Three pillars of
democracy, on which our constitution stands. As in context of India, no one is
above the law of constitution. But creepy means of legislature and executive
commingle suppress judiciary. Diminishing power of any of the pillar is against
the provisions of constitution. To protect the right of citizens and for the
sake of constitutional pride, it is necessary to renovate the fallen principles
of judiciary. In which former Chief Justice of India P N Bhagwati, introduced
the concept of PILs and he is considered the pioneer of Judicial Activism in
the country. Is not that previous efforts are of no use, but they are not
enough to protect the constitution from goons of democracy. As of SC judge, Justice
Bhagwati introduced the concept of Public Interest Litigation and absolute
liability to Indian judicial system. As a specialist in PILs he had ruled that
there is no need for a person of any locus standi to knock the doors of a court
on the issue of fundamental rights inscribed in the principal document of the
Judicial activism is a legal term that refers to
court rulings that are partially or fully based on the judge’s political or
personal considerations, rather than existing laws. In basic terms, judicial
activism occurs when a judge presiding over a case allows his personal or
political views to guide his decision when rendering judgment on a case1.
Hussainara Khatoon vs State of Bihar2, Kapila Hingorance had filed a petition in regard of condition
of the prisoners detained in the Bihar jail. The different thing about this
pleat was that it was filled to SC bench not by the single prisoner; rather it
was filled by various prisoners because of 40,000 prisoners whose suits were
pending in the court. Afterwards in the
case of SP Gupta vs UOI3, SC defined the term
PIL in Indian context.
The concept of PIL is
enshrined in Article-39A of the Indian Constitution to protect and deliver
prompt social justice with the help of law. Before 1980, only the aggrieved
party could approach the courts for justice. After unexpected era of emergency
the courts reached out to the citizens, devising a means for any person of the
public or the NGOs seeking legal remedy in cases where the public interest is
in at stake. Justice P N Bhagwati and Justice V R Krishna Iyer were the pioneer
judges to admit PILs in courts.
In my research paper I
focus on the concept of Judicial Activism and Origin of Indian Realism. And
specifically focuses on the concept of PILs and construct of the strong
judiciary in India after adopting the concept of PIL.
Doctrinal method of
study is being adopted. Comparative study is being done on judicial activism
and realism in India, what is the effect of judicial activism. Also identify at
what extent in India the phrase-‘Certainty in a law is a myth’ applies.
of research problem:
of PIL in 1980
underlying the present research is that the current legal system and
application at what extent at which judicial activism is applied in India. Some
fundamental principles of international and national laws pertaining for
protection of individual right, despite have laws.
Overrule the previous
decisions on the ground of inconsistency, incompatibility, vagueness, change of
conditions, etc. Is this constitutional, because law making power vest to
Judicial activism is
something related to judicial ruling that is being based on personal opinion,
rather than on existing law. If we tires to define judicial activism properly,
it may be- ‘the decisions taken by judges on activist or controversial
political issues’. More importantly judicial activism is somewhat close to
constitutional interpretation, statutory construction and separation of powers.
Prof. David A. Straus, mentioned three main elements
that are being included in judicial activism, they are as follows:
act of overturning laws as unconstitutional
contrary to previous decisions.
The other Kind of
‘Judicial activism’ is the subject of Fundamental Rights, in specific I say
right to equality (Article 14-16), the several freedoms enshrined in Article-19
and the right to life & Personal liberty (Article 21). In simpler I say “golden
triangle” of Indian Constitution. While interpreting these provisions, these
scope for judges to read their personal philosophies into the provisions. This
not something that debatable in India, same principals stormily debated in
14 of US which guaranteed, equal protection of laws to his citizens.
13 abolition of slavery (slavery of blacks’).
Examples of Judicial Activism in India —
Candidature of Indira Gandhi by Allahabad High Court
Introduction of PIL
(Public Interest Litigation)
Evolution of Doctrine
of Basic Structure
Reforming BCCI (Board
of Cricket for Control in India)
Taking away the
constitutional right of the President of India to appoint judges in the Third Judges Case etc.
The theory of realism
is not been accepted in the sub-continent, the reason is obvious that the
system of Indian society and living is quite different form American
life-style. But PIL increase ‘social action litigation’ has, widen the scope of
judicial system in India. Indian judiciary has formulated their decisions in
the ambit of PIL. It also the strengthen power of Indian judiciary. They are;
however, free to overrule the previous decisions on the ground of
inconsistency, incompatibility, vagueness, change of conditions, etc, assigning
reasons for their deviation from the earlier ruling.
legal philosophy of realist school has not been accepted in the sub continent
for the obvious reason that the texture of Indian social life is different from
that of the American life lifestyle. The recent trends in the public interest
litigation which Professor Upendra Baxi prefers to call as “social action
litigation” has, however widened the scope of judicial activism to a great
extend but the judges have to formulate their decisions within the limits of
constitutional frame of the law by using their interpretative skill. This, in
other words, means that the judges in India cannot ignore the existing
legislative statutes and enactments. They are however, free to overrule the
previous decisions on the ground of inconsistency, incompatibility, vagueness,
change of conditions etc. assigning reasons for their deviation from the
earlier ruling. Thus the Indian legal system though endows the judges with
extensively judicial discretion, does not make them omnipotent in matter of
formulation of law. The legislative statues and enactments, precedents and the
rules of equity, justice and good conscience are indispensable part of judicial
system in India. The constitution of India itself provide ample scope for the
judges to take into consideration the hard realities of socio economic and
cultural life of the Indian people while dispensing social and economic justice
Judicial activism in
India is originating after the brutal emergency of 1975-77 by Indira- Govt.,
which witness the period where govt. tries to control the judiciary. PIL was a
tool devised by the federal court to reach out directly to the citizens, and to
take cognizance through the litigant may not be the victim. “Suo-motu”
cognizance allows the court to take up cases on its own.
“India’s judges have sweeping powers
and a long history of judicial activism that would be all but unimaginable in
the United States. In recent years, judges required Delhi’s auto-rickshaws to
convert to natural gas to help cut down on pollution, closed much of the
country’s iron-ore-mining industry to cut down on corruption and ruled that
politicians facing criminal charges could not seek re-election. Indeed, India’s
Supreme Court and Parliament have openly battled for decades, with Parliament
passing multiple constitutional amendments to respond to various Supreme Court
-New York Times author Gardiner Harris
v. State of rajsathan5,
part of govt. Campaign against child marriage, Bhanwari Devi attempted to stop
the marriage of a 1 year old girl in rural Rajasthan. Peoples of the society
retaliated first by harassing her with threats and imposing a socio-economic
boycott on her family. Then, on 22’Sept.1992, five men raped Bhanwari Devi.
Supreme Court mentioned
in his decision that sexual harassment as “clear violation of the Fundamental
Rights. The guidelines directed to employers, included a definition of sexual
harassment, a list prepared by SC for prevention of harassment, and a narraative
of complaints procedures to be “strictly observed in all workplaces or the
prevention and enforcement of the right to gender equality”.
Hussainara Khatoon vs State of Bihar6, Many
have regarded this case as the first PIL in India as well. In this case, the
attention of the Court focussed on the incredible situation of under-trials in
Bihar who had been in detention pending trial for periods far in excess of the
maximum sentence for their offences. The Court not only proceeded to make the
right to a speedy trial the central issue of the case, but passed the order of
general release of close to 40,000 under-trials who had undergone detention
beyond such maximum period.
M.C. Mehta v. Union of India7, The
judgment lashed out at civic authorities for allowing untreated sewage from
Kanpur’s tanneries to make its way into the river Ganga.
The court passed 3
landmark judgments and a number of orders against polluting industries,
numbering more than 50,00 in the Ganga basin, from time to time. In this case,
apart from industries, more than 250 towns and cities also had to setup sewage
treatment plants. The court judgment sifted 600 tanneries out of the city and
relocated them to planned leather complex in West Bengal. The court closed down
Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors.8, Nine judges of this Court assembled to
determine whether privacy is a constitutionally protected value. The issue
reaches out to the foundation of a constitutional culture based on the
protection of human rights and enables this Court to revisit the basic principles
on which our Constitution has been founded and their consequences for a way of
life it seeks to protect. This case presents challenges for constitutional
interpretation. If privacy is to be construed as a protected constitutional
value, it would redefine in significant ways our concepts of liberty and the
entitlements that flow out of its protection.
The bench has overruled its decisions in M.P.
Sharma v Satish Chandra, District
Magistrate, Delhi (1954), rendered by a bench of eight judges and,
in Kharak Singh v State of U.P. (1962), rendered by a bench of six judges, which
contained observations that the Indian constitution does not specifically
protect the right to privacy.
Judgment “Life and
personal liberty are inalienable rights. These are rights which are inseparable
from a dignified human existence. The dignity of the individual, equality
between human beings and the quest for liberty are the foundational pillars of
the Indian constitution…
Life and personal
liberty are not creations of the constitution. These rights are recognized by
the constitution as inhering in each individual as an intrinsic and inseparable
part of the human element which dwells within.”
Recently dynamic case
came in form of PIL on the issue of Banning movie “Padmavat” throughout India. In his petition, Sharma prays the court
for issuing a writ of mandamus to the CBI to register a FIR against “Bhansali
and Ambani and others (his team) u/s 499 and 500 of IPC read with 66A of
Information Technology Act of 2000 to investigate and prosecute them in
accordance of law”. But SC ruled out the petition and said to release movies as
per the dated 25/01/2018 throughout India.
Despite the ruling of SC still
the state of Haryana,
Gujarat, Madhya Pradesh and Rajasthan governments have said that they will not
allow the screening of the film on January 25. And on the date of 25 they no
allowed it too. On this SC filed case on contempt of court to these states.
Supreme Court further put this case on 29/01/2018.
In real life situations
in any case of law we found that it is not always possible to declare law.
Therefore judge have to find mid-way. In the end I overall conclude that
sometimes judges use to declare law by making it while discovering it within
the legal framework. I here conclude that the new instrument should developed
by court to protect the present judicial system, and should build mechanism
against those who not follow the decisions by the courts.
26/1/2018, 1:13 PM.
2 1979 AIR 1369, 1979 SCR (3) 532
3 AIR 1982 SC 149, 1981 Supp (1) SCC 87, 1982 2 SCR
Studies in Jurisprudence and Legal Theory, Dr. N.V.Paranjape, Central law
Agency, 7th ed. Pg. no.-122
5 AIR 1997 SC 3011
6 1979 AIR 1369, 1979 SCR (3) 532
7 1988 AIR 1115, 1988 SCR (2) 530
NO.470 OF 2015 IN WP(C) 494/2012