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Disturbing trends in judicial activism - The Hindu http://www.thehindu.com/opinion/lead/disturbing-trends-in-judicial-acti...

OPINION LEAD

August 6, 2012

Disturbing trends in judicial activism


T. R. Andhyarujina

120806 - Lead - Judicial Overreach

Public Interest Litigation is a good thing when it is used to enforce the rights of the disadvantaged. But it has now been diluted to interfere
with the power of the government to take decisions on a range of policy matters

Judicial activism is not an easy concept to define. It means different things to different persons. Critics denounce judicial decisions as activist
when they do not agree with them. Activism, like beauty, is often in the eye of the beholder. In India, the opening up of access to courts to the
poor, indigent and disadvantaged sections of the nation through Public Interest Litigation, popularly known by its acronym PIL, is
unexceptionable judicial activism. From 1979, the judiciary led by the Supreme Court in India became relevant to the nation in a manner not
contemplated by the makers of the Constitution and became an active participant in the dispenser of social justice.

It is a matter of concern that over the years this original, beneficial and unexceptionable character of the Courts activism in PIL has been
largely converted into a general supervisory jurisdiction to correct actions and policies of government, public bodies and authorities. This is a
type of judicial activism unparalleled in any other judiciary.

For basic rights

PIL jurisdiction began haltingly with little idea of its potential 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.

In 1979, Supreme Court advocate Kapila Hingorani drew the Courts attention to a series of articles in a newspaper exposing the plight of
Bihar undertrial prisoners, most of whom had served pretrial detention more than the period they could have been imprisoned if convicted.
Sunil Batra, a prisoner, wrote a letter to Justice Krishna Iyer of the Supreme Court drawing his attention to torture by prison authorities and
the miserable conditions of prisoners in jails. This was taken up as a petition and the Court passed orders for humane conditions in jails. In
1980, two professors of law wrote a letter to the editor of a newspaper describing the barbaric conditions of detention in the Agra Protective
House for Women which was made the basis of a writ petition in the Supreme Court. The exploitation of workmen at construction sites in
violation of labour laws was brought to the attention of the Supreme Court by a letter. The slave-like condition of bonded labourers in
quarries was brought to the attention of the Court by a social activist organisation. A journalist moved the court against the evictions of
pavement dwellers of Bombay. Several cases of this type followed.

In dealing with such cases, the Court evolved a new regime of rights of citizens and obligations of the State and devised new methods for its
accountability. In 1982, Justice P.N. Bhagwati, correctly stated the purpose of PIL as it originated. He emphasised that PIL 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.

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No longer were the Courts clientele drawn from landlords, businessmen, corporations and affluent persons. With PIL, the common man, the
disadvantaged and marginalised sections of society had also easy access to the Court with the help of social activists.

This unique judicial activism was not found in other countries and leading judges abroad such as Lord Harry Woolf of the United Kingdom
and Justice Michael Kirby of Australia, applauded it.

The new intervention

However, over the years, the social action dimension of PIL has been diluted and eclipsed by another type of public cause litigation in
courts. In this type of litigation, the courts intervention is not sought for enforcing the rights of the disadvantaged or poor sections of the
society but simply for correcting the actions or omissions of the executive or public officials or departments of government or public bodies.
Examples of this type of intervention by the Court are innumerable. In the interest of preventing pollution, the Supreme Court ordered
control over automobile emissions, air and noise and traffic pollution, gave orders for parking charges, wearing of helmets in cities,
cleanliness in housing colonies, disposal of garbage, control of traffic in New Delhi, made compulsory the wearing of seat belts, ordered action
plans to control and prevent the monkey menace in cities and towns, ordered measures to prevent accidents at unmanned railway level
crossings, prevent ragging of college freshmen, for collection and storage in blood banks, and for control of loudspeakers and banning of fire
crackers.

In recent orders, the Supreme Court has directed the most complex engineering of interlinking rivers in India. The Court has passed orders
banning the pasting of black film on automobile windows. On its own, the Court has taken notice of Baba Ramdev being forcibly evicted from
the Ramlila grounds by the Delhi Administration and censured it. The Court has ordered the exclusion of tourists in the core area of tiger
reserves. All these managerial exercises by the Court are hung on the dubious jurisdictional peg of enforcing fundamental rights under Article
32 of the Constitution. In reality, no fundamental rights of individuals or any legal issues are at all involved in such cases. The Court is only
moved for better governance and administration, which does not involve the exercise of any proper judicial function.

In its most activist and controversial interpretation of the Constitution, the Supreme Court took away the constitutionally conferred power of
the President of India to appoint judges after consultation with the Chief Justice, and appropriated this power in the Chief Justice of India
and a collegium of four judges. In no Constitution in the world is the power to select and appoint judges conferred on the judges themselves.

The Court is made the monitor of the conduct of investigating and prosecution agencies who are perceived to have failed or neglected to
investigate and prosecute ministers and officials of government. Cases of this type are the investigation and prosecution of ministers and
officials believed to be involved in the Jain Hawala case, the fodder scam involving the former Chief Minister of Bihar, Lalu Prasad Yadav, the
Taj Corridor case involving the former Chief Minister of Uttar Pradesh, Mayawati, and the recent prosecution of the Telecom Minister and
officials in the 2G Telecom scam case by the Supreme Court.

Military operation

The Supreme Court has made an order even in a military operation. In 1993, the Court issued orders on the conduct of military operations in
Hazratbal, Kashmir where the military had as a matter of strategy restricted the food supplies to hostages. The Court ordered that the
provision of food of 1,200 calorific value should be supplied to hostages. Commenting on this, an Army General wrote: For the first time in
history, a Court of Law was asked to pronounce judgment on the conduct of an ongoing military operation. Its verdict materially affected
the course of operation.

Even proceedings of Legislatures are controlled by the Court. In the Jharkhand Legislative Assembly case, the Supreme Court ordered the
Assembly to conduct a Motion of Confidence and ordered the Speaker to conduct proceedings according to a prescribed agenda and not to
entertain any other business. Its proceedings were ordered to be recorded for reporting to the Court. These orders were made in spite of
Article 212 of the Constitution which states that Courts are not to inquire into any proceedings of the legislature.

Other examples

Matters of policy of government are subject to the Courts scrutiny. Distribution of food-grains to persons below poverty line was monitored,
which even made the Prime Minister remind the Court that it was interfering with the complex food distribution policies of government. In
the 2G Licenses case, the Court held that all public resources and assets are a matter of public trust and they can only be disposed of in a
transparent manner by a public auction to the highest bidder. This has led to the President making a Reference to the Court for the Courts
legal advice under Article 143 of the Constitution. In the same case, the Court set aside the expert opinion of the Telecom Regulatory
Authority of India (TRAI) to sell 2G spectrum without auction to create greater teledensity in India.

The Court has for all practical purposes disregarded the separation of powers under the Constitution, and assumed a general supervisory
function over other branches of governments. The temptation to rush to the Supreme Court and 21 High Courts for any grievance against a
public authority has also deflected the primary responsibility of citizens themselves in a representative self government of making legislators
and the executive responsible for their actions. The answer often given by the judiciary to this type of overreach is that it is compelled to take
upon this task as the other branches of government have failed in their obligations. On this specious justification, the political branches of
government may, by the same logic, take over the functions of the judiciary when it has failed, and there can be no doubt that there are many
areas where the judiciary has failed to meet the expectations of the public by its inefficiency and areas of cases.

Justice Jackson of the U.S. has aptly said: The doctrine of judicial activism which justifies easy and constant readiness to set aside decisions
of other branches of Government is wholly incompatible with a faith in democracy and in so far it encourages a belief that judges should be
left to correct the result of public indifference it is a vicious teaching. Unless the parameters of PIL are strictly formulated by the Supreme
Court and strictly observed, PIL which is so necessary in India, is in danger of becoming diffuse, unprincipled, encroaching into the functions
of other branches of government and ineffective by its indiscriminate use.

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(The writer is a senior advocate of the Supreme Court and former Solicitor General of India. This article is an abridged version of a lecture
he recently delivered at the sesquicentennial of the Bombay High Court.)

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