Introduction
Of all the institutions established by the Constitution the higher judiciary seems to have acquitted itself in the last 60 years as the best in a relative sense. The most respected public institution in India is the Supreme Court, respected by the elite and the illiterate alike. If the Court has come increasingly effective in its role as the final arbiter of justice, it is because of the confidence the common man has placed in it. The Court has no army at its command. It does not hold any purse strings. Its strength lies largely in the command it has over the hearts and minds of the public and the manner in which it can influence and mould public opinion. As the distinguished French author Alexis de Toquevulle describes the power wielded by judges is the power of public opinion.[1]
Hamilton called the court system the weakest organ of government because it had control over neither the sword nor the purse.[2] A court becomes strong only when it identifies itself with the disadvantaged minorities and they see the court as an independent institution, a bulwark against oppression and tyranny. A court gains strength only by carving a niche for itself in the minds of the people. A court must appear to the people as their protector. It must not only be, but also must appear to be impartial, principled, and capable of achieving results.[3] There would have been no Fundamental Rights worth mentioning if Article 21 had been interpreted in its original sense.[4]
Arguments for & against Judicial Activism
Judges participating in judicial review of legislative action should be creative and not mechanistic in their interpretations. According to Justice Cardozo, a written constitution “states or ought to state not rules for the passing hour but principles for an expanding future.”[5] Judges who interpret a written constitution cannot merely apply the law to the facts that come before them. The scope of judicial creativity expands when a constitution contains a bill of rights[6]. It is one thing to consider whether a legislature has acted within its powers and another to consider whether its acts, although within its plenary powers, are violative of any of the basic rights of the people. Therefore, judges who interpret a bill of rights must expound upon the philosophy and ideology that underlies the bill of rights.[7] When judges interpret the law or a constitution by not merely giving effect to the literal meaning of the words, but by trying to provide an interpretation consistent with the spirit of that statute or constitution, they are said to be activist judges.[8] In this sense, the judges who developed the common law were also activist.[9]
Justice Krishna Iyer, in his own vivid terms, explained that ‘A Nineteenth Century text, when applied to Twentieth-Century conditions, cannot be construed by signals from the grave.[10] Justice Krishna Iyer in the landmark decision of Rajendra Prasad v State of U.P.[11] observed that,
When the legislative text is too bald to be self-acting or suffers zigzag distortion in action, the primary obligation is on Parliament to enact necessary clauses by appropriate amendments to S. 302 I.P.C. But if legislative under taking is not in sight, judges who have to implement the Code cannot fold up their professional hands but must make the provision viable by evolution of supplementary principles, even if it may appear to posses the flavour of law-making. [He further went on to quote] Lord Dennings’ observations: “Many of the Judges of England have said that they do not make law. They only interpret it. This is an illusion which they have fostered. But it is a notion which is now being discarded everywhere. Every new decision - on every new situation - is a development of the law. Law does not stand still. It moves continually. Once this is recognised, then the task of the Judge is put on a higher plane. He must consciously seek to mould the law so as to serve the needs of the time. He must not be a mere mechanic, a mere working mason, laying brick on brick, without thought to the overall design. He must be an architect - thinking of the structure as a whole, building for society a system of law which is strong, durable and just. It is on his work that civilised society itself depends.”[12]
The Supreme Court of India in Charles Sobhraj’s case[13] observed that a constitution is not to be interpreted by reference to the wishes or opinions of its framers, but by consideration of ‘the evolving standards of decency and signify that mark the progress of a mature society’.[14]
The extension of judicial review over constitutional amendments was itself an exercise in judicial activism on the part of the Supreme Court of India. The Supreme Court, in the leading case of His Holiness Kesavananda Bharati v State of Kerala,[15] held by a process of judicial interpretation that though there are no express words in Article 368 of the Indian Constitution limiting the power conferred by that Article on Parliament to amend the Constitution, that power is not an unlimited or unrestricted power and it does not entitle Parliament to amend the Constitution in such a way as to alter or affect the basic structure of the Constitution.[16] This is undoubtedly a most remarkable instance of judicial activism, for that has gone to the farthest extent in limiting the constituent power of Parliament.[17]
M. P. Jain argues that judicial interpretation of article 21, which provides that “No person shall be deprived of his life or personal liberty except according to procedure established by law,” has led to a vast extension of substantive rights.[18] Jain rightly depicts this interpretation as “the Indian version of the American concept of due process of law,” but the scope of the expansion into the substantive domain engineered by the Indian Court far exceeds that of its American counterpart.[19] The Indian Court has emerged relatively unscathed in recent decades as a leading actor in the ordering of domestic priorities within the polity can be attributed in no small measure to a constitutional ethos that encourages all institutions, including the judiciary, to become active participants in the realization of particular ideological aspirations. In effect there exists a constitutional mandate for judicial activism.
Justice M. K. Mukherjee while restraining the use of judicial activism observed “...to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities.”[20] Pratap Bhanu Mehta argues that the evidence of judicial overreach is now too overwhelming to be ignored. He concludes: “It has to be admitted that the line between appropriate judicial intervention and judicial overreach is often tricky... courts are doing things because they can, not because they are right, legal or just.”[21] One may question the wisdom of employing the judicial power to achieve a desirable social or economic end in the absence of an explicit constitutional mandate to do so. John Gava in his commentary titled “The Rise of the Hero Judge” has cautioned the use of judicial activism. He fears that the worst result of activism is that the judges may end up losing the public’s faith in their most important attribute – the perception that they are impartial referees deciding according to the rule of law.[22]
Nevertheless it is obvious that unless the Executive and the Legislature begin to respond to the needs of the citizens and discharge their responsibilities, public interest litigation and judicial activism are bound to remain centre stage as long as courts continue to respond the way they do now. As Justice Pandiyan, a former judge of the Supreme Court has said on judicial creativity:[23]
In a country like ours [India] more than eighty percent of people are economically backward and they are subjected to discrimination as a rule. In such an explosive situation causing adverse effect on society, when the executive and legislature are apathetic and fail to discharge their constitutional duties and deliver the goods, the apex court which is the custodian of the citizen’s rights and liberties and which in that capacity acts as sentinel on the qui vive has no other choice but to step in and direct these constitutional functionaries to discharge their obligation. When the bureaucracy shows a callous indifferences and insensitivity to its mandatory duties which affect the basic rights of the people and when the law enforcing agencies exhibit their brutality in the process of implementation of law, should the court remain a passive observer of the scenario? Will judges of the highest court be justified sitting in an ivory tower like an Olympian closing their eyes to the stress and storm that affect society and remain into cocoons or in isolated and protected cells without giving appropriate mandates and thereby protecting the Fundamental Rights and liberties of the citizens of the country, asks Justice Pandian[24].
Article 21 of the Indian Constitution reads as follows: ‘Protection of Life and Liberty – No person shall be deprived of his life or personal liberty except according to procedure established by law.’ As mentioned in Gopalan’s case,[25] the Supreme Court[26] upheld the validity of a pre-Constitution preventive detention law on the grounds that once the deprivation was supported by law, Article 21 could not be said to be infringed. One of the judges expressly referred to the debates in the Constituent Assembly (which was very recent legislative history) to indicate that the American Due Process model had been expressly rejected by the framers of the Constitution.[27] During the deliberations of the Constituent Assembly, the due process clause was watered down in the light of American warnings. In its place, the Assembly approved an “any procedure” clause so that the life and liberty of a person could be restrained by any procedure established by law.”[28] Yet 28 years after Gopalan, a later Constitution Bench of the Supreme Court in Maneka Gandhi’s case[29] held that the State could deprive any person of his life or liberty under Article 21 not only because a law so empowered it; that law had also to meet the test of being non-arbitrary, non-discriminatory and hence violative of Article 14. Fali S. Nariman argues that due process, which was expressly rejected by the framers of the Constitution, was in substance reintroduced in Maneka Gandhi[30] when interpreting the life and liberty clause of the Constitution.[31] The decision is illustrative of the saying that a written Constitution is a ‘living document’ and must receive its interpretation not according to the intent of those framed it but according to ‘the felt necessities of the times’.[32] Thus, the Supreme Court has declared that “the substance of American due process has been introduced into the conservative text of the Constitution.”[33] This is one of the finest judicial activism in the Constitutional history of India.
Numerous railway passengers in India suffer from fatal injuries as a result of falling down in their anxiety to get into a moving train. In such cases, are railways liable to pay compensation? The Supreme Court rejected the railways’ plea that there was no fault on its part and there was contributory negligence on part of a deceased passenger. After an elaborate analysis and a global survey of the principle of strict liability Justice Markandey Katju, speaking for the court in an erudite judgment, held that the court has to develop new principles for fixing liability in cases like the one before it.[34] The bench held that railways were liable to pay compensation on the principle of strict liability on the premise that “because such public bodies benefit the community it is unfair to leave the result of a non-negligent accident to lie fortuitously on a particular individual rather than to spread it among the community generally.” This judgment is a fine example of commendable judicial activism.[35] The judgment will provide much needed succour to millions of people, particularly middle class and poor sections who travel by trains.[36]
S. P. Sathe argues that judicial activism is an aspect of judicial review.[37] In a grand conclusion Prof. Sathe, with a touch of juristic statesmanship, concludes:
Judicial activism is not an aberration. It is an essential aspect of the dynamics of a constitutional court. It is a counter-majoritarian check on democracy. Judicial activism, however, does not mean governance by the judiciary. It also must function within the limits of the judicial process. Within those limits, it performs the function of legitimising or, more rarely, stigmatising the actions of the other organs of government...” The judiciary is the weakest organ of the State. It becomes strong only when people repose faith in it. Such faith of the people constitutes the legitimacy of the Court and of judicial activism. Courts have to continuously strive to sustain their legitimacy. They do not have to bow to public pressure, rather they have to stand firm against any pressure.[38]
It may well be the case that such interpretation goes beyond the supposedly original intent of the Constitution makers. Even so, it captures the spirit of what was intended in a manner consistent with the human rights and social justice enterprise of the Constitution as a whole.[39] By interpreting ‘life’ and ‘liberty’ as including the total well being of a human being, the Constitution has cast a protective umbrella around the everyday concerns of ordinary life.[40] This definitional expansion has necessitated a transformation of the ‘any process’ clause into a ‘due process’ clause. These various quandaries over the definition of fundamental rights are strong reminders that human rights issues do not lend themselves to narrow textual interpretation. Constitutional interpretation must view the definition of human rights with an expansive wisdom to interpret the text purposively so as to preserve the right of all human beings to mutual respect and concern.[41]
S. P. Sathe argues that Courts cannot interpret a statute, much less a constitution, in a mechanistic manner.[42] In the case of a statute, a court must determine the actual intent of the authors. In the case of a constitution, a court must sustain the constitution’s relevance to changing social, economic, and political scenarios. In the words of Justice Benjamin Cardozo, a court must give to the words of a constitution “a continuity of life and expression.”[43] An apex court, besides deciding the law that binds all courts subordinate to it,[44] also must make “vocal and audible” the ideals that otherwise might remain silent.[45] The original intentions of the founding fathers do not bind a constitutional court. Rather, the court is free to interpret the constitution in terms of what the framers would have intended under the circumstances that exist at the time of such interpretation. In the absence of such judicial activism, a constitution would become stultified and devoid of the inner strength necessary to survive and provide normative order for the changing times.[46] Further, it is strongly contended that the Constitution has to be worked. That is, it has to be acted upon by men and women in society for their requirements and purposes. Ideas feelings, desires, change as does society, economy, and technology. What was written in one situation has to be implemented in a very different context decades, centuries, later. What is acceptable at one time may not be at another. In short, interpretation is inevitable.[47]
Judicial intervention is legitimate when it comes within the scope of permissible judicial review. The thin dividing line demarcating appropriate and inappropriate judicial intervention is drawn on the basis of functions allocated to the different branches by the Constitution. In borderline cases, a legal question at the core determines the need for judicial intervention. Purely political questions and policy matters not involving decision of a core legal issue are outside the domain of judiciary.[48] The US Supreme Court laid down a pragmatic test in Baker v Carr,[49] for judicial intervention in matters within a political hue apart from those expressly allocated to another branch. It held that the controversy before the court must have a ‘justiciable cause of action’ and should not suffer from a ‘lack of judicially discoverable and manageable standards for resolving it.’[50] This is a pre-requisite for judicial intervention. Otherwise, the policy of ‘judicial hands-off’ should govern, because such a matter is required to be dealt with by another branch. Appropriate judicial intervention or legitimate judicial activism is that which is founded on an established or evolved juristic principle having precedent value and performed within judicially manageable standards. It should only compel performance of duty by the designated authority in case of its inaction or failure, while a takeover by the judiciary of the function allocated to another branch is inappropriate. Judiciary has intervened to question allotment of a particular bungalow to a judge, specific bungalows for the judge’s pool, monkeys capering in colonies to stray cattle on the streets, cleaning public conveniences, and levying congestion charges at peak hours at airports with heavy traffic etc., under the threat of use of contempt power to enforce compliance of its orders [are some of the few cases in which judiciary has stepped into executives shoes].[51] The judiciary has stepped in, not only to direct the designated authorities to perform their duty, but it has also taken over the implementation of the programme through non-statutory committees formed by it.
Pran Chopra argues that failure of the politicians to perform their duties properly and the consequent role of the judges in providing some relief from misgovernance is no reason to suIpport the judges’ expansion of their powers through creative (mis)interpretations.[52] Whatever may be the positive results of such judicial intervention and interpretation the ends do not justify the means, he concludes.[53] But the constitutional interpretation of fundamental rights in India cannot be wholly understood without comprehending the human situation in which the demand for rights is made.[54] The human condition speaks of poverty at levels of penury where basic needs and livelihood are not assured. Further, the main motive of democracy is to maximise mass-welfare. In India, the special features of society and its institutions, and the urgency of the problems presented to the courts, doubtless help to explain the demands for “judicial activism.”[55] Soli Sorabjee has pointed out that:
Indignant critics forget 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. It must respond.[56]
CONCLUSION
In order to achieve this goal, even if one wing of Government takes upon itself the responsibility that is supposed to be carried out by the other wings, there requires no eyebrow to be raised. Therefore, it is strongly contended that judicial activism in India is justified because of its peculiar circumstances different from western countries. It is submitted that judicial activism in India is justified to the extent it safeguarded basic human rights of citizens and gave a new hope to the downtrodden that judiciary is one of the organs of the state to turn to, when there is failure on the part of other organs to perform their duties. It is the creativity of the Supreme Court of India that has preserved the basic human rights of the citizens. As a guardian and watchdog of fundamental rights it is within the mandate of the Court to infuse a new life in Article 21 and broaden the scope of ‘right to life’ and ‘personal liberty’ so as to make it meaningful and cherish it for the generations to come.
Thus, in the wake of all the above cited cases it is becoming evident that the Indian Judiciary has evolved itself as a saviour of mankind by interpreting Article 21 of the Constitution in the widest possible manner. The Supreme Court has interpreted right to life to include right to live with human dignity, right to pollution free environment, right to livelihood, freedom from noise pollution etc. The Court day-by-day is enhancing the ambit of right to life and personal liberty. There is considerable scope for further expansion of the content of Article 21 by the judiciary with the objective of taking India forward towards a modern industrial society.
[1] M.V. Pylee, Constitutional Government in India, (S. Chand Publication, Delhi 2004) at 351.
[2] S. P. Sathe, Judicial Activism in India – Transgressing Borders and Enforcing Limits (OUP, New Delhi 2002).
[3] Supra n 2.
[4] P. P. Rao, ‘The Constitution, Parliament and the Judiciary’ in Pran Chopra’s The Supreme Court versus the Constitution – A Challenge to Federalism (Sage Publications, New Delhi 2006).
[5] Benjamin N. Cardozo, The Nature of the Judicial Process, (New Haven : Yale University Press, 1921).
[6] “Bill of Rights” means Fundamental Rights.
[7] Ibid.
[8] AIR 1997 SC 3011.
[9] For example, the doctrine of negligence in torts and the doctrine of public policy in contracts resulted from judicial activism under the common law.
[10] Rajendra Prasad v State of U. P., AIR 1979 SC 916. As quoted in David Pannick, Judicial Review of the Death Penalty, (1st ed. Gerald Duckworth & Co. Ltd, London 1982).
[11] AIR 1979 SC 916. Please note that this decision was overruled by Constitution Bench of the Supreme Court in the case of Bachan Singh v State of Punjab, AIR 1980 SC 898 wherein it was held that the provision of death penalty as an alternative punishment for murder is not violative of Art. 21 (para. 141.)
[12] Rajendra Prasad v State of U.P., AIR 1979 SC 916 at page 924, para. 16. There was a dissenting judgment by Justice A. P. Sen who observed that it is constitutionally and legally impermissible for the Supreme Court while hearing an appeal by special leave under Art. 136 of the Constitution, on a question of sentence, to restructure S. 302 of the Penal Code, 1860 or S. 354, sub-sec. (3) of the Code of Criminal Procedure, 1973, so as to limit the scope of the sentence of death provided for the offence of murder under S. 302.
[13] Charles Sobraj v The Superintendent, Central Jail, Tihar, New Delhi, 1979 1 S.C.R. 512.
[14] Ibid. at p. 515.
[15] AIR 1973 SC 1461.
[16] Justice P. N. Bhagwati, ‘Judicial Activism and Public Interest Litigation’ (1985) 23 Colum. J. Transnat’l L. 561 at p. 562.
[17] Ibid.
[18] M. P. Jain, ‘The Supreme Court and Fundamental Rights’ in S.K. Verma, K.Kusum, Fifty Years of the Supreme Court of India: Its Grasp and Reach (OUP, New Delhi 2003).
[19] Ibid. at 25.
[20] State of Gujarat v Dilipbhai Nathjibhai Patel, AIR 1998 SC 1429 at para 4.
[21] Justice J. S. Verma, ‘Judicial activism should be neither judicial ad hocism nor judicial tyranny’ as published in The Indian Express, 06th April 2007, accessed on 26/08/2008 at 07:05 p.m. (Excerted from the Pandit Kunji Lal Dubey Memorial Lecture, 2007 at Rani Durgavati Vishwavidyalaya, Jabalpur on March 24.)
[22] As quoted in Justice M. D. Kirby, ‘Judicial Activism’ (1997) 23 Commw. L. Bull. 1224 at p. 1231. (Bar Association of India Lecture, New Delhi, 6th January 1997).
[23] L.K. Jha Memorial Lecture, Bhartiya Vidya Bhavan (1996). As quoted in M.V. Pylee, Constitutional Government in India, (S. Chand Publication, Delhi 2004), at 350.
[24] L.K. Jha Memorial Lecture, Bhartiya Vidya Bhavan (1996). As quoted in M.V. Pylee, Constitutional Government in India, (S. Chand Publication, Delhi 2004), at 350.
[25] 1950 SCR 88.
[26] A strong court consisting of C.J. Kania and Justices Fazl Ali, Patanjali Sastri, Mahajan, B.K. Mukherjee and S.R. Das.
[27] 1950 SCR 88 at 110-111; Chief Justice Kania.
[28] Article 21 – Constitution of India. Beginning life as a due process clause (see II SR 75, 79, 86, 119-20), the Drafting Committee opted for a “any procedure established by law” clause in the Draft Constitution of 1948 (Article 15) which, despite angry protest (VII Constituent Assembly Debates 842-859 (6-7 December, 1943) 99-100 (13 Dec. 1948)), remained until ‘due process’ was injected into it by the Supreme court (following Maneka Gandhi’s case). See also, Supra n 46 at 179.
[29] AIR 1978 SC 597
[30] Ibid.
[31] Fali S. Nariman, The ‘Doctrine’ versus ‘Majoritarianism’ in Pran Chopra’s The Supreme Court versus the Constitution – A Challenge to Federalism (Sage Publications, New Delhi 2006).
[32] Ibid.
[33] Ranjan Dwivedi v Union of India, AIR 1983 SC 624 at para. 8, p. 627.
[34] Soli J. Sorabjee , ‘Commendable Judicial Activism’ The Indian Express, May 11, 2008. accessed on 26/08/2008 at 10:00 p.m.
[35] Ibid. at 148.
[36] Ibid. at 148.
[37] S. P. Sathe, Judicial Activism in India – Transgressing Borders and Enforcing Limits (OUP, New Delhi 2002).
[38] B. P. Jeewan Reddy and Rajeev Dhavan, ‘The Jurisprudence of Human Rights’ in David M. Beatty, Human Rights and Judicial Review: A Comparative Perspective Vol. 34 International Studies in Human Rights (Martinus Nijhoff Publishers, Netherlands 1994) 151.
[39] B. P. Jeewan Reddy and Rajeev Dhavan ‘The Jurisprudence of Human Rights’ in David M. Beatty ‘Human Rights and Judicial Review: A Comparative Perspective’ International Studies in Human Rights Volume 34, (Martinus Nijhoff Publishers, Netherlands 1994) at 218.
[40] Ibid. at 203.
[41] Ibid at 205.
[42] S. P. Sathe, Judicial Activism in India – Transgressing Borders and Enforcing Limits (OUP, New Delhi 2002).
[43] Benjamin N. Cardozo, The Nature of the Judicial Process, (New Haven : Yale University Press, 1921).
[44] Indian Constitution, art. 141. which provides that the law declared by the Supreme Court [of India] shall be binding on all courts within the territory of India
[45] Supra n 43.
[46] Supra n 42.
[47] For details see, AIR 1978 SC 597; AIR 1983 SC 465 at para. 13, 16 and 19 and B. P. Jeewan Reddy and Rajeev Dhavan, ‘The Jurisprudence of Human Rights’ in David M. Beatty, Human Rights and Judicial Review: A Comparative Perspective Vol. 34 International Studies in Human Rights (Martinus Nijhoff Publishers, Netherlands 1994), at 225.
[48] State of Gujarat v Dilipbhai Nathjibhai Patel, AIR 1998 SC 1429 at para 4.
[49] 369 US 186 (1962).
[50] Ibid.
[51] Supra n 48.
[52] Pran Chopra The Supreme Court versus the Constitution – A Challenge to Federalism (Sage Publications, New Delhi 2006).
[53] Ibid.
[54] For details see, B. P. Jeewan Reddy and Rajeev Dhavan, ‘The Jurisprudence of Human Rights’ in David M. Beatty, Human Rights and Judicial Review: A Comparative Perspective Vol. 34 International Studies in Human Rights (Martinus Nijhoff Publishers, Netherlands 1994), at 225.
[55] Justice M. D. Kirby, ‘Judicial Activism’ (1997) 23 Commw. L. Bull. 1224 at p. 1226. (Bar Association of India Lecture, New Delhi, 6th January 1997.)
[56] Ibid. at p. 1226 as quoted by Justice M. D. Kirby.
About the Author
Adv.Abhaykumar Dilip Ostwal
Advocate, Supreme Court of India
B.S.L. LL.B. LL.M. (University of Birmingham, UK), C.C.F.&M.J. (Gold Medallist), D.I.T.
