Business Law Assignment 1

Research Paper Judicial Activism

Prepared By: Arun Malhotra EX-PGDM 2012-13 PRN No: 12020468012

Content:
Introduction Judicial Activism Situations that lead to Judicial Activism Areas of Judicial Activism Public Interest Litigation Blessings or Curse Judicial Activism in India Cases Conclusion

Judicial Activism in India

Introduction:

The significant feature of Indian Constitution is partial separation of powers. - The executive powers are vested in the president, Legislative powers tit the Parliament and the judicial powers in the Supreme Court and subordinate courts. The role of separation of powers in India is simple. The three organs of the Government viz. the Executive. Legislature and the Judiciary are not independently independent but interdependently independent. (The executive encroaches upon judicial power, while appointing the judges of Supreme Court and High Courts. Similarly the Judiciary, by its review power examines the law passed by file legislature pat lament and the legislature also, intervenes in respect of impeachment of the president). But judiciary has carried forward participative justice in the form of judicial activism. It has laid just standards of procedure. It has made justice more accessible to citizens. Judicial activism is gaining prominence in the present days because it has made justice more accessible to citizens. In the form of Public Interest Litigation (PIL), citizens are getting access to justice. The area of judicial intervention has been steadily expanding through the device of public interest litigation. The judiciary has shed its pro-status-quo approach and taken upon itself the duty to enforce the basic rights of the poor and vulnerable sections of society, by progressive interpretation and positive action.

Judicial Activism: It involves innovative interpretations of the nuances of law. According to Justice J.S. Verma of Supreme Court. The role of the 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. It is the current term in use- judicial activism. Judicial activism refers to the interference of the judiciary in the legislative and executive fields. It mainly occurs due to the non-activity of the other organs of the government. In a way it is an absurd term- if we have a judiciary it is to be hoped that its members will be active, but the term activism. Of course implies intervention. The term 'judicial activism' is intended to refer to, and cover, the action of the court in excess of, and beyond the power of judicial review. From one angle it is said to be an act in excess of, or without, jurisdiction. The Constitution does not confer any authority or jurisdiction for 'activism' as such on the Court.

Judicial activism is a way through which relief is provided to the disadvantaged and aggrieved citizens. Judicial activism is providing a base for policy making in competition with the legislature and executive. Judicial activism is the rendering of decisions, which are in tune with the temper and tempo of the times. In other words, it is judicial activism that helps to advance the cause of law, and it has been a continuous process in India. Judicial activism is, in fact, an essential part of judicial review. It may be pint out in this context that the doctrine of the basic structure of the constitution limits the scope of amending power of parliament in substantial ways some of the features of this basic structure, through no actually listed include rule of law, equality, federalism, secular polity, and most important judicial review. The Supreme Court has developed new methods of dispensing justice to the masses through the public interest litigation. Former Chief Justice PN. Bhagwat, under whose leadership public interest litigation attained a new dimension comments that "the supreme court has developed several new commitments. In short, judicial activism means that instead of judicial restraint, the Supreme Court and other lower courts become activists and compel the authority to act and sometimes also direct the government regarding policies and also matters of administration.

Judicial activism has arisen mainly due to the failure of the executive and legislatures to act. Secondly, it has arisen also due to the fact that there is a doubt that the legislature and executive have failed to deliver the goods. Thirdly, it occurs because the entire system has been plagued by ineffectiveness and inactiveness. The violation of basic human rights has also led to judicial activism. Finally, due to the misuse and abuse of some of the provisions of the Constitution, judicial activism has gained significance.

Besides the above mentioned factors, there are some other situations that lead to judicial activism. These are: i) ii) When the legislature fails to discharge its responsibilities. In case of a hung parliament where the government is very weak and instable.

iii) iv) v)

When the governments fail to protect the basic rights of the citizens or provide an honest, efficient and just system of law and administration. When the party in power misuses the courts of law for ulterior motives as was done during the Emergency period, and Finally, the court may on its own try to expand its jurisdiction and confer on themselves more functions and powers.
DNYANESH KUMAR

Areas of Judicial Activism During the past decade, many instances of judicial activism have gained prominence. The areas in which judiciary has become active are health, child labour, political corruption, environment, education, etc. Through various cases relating to Bandhua Mukti Morcha, Bihar Under trials, Punjab Police, Bombay Pavement Dwellers, Bihar Care Home cases, the judiciary has shown its firm commitment to participatory justice, just standards of procedures, immediate access to justice, and preventing arbitrary state action.
DNYANESH KUMAR

Public Interest Litigation: An Innovative Step towards Judicial Activism Public interest litigation means a suit filed in a court of law for the protection of public interest such as pollution, terrorism, road safety etc. Judicial activism in India acquired importance due to public interest litigation. It is not defined in any statute or act. It has been interpreted by judges to consider the intent of public at large. The court has to be satisfied that the person who has resorted to PIL has sufficient interest in the matter. In India, PIL initially was resorted to towards improving the lot of the disadvantaged sections of the society who due to poverty and ignorance were not in a position to seek justice from the courts. After the Constitution (Twenty Fifth Amendment Act, 1971), primacy was given to Directive Principles of State Policy by making them enforceable. The courts to improve administration by taking up PIL cases, for ensuring compliance

constitutional provisions has also increased. PIL is filed for a variety of cases such as maintenance of ecological balance, making municipal authorities comply with statutory obligations of provision of civic amenities, violation of fundamental rights etc. It has provided an opportunity to citizens, social groups, consumer rights activists etc., easier access to law and introduced a public interest perspective. Justices P.N. Bhagwati and V.R. Krishna Ayer have played a key role in promoting this avenue of approaching the apex court of the country, seeking legal remedies in areas where public interests are at stake. There has been an increase in the number of frivolous cases being filed due to low court fees. Genuine cases got receded to the background and privately motivated interests started gaining predominance in PIL cases. In view of this, the Supreme Court has framed certain guidelines governing the PIL.
DNYANESH KUMAR

Blessing or curse Curse - the judicial activism will have a detrimental effect on our democratic order. Secondly, they signal the loopholes in our judicial system. They say that the judicial activism is the outcome of the judiciarys zeal to be in the limelight. Thirdly, the critics point out the abuse of PIL. Blessing - Firstly, it has become crystal clear that not only has the judicial activism activated the judiciary but has activated the executive and legislature too. No institution has monopoly rights to weaknesses or to making mistakes. Courts may also go wrong, overstep the limits of judicial discretion and restraint and make mistakes. Thirdly, the apex Court itself has given cautious guidelines on the abuse of P.I.L. in several cases.

JUDICIAL ACTIVISM IN INDIA Kehavananda Bharatis case This judgment is one of a kind. It came into being when six writ petitions were filed challenging the twenty fourth, twenty fifth and the twenty ninth amendments to the constitution. All the Judges of the bench opined that by virtue of Article 368 as

amended by the twenty-fourth Amendment, the Parliament had the power to amend any or all provisions of Constitution, including those relating to fundamental rights. The majority were of the view that the power of amendment under Article 368 was subject to certain implied and inherent limitations. It was held that in the exercise of amending power, the Parliament cannot amend the basic structure or framework of the Constitution. It was also held that individual freedom secured to citizens was a basic feature of Constitution, and could not be altered. The judgment also invalidated the second part of Article 31-C introduced by twenty-fifth Amendment, which excluded jurisdiction of the Courts to inquire whether law protected under that Article gave effect to policy of securing directive principles mentioned therein. This was a path breaking judgment which gave birth to the doctrine of basic structure. It was this judgment that saved the country when Indira Gandhi sought to amend the constitution so that the courts could not challenge the grounds of her election and to make sure that her election could not be termed void. This case law also overruled the proposition of law which was laid down in Golak Nath vs. State of Punjab. In todays time, such judgments are few and far between. The next two cases are perfect examples of what harm judicial activism may cause.

Ashok Hurra vs Rupa Bipin Zaveri In this particular case, the plaintiff and the defendant filed for divorce by mutual consent after a few troubled years of marriage. However, the wife withdrew her consent before divorce was granted. Keeping this in mind, the lower court did not grant divorce to the husband. However, taking into consideration the fact that consent had been withdrawn after the 18 month period prescribed under the Hindu Marriage Act, the High Court granted divorce. The wife appealed to the Supreme Court. In the meantime, the husband got married elsewhere and had a son. The Supreme Court held that although the husband ought not to have married before the disposition of the appeal, irretrievable breakdown of marriage had taken place. The parties had been suffering for 12 years and hence it would not be right to prolong their agony. Although the court made serious remarks about the behaviour of the husband, it was held that divorce had been granted and that the second marriage was valid. This Shocking and astounding judgment well and truly defeats the purpose of an appeal to the Supreme Court. The Supreme Court accepted that the husband should not have remarried before the disposition of the appeal but at the same time, it held the

second marriage valid. Granted that there was no possibility of reconcialiation in the marriage with Rupa Hurra, but the manner of grant of divorce deserves serious criticism. Since the appeal was pending in the apex court, it cannot be said that divorce had been granted with finality. Yet the husband remarried, and yet the marriage was held to be valid by the Supreme Court. This may become a weapon in the hands of the people wanting to get remarried before disposition of appeals in higher courts.

Arnit Das vs. State of Bihar A crime of murder was registered at Patna according to which one Abhishek was shot dead. On 13.9.1998 the petitioner was arrested in connection with the said offence. A day later the petitioner was produced before the Additional Chief Judicial Magistrate, Patna who after recording his statement remanded him to a Juvenile home in Patna. The petitioner claimed to have been born on 18.9.1982 and therefore a juvenile, entitled to protection of The Juvenile Justice Act, 1986. The petitioner's claim was disputed on behalf of the prosecution. The A.C.J.M. directed an enquiry to be held under Section 32 of the Act. The petitioner was referred to examination by a Medical Board. On receipt of the report of the Medical Board and on receiving such other evidence as was adduced on behalf of the petitioner, the A.C.J.M. concluded that the petitioner was above 16 years of age on the date of the occurrence and therefore was not required to be tried by a Juvenile Court. The finding was upheld by the Sessions Court in appeal and the High Court in revision. On appeal to the Supreme Court, it was decided that the crucial date is not the day on which the offence is committed but on the day on which the offender is brought before a competent authority. It was never a disputed fact as to whether the offender was a juvenile on the date of the commission of the offence. It was hence never necessary for the Supreme Court to decide on the issue of whether the date of the commission of the offence or the date on which the offender is brought before a competent authority is the date on which the offender should be a juvenile. The Juvenile Justice Act was enacted in order to protect the interest of Juveniles, taking into consideration the age of the person when the offence was committed. The fact that the offender may not have been well aware of the effects of his act contributes to the sanctity of the legislation. However, what happens in a case where an offender is arrested 30 years after the commission of the offence? Does one send him to a remand home with other juveniles regardless of the fact that he is not of their age? Does one

try him as a regular offender regardless of the fact the offence had been committed when he was not of age? Irrespective of how much time elapses after the incident, the offence itself remains an offence committed by a juvenile and the person should thus be judged according to his age and intent at the time of the commission of the offence. The Supreme Court however, provides no guidelines about the aforementioned issue and how this particular situation should be handled.

A Note of Caution In a monograph "Judicial Activism and Constitutional Democracy in India" commended by Professor Sir William Wade, Q.C. as a "small book devoted to a big subject", the learned author, while recording appreciation of judicial activism, sounds a note of caution-"it is plain that the judiciary is the least competent to function as a legislative or the administrative agency. For one thing, courts lack the facilities to gather detailed data or to make probing enquiries. Reliance on advocates who appear before them for data is likely to give them partisan or inadequate information. On the other hand if courts have to rely on their own knowledge or research, it is bound to be selective and subjective. Courts also have no means for effectively supervising and implementing the aftermath of their orders, schemes and mandates, since courts mandate for isolated cases, their decrees make no allowance for the differing and varying situations which administrators will encounter in applying the mandates to other cases. Courts have also no method to reverse their orders if they are found unworkable or requiring modification". Highlighting the difficulties which the courts are likely to encounter if embarking in the fields of legislation or administration, the learned author advises "the Supreme Court could have well left the decision- making to the other branches of the government after directing their attention to the problems, rather than itself entering the remedial field".

Conclusion: This presentation is a review of various case laws, the ones mentioned above and others, which are not in favour of public policy. There have been no subsequent over rulings of these judgments which surpass all logic. This leads us to wonder whether judicial activism is always good for society. It is a known fact that judicial activism

has given us some very good case laws, even led to revolutionary changes in society, but its consistency needs to be questioned.