- SIT on Black Money: Central Govt filed a review petition in SC citing that this is a case of judicial over-reach
- Constitutional Provision?
In August 2011, SC cautioned courts against passing orders that would hamper the State in its routine administrative functions
- Certain matters by their very nature should be left to administrative authorities rather than courts seeking to substitute their own views and perceptions of ‘what is the best solution to the problem.’
- In matters of policy, the courts have a limited role and they should interfere only if it is clearly illegal
Judicial Review in India
The Judiciary plays a very important role as a protector of the constitutional values that the founding fathers have given us. They try to undo the harm that is being done by the legislature and the executive and also they try to provide every citizen what has been promised by the Constitution under the Directive Principles of State Policy. All this is possible thanks to the power of judicial review.
All this is not achieved in a day it took 50 long years for where we are right now, if one thinks that it is has been a roller coaster ride without any hindrances they are wrong judiciary has been facing the brunt of many politicians, technocrats, academicians, lawyers etc. Few of them being genuine concerns, and among one of them is the aspect of corruption and power of criminal contempt. In this paper I would try to highlight the ups and downs of this greatest institution in India.
The rule of law is the bedrock of democracy, and the primary responsibility for implementation of the rule of law lies with the judiciary.1 This is now a basic feature of every constitution, which cannot be altered even by the exercise of new powers from parliament. It is the significance of judicial review, to ensure that democracy is inclusive and that there is accountability of everyone who wields or exercises public power. As Edmund Burke said: “all persons in positions of power ought to be strongly and lawfully impressed with an idea that “they act in trust,” and must account for their conduct to one great master, to those in whom the political sovereignty rests, the people”.2
India opted for parliamentary form of democracy, where every section is involved in policy-making, and decision taking, so that every point of view is reflected and there is a fair representation of every section of the people in every such body. In this kind of inclusive democracy, the judiciary has a very important role to play. That is the concept of accountability in any republican democracy, and this basic theme has to be remembered by everybody exercising public power, irrespective of the extra expressed expositions in the constitution.3
The principle of judicial review became an essential feature of written Constitutions of many countries. Seervai in his book Constitutional Law of India noted that the principle of judicial review is a familiar feature of the Constitutions of Canada, Australia and India, though the doctrine of Separation of Powers has no place in strict sense in Indian Constitution, but the functions of different organs of the Government have been sufficiently differentiated, so that one organ of the Government could not usurp the functions of another.4
The power of judicial review has in itself the concept of separation of powers an essential component of the rule of law, which is a basic feature of the Indian Constitution. Every State action has to be tested on the anvil of rule of law and that exercise is performed, when occasion arises by the reason of a doubt raised in that behalf, by the courts. The power of Judicial Review is incorporated in Articles 226 and 227 of the Constitution insofar as the High Courts are concerned. In regard to the Supreme Court Articles 32 and 136 of the Constitution, the judiciary in India has come to control by judicial review every aspect of governmental and public functions.5
Extent of Judicial Review in India:
The initial years of the Supreme Court of India saw the adoption of an approach characterised by caution and circumspection. Being steeped in the British tradition of limited judicial review, the Court generally adopted a pro-legislature stance. This is evident form the rulings such as A.K. Gopalan, but however it did not take long for judges to break their shackles and this led to a series of right to property cases in which the judiciary was loggerhead with the parliament. The nation witnessed a series of events where a decision of the Supreme Court was followed by a legislation nullifying its effect, followed by another decision reaffirming the earlier position, and so on. The struggle between the two wings of government continued on other issues such as the power of amending the Constitution.6 During this era, the Legislature sought to bring forth people-oriented socialist measures which when in conflict with fundamental rights were frustrated on the upholding of the fundamental rights of individuals by the Supreme Court. At the time, an effort was made to project the Supreme Court as being concerned only with the interests of propertied classes and being insensitive to the needs of the masses. Between 1950 and 1975, the Indian Supreme Court had held a mere one hundred Union and State laws, in whole or in part, to be unconstitutional.
After the period of emergency the judiciary was on the receiving end for having delivered a series of judgments which were perceived by many as being violative of the basic human rights of Indian citizens 7and changed the way it looked at the constitution. The Supreme Court said that any legislation is amenable to judicial review, be it momentous amendments8 to the Constitution or drawing up of schemes and bye-laws of municipal bodies which affect the life of a citizen9. Judicial review extends to every governmental or executive action – from high policy matters like the President’s power to issue a proclamation on failure of constitutional machinery in the States like in Bommai case, to the highly discretionary exercise of the prerogative of pardon like in Kehar Singh case or the right to go abroad as in Satwant Singh case.Judicial review knows no bounds except the restraint of the judges themselves regarding justifiability of an issue in a particular case.
Judicial Review of Political Questions:
In the initial stages of the judicial adjudication Courts have said that where there is a political question involved it is not amenable to judicial review but slowly this changed, in Keshavananda Bharathi’s case,10 the Court held that, “it is difficult to see how the power of judicial review makes the judiciary supreme in any sense of the word. This power is of paramount importance in a federal constitution…. Judicial Review of constitutional amendments may seem involving the Court in political question, but it is the Court alone which can decide such an issue. The function of Interpretation of a Constitution being thus assigned to the judicial power the State, the question whether the subject of law is within the ambit of one or more powers of the legislature conferred by the constitution would always be a question of interpretation of the Constitution.”
Than it was in Special Courts Bill, 1978, In re, case where the majority opined that, “The policy of the Bill and the motive of the mover to ensure a speedy trial of persons holding high public or political office who are alleged to have committed certain crimes during the period of emergency may be political, but the question whether the bill or any provisions are constitutionally invalid is a not a question of a political nature and the court should not refrain from answering it.” What this meant was that though there are political questions involved the validity of any action or legislation can be challenged if it would violate the constitution. This position has been reiterated in many other cases11 and in S.R. Bommai’s case the Court held, “though subjective satisfaction of the President cannot be reviewed but the material on which satisfaction is based open to review…” the court further went on to say that, “The opinion which the President would form on the basis of Governor’s report or otherwise would be based on his political judgment and it is difficult to evolve judicially manageable norms for scrutinizing such political decisions. Therefore, by the very nature of things which would govern the decision-making under Article 356, it is difficult to hold that the decision of the president is justiciable. To do so would be entering the political thicker and questioning the political wisdom which the courts of law must avoid. The temptation to delve into the President’s satisfaction may be great but the courts would be well advised to resist the temptation for want of judicially manageable standards. Therefore, the Court cannot interdict the use of the constitutional power conferred on the President under Article 356 unless the same is shown to be male fide.”
As Soli Sorabjee points out, “there is genuine concern about misuse by the Centre of Article 356 on the pretext that the State Government is acting in defiance of the essential features of the Constitution. The real safeguard will be full judicial review extending to an inquiry into the truth and correctness of the basic facts relied upon in support of the action under Article 356 as indicated by Justices Sawant and Kuldip Singh. If in certain cases that entails evaluating the sufficiency of the material, so be it.”
What this meant was the judiciary was being cautious about the role it has to play while adjudicating matters of such importance and it is showing a path of restraint that has to be used while deciding such matters so that it does not usurp the powers given by the Constitution by way of the power of review at the same it is also minimizing the misusing of the power given under Article 356 to the President.
Judicial Review as a part of the Basic Structure:
In the celebrated case of Keshavanda Bharathi v. State of Kerela, the Supreme Court of India the propounded the basic structure doctrine according to which it said the legislature can amend the Constitution, but it should not change the basic structure of the Constitution, The Judges made no attempt to define the basic structure of the Constitution in clear terms. S.M. Sikri, C.J mentioned five basic features:
- 1. Supremacy of the Constitution. 2. Republican and democratic form of Government. 3. Secular character of the Constitution. 4. Separation of powers between the legislature, the executive and the judiciary. 5. Federal character of the Constitution.
He observed that these basic features are easily discernible not only from the Preamble but also from the whole scheme of the Constitution. He added that the structure was built on the basic foundation of dignity and freedom of the individual which could not by any form of amendment be destroyed. It was also observed in that case that the above are only illustrative and not exhaustive of all the limitations on the power of amendment of the Constitution. The Constitutional bench in Indira Nehru Gandhi v. Raj Narain (1975 Supp SCC 1.) held that Judicial Review in election disputes was not a compulsion as it is not a part of basic structure. In S.P. Sampath Kumar v. Union of India((1987) 1 SCC 124 at 128.), P.N. Bhagwati, C.J., relying on Minerva Mills Ltd. ((1980) 3 SCC 625.) declared that it was well settled that judicial review was a basic and essential feature of the Constitution. If the power of judicial review was absolutely taken away, the Constitution would cease to be what it was. In Sampath Kumar the Court further declared that if a law made under Article 323-A(1) were to exclude the jurisdiction of the High Court under Articles 226 and 227 without setting up an effective alternative institutional mechanism or arrangement for judicial review, it would be violative of the basic structure and hence outside the constituent power of Parliament.
In Kihoto Hollohan v. Zachillhur (1992 Supp (2) SCC 651, 715, para 120) another Constitution Bench, while examining the validity of para 7 of the Tenth Schedule to the Constitution which excluded judicial review of the decision of the Speaker/Chairman on the question of disqualification of MLAs and MPs, observed that it was unnecessary to pronounce on the contention whether judicial review is a basic feature of the Constitution and para 7 of the Tenth Schedule violated such basic structure.
Subsequently, in L. Chandra Kumar v. Union of India ((1997) 3 SCC 261) a larger Bench of seven Judges unequivocally declared:
“that the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure”.
Though one does not deny that power to review is very important, at the same time one cannot also give an absolute power to review and by recognizing judicial review as a part of basic feature of the constitution Courts in India have given a different meaning to the theory of Check’s and Balances this also meant that it has buried the concept of separation of powers, where the judiciary will give itself an unfettered jurisdiction to review any thing every thing that is done by the legislature.
Expansion of Judicial Review through Judicial Activism:
After the draconian exposition of power by the Executive and the Legislature during Emergency the expectations of the public soared high and the demands on the courts to improve the administration by giving appropriate directions for ensuring compliance with statutory and constitutional prescriptions. Likewise the judiciary has taken an activist view the Beginning with the Ratlam Municipality case 12the sweep of Social Action Litigation13 had encompassed a variety of causes14.
With the interpretation given by it in Menaka Gandhi case the Supreme Court brought the ambit of constitutional provisions to enforce the human rights of citizens and sought to bring the Indian law in conformity with the global trends in human-rights-jurisprudence. This was made possible in India, because of the procedural innovations with a view to making itself more accessible to disadvantaged sections of society giving rise to the phenomenon of Social Action Litigation/Public Interest Litigation15. During the Eighties and the first half of the Nineties, the Court have broken there shackle’s and moved much ahead from being a mere legal institution, its decisions have tremendous social, political and economic ramifications. Time and again, it has sought to interpret constitutional provisions and the objectives sought to be achieved by it and directed the executive to comply with its orders.
SAL, a manifestation of judicial activism, has introduced a new dimension regarding judiciary’s involvement in public administration16. The sanctity of locus standi and the procedural complexities are totally side-tracked in the causes brought before the courts through SAL. In the beginning, the application of SAL was confined only to improving the lot of the disadvantaged sections of the society who by reason of their poverty and ignorance were not in a position to seek justice from the courts and, therefore, any member of the public was permitted to maintain an application for appropriate directions17.
The new role of the Supreme Court has been criticised in some quarters as being violative of the doctrine of separation of powers; it is claimed that the Apex Court has, by formulating policy and issuing directions in respect of various aspects of the country’s administration, transgressed into the domain of the executive and the legislature. As Justice Cardozo puts it, “A Constitution states or ought to state not rules for the passing hour but principles for an expanding future.”18 It is with this view that innovations in the rules of standing have come into existence.
Limitation on the power of review:
The expansion of the horizon of judicial review is seen both with reverence and suspicion; reverence in as much as the judicial review is a creative element of interpretation, which serves as an omnipresent and potentially omnipotent check on the legislative and executive branches of government. But at the same time there is a danger that they may trespass into the powers given to the legislature and the executive.
One many say that if there is any limitation on judicial review other than constitutional and procedural19 that is a product of judicial self-restraint. As justice Dwivedi empathically observed, “Structural socio-political value choices involve a complex and complicated political process. This court is hardly fitted for performing that function. In the absence of any explicit Constitutional norms and for want of complete evidence, the court’s structural value choices will be largely subjective. Our personal predilections will unavoidably enter into the scale and give colour to our judgment. Subjectivism is calculated to undermine legal certainty, an essential element of rule of law.”20
The above observations also reveal another assumption to support an attitude of self-restraint, viz., the element subjectiveness in judicial decision on issues having socio-political significance. When one looks at the decisions of the Supreme Court on certain questions of fundamental issues of constitutional law one can see that there is a sharp division among the judges of the apex court on such basic questions of power of the Parliament to amend the Constitution, federal relations, powers of the President etc. This aptly demonstrates the observation of the judge. This would mean that though there has been expansion of powers of judicial review one cannot also say that this cannot be overturned.
Judicial self-restrain in relation to legislative power manifests itself in the form the there is a presumption of constitutionality when the validity of the statute is challenged. In the words of Fazl Ali, “…the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles”21
In applying the presumption of constitutionality the Courts sometimes apply an interpretational device called ‘reading down’. The essence of the device is that “if certain provisions of law construed in one way would make them consistent with the constitution, and another interpretation would render them unconstitutional, the court would lean in favour of the former construction.”22 But all this depends on the outlook and values of the judge.23
When it come judicial review of administrative action though the presumption of validity is not so strong in the case of administrative action as in the case of statutes. Still, when the legislature expressly leaves a matter to the discretion of an administrative authority the courts have adopted an attitude of restraint. They have said we cannot the question the legality of the exercise of discretionary power unless and until it is an abuse of discretionary power (which includes mala fide exercise of power, exercising the power for an improper motive, decision based on irrelevant considerations or in disregard of relevant consideration, and in some cases unreasonable exercise of power) and non-exercise of discretion ( which come when power is exercised without proper delegation and when it is acted under dictation).
The relevant considerations which should make the judicial choice in favour of activism or restraint are the policy and scheme of the statute, the object of conferring discretionary powers, the nature and scope of the discretion, and finally, the nature of the right and interests affected by the decision. Any impulsive move to activism without a serious consideration of these factors may only be viewed as undesirable. Judicial activism, being an exception, not the general rule, in relation to the control of discretionary power, needs strong reasons to justify it. In the absence of such strong support of reasons the interventionist strategy may provoke the other branches of Government may retaliate and impose further limitations on the scope of judicial review.
Accountability is an essential part of the rule of law. It is essential for another reason, as in the earlier editions of Dicey,24 of course modified in later editions, referring to John Wilkes’s case,25 that “conferment of any discretion tends to arbitrariness and therefore there is something inconsistent with the rule of law.” But then, as time passed, it was realized that conferment of some discretion for the purpose of application to the facts of a given case is something you cannot do away with. The area of discretion should be the minimum possible, and set norms, standards or guidelines should regulate it, so that it does not tend to become arbitrary. Therefore, the rule of non-arbitrariness is something to be tested by the judiciary whenever the occasion arises.26
The growth of judicial review is the inevitable response of the judiciary to ensure proper check on the exercise of public power. Growing awareness of the rights in the people; the trend of judicial scrutiny of every significant governmental action and the readiness even of the executive to seek judicial determination of debatable or controversial issues, at times, may be, to avoid its accountability for the decision, have all resulted in the increasing significance of the role of the judiciary. There is a general perception that the judiciary in this country has been active in expansion of the field of judicial review into non-traditional areas, which earlier were considered beyond judicial purview.
The Judges have a duty to perform, which is even more onerous to keep the judicial ship afloat on even keel. It must avoid making any ad hoc decision without the foundation of a juristic principle, particularly, when the decision appears to break new grounds. The judgments must be logical, precise, clear, and sober, rendered with restraint in speech avoiding saying more than that, which is necessary in the case.27
It must always be remembered that a step taken in a new direction is fraught with the danger of being a likely step in a wrong direction. In order to be a path-breaking trend it must be a sure step in the right direction. Any step satisfying these requirements and setting a new trend to achieve justice can alone be a New Dimension of Justice and a true contribution to the growth and development of law meant to achieve the ideal of justice.
Public Interest Litigation
Social Change and Public Interest Litigation in India
Social change is the necessity of any society. In India it is done through Public Interest Litigation. In this article an attempt was made to assess the impact of PIL over Indian Society. The jurisprudence of PIL is necessary to understand the nature of PIL in India.
Such is the disillusionment with the state formal legal system that it is no longer demanded by law to do justice, if justice perchance is done, we congratulate ourselves for being fortunate. In these circumstances one of the best things that have happened in the country in recent years is the process of social reform through Public Interest Litigation or Social Action Litigation.
Late 1970s marked discernible shift from legal centralism. Legal pluralism was very apparent now. It was realized that social conduct was regulated by the interaction of normative orders, notion of popular justice, community justice, and distributive justice were sought to be institutionalised, though outside the sphere of the formal legal system and in opposition to it.
Necessity of informal justice
Necessity of informal justice, whether as an alternative to state law or as to its agent to find its identity in opposition to state law stems from the nature of Anglo-Saxon law prescribing legal formalism and due to the failure of formal legal system to deliver justice that forced informal justice to take on a separate identity from state law.
The British rule bequeathed to India a colonial legal heritage. The Anglo-Saxon model of adjudication insisted upon observance of procedural technicalities such as locus standi and adherence to adversarial system of litigation. The result was that the courts were accessible only to the rich and the influential people. The marginalized and disadvantaged groups continued to be exploited and denied basic human rights.
Public Interest Litigation as exists today
PIL today offers such a paradigm which locates the content of informal justice without the formal legal system. Non Anglo-Saxon jurisdiction directs courts to transcend the traditional judicial function of adjudication and provide remedies for social wrongs. PIL had already molded the state in to the instrument of socio-economic change. Social justice is the byproduct of this transcends from the formal legal system.
Evolution of Public Interest Litigation
The Indian PIL is the improved version of PIL of U.S.A. According to “Ford Foundation” of U.S.A., “Public interest law is the name that has recently been given to efforts that provide legal representation to previously unrepresented groups and interests. Such efforts have been undertaken in the recognition that ordinary marketplace for legal services fails to provide such services to significant segments of the population and to significant interests. Such groups and interests include the proper environmentalists, consumers, racial and ethnic minorities and others”. The emergency period (1975-1977) witnessed colonial nature of the Indian legal system. During emergency state repression and governmental lawlessness was widespread. Thousands of innocent people including political opponents were sent to jails and there was complete deprivation of civil and political rights. The post emergency period provided an occasion for the judges of the Supreme Court to openly disregard the impediments of Anglo-Saxon procedure in providing access to justice to the poor. Notably two justices of the Supreme Court, Justice V. R. Krishna Iyer and P. N. Bhagwati recognised the possibility of providing access to justice to the poor and the exploited people by relaxing the rules of standing. In the post-emergency period when the political situations had changed, investigative journalism also began to expose gory scenes of governmental lawlessness, repression, custodial violence, drawing attention of lawyers, judges, and social activists. PIL emerged as a result of an informal nexus of pro-active judges, media persons and social activists. This trend shows starke difference between the traditional justice delivery system and the modern informal justice system where the judiciary is performing administrative judicial role. PIL is necessary rejection of laissez faire notions of traditional jurisprudence.
The first reported case of PIL in 1979 focused on the inhuman conditions of prisons and under trial prisoners. In Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360, the PIL was filed by an advocate on the basis of the news item published in the Indian Express, highlighting the plight of thousands of undertrial prisoners languishing in various jails in Bihar. These proceeding led to the release of more than 40, 000 undertrial prisoners. Right to speedy justice emerged as a basic fundamental right which had been denied to these prisoners. The same set pattern was adopted in subsequent cases.
In 1981 the case of Anil Yadav v. State of Bihar, AIR 1982 SC 1008, exposed the brutalities of the Police. News paper report revealed that about 33 suspected criminals were blinded by the police in Bihar by putting the acid into their eyes. Through interim orders S. C. directed the State government to bring the blinded men to Delhi for medical treatment. It also ordered speedy prosecution of the guilty policemen. The court also read right to free legal aid as a fundamental right of every accused. Anil Yadav signalled the growth of social activism and investigative litigation.
In (Citizen for Democracy v. State of Assam, (1995) 3SCC 743), the S. C. declared that the handcuffs and other fetters shall not be forced upon a prisoner while lodged in jail or while in transport or transit from one jail to another or to the court or back.
Concept of PIL
According to the jurisprudence of Article 32 of the Constitution of India, “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this part is guaranteed”. Ordinarily, only the aggrieved party has the right to seek redress under Article 32.
In 1981 Justice P. N. Bhagwati in .S. P. Gupta v. Union of India, 1981 (Supp) SCC 87, articulated the concept of PIL as follows, “Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons by reasons of poverty, helplessness or disability or socially or economically disadvantaged position unable to approach the court for relief, any member of public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case any breach of fundamental rights of such persons or determinate class of persons, in this court under Article 32 seeking judicial redress for the legal wrong or legal injury caused to such person or determinate class of persons.”
The rule of locus standi have been relaxed and a person acting bonafide and having sufficient interest in the proceeding of Public Interest Litigation will alone have a locus standi and can approach the court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration (Ashok Kumar Pandey v. State of W. B., (2004) 3 SCC 349).
Supreme Court in Indian Banks’ Association, Bombay and ors v. M/s Devkala Consultancy Service and Ors., J. T. 2004 (4) SC 587, held that “In an appropriate case, where the petitioner might have moved a court in her private interest and for redressal of the personal grievance, the court in furtherance of Public Interest may treat it a necessity to enquire into the state of affairs of the subject of litigation in the interest of justice. Thus a private interest case can also be treated as public interest case”.
In Guruvayur Devaswom Managing Commit. And Anr. Vs. C.K. Rajan and Ors, J.T. 2003 (7) S.C. 312, S.C. held, “The Courts exercising their power of judicial review found to its dismay that the poorest of the poor, depraved, the illiterate, the urban and rural unorganized labour sector, women, children, handicapped by ‘ignorance, indigence and illiteracy’ and other down trodden have either no access to justice or had been denied justice. A new branch of proceedings known as ‘Social Interest Litigation’ or ‘Public Interest Litigation’ was evolved with a view to render complete justice to the aforementioned classes of persona. It expanded its wings in course of time. The Courts in pro bono publico granted relief to the inmates of the prisons, provided legal aid, directed speedy trial, maintenance of human dignity and covered several other areas. Representative actions, pro bono publico and test litigations were entertained in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to by pass the, real issues on the merits by suspect reliance on peripheral procedural shortcomings… Pro bono publico constituted a significant state in the present day judicial system. They, however, provided the dockets with much greater responsibility for rendering the concept of justice available to the disadvantaged sections of the society. Public interest litigation has come to stay and its necessity cannot be overemphasized. The courts evolved a jurisprudence of compassion. Procedural propriety was to move over giving place to substantive concerns of the deprivation of rights. The rule of locus standi was diluted. The Court in place of disinterested and dispassionate adjudicator became active participant in the dispensation of justice”.
Aspects of PIL
(a) Remedial in Nature
Remedial nature of PIL departs from traditional locus standi rules. It indirectly incorporated the principles enshrined in the part IV of the Constitution of India into part III of the Constitution. By riding the aspirations of part IV into part III of the Constitution had changeth the procedural nature of the Indian law into dynamic welfare one. Bandhu Mukti Morcha v. Union of India, Unnikrishnan v. State of A.P., etc were the obvious examples of this change in nature of judiciary.
(b) Representative Standing
Representative standing can be seen as a creative expansion of the well-accepted standing exception which allows a third party to file a habeas corpus petition on the ground that the injured party cannot approach the court himself. And in this regard the Indian concept of PIL is much broader in relation to the American. PIL is a modified form of class action.
(c) Citizen standing
The doctrine of citizen standing thus marks a significant expansion of the court’s rule, from protector of individual rights to guardian of the rule of law wherever threatened by official lawlessness.
(d) Non-adversarial Litigation
In the words of S. C. in People’s Union for Democratic Rights v. Union of India, AIR 1982 S.C. 1473, “We wish to point out with all the emphasis at our command that public interest litigation…is a totally different kind of litigation from the ordinary traditional litigation which is essentially of an adversary character where there is a dispute between two litigating parties, one making claim or seeking relief against the other and that other opposing such claim or resisting such relief”. Non-adversarial litigation has two aspects.
- Collaborative litigation; and
2. Investigative Litigation
Collaborative Litigation: In collaborative litigation the effort is from all the sides. The claimant, the court and the Government or the public official, all are in collaboration here to see that basic human rights become meaningful for the large masses of the people. PIL helps executive to discharge its constitutional obligations. Court assumes three different functions other than that from traditional determination and issuance of a decree.
(i). Ombudsman- The court receives citizen complaints and brings the most important ones to the attention of responsible government officials.
(ii) Forum – The court provides a forum or place to discuss the public issues at length and providing emergency relief through interim orders.
(iii) Mediator – The court comes up with possible compromises.
Investigative Litigation: It is investigative litigation because it works on the reports of the Registrar, District Magistrate, comments of experts, newspapers etc.
(e) Crucial Aspects
The flexibility introduced in the adherence to procedural laws. In Rural Litigation and Entitlement Kendra v. State of U.P.,(1985) 2 SCC 431, court rejected the defense of Res Judicta. Court refused to withdraw the PIL and ordered compensation too. In R.C. Narain v. State of Bihar, court legislated the rules for the welfare of the persons living in the mental asylum. To curtail custodial violence, Supreme Court in Sheela Barse v. State of Maharashtra, issued certain guidelines. Supreme Court has broadened the meaning of Right to live with human dignity available under the Article 21 of the Constitution of India to a greatest extent possible.
(f) Relaxation of strict rule of Locus Standi
The strict rule of locus standi has been relaxed by way of (a) Representative standing, and (b) Citizen standing. In D.C.Wadhwa v. State of Bihar, AIR 1987 SC 579, S.C. held that a petitioner, a professor of political science who had done substantial research and deeply interested in ensuring proper implementation of the constitutional provisions, challenged the practice followed by the state of Bihar in repromulgating a number of ordinances without getting the approval of the legislature. The court held that the petitioner as a member of public has ‘sufficient interest’ to maintain a petition under Article 32.
The rule of locus standi have been relaxed and a person acting bonafide and having sufficient interest in the proceeding of Public Interest Litigation will alone have a locus standi and can approach the court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration…court has to strike balance between two conflicting interests: (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive and the legislature (Ashok Kumar Pandey v. State of W. B., (2004) 3 SCC 349).
It is depressing to note that on account of trumpery proceedings initiated before the courts, innumerable days are wasted, which time otherwise could have been spent for the disposal of cases of genuine litigants. Though the Supreme Court spares no efforts in fostering and developing the laudable concept of PIL and extending its ling arm of sympathy to the poor, ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed, unrepresented and unheard (Ashok Kumar Pandey v. State of W. B., (2004) 3 SCC 349).
(g) Epistolary Jurisdiction
The judicial activism gets its highest bonus when its orders wipe some tears from some eyes. This jurisdiction is somehow different from collective action. Number of PIL cells was open all over India for providing the footing or at least platform to the needy class of the society.
Features of PIL
Through the mechanism of PIL, the courts seek to protect human rights in the following ways:
1) By creating a new regime of human rights by expanding the meaning of fundamental right to equality, life and personal liberty. In this process, the right to speedy trial, free legal aid, dignity, means and livelihood, education, housing, medical care, clean environment, right against torture, sexual harassment, solitary confinement, bondage and servitude, exploitation and so on emerge as human rights. These new reconceptualised rights provide legal resources to activate the courts for their enforcement through PIL.
2) By democratization of access to justice. This is done by relaxing the traditional rule of locus standi. Any public spirited citizen or social action group can approach the court on behalf of the oppressed classes. Courts attention can be drawn even by writing a letter or sending a telegram. This has been called epistolary jurisdiction.
3) By fashioning new kinds of relief’s under the court’s writ jurisdiction. For example, the court can award interim compensation to the victims of governmental lawlessness. This stands in sharp contrast to the Anglo-Saxon model of adjudication where interim relief is limited to preserving the status quo pending final decision. The grant of compensation in PIL matters does not preclude the aggrieved person from bringing a civil suit for damages. In PIL cases the court can fashion any relief to the victims.
4) By judicial monitoring of State institutions such as jails, women’s protective homes, juvenile homes, mental asylums, and the like. Through judicial invigilation, the court seeks gradual improvement in their management and administration. This has been characterized as creeping jurisdiction in which the court takes over the administration of these institutions for protecting human rights.
5) By devising new techniques of fact-finding. In most of the cases the court has appointed its own socio-legal commissions of inquiry or has deputed its own official for investigation. Sometimes it has taken the help of National Human Rights Commission or Central Bureau of Investigation (CBI) or experts to inquire into human rights violations. This may be called investigative litigation.
PIL as an Instrument of Social Change
PIL is working as an important instrument of social change. It is working for the welfare of every section of society. It’s the sword of every one used only for taking the justice. The innovation of this legitimate instrument proved beneficial for the developing country like India. PIL has been used as a strategy to combat the atrocities prevailing in society. It’s an institutional initiative towards the welfare of the needy class of the society. In Bandhu Mukti Morcha v. Union of India, S.C. ordered for the release of bonded labourers. In Murli S. Dogra v. Union of India, court banned smoking in public places. In a landmark judgement of Delhi Domestic Working Women’s Forum v. Union of India, (1995) 1 SCC 14, Supreme Court issued guidelines for rehabilitation and compensation for the rape on working women. In Vishaka v. State of Rajasthan Supreme court has laid down exhaustive guidelines for preventing sexual harassment of working women in place of their work.
It would be appropriate to conclude by quoting Cunningham, “Indian PIL might rather be a Phoenix: a whole new creative arising out of the ashes of the old order.”
PIL represents the first attempt by a developing common law country to break away from legal imperialism perpetuated for centuries. It contests the assumption that the most western the law, the better it must work for economic and social development such law produced in developing states, including India, was the development of under develop men.
The shift from legal centralism to legal pluralism was prompted by the disillusionment with formal legal system. In India, however instead of seeking to evolve justice- dispensing mechanism ousted the formal legal system itself through PIL. The change as we have seen, are both substantial and structural. It has radically altered the traditional judicial role so as to enable the court to bring justice within the reach of the common man.
Further, it is humbly submitted that PIL is still is in experimental stage. Many deficiencies in handling the kind of litigation are likely to come on the front. But these deficiencies can be removed by innovating better techniques. In essence, the PIL develops a new jurisprudence of the accountability of the state for constitutional and legal violations adversely affecting the interests of the weaker elements in the community. We may end with the hope once expressed by Justice Krishna Iyer, “The judicial activism gets its highest bonus when its orders wipe some tears from some eyes”.
Activism or Over-reach?
Justice is the bread of the nation- it is always hungry for it. And, it is well known that justice delayed is justice denied. The role of judicial activism in India has been to provide a safeguard to the common man and indigent against an insensitive system. This noble task, taken upon itself by the courts, has provided succour, relief and requisite legal remedies to the needy and deprived, over the past few years of judicial intervention and cementing.
However, recently in a surprising censure of itself in recent times, the Supreme Court, has observed that judicial activism has disturbed the delicate balance of powers enshrined in the Constitution.
“Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like Emperors. There is broad separation of powers under the Constitution and each organ of the State i.e. the legislature, the executive and the judiciary must have respect for the others and not encroach into each other’s domain,” observed a bench comprising Justices A K Mathur and Markandeya Katju. The Hon’ble Bench also observed that these were matters pertaining exclusively to the executive or legislative domain and if there was a law, judges could certainly enforce it but judges could not create a law and seek to enforce it.
The court was unwilling to accept the “justification” given for judicial encroachment that the other two organs are not doing their jobs properly. It said that even assuming if this was so, the same allegation could be made against the judiciary too because there were cases pending in courts for half a century. Judicial activism is not an unguided missile and failure to bear this in mind would lead to chaos. With a view to see that judicial activism does not become judicial adventurism, the courts must act with caution and proper restraint.
While observing that the courts have “apparently, if not clearly, strayed into the executive domain or in matters of policy”, it questioned several orders of the Delhi High Court on the legality of constructions in Delhi, identifying buildings to be demolished, age and other criterion for nursery admissions, unauthorised schools, criterion for free seats in hospitals on public land, use and misuse of ambulances, requirements for establishing a world class burns ward in a hospital, the air delhiites breathe , begging in public , use of subways ,nature of buses we board ,size of speedbreakers on Delhi roads , autorickshaws overcharging and accidents and enhancing fines.
Due to the confusion following the carping comments of the Supreme Court on judicial activism, on the tendency of judiciary to encroach into the powers of the Legislature and the Executive, a two judge bench of the apex court declined further hearing of a matter relating to rehabilitation of victims of flesh trade and referred the 2004 PIL to a larger bench in view of the observations made by the bench comprising of Hon’ble Justices A K Mathur and Markandeya Katju. However, this temporary flux was resolved by a three judge bench of the Supreme Court, headed by Chief Justice K G Balakrishnan, which took the sting out of the earlier apex court order decrying judicial activism. ‘We are not bound by the two-judge bench order,’ the three-judge bench headed by the chief justice said, while issuing notices to the central and UP governments in a suit relating to the plight widows in Vrindavan and Mathura.
The Supreme Court has now asked the High Courts to follow guidelines it had laid down 14 years ago to “ruthlessly” weed out motivated PILs by ‘imposters and busybodies’ and reject petitions attacking justifiable executive actions for oblique motives “under the guise of redressing a public grievance”. It is a great relief to the common man that the record has been set right by the bench headed by the Chief justice of India because the courts are the last ray of hope for the oppressed, “bewildered” and politically powerless. Every democracy has to have a watch dog to check and balance the untrammeled powers of the state in order to ensure that, in the garb of “public interest”, the discretionary powers are not exercised arbitrarily to rough ride the fundamental rights of the citizen.
While it is imperative to exercise justifiable restraint and caution to ensure that judicial activism does not become judicial adventurism or tyranny, this power should be exercised only in exceptional circumstances and that too, only in public interest. Truly, judicial activism “is the oxygen of the rule of law”. The constitutional revolution, which was the vision of the Founding Fathers, was entrusted to the judiciary, giving it powers to enforce, through “writ power”, the socio economic liberation implicit in the fundamental rights and other avant-garde provisions of the Indian Constitution- the oasis of our democracy. “It is the courts, which have stood the test of time and served the cause of social-economic justice only to preserve the fundamental rights and duties of the citizen. When the executive violates these rights, the court cannot abdicate its responsibility or jurisdiction, oath bound as it is, to uphold the Constitution.”
It is, therefore, fair and just that the Chief Justice of India has assured the country that the confusion likely to flow from the two judge bench ruling, will be set at rest by a larger bench laying down parameters governing PIL jurisdiction and judicial activism without trespassing into the realm of judicial overreach.
Judicial Reforms in India
In the comity of nations, India’s justice system is appreciated and well received. Despite the problem of numbers, we have not compromised on the quality of justice delivered. We have enlarged the scope of fundamental freedoms and increased the space for democracy. We do have shortcomings and are rightly criticized for it. No institution in a democracy is above criticism. What is important is that criticisms are based on facts and performance. It is my responsibility as head of the judicial system to answer the criticisms, clarify the facts and defend the institution for enabling it to serve the litigant public better.
On the occasion of another Law Day, the 58th of the Republic, I am addressing you with an air of expectation and a sense of fulfillment – the expectation at the steady unfolding of results of judicial reforms set in motion during the last few years and fulfillment on accomplishments which the system has achieved since I addressed you on the “State of Justice” last year. Law Day is significant not only to celebrate our journey on the path of Constitutional democracy and rule of law, but also to take stock of the promises which WE, THE PEOPLE OF INDIA, have given unto ourselves almost six decades ago. In the comity of nations, India’s justice system is appreciated and well received. Despite the problem of numbers, we have not compromised on the quality of justice delivered. We have enlarged the scope of fundamental freedoms and increased the space for democracy. We do have shortcomings and are rightly criticized for it. No institution in a democracy is above criticism. What is important is that criticisms are based on facts and performance. It is my responsibility as head of the judicial system to answer the criticisms, clarify the facts and defend the institution for enabling it to serve the litigant public better.
Let me reiterate on this occasion the commitment of every member of our judicial establishment to uphold the purity of justice and ensure its timely delivery to the millions who knock at our doors. I see it as a sign of our commitment to rule of law and of our convictions on the ability of courts to give fair and impartial justice. Yes, it might create congestion in courts and cause delay in the delivery of justice. But that is no ground to dissuade people having legitimate claims and grievances from seeking judicial time.
The answer lies in improving the efficiency of the court system and expanding the infra-structure to cope with the situation. I am glad to report that efforts in this regard are yielding results which may acquire speed in the days ahead.
Let me explain few of the steps taken up in this regard so that you may appreciate the facts and continue to support the judiciary in the performance of its onerous tasks in difficult times.
The problem of Arrears and Delay:
Increasingly productivity through improved infrastructure, employment of alternative methods of settlement and adoption of better strategies of management and training have been the key elements of the drive against delay and pendency during the last few years. For any organization, efficiency and productivity are directly linked to the infra-structure it commands. Infrastructure in terms of judiciary includes both human and physical infra-structure. On both fronts, the situation of the subordinate courts which handle 90 percent of litigation continues to be far from satisfactory. This is the responsibility of the State Governments even when the subordinate courts do devote considerable time in adjudicating cases under central laws as well. A committee appointed by the Government of India to study the impact of new legislation on the workload of the courts has recommended that the Union Government has Constitutional obligation under Entry 11 A of the Concurrent List read with Article 247 to provide adequate financial provision for implementation of Central laws through State Courts. The State Governments under the same principle are likewise obliged to meet expenditure of Courts for implementing laws on subjects in the State and Concurrent List.
Hopefully the above recommendations will receive favourable consideration of the Central and State Governments and the infra-structural needs of subordinate courts will be met in the near future. Meanwhile the continuation of the Fast Track Courts which have reduced pendency of nearly 20 lakh criminal cases will accelerate the process to the advantage of litigant public. The Central Government was approached to create more special courts for disposal of corruption cases and family disputes which cannot brook delay without causing greater damage to public interest. In several States at the instance of the respective High Courts, evening courts have been established to clear pending cases requiring priority attention. In Tamilnadu, Andhra Pradesh and Gujarat, such courts have been proved to be quite effective in disposal of cases involving minor offences which are clogging our criminal justice system. Delhi has recently started evening courts initially for cases under Section 138 of Negotiable Instruments Act, involving small amounts.
I am confident that other States will follow soon by establishing evening or morning courts to deal with cases involving petty offences. If these efforts of the judiciary are supported by Governments by providing better infra-structural facilities, productivity can be further improved to bring down pendency and delay in the near future.
I do not want to burden you with the statistics of cases filed, disposed and pending at each level of the judicial structure. All I want to convey on this occasion is that while the number of fresh cases instituted has been steadily increasing year after year, the number of cases disposed of has also increased ubstantially as compared to previous years. It indicates that our judges, overworked as they are, have been making every effort to steadily improve productivity even in adverse circumstances. I want to assure the public that judges are conscious of the problem of arrears and are making every effort to contain the rise of pendency of cases at all levels of the judicial system. Timely justice is the right of every litigant and speedy justice is the obligation of every functionary of the judicial system.
Judicial Education and Training:
I may in this context reflect briefly two significant initiatives undertaken by the Judiciary. Judges, like any other professionals, need continuing education and training to improve professional competence to deal with new challenges thrown up by changes in society, economy, polity and technology. Taking this into account, the Supreme Court had set up the National Judicial Academy five year ago which is now offering regular courses of training designed to cater to the needs of superior court judges. Simultaneously, each High Court has set up judicial academies to train judges newly inducted in the subordinate Courts and to provide continuing education to judges in service. The National Judicial Academy has devised yearlong training plans in consultation with State Academies to ensure that every judge throughout the country has opportunity once in every year to learn and improve court and case management capabilities with support of technology and professionalism.
Simultaneously an E-Committee directly under the Supreme Court was set up to devise and implement a National Policy on computerization of judicial administration in order to expedite delivery of justice in civil and criminal cases. The project is being implemented in three phases over a period of five years. At the end of the first phase, reports indicate that a cost and time effective procedure is under way providing greater transparency, expedition and accountability to the system.
Alternative Methods of Delivery of Justice:
Litigation is time consuming and relatively expensive. In a country with a vast population of poor people, justice has to be necessarily cheap and expeditious. For this, alternatives to litigation must be produced by the justice system. Parliament has provided the statutory basis for it by the recent amendments to the Civil Procedure Code and the Criminal Procedure Code. Taking advantage of these, the judiciary has prepared a National Plan for Mediated Settlement of disputes which included training of mediators, development of mediation manuals, setting up of mediation Centres in Court Complexes and spreading awareness about it among litigants through the legal aid services. Other modes of settlement are also being encouraged and judicial officers are instructed to promote ADR as a movement especially at the first level of courts where the bulk of poor litigants seek justice. As standards of quality of justice delivered cannot be compromised, the ADR process cannot be accelerated without preparation and without demand from litigants themselves. It is hoped that in the next few years, like other jurisdictions outside India, litigants here would also prefer settlements outside litigation through negotiated arrangements. And proportionately it would reduce the problem of delay and pendency in litigation as well.
At the end of the day what I want to report on the issue of arrears is that we are on the right track with a multidimensional, well-planned national programme which has started giving rich dividends. With support from the Central and State Governments and co-operation of the bar and litigant public, I am hopeful that in the next couple of years substantial reduction in the number of cases pending in courts and in the time taken for disposal of cases will happen even if the fresh filings are going to increase continuously.
Judicial Corruption to be rooted out mercilessly:
Let me now turn to another subject which is worrying the public as media reports indicate. This is about judicial corruption, a subject which was not an issue in public discourse till recently. Let me admit traightaway that corruption and impartiality cannot co-exist. Under no circumstances can judiciary tolerate corruption even in its administrative staff. For an organization which is nearly a million strong including 16,000 odd judges, five to six lakh lawyers and another 3 to 5 lakh ministerial staff to be free from corruption is a tall order, however desirable it be. The legal profession is independent and its discipline is the responsibility of the elected Bar Councils. The public perception of judicial corruption includes corruption by the lawyers and their staff. Similarly, a substantial section of people who consider judiciary to be corrupt attribute it to the ministerial staff of courts and related offices. It is unfortunate that judiciary has to be bear the burden for corruption of people on whom the judiciary has no or little control. So far as the 16,000 and odd judges who constitute the Indian judiciary I am responsible for their conduct as head of the system though I do not personally have legal and administrative control over them. Nonetheless, I have a duty to explain how the judiciary is enforcing discipline among the judges to ensure that people who approach the Courts will get fair and impartial justice. I would therefore inform you the steps I have taken as head of the judiciary to ensure a corruption-free judicial system
(i) Declaration of Assets by Judges:
The Supreme Court adopted a resolution as early as 1997 to declare assets voluntarily. I have requested Chief Justices of all High Courts to adopt similar Resolutions for declaration of assets by the judges of High Courts as well.
(ii) Restatement of Values of Judicial Life:
Again the Supreme Court in 1997 unanimously adopted a Resolution restating certain time-honoured best practices for judges to follow while they hold the high office. They form a code of ethics for judges to comply in public and private lives. I felt it necessary for High Court justices also to follow similar guidelines and therefore sent it to the High Courts requesting the respective Chief Justices to circulate it among the judges of the High Courts for compliance.
(iii) Model Code of Conduct for Subordinate Judiciary:
It was observed that the conduct of certain subordinate court judges particularly during visits of High Court judges to their places of work have not been of the standard expected of them. I have therefore
formulated certain norms of conduct on their part which I requested the High Courts to consider and adopt for action by subordinate judges.
(iv) Strengthening and Streamlining Vigilance Cells in High Courts:
The Vigilance Cells in High Courts is the primary mechanism available to deal with complaints against subordinate judges. The Chief Justices’ Conference discussed the strategies to strengthen the cells to instill confidence and to expedite inquiries in appropriate cases, so that dishonest judges are eliminated and honest ones are protected.
(v) In-House Inquiry Procedure invoked against High Court Judges:
On receipt of allegations, inquiry through a Committee of Senior Judges was initiated against two sitting High Court Justices, of whom one was recommended to be removed through impeachment proceedings. The finding of the inquiry committee in the other case is awaited.
(vi) Periodical Performance Evaluation and Removal of Judges and officers of Doubtful Integrity:
I have written to the Chief Justices of High Courts to utilize their authority to review the work of all judicial officers firstly on attaining the age of 50 years and then when they attain the age of 55 years and to prematurely retire those found unfit, ineffective or having doubtful integrity. I have reminded them that this is expected under the Fundamental Rules and the Service Rules can be accordingly amended so that deviant behaviour can be effectively prevented. Such review of officers and employees of the Supreme Court is being carried out when they reach the age of 50, 55, 56, 57, 58 and 59 years. Experience has proved it to be an effective remedy particularly against ministerial corruption. Several judges of doubtful integrity are being retired under this provision.
(vii) Tightening the Selection Procedure of Superior Court Justices:
A more detailed check-list to gather adequate information on suitability of prospective candidates for judgeship has now been evolved and sent to all High Courts. The Chief Justice who initiates the recommendations for his High Court has been asked to gather the details including personal antecedents on the new Questionnaire from Advocates and judicial officers being considered for appointment and get them verified. These data with supporting documents have to be forwarded along with recommendations. This is to avoid discovering a black sheep at a later stage when very little can be done, except resorting to the impeachment process.
There are several more steps being undertaken to rid the judiciary of corrupt elements spoiling the fair
name of the justice system. All that I can do is to assure the public that the judiciary will not tolerate corruption and everything will be done, whatever be the cost, to uphold the purity of justice. In doing so, we have to ensure that the independence of judiciary is not compromised and the reputation of honest judges not harmed.
Legal Aid and Access to Justice:
Another issue which concerns a vast section of people seeking justice is the ability to access equal justice under law. The Government has accorded a crucial role to the judiciary to administer the Legal Services Authority Act which has multiple objectives. Rules have been framed under the Act and appropriate bodies have been set up at various levels to reach out the message of rule of law and equality in access to justice to every nook and corner of this vast country.
The Supreme Court Legal Services Committee grants legal aid to litigants in the Supreme Court which has over 200 advocates including Senior Advocates to render aid to deserving litigants. It maintains its own website and e-mail through which assistance can be obtained from anywhere. For middle income group the Committee renders assistance at subsidized rates through eminent lawyers. Similar arrangements are in place at the High Courts and subordinate courts. Apart from giving litigational aid including the services of lawyers to represent in court, the Legal Services Authority organizes Lok Adalats to facilitate negotiated or mediated settlement of disputes. The programmes and policies are evolved and supervised by the National Legal Services Authority presided over by a Senior Supreme Court judge. It has undertaken a series of programmes to assist different sections of needy people particularly from the weaker sections.
As part of the legal literacy mission and social justice goals, NALSA has launched several campaigns for the successful implementation of the National Rural Employment programme, Protection of rights of women, Children, Dalits and the disabled persons. Legal aid is conceived as a social movement for the legal empowerment of all sections of people for equal justice under law. In this effort a national network of legal aid centres and civil society groups is being set up which can mobilize social action for good governance under law. This is a silent revolution under way to make a success of our democracy. In a small way the judiciary is extending a helping hand in this social empowerment mission though it is outside their usual function of adjudication and settlement of disputes.
I must on this occasion record my profound gratitude to my brother judges in the Supreme Court, High Courts and Subordinate Courts for the valuable efforts they are making to render timely justice to all litigants. Their sacrifices and commitment to justice have made rule of law an abiding principle of Constitutional democracy in our Republic.
Let us all take a pledge on this Law Day that we will do everything possible to uphold the values of the Constitution and render justice to the people without fear, favour or ill will.