. In most public interest related litigation, the judges play a far more active role in the literal sense as well by throwing questions to the parties as well as critical solutions when an adversarial environment may exist in cases where actions are presented to call attention to administrative indifference or the government’s condone of abusive practices.
Supreme Court advocate Kapila Hingorani, in 1979, highlighted in the court a series of articles published in a newspaper revealing the plight of prisoners under trial in Bihar, most of whom had served pretrial detention more than the period they could have been imprisoned if convicted. Sunil Batra, one of the prisoners, drew attention of Justice Krishna Iyer of the Supreme Court by a letter to the accounts of torture by prison authorities and the miserable conditions of prisoners in jails. This was considered as a petition. Then the Court put orders into effect for humane conditions in jails. In 1980, two professors of law wrote a letter to the editor of a newspaper by giving an account of the inhuman conditions of detention in the Agra Protective House for Women. The Supreme Court made the instance the basis of a writ petition. By a letter, the Supreme Court’s attention was drawn to the exploitation of workmen at construction sites in contravention of labour laws. A social activist organisation took the servile condition of bonded labourers in quarries to the attention of the Court. An active journalist moved to the court against the evictions of pavement dwellers of Bombay. Several cases of this type followed subsequently and was taken preventive measures by the courts in different times.
While dealing with such unthinkable cases, the Court gradually developed a new procedure of rights of citizens and responsibilities of the State and devised new mechanism for its accountability. In 1982, Justice P.N. Bhagwati, definitely affirmed the purpose of PIL based on its origin: ‘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’.
However, ‘public cause litigation’, a different litigation, has weakened and outshined the social action sphere of PIL in courts over the years. This type of litigation includes the court’s protection for enforcing the rights of the underprivileged or poor sections of the society and simply for correcting the actions or omissions carried out by the executive or public officials or departments of government or public bodies. The court has intervened in many such cases. As a measure for preventing pollution, the Supreme Court ordered to bring automobile emissions, air, noise and traffic pollution under control, control of traffic in New Delhi, made wearing of helmets while driving a bike in cities and wearing of seat belts while in a car mandatory, cleanliness in housing colonies, disposal of garbage, gave orders for parking charges, ordered to carry out action plans to control and prevent the monkey menace in cities and towns, ordered measures to prevent accidents at unmanned railway level crossings, collection and storage in blood banks, stop ragging of college freshes, and for control of loudspeakers and banning of firecrackers.
The Supreme Court’s recent direction is to interlink the rivers—the most complex engineering—in India. The Court has also by its order banned pasting of black film on automobile windows. The Court itself has taken notice with reference to the case of the forceful eviction of Baba Ramdev from the Ramlila Ground by the Delhi Administration and the Court’s condemnation to it. The court has passed an order to exclude the visit of the tourists to the core areas of the tiger reserves. Orders on such managerial activities passed by the court are dubious jurisdictional step of enforcing fundamental rights under Article 32 of the Constitution of India. Actually, these cases are not at all related to the legal issues of fundamental rights. The court is rather moved for better administration and governance, irrespective of any proper judicial function.
By interpreting most actively and contentiously the Constitution, the Supreme Court withdrew the power of the President conferred on by the Constitution of India to appoint judges with the consultation of the Chief Justice, and appropriated it in the Chief Justice of India. No Constitution in the world confers the power of selecting and appointing judges on the judges themselves.
The Court by the conferred power monitors the conduct of investigation and prosecution agencies whether they are failure or negligent to investigate and prosecute ministers and officials of governments. Some of the cases which are monitored by the Supreme Court are the investigation and prosecution on the involvement of the suspected ministers and officials in the Jain Hawala case; the fodder scam in which Lalu Prasad Yadav, former Chief Minister of Bihar, was involved; the Taj Corridor case in which Mayawati, former Chief Minister of Uttar Pradesh, was involved; and the recent 2G Spectrum Telecom scam in which the telecom ministers and officials are prosecuted.
Court’s Existence on Military and Other Activities
There are also instances of the Supreme Court’s order even in a military operation. In 1993, the Court passed orders on the conduct of military operations in Hazratbal, Kashmir against the restriction of food supplies to the hostages by the military force. The Court ordered the military authority to supply to the hostages provision of food of 1,200 calorific value on which 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’.
The Court even controls the proceedings of Legislatures. The Supreme Court, in the Jharkhand Legislative Assembly case, ordered the Assembly to conduct a Motion of Confidence and ordered the Speaker to conduct proceedings according to the prescribed agenda and forbade entertaining any other business, and also ordered to record the proceedings for reporting to the Court. These orders were carried out against Article 212 of the Constitution, which provides that Courts need inquire into any proceedings of the legislature.
The government’s policies are also the subject to the scrutiny of the Court. The Prime Minister was compelled to remind the Court that it interfered in the complex food distribution policies of the government, when the Court monitored the distribution of food-grains to the Below Poverty Line (BPL) families. Regarding the 2G Licenses case, the Court declared that all public resources and assets are the matter of public trust therefore; they should only be disposed of transparently to the highest bidder by a public auction. Regarding this the President made a Reference to the Court for the Court’s legal advice under Article 143 of the Constitution. In the same case, the Court remained silent to the expert opinion of the Telecom Regulatory Authority of India (TRAI) to sell 2G spectrum without auction in order to create greater tele-density in India.
Disregarding the separation of powers under the Constitution for all practical bases, the Court undertook a general supervisory function over other sections of governments. The tendency to rush to the Supreme Court and 21 High Courts for any injustice against a public authority has also diverted the primary responsibility of citizens themselves in a representative self-government of making legislators and the executive responsible for their actions. In this regard, the Court answered that the other sections of the government proved their failure, so the judiciary was bound to undertake this type of task. Based on this dubious justification, the political sections of the government may overact the functions of the judiciary on its failure, and undoubtedly there are many areas where the judiciary has proved failure to meet the expectations of the public by its inefficiency and areas of cases.
Justice Jackson of the USA is apt in his comment: “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”. If the Supreme Court does not firmly formulate and strictly observe the parameters of PIL, PIL—the significant litigation in current India will be at risk in becoming verbose, unethical, intruding into the functions of other divisions of government and unsuccessful by its random use.
Conclusion
Hence, to ensure the fundamental characteristic of the Constitution of India is preserved. The Judiciary has to act within the limits of its jurisdiction and within its domain ordained by the Constitution, and abide by the rule of the land. The independence of the judiciary underlies—on the basis of facts and in accordance with the law—the fair conduct of judicial proceedings and the protection of rights without any partiality, inducements, improper influences, and pressures, threats or interference, direct or indirect. The independent and integrated Judiciary system of India has to abide by the constitutional guidance in every aspect for checks and balances.