7 Jun 2014

Judicial Activism : How much Efficient and Needed ?

The expression `Judicial Activism' refers to the use of judicial power by the courts to work out an appropriate remedy for the aggrieved & by formulating new rules so as to settle the conflicting questions in the event caused by uncertain laws or to address a situation of lawlessness & and enforce what is beneficial for the society .
The provision of ‘judicial activism’ is necessary in order to give effect to the individual and group rights which are guaranteed by the Constitution of India.

The basic idea of judicial activism has its roots in - the ‘Doctrine of separation of powers’ which was propounded by the ‘French Jurist Montesquieu’.

How this is adopted in India?

With the executive powers being vested in the President, Legislative powers in the Parliament and State Legislative Assemblies and the judicial powers in the Supreme Court and subordinate courts, there comes a separation of power among the three.However, the adoption of this principle in India is partial and not total.

The scope of judicial review before Indian courts has evolved in three dimensions –

      1. To ensure fairness in administrative action, the Supreme Court of India and the various High Courts have been given the power to rule on the constitutionality of legislative as well as administrative actions.
The Judiciary is entrusted with implementation of the laws made by the legislature. Also, in case of absence of laws on a particular issue, judiciary issues directions for the Legislature to follow.
     2. To protect the constitutionally guaranteed fundamental rights of citizens and the Article 32 of the Constitution empowers the Supreme Court of India to enforce the Fundamental rights guaranteed to its citizens. With this, citizens can directly approach the Supreme Court for seeking remedies against the violation of their fundamental rights. Also, the right to constitutional remedies is itself a fundamental right regarded as most important and can be enforced in the form of ‘writs’, i.e.  -

a) Habeas corpus (to direct the release of a person detained unlawfully),
b) Mandamus (to direct a public authority to do its duty),
c) Quo warranto (to  direct a person to vacate an office assumed wrongfully),
d)  Prohibition(to prohibit a lower court from proceeding on a case) , and
e) Certiorari (power of the higher court to remove a proceeding from a lower court and bring it before itself).

Besides the Supreme Court, the High Courts are also designated as constitutional courts and as per Article 226 citizens can file similar writs before the High Courts.

 The Supreme Court of India

      3. To decide on questions of legislative competence between the centre and the states. The Supreme court is also approached to rule on questions of legislative competence, mostly in the context of Centre-State relations.
A name that is read synonymous with Judicial Activism these days is- Public Interest Litigation.

Public interest litigation is the power given to the public by courts through judicial activism. It means "any litigation which is conducted for the benefit of the public or for addressing some public grievance.”

PIL jurisdiction in India began when the Supreme Court, in 1979, entertained complaints by social activists drawing the attention of the Court to the conditions of certain sections of society or institutions which were deprived of their basic rights , and this later drew the
attention of all concerned.

Now, any citizen can approach the court for the cause of the public i.e. in the interests of the public or public welfare, by filing a petition:

1. In the Supreme Court (under Article 32 of the Constitution of India);
2. In the High Court (under Article 226 of the Indian Constitution);
3. In the Court of Magistrate (under Section 133 of the Code of Criminal procedure).

Justice P N Bhagwati & Justice V R Krishna Iyer were instrumental of the juristic revolution of PIL. Quoting here, Justice P.N. Bhagwati, according to him the purpose of PIL is - “a strategic arm of the legal aid movement which is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity, is a totally different kind of litigation from the ordinary traditional litigation.”

{Bhagwati J., known as one of the ‘pro-poor’ and ‘activist’ judges of the Supreme Court firmly established the validity of the public interest litigation in S.P. Gupta vs. Union of India. (AIR 1982 SC 149) case, popularly known as-“JUDGES TRANSFER CASE”. Since then, a lot many public interest litigation petitions were filed.}

In the very beginning, when the PIL was in rudimentary form, it was being filed for the cases related to the rights of disadvantaged sections of society i.e. - child laborers, bonded laborers, prisoners, mentally challenged, pavement dwellers, woman and few others. Later, the extent of issues which were raised in PIL expanded tremendously with time—from the protection of environment to corruption-free administration, right to education, sexual harassment at the workplace, relocation of industries, rule of law, good governance, and the general accountability of the Government.

However , over the years , the “social action dimension , rights issue & it’s efficacy “ has been overshadowed & it has reached  a stage where it has started undermining the very purpose for which PIL was introduced. The dark side is slowly moving to overshadow the bright side of the PIL. Various reasons that are responsible for this are-

1.) Ineffective use of PIL
These days PIL is being misused by people agitating for private grievances, for seeking more publicity rather than raising voice for public causes. There is decline in genuine cases of public interest being filed under PIL.

2.) Overuse-induced non-seriousness - PIL is turning out to become a routine affair which is not taken seriously. The overuse of PIL for every other public interest tends to dilute the original commitment & makes it a low-key affair and sometime irrelevant also.

3.) Balance of power – while redressing public grievances PIL, the court needs to keep in mind that it doesn’t encroach upon the spheres that stay reserved for legislature & executive.
The lack of strict separation of power has resulted in this shortcoming. e.g. - attempts by the judiciary through PILs,  to enter the area of policy making & policy implementation has raised concern in political spheres.

4.) Implementation – the judiciary needs to make it sure that it’s guidelines & directions given to address the social issues & serve the public interest , should be complied with by related authorities .

5.) Inefficient disposal of cases - the number of per capita judges in India is much lower and the Indian Supreme Court as well as High Courts are facing a huge backlog of cases. This issue needs to be addressed on priority basis, in addition to rejection of non-genuine PIL cases, so that justice may be delivered to the needy at the earliest.

Lady Justice Statue
As we see, the Judicial Activism has earned a human face in India by liberalizing the access to justice and giving relief to disadvantaged sections of the society, who were not having access to the remedies & justice.  It has raised hope in the masses that justice is not out of their reach. It is gaining prominence these days, especially with the PIL, which has made a revolutionary change in addressing the issues of public & social importance by courts. But in order to assure that it prospers, the Supreme Court of India needs to rethink, restructure & reformulate the parameters of use & function of PIL & make it sure that they strictly observed. PIL has become a necessity in India, but is now reeling under the danger of becoming diffuse, unprincipled, and encroaching into the functions of other branches of government and is almost turning it stale–cum-ineffective due to its indiscriminate use.

What is your view about PIL and its use in India?

How judicial activism can become an effective medium for getting good governance?

How our courts can become more efficient and fast?

(Written by Dr. Jot Brar, a practicing Doctor)



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