.png "Judicial Activism - A Comprehensive note PART - II")
PART - II
7. IMPACT OF JUDICIAL ACTIVISM IN THE
ADMINISTRATION OF JUSTICE:
In India, public law review has not
been limited to the enforcement of public rights only, rather it has been
extended to keep the administrative actions within proper control. The Supreme
Court is the sentinel on the qui vive and gives meaning and life to the
constitutionally guaranteed fundamental rights. In doing so, it has expanded
its jurisdictional reach enormously so as to cover the authorities which had
earlier been considered outside the writ jurisdiction of the court. It has also
expanded its jurisdictional reach by making a public law remedy available to
victims not only against the State but against individuals too.
In addition to the rights of working
women, the rights of general workers relating to employment, promotion and
other incidence of employment need more and more protection from different
public corporations and establishments. The ‘State’ would have an additional
duty to see that the rights of employees of such bodies are not infringed. With
this view, the Supreme Court has given a liberal and the broadest possible
interpretation to the expression “State”, defined under Article 12 of the
Constitution.
The first march towards increasing the
jurisdictional reach of the Supreme Court which became visible when the court
left the traditional principle of ejusdem generis and evolved in Rajasthan SEB v. Mohan Lal (AIR 1967 SC 1857), the principle of constitutional or statutory body on whom
powers were conferred by law. Thus, the expression “other authorities” used in
Article 12 was held necessarily to mean an authority engaged in the sovereign
functions of the State.
The jurisdictional reach of the Supreme
Court, through evolution of the concept of State agency or instrumentality, was
further expanded in Ramana Dayaram Shetty v.
International Airport Authority of India (1979). A three-judge Bench, comprising of
Bhagwati, Pathak and Tulzapurkar JJ, came to discuss whether the International
Airport Authority was an agency or instrumentality of the State, so as to
provide the security of fundamental rights to its employees.
A more radical step to expand the
jurisdictional reach of the court was taken in Ajay
Hasia v. Khalid Mujib Sehravardi (1981). The test propounded by Mathew J in Sukhdev Singh and
elaborated by Bhgwati J in R.D. Shetty was reformulated by the Constitution
Bench in Ajay Hasia. It dealt with a challenge under Article 32 of the
Constitution to admissions made to a college established and administered by a
society registered under the J&K Registration of Societies Act, 1898.
Bhagwati J gave a new angle to justify
the court’s increased jurisdictional reach. Said Bhagwati J: “It is immaterial
for this purpose whether the corporation is created by a statute or under a
statute. The test is whether it is an instrumentality or agency of the
Government and not as to how it is created. The inquiry has to be not as to how
the juristic person is born but why it has been brought into existence.”
The day when Ajay Hasia was decided, a
three-judge Bench decided Som Prakash Rekhi v.
Union of India (1981). The majority decision was pronounced by Krishna Iyer J and
Pathak J delivered a separate judgement. A similar line of reasoning was
adopted by Krishna Iyer J in Som Prakash Rekhi as was adopted by Bhagwati J in
Ajay Hasia. Declaring the Bharat Petroleum Corporation as “State” within the
meaning of Article 12, Krishna Iyer J pointed out that it is immaterial whether
the Corporation is formed by a statute or under a statute. He emphasised, “The
true test is functional. Not how the legal person is born but why it is
created.”
In Pradeep
Kumar Biswas v. Indian Institute of Chemical Biology (2002), a seven-judge Bench
of the Supreme Court, comprising S.P. Bharucha CJ and S.S. Mohammad Quadri,
R.C. Lahoti, S. Santosh Hegde, Doraiswamy Raju, Ruma Pal and Arijit Pasayat JJ,
by 5:2 majority declared the Council of Scientific and Industrial Research an
instrumentality of the State and, thereby, brought it within the definition of
“State” under Article 12.
After independence, India adopted its
Constitution which, inter alia, guaranteed Fundamental Rights to its citizens.
Democracy, in any sense, cannot be established unless certain minimal rights,
which are essential for existence, are assured to every citizen of the country.
The Preamble to the Constitution depicts these aspirations and Part III of
Indian Constitution provides these rights to every citizen within territory of
India. Part III of the Indian Constitution dealing with fundamental rights, weaves
a "pattern of guarantee" on the basic structure of human rights and
imposes negative obligations on the State not to encroach on individual liberty
in its various dimensions. Every activity which facilitates the exercise of the
life and personal liberty may be considered integral part of this right.
Simultaneously, the judicial approach towards the interpretation of the right
to personal liberty under Article 21 has moved from narrow restricted view to
the border view.
In Part III of the Constitution of
India, the Right to Life and Personal Liberty has witnessed different phases at
different point of time. Restructured Article 21 is a by-product of judicial
dynamism and activism of the Supreme Court of India. The emergence of the
Indian Supreme Court as a custodian of people’s right in a democratic way is
the most significant and important development in the judicial history of
independent India. It is being envisaged not as a redressal forum of the elite
class in the society, but it is perceived as a forum for raising, redressing
and articulating the problems of have-nots, deprived, oppressed, downtrodden,
women and children, environmental groups, exploitation and abuse of powers and
position by persons holding high public office.
A major breakthrough came in Maneka
Gandhi‘s case (1978). It was a landmark example of amplifying the law to enhance
personal rights and fundamental rights. There, the legislation governing grant
of passport was interpreted in a manner so as to enhance the rights of personal
freedom and personal liberty. In the instant case, the passport of Maneka
Gandhi had been impounded and she challenged the validity on the ground that
action violated her personal liberty. No hearing had been given to her as to
why her passport should not be impounded. The Supreme Court not only gave wider
meaning to the words ‘personal liberty’ but also brought in the concept of
‘procedural due process’. While giving wider meaning to the words ‘personal
liberty’ the Court held that the earlier view that ‘personal liberty’ included
all attributes of liberty except those mentioned in Article 19 stood rejected.
Where a law restricted personal liberty, a court would also examine whether
such restriction on personal liberty also imposed restrictions on any of the
rights given by Article 19. The Court held that the right to go abroad was part
of ‘personal liberty’. ‘Personal liberty’ a variety of rights which go to
constitute the personal liberty of man, in addition to those mentioned in Article
19. The Court held that impounding of her passport without giving her a hearing
was not according to procedure established by law. The procedure that a must
provide must be a just and fair procedure.
The rules of natural justice which is a
term used for a fair hearing, are the essential requisites of fair procedure.
These rules are: 13 Article 21 of the Constitution lays down “No person shall
be deprived of his life or personal liberty except according to procedure
established by law.”
(1) That no one should be a judge in
his own cause and
(2) That no one should be condemned
unheard.
In the present case, the Court was
called upon to decide whether Mrs. Maneka Gandhi was entitled to a hearing
before her passport was impounded. The Court conceded that in some situations
where urgent action was needed, a prior hearing might not be feasible. In such
exceptional situations if a prior hearing was not given, the authorities must
give a post decisional hearing. On the assurance of the learned Attorney
General that a post-decisional hearing would be given soon, the majority,
barring Justice Beg, held that the government ‘sanction need not be stuck down.
Justice Beg held that the Government’s action was unconstitutional and void. In
Maneka Gandhi, the Court clearly overruled Gopalan on the following issues:
(1) The law authorizing deprivation of
personal liberty would have to be valid not only under article 21 but also
under article 19(1) (d);
(2) The words ‘life’ and ‘personal
liberty’ had wider meanings that would be discovered from time to time; they
were open-textured expressions;
(3) The words ‘procedure established by
law’ meant not the procedure prescribed by law but procedures considered to be
just and fair in civilized countries.
The most significant aspect of Maneka
Gandhi was that the Court laid down a seminal principle of constitutional
interpretation. There cannot be a mere textual construction of the words of the
Constitution. Those words are pregnant with meanings that unfold when
situations arise. This opened the Pandora Box which resulted in flooding of
litigations further expanding Art 21.
The scope and extent of the application
of the doctrine of basic structure again came up for examination in Minerva Mills Ltd. V. Union of India (1980). In this case the petitioners challenged the validity of
Sections 4 and 55 of the Constitution (Forty-second Amendment Act, 1976) on the
ground of violation of the basic structure of the Constitution as laid down in
Kesavananda Bharati. These sections amended respectively Articles 31-C and 368.
In Article 31-C laws implementing any Directive Principle were exempted from
challenge on the ground of violation of Article 14, 19 and 31 and 31 and in
Article 368 clauses (4) and (5) validated all invalidated and existing
amendments and removed all limitations on future amendments. While the court
unanimously invalidated the amendment of Article 368, it invalidated the
amendment of Article 31-C by 4:1. Applying the basic structure doctrine with
respect to Article 368 it held that:
“Since the Constitution had conferred a
limited amending power on the Parliament, the Parliament cannot under the
exercise of that limited power enlarge that very power into an absolute power.
Indeed, a limited amending power is one of the basic features of our
Constitution and therefore, limitations on the power cannot be destroyed”.
In Waman
Rao v. Union of India (1981), the
Supreme Court re-examined and upheld the validity of original and amended
Article 31-A and of Article 31-B and the Ninth Schedule with reference to the
basic structure doctrine. About the First Amendment introducing these articles
and the schedule into the Constitution the Court also said that instead of
weakening, the Amendment strengthens the basic structure because it “made the
constitutional ideal of equal justice a living truth.”18 The Court also said
the same thing about the unamended Article 31-C as it stood before the
Constitution (Forty-second Amendment) Act, 1976.
The declaration of fundamental rights
in the Constitution is meaningless unless there is effective machinery for the
enforcement of the rights. It is the remedy, which makes the right real. If
there is no remedy there is no right at all. The founding fathers of the
Constitution, therefore, provided for an effective remedy for the enforcement
of these rights under Article 32 and 226 of the Constitution. Article 32 says
about remedies for enforcement of rights conferred by Part III of the
Constitution. It is established that remedy under Article 32 is available only
for the violation of Fundamental Rights guaranteed by it. As a result of the
liberalized view taken by the Supreme Court in the interpretation of Article
21, a new approach to protect the interest of the aggrieved person has been
developed by it.
The power of the Supreme Court to
deviate from traditional concepts and to formulate new rules for granting
effective relief for violation of fundamental rights is traceable to Article
32. Regarding the ambit of clause (1) of Article 32, Bhagwati, J.in Bandhua
Mukti Morcha (1984) observed: “There is no limitation in
regard to the kind of proceeding envisaged in Article 32(1) except that the
proceeding must be "appropriate" and this requirement of
appropriateness must be judged in the light of the purpose for which the
proceeding is to be taken, namely, enforcement of a fundamental right. The
Constitution-makers deliberately did not lay down any particular form of
proceeding for enforcement of a fundamental right. They did not stipulate that
such proceeding should conform to any rigid pattern or straitjacket formula as
in England. They knew that in a country like India where there is so much of
poverty, ignorance, illiteracy, deprivation and exploitation, any insistence on
a rigid formula of proceeding for enforcement of a fundamental right, would
become self-defeating and it would place enforcement of fundamental rights
beyond the reach of common man. The entire remedy for enforcement of
fundamental rights which the Constitution-makers regarded as so precious and
invaluable, and elevated to the status of fundamental right, would become a
mere rope of sand so far as the large masses of the people of this country are
concerned.”
Article 32(2) expressly provided that;
the Court may grant "appropriate" remedy for enforcing the rights.
Hence the power can be traced to "appropriate" remedy under Article
32(2) of the Constitution of India.
The Court in Bandhua Mukti Morcha’s
case emphasised that while interpreting the article the approach must be guided
not by any verbal or formalistic canons of construction but by the paramount
object and purpose underlying the article and its interpretation must receive
illumination from the trinity of provisions which permeate and energise the
entire Constitution viz. the preamble, fundamental rights and directive
principles of State policy.
Regarding the power of the Supreme
Court for the enforcement of fundamental rights the Supreme Court observed:
"It is not only the high prerogative writs of mandamus, habeas corpus,
prohibition, quo warranto and certiorari which can be issued by the Supreme
Court but also writs in the nature of these high prerogative writs and
therefore even if the conditions for issue of any of these high prerogative
writs are not fulfilled, the Supreme Court would not be constrained to fold its
hands in despair and plead its inability to help the citizen who has come
before it for judicial redress, but would have power to issue any direction,
order or writ including a writ in the nature of any high prerogative writ”.
8. JUDICIAL ACTIVISM AGAINST ABUSE OF
ADMINISTRATIVE POWER:
The judicial policy changed from the
late 1950s in the United States as well as India and the courts adopted a more
critical attitude towards administrative action. In England, the courts also
developed a critical attitude towards the exercise of administrative
discretion.
In Associated provincial picture Houses
Ltd. v. Wednesbury’s Corporation (1948) , the
House of Lords laid down limits of judicial review of administrative
discretion. The Court made it clear that the public functionary could never
have absolute discretion and the exercise of discretion would be subjected to
strict judicial scrutiny. But judicial review of the exercise of administrative
discretion was subject to judicial restraint. If an administrative authority
had acted within its powers, had acted in accordance with the rules of natural
justice, had taken all relevant factors into consideration, and had not acted
mala fide, the court would not interfere. The court would not substitute its
opinion for that of the administrative authority if the administrative
authority had arrived at its opinion in accordance with the above parameters.
This is known as the Wednesbury principle. In later years, however, the courts
have gone beyond the Wednesbury principle into the question of proportionality,
which means whether an action was proportionate to the mischief, where
violation of any of the rights given by the European Convention on Human Rights
was alleged to have been violated. Administrative law in India has developed
along similar lines.
8.1.
JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS IN INDIA:
Judicial review is normally sensed to
have a negative impact. But, as sensed by the great sociological jurist, Leon
Duguit, nearly a century ago: Any system of public law can be vital only so far
as it is based on a given sanction to the following rules: first, the holders
of power cannot do certain things; second, there are certain things they must
do.
The first part guides the courts to
declare what the political branches “cannot do” in view of constitutionalism
and constitutional limitations, which prompted Thomas M. Cooley to name his
classic text: Constitutional Limitations. The role of the State has now changed
to that of a welfare state, and a socio-legal, politico-economic and
fundamental or human rights guarantor. This requires the construction of a set
of affirmative constitutional doctrines mandating what the political branches
“must do”. The judiciary energizes the conscience of the people for whom and by
whom the system is built, and also helps in the creation of welfare
jurisprudence to give effect to the programmes of the positive state. In doing
so, the courts have to perform their constitutional duty of injecting life in
the letters “designed to approach immortality as nearly as human institutions
can approach it”. In view of this sense of the consciousness of posterity, the
judiciary’s application of the constitutional norms contemplates not only what
has been, but of what may be. It has very well been pointed out by Miller and
Scheffin that “a Supreme Court pronouncement in a constitutional case delegates
authority to others—legislature, executives, administrators, and judges in
lower courts to carry out the terms of the edict in other situations.”
Judicial review of administrative
actions is a part of enforcing the constitutional discipline over the
administrative agencies, while they exercise their powers. It originated in
England and travelled to common-law countries. India too inherited the idea of
judicial review from England, India had laid its structure on English
prerogative writs, which were issued by the Court of King’s Bench with a view
to exercise general superintendence over the due observance of law by officials
or authorities, while performing judicial or non-judicial functions.
In Election
Commission v. Saka Venkata Subba Rao (1953, the Supreme Court explained the purpose of the Indian
Constitution is conferring the writ-issuing power in the following words: The
makers of the Constitution, having decided to provide for certain basic
safeguards for the people in the new set up, which they called fundamental
rights evidently thought it necessary to provide also a quick and inexpensive
remedy for the enforcement of such rights and, finding that the prerogative
writs which the Courts in England had developed and used whenever urgent necessity
demanded immediate and decisive interposition, were peculiarly suited for the
purpose, they conferred, in the States’ sphere, new and wide powers on the High
Courts of issuing directions, orders, or writs primarily for the enforcement of
fundamental rights, the power to issue such directions, etc. ‘for any other
purpose’ being also included’.
Prior to inauguration of our
constitutional set-up on 26 January 1950, only the three Presidency High Courts
at Calcutta, Madras and Bombay exercised writ-issuing powers. Now, all the 21
High Courts stand on the same footing and are armed with power to issue writs
for the enforcement of fundamental rights and also “for any other purpose”
under Article 226 of the Constitution.
In the absence of any constitutional
restrictions, the Court applied the Wednesbury’s principles to examine the
validity of the administrative orders of the executive. This was done in Makhan
Singh Tarsikka v. State of Punjab (1964)
where the majority of seven judges
bench of the Supreme Court applied the Wednesbury’s principles to examine the
validity of a Presidential order under Article 359.
In Makhan Singh’s case the main
issue was whether personal liberty of a citizen could be put to stake during
emergency. Whether a Presidential proclamation under Article 359 (1) can
deprive a citizen from seeking a remedy in a court of law to enforce his
‘personal liberty’? Whether judicial review of such Presidential order under
Article 359 (1) is barred under the Constitution of India? Relating to the
above questions the Supreme Court made a very cautious approach in Makhan
Singh’s case. It interpreted that a Presidential Proclamation under Article 359
(1) can preclude a citizen from enforcing his fundamental rights mentioned in
the order. But an order made under Article 359 (1) is not immune from judicial
review. The validity of a Presidential order under Article 359 (1) can be
questioned on the ground that the detention had been ordered malafide or
suffered from excessive delegation or that the fundamental rights deprived have
not been mentioned in the Presidential order.
Thus, in Makhan Singh’s case though the
Supreme Court gave a literal interpretation of a Article 359 (1) it upheld its
power of judicial review of a Presidential order made under Article 359 (1) by
applying the principles of administrative law.
8.2. JUDICIAL REVIEW OF ADMINISTRATIVE
ACTIONS UNDER ARTICLES 32 AND 136:
Since the judicial review of
administrative actions is inherited from the English system, Indian courts do
follow the broad principles evolved there by the courts. But Indian courts are
not to bother about the technicalities developed in the course of time there.
Delivering the unanimous judgement of the Supreme Court in T.C. Basappa v.
T. Nagappa (1954), B.K. Mukherjea J observed:
In view of the express provisions in
our Constitution we need not now look back to the early history or the
procedural technicalities of these writs in English law, nor feel oppressed by
any difference or change of opinion expressed in particular cases by English
Judges. We can make an order or issue a writ in the nature of certiorari in all
appropriate cases and in appropriate manner, so long as we keep to the broad
and fundamental principles that regulate the exercise of jurisdiction in the
matter of granting such writs in English law.
Article 32, which in the words of Dr.
Ambedkar “is the very soul of the Constitution and the very heart of it”,
speaks in so many specific words that “the Supreme Court shall have power to
issue directions or orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be
appropriate”. The Supreme Court’s role is envisaged of a “sentinel on the qui
vive”.
In Minerva Mills Ltd. v. Union of
India, P.N. Bhagwati J characterised the power of judicial review
conferred by Articles 32 and 226 as “part of the basic structure of the
Constitution” and declared that “judicial review is a vital principle of our
Constitution and it cannot be abrogated without affecting the basic structure
of the Constitution”. The provision was held unconstitutional in A.K.
Gopalan v. State of Madras (1950) because it intended to render the court’s power under
Article 32 ineffective. In Express Newspaper (P) Ltd. v. Union of India
(1958), the Working Journalists (Conditions of Service and
Miscellaneous Provisions) Act, 1955 was declared unconstitutional as it did not
require the Wage Board to give reasons for its decisions under the Act and
thereby, render the task of judicial review nugatory. The Supreme Court does
not recognise any limitation on review power to grant remedy under Article 32.
Article 136 is another article which
provides for judicial review of administrative actions. It is in the nature of
a residuary reserve power of judicial review in the area of public law. It lays
down that the Supreme Court may, in its discretion, grant special leave to
appeal from any judgement, decree, determination, sentence or order in any
cause or matter passed or made by any court of tribunal. In the very beginning,
in Bharat Bank Ltd. v. Employees (1950) the Supreme Court had to pronounce
upon an appeal from the order of the Industrial Tribunal. The Supreme Court
refused to give a restricted meaning to the expression “tribunal”, which was
understood to be the same meaning as the word “court”. Instead of allowing a
strict and limited meaning to the word “tribunal”, the majority court observed
that “the functions and duties of the Industrial Tribunal are very much like
those of a body discharging judicial functions, although it is not a Court”,
and under Article 136 of the Indian Constitution, the Supreme Court “does not
contemplate a determination given by the Industrial Tribunal”.
In Jayantilal Amritlal v. F.S. Rana (1964), the Supreme Court pronounced that it
was well settled that functions which did not fall strictly within the
legislative or judicial domains were covered under the residuary class and had
to be regarded as executive. Justice Shah referred to the following passage
from Halsbury: ‘Executive functions are incapable of comprehensive definition,
for they are merely the residue of the functions of government after
legislative and judicial functions have been taken away.’
The Supreme Court has recognised its
wide range of power under Article 136. In Raj Krushna Bose v. Binod Kanungo,
the Supreme Court asserted:
It is sufficient to say that the powers
conferred on us by Article 136 of the Constitution and on the High Courts under
Article 226 cannot be taken away or whittled down by the legislature. So long
as these powers remain, our discretion and that of the High Courts is
unfettered.
While discussing the nature of the
power of judicial review under Article 136, the court observed:
The powers given by Article 136 of the
Constitution however are in the nature of special or residuary powers which are
exercisable outside the purview of ordinary law, in cases where the needs of
justice demand interference by the Supreme Court of the land. It vests in the
Supreme Court a plenary jurisdiction in the matter of entertaining and hearing
appeals, by granting of special leave, against any kind of judgement or order
made by a court of tribunal in any cause or matter and the powers could be exercised
in spite of the specific provisions for appeal contained in the Constitution or
other laws.
8.3. JUDICIAL REVIEW OF ADMINISTRATIVE
ACTIONS UNDER ARTICLE 226 AND 227:
The Supreme Court has equated the power
of judicial review of the High Courts under Article 226 with that of the
Supreme Court under Article 32 of the Constitution. Of course, looking into the
higher position of the Supreme Court, clause (4) of Article 226 says, “The
power conferred on a High Court by this article shall not be in derogation of
the power conferred on the Supreme Court by clause (2) of Article 32”.
Article 226 makes clear that the High
Courts enjoy writ-issuing power on the pattern of Crown Court’s prerogative
powers. It is wider than the power of the Supreme Court, as it authorises the
High Courts to issue writs for the enforcement of fundamental rights plus any
other purpose. Normally, the High Courts’ powers are exercised against public
authorities. But it may also be exercised against private individuals for the
enforcement of fundamental rights with human rights dimensions. The Indian
Constitution has changed the earlier position – first, the position of the
King’s Bench writ-issuing powers has been changed by our written Constitution;
second, now all the High Courts equally enjoy the power to issue writs (before
the Constitution came into force, such power was limited to the Chartered High
Courts of Bombay, Calcutta and Madras); and third, the procedure to issue writs
is now governed by the Civil Procedure Rules relating to judicial review.
However, the powers of the High Courts under Article 226 are supervisory and
not appellate. Courts have to decide illegalities. They do not enjoy power of
an appellate court.
In State of Gujarat v.
Vakhatsinghji Vajesinghji Vaghela (1968),
the Supreme Court explained the role of judicial review under superintending
capacity and said that the supervisory jurisdiction extends to keeping the
subordinate tribunals within the limits of that authority and ensuring that
they obey the law. The judiciary has evolved certain principles governing the
superintending power of the High Courts, viz.:
1. The superintending power is not
fettered by the fact that there is no provision for appeal or revision in the
High Court.
2. Alternative remedy with deter
superintending power’s exercise.
3. The court has to see the limit of
the exercise of power by the tribunal. It will interfere where there is a) a
want or excess of jurisdiction;
b) a failure in exercise of
jurisdiction; c) a violation of procedure of disregard to the principle of
natural justice; and d) an error apparent on the face of record.
4. While exercising superintending
jurisdiction, it does not act as an appellate tribunal, Syed Shah Mohammed
Quadri J in one of his extra-judicial writings on “Judicial Review of
Administrative Action” has very well drawn a distinction between judicial review
and appeal. The distinction between the two is:
The right of appeal is a statutory
right which can be invoked when it is so provided in the relevant Act whereas
the right to seek judicial review is available even when there is a finality
clause or ouster clause in an Act.
In L. Chandra Kumar (1997), the Supreme Court ruled that Article 226 along with Article
227 form part of the basic structure of the Constitution and, therefore, cannot
be taken away even by an amendment of the Constitution. Judiciary has evolved
self-regulatory discipline or restraint with a view to avoid counter charge of
usurpation of powers.
In North Wales v. Evans (1982), Lord Hailsham LC observed: Judicial review is concerned,
not with the decision, but with the decision-making process. Unless that
restriction on the power of the court [the same may be true of tribunal] is
observed, the court will in my view, under the guise of preventing the abuse of
power, be itself guilty of usurping power. In India, executive powers of the
Union and the States are co-terminus with legislative power. Likewise, Article
162 provides for the extent of the executive power of the State.
The broad contour of judicial review of
administrative actions was clarified by Lord Diplock in Council of Civil
Service Union v. Minister for the Civil Service in the following words:
one can conveniently clarify under
three heads the grounds upon which administrative action is subject to control
by judicial review. The first ground I would call ‘illegality’, the second
‘irrationality’ and the third ‘procedural impropriety’. That is not to say that
further development on a case-by-case basis may not in course of time add
further grounds.
It means that judicial review of
administrative actions will be based on the grounds of 1) illegality, 2)
irrationality, and 3) procedural impropriety, having chances of further
addition according to the need of hour. Illegality covers the main substantive
areas of ultra vires; irrationality may be equated with the Wednesbury
unreasonableness; and procedural impropriety embraces both aspects of
procedural wrong-doing – failure of follow the prescribed statutory procedure
or the rules of natural justice.
The concept of reasonableness has
different connotations in different branches of law. To quote Bernard Schwartz
and H.W.R. Wade: Confusion has perhaps arisen because the test of
reasonableness in this context is different from the standard of the reasonable
man so familiar in the law of tort and elsewhere. In applying the latter standard,
the judge merely enforces what he thinks is reasonable. But in condemning
unreasonable administrative action he asks himself whether the decision is one
which a reasonable body could have reached. In other words, he allows some
latitude for the range of differing opinions which may fall within the bounds
of reasonableness.
8.4. JUDICIAL REVIEW OF PRESIDENTIAL
POWER:
Different appeals from the Madhya
Pradesh, Gauhati and Karnataka High Court’s decisions challenging the
imposition of President’s rule in BJP ruled States – U.P., Rajasthan and
Himachal Pradesh, soon after the demolition of Babri Masjid at Ayodhya – were
heard in Bommai by a nine-judge Bench comprising of Pandian, Ahmadi, Verma, Dayal,
Sawant, Kuldip Singh, K. Ramaswamy, Jeevan Reddy and Agrawal JJ. Majority
judgments were delivered by Sawant, Kuldip Singh, Reddy, Agrawal and Pandian
JJ, and minority judgements were pronounced by Ahmadi, Verma, Dayal and K.
Ramaswamy JJ. Kulwant Singh and Swarnt JJ very neatly summed up the implication
of Article 74(2):
The main object of Article 74(2) was
not to exclude any material or documents from the scrutiny of the courts but to
provide that an order issued by or in the name of the President could not be
questioned on the ground that it was either contrary to the advice tendered by
the Ministers or was issued without obtaining any advice from the Ministers.
Its object was only to make the question whether the President had followed the
advice of the Ministers or acted contrary thereto, non-justiciable. The opinion
of Sawant, Kuldip Singh, Reddy Agrawal and Pandian JJ formed the majority,
allowing judicial review of President proclamation unhampered by Article 74(2).
9. PUBLIC INTEREST LITIGATION TO SOCIAL
INTEREST LITIGATION:
As observed by Justice Bhagwati in his
Article “Social Action Litigation the Indian Experience” quoted with approach
in para 56 of the Janata Dal’s case.
“The judiciary has to pay a vital and
important role not only in preventing and remedying abuse and misuse of power
but also in eliminating exploitation and injustice. For this purpose, it is
necessary to make procedural innovations in order to meet the challenges posed
by this new role of an active and committed judiciary. The summit judiciary in
India, keenly alive to its social responsibility and accountability to the
people of the country, has liberated itself from the shackles of western
thought, made innovative use of the power of judicial review, forged new tools,
devised new methods and fashioned new strategies for the purpose of bringing
justice for socially and economically disadvantaged groups.”
The manner in which the Supreme Court
has dealt with the problem of ascertaining true facts has been analysed and
explained, at length, by Prof. Upendra Baxi in his article on Social Action
Litigation in the Supreme Court of India. By using the expression Social Action
Litigation, SAL instead of PIL he has opined as follows:
“Problems of proof are most severe in
cases of state repression, and there seems emergent a common pattern or
augmentation by state counsel which make these problems more acute. First,
State counsel deny on affidavit any or all allegations of torture or terror.
Secondly, they contest if no longer the standing, the bona fides or the degree
of reliable information of the social activists who come to the Court. Often
wildest ulterior motives are attributed to them. Thirdly, they decry the
sources on which the SAL Petitioners rely: mostly media and social science
investigating reportage. Fourthly, they raise all kinds of claims under the law
of evidence and procedure to prevent the disclosure of documents relevant to
the determination of violation of fundamental rights. Fifthly, even when
disclosed there is always the possibility of impugning their evidentiary value.
This is made possible by the device of multiple investigations; the state sets
up many panels, one after another, and often consents in addition to any
investigation by the Central Bureau of Investigation. When despite all this,
the state is likely to lose the proceedings in favour of the SAL petitioners,
it proceeds to give concessions and undertakings, thereby avoiding a decision
on the merits”.
The Court is experimenting with several
different strategies to overcome the problems of disputed facts, without having
to take evidence itself. First, Justice Bhagwati has initiated the idea of
socio-legal commissions of enquiry. The Court asks social activists, teachers
and researchers to visit particular locations for fact finding and to submit a
quick, but complete, report which may also contain suggestions and proposals.
So far, this device of commissions has been invoked at least thrice. The commissions
are, under the Courts orders, to be financed by the state. Second, the Court
has in a number of cases of torture or ill-treatment called upon medical
specialists to submit comprehensive reports and suitable therapy at state cost.
Third, the Court has used on one or two occasions the services of its own
officials or those of the High Court. In some cases, it has asked the District
Judge not merely to ascertain facts but also to monitor the implementation of
the various directions given by the Court.
“The modes of fact finding are somewhat
novel and will raise, as the many SAL matters proceed to completion, rather
difficult issue of evidence and procedure. But the Court is experimenting with
new methods to go beyond the notoriously electric affidavit evidence”.
Under the caption ‘Social Action
Litigation’ The Indian Experience thus:
‘The judiciary has to pay a vital and
important role not only in preventing and remedying abuse and misuse of power
but also in eliminating exploitation and injustice. For this purpose, it is
necessary to make procedural innovations in order to meet the challenges posed
by this new role of an active and committed judiciary. The summit judiciary in
Indian, keenly alive to its social responsibility and accountability to the
people of the country, has liberated itself from the shackles of Western
thought, made innovative use of the power of judicial review, forged new tools,
devised new methods and fashioned new strategies for the purpose of bringing
justice for socially and economically disadvantaged groups. During the last
four or five years however, judicial activism has opened up a new dimension for
the judicial process and has given new hope to the justice starved millions of
India”.
The Supreme Court in Sunil Batra v.
Delhi Admn (1980), Had accepted a letter addressed to it
by one Sunil Batra, a prisoner from Tihar Jail, Delhi complaining that the jail
warden had subjected another prisoner serving life term in the same jail to
inhuman torture. The court treated that letter as a writ petition by an
elaborate judgement, allowed the petition and issued certain directions for
taking suitable action against the erring official to the Ministry of Home
Affairs and all State Governments on the ground that prison justice has
pervasive relevance. The court, thereby enlarged the scope of habeas corpus by
making is available to a prisoner not only for seeking his liberty but also for
the enforcement of a constitutional right to which he was entitled to even
while in confinement.
In Veena Sethi v. State of Bihar (1982), the Supreme Court treated a letter addressed to a judge of
the Supreme Court by the free Legal Aid Committee at Hazaribag, Bihar as a writ
petition.
Similarly in Upendra Baxi v. State
of UP (1983), the Supreme Court entertained a letter sent by two
professors of Delhi University seeking enforcement of the constitutional right
of the inmates in a Protective Home at Agra who were living in inhuman and
degrading conditions in blatant violation of Article 21 of the Constitution.
The said letter was treated as a writ petition and the two professors were
permitted to maintain an action for an appropriate writ.
Treating a letter sent by an
organisation demanding the release of bonded labourers as a writ petition, the
Supreme Court in Bandhua Mukti Morcha v. Union of India (1984), issued several directions to the
Central Government and State of Haryana not only for the release of the bonded
labourers but also for their future improvement and betterment.
In National Textile Workers’ Union
v. P.R. Ramakrishnan (1983), Bhagwati J., speaking for the majority, expressed his view
that the workers of a company are entitled to appear at the hearing of the
winding-up petition whether to support or to oppose it and they have a locus
standi to appear and be heard, both, before the petition is admitted and an
order for winding up the company.
In A.R. Antulay v. Ramdas Sriniwas
Nayak (1984), the Supreme Court observed that “locus standi of the
complainant is a concept foreign to criminal jurisprudence save and except
that, where the statute creating an offence provide for the eligibility of the
complainant, by necessary implication one general principle gets excluded by
such statutory provision”.
In Shri Sachidanand Pandy v. State
of West Bengal (1987), a note of caution was administered by the Supreme Court for
PILs: “Today public-spirited litigants rush to Courts to life cases in
profusion under this attractive name. They must inspire confidence in Courts
and among the public. They must be above suspicions. See the facts of this case
and the end results”.
In B. Singh v. Union of India (1987), once again the rule of locus standi was restated: A person
acting bona fide 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 political motive or any oblique
consideration.
A writ petitioner who comes to the
court for relief in public interest must come not only with clean hands like
any other writ petitioner but also with a clean heat, clean mind and clean
objective. The court must not allow its process to be abused for oblique
considerations by masked phantoms who monitor at times from being.
Summing up the concept and development
of PIL, the Supreme Court in BALCO Employees’ Union v. Union of India (2002) observed: Public interest litigation, or PIL as it is more
commonly known, entered the India judicial process in 1970. It will not be
incorrect to say that it is primarily the judges who have innovated this type
of litigation as there was a dire need for it. At that stage it was intended to
vindicate public interest where fundamental and other rights of the people who
were poor, ignorant or in socially or economically disadvantageous position and
were unable to seek legal redress were required to be espoused. PIL was not
meant to be adversarial in nature and was to be a cooperative and collaborative
effort of the parties and the court so as to secure justice for the poor and
the weaker sections of the community who were not in a position to protect
their own interests. Public interest litigation was intended to mean nothing
more than what words themselves said, viz., litigation in the interest of the
public.
10. CONCLUSION:
Judicial Activism today is used as a
negative connotation though it is not the truth. It involves interpretations of
the nuances of law. The role of judiciary in interpreting existing laws
according to the needs of the times and filling in the gaps appears to be the
true meaning of judicial activism. In other words, it is judicial activism that
helps to advance the cause of law. It is, in fact, an essential part of
judicial review. When political democracy was established after Independence,
free elections to Parliament and Legislative Assemblies were held. But
political democracy cannot last long unless there lies at the base of it,
socio-economic democracy.
Our judiciary is made independent of
the Legislature and Executive by the provisions of the Constitution, but it is
not independent of the Nation and the Constitution. It is also accountable to
the people through the Constitution. Out of three organs of the State, the most
respected organ is the Judiciary. It has become increasingly effective and
powerful in its role as the arbiter of justice because of the confidence the
common man has placed in it. Political instability in our country is still the
major concern as a result of which coalition governments have to be established
at the centre with the support of some regional political parties in the
states. Most of the regional political parties lack rational outlook and are
able to get undue advantage of Government machinery and resources by
threatening to quit. In coalition politics, for any government, irrespective of
the party in power survival has become more important than probity in public
life. In such circumstances, the Legislature and the Executive are unable to
perform their obligations towards the people and therefore the people look
towards the Judiciary to redress their grievances against the government. The
lack of concern by the Legislature for some pressing problems of the people and
the near disappearance of the responsible and responsive Executive have
compelled the courts to enforce the rights of citizens through novel and
innovative strategies to meet the needs of the times. Whether it is
environmental or the scam cases, the court is upholding constitutional rights.
The decline in the role played by the other two institutions of the state has
inexorably changed the role of the court from being a “sentinel on the qui
vive” to a saviour on call. Former Justice of India, A.M. Ahmadi explained the
current phase of activism in his Zakir Hussain memorial lecture in February,
1996, when he said, “courts would never have resorted to had the other two
democratic institutions functioned in an effective manner.” As Soli Sorabjee
has pointed out: "that it is the executive's failure to perform its duty
and the notorious tardiness of legislatures that impels judicial activism and
provides its motivation and legitimacy. When gross violations of human rights
are brought to its notice, the judiciary cannot procrastinate".
However, the governance cannot be
replaced by the judicial institutions. There is a need to discover a balance
between Judicial and Executive Institutions. We need to reassert the balance
between reforms, development and institutions. Judicial Activism should not be
used to lead to the Constitutional principles of separation of power getting
eroded. Our Hon’ble Judges should not cross their limits in the name of
Judicial Activism and not to try to take over the functions of other organs of
administration. Judicial pronouncements must respect the boundaries that
separate the Legislature, the Executive and the Judiciary.
The Judicial Activism has touched
almost every aspect of life in the present times. Be it the case of bonded
labour, illegal detentions, torture and maltreatment of women, the
implementation of various provisions of the Constitution, environmental problems,
health, sports etc. the courts took cognizance of each case and laid down
various judgments to protect the basic human rights of each and every member of
society. However, the politicians and some constitutional experts criticize
judicial activism and on the other hand, the lawyers and the public have
welcomed it with warm hands. Judicial Activism has so many merits but it has
certain demerits. The important question today is not whether the Supreme Court
could activate its judicial role, but to what extent the concepts of Judicial
Activism and creativity are exercised. We cannot lead the government on
judicial basis only. Frequent confrontation between the Legislature, the
Executive and the Judiciary will also damage our well-established democratic system
of governance. Both sides should maintain and respect the line of demarcation
of power under the Constitution and should not allow a conflict to develop
between them. A balance between the powers of the Judiciary. Legislature and
the Executive is necessary to carry the nation on the true path of democracy.
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