DR.

RAM MANOHAR LOHIA NATIONAL

LAW UNIVERSITY, LUCKNOW

JURISPRUDENCE
Project
On
A DYNAMIC THEORY OF JUDICIAL ROLE

Submitted To: Submitted By:

Mr.Manvendra kumar Tiwari Anurag Chaudhari

Asst. Professor(Law) Semester V-A

Roll No.25 (150101024)

 ACKNOWLEDGEMENTS

I sincerely thank Mr. Manvendra Kumar Tiwari for allowing us to work on an area of our
interest. Her invaluable assistance and patience to stand us all in a class of undisciplined
learners is commendable. We are highly thankful to her for her infallible help and support. I
am highly indebted to the staff of the RMLNLU library for their kind consideration in the
same regard. And last but not the least I would take the opportunity to thank my parents,
friends and well-wishers without whose support and criticism this project of mine would not
have gathered enough momentum. This is as much theirs.

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 TABLE OF CONTENTS

ACKNOWLEDGEMENT 1
INTRODUCTION 3
SOUTH AFRICAN COURTS JUDICIAL ACTIVISM 3
INDIAN COURTS JUDICIAL ACTIVISM 10
COLUMBIAN COURTS JUDICIAL ACTIVISM15
CONCLUSION 23

BIBLIOGRAPHY 29

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INTRODUCTION

Recent scholarship has focused on the role of constitutional courts in new or threatened
democracies. This literature has pointed out that these courts are often faced with particular
challenges that are different from the ones found in more mature democracies. Courts may
act in fragile democracies that are at risk of sliding back into authoritarianism. They often
act in the midst of poorly-functioning political systems, and they generally face the challenge
of enforcing rights--like socioeconomic rights--that are costly to enforce. At the same time,
any assumption that courts acting in poorly-functioning political environments are always
weak courts has been definitively proven false. Courts in places like India, Colombia, and
South Africa have shown a surprising level of activism and independence .

SOUTH AFRICAN COURTS JUDICIAL ACTIVISM

Post-apartheid constitutionalism in South Africa is founded on a supreme constitution

with a justiciable Bill of Rights, whose enforcement is entrusted to a Constitutional Court.
The Constitution outlines platforms upon which the countrys new constitutionalism is built
upon. Section 1 provides:
The Republic of South Africa is one, sovereign, democratic state founded on the following
values:
(a) Human dignity, the achievement of equality and the advancement of human rights and
freedoms.
(b) Non-racialism and non-sexism.
(c) Supremacy of the constitution and the rule of law.
(d) Universal adult suffrage, a national common voters roll, regular elections and multi-party
system of democratic government, to ensure accountability, responsiveness and openness.

In addition to the values above, section 7(1) provides that the Bill of Rights is a cornerstone
of democracy in South Africa, which enshrines the rights of all people in our country and
affirms the democratic values of human dignity, equality and freedom. Section 7(2) imposes
an obligation on the state to respect, protect, promote and fulfil the rights in the Bill of
Rights. Post-apartheid constitutionalism in South Africa is haunted by the spectre of the
injustice perpetrated by apartheid era regimes. There is perhaps no better way to capture the
influence of apartheid on South Africas constitutionalism than to reproduce Mahomed Js

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rich language in S v Makwanyane: All Constitutions seek to articulate, with differing degrees
of intensity and detail, the shared aspirations of a nation .The South African Constitution
retains from the past only what is defensible, and represents a decisive break from, and a
ringing rejection of that part of the past which is disgracefully racist, authoritarian, insular,
and repressive, and a vigorous identification of, and commitment to a democratic,
universalistic, caring and aspirationally egalitarian ethos, expressly articulated in the
Constitution. The contrast between the past which it repudiates and the future to which it
seeks to commit the nation is stark and dramatic. As guardian of the new South Africa,
through powers vested in it by the Constitution, the Constitutional Court has, through a series
of cases, managed to carve for itself, a role as legitimator of the countrys social
transformation project. In doing this, it has moved from a formal, to a substantive vision of
law.The study proceeds to show, through a number of decided cases, how the Court has
performed its transformative role in post-apartheid South Africa.
It would be almost impossible to analyse all decisions of the Constitutional Court in order to
determine cases in which it engaged in judicial activism. Accordingly, this segment of the
study focuses on controversial decisions of the Court. These are discussed broadly under
civil/political rights and socio-economic rights. The views of the Court, other arms of
government and the public are likewise analysed to explore how the Courts protection of
minority rights, or lack of it, has affected its legitimacy.

Death Penalty
Two years after it came into existence, the Court faced a major judicial hurdle in the case of
State v Makwanyane. It was asked to determine the constitutionality of section 277(1) (a) of
the Criminal Procedure Act, 1977, which permitted imposition of the death penalty for the
crime of murder. The government argued that the death penalty violates the right to life, and
constituted cruel, inhuman and degrading punishment which contravenes sections 9, 10 and
11(2) respectively, of the 1994 Interim Constitution. Representing prevailing public opinion,
the Attorney General, an independent institution, argued that the death penalty was necessary
to curtail violent crimes and did not constitute cruel, inhuman or degrading treatment.

It is necessary to point out that S v Makwanyane was decided at an era of high crime rate in
South Africa. Arising under an undemocratic Constitution, the Court was acutely mindful of
its legitimacy, should its ruling prove unpopular. Accordingly, while generally agreeing that
the death penalty constituted cruel and degrading punishment, the Court was split on whether

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the death penalty debate was political or judicial. To underscore the importance and difficulty
of the case, each of the 11 justices of the Court wrote a separate judgment expounding
different aspects of the debate. On the implicit admission of the political nature of the issue,
Ackermann J argued that even with abolition of the death penalty, the state could still protect
citizens from a convicted, unreformed, recidivist killer or rapist. Didcott J, while
recognising the importance of public opinion, believed that public opinion in this case was
based on erroneous assumption that the death penalty had a significant deterrent effect.
Aligning themselves with the purely judicial position of the debate, Mahomed DJP, ORegan
J, Kriegler J, Kentridge AJ, Madala J, Mokgoro J and Mahomed J were convinced that the
Constitutions makers intended the issue to be decided by the judiciary. Langa J and Sachs J
based their judgments on the constitutional value of human dignity.
Delivering the lead judgment, Chaskalson P admitted that majority of South Africans were
convinced the death penalty ought to be imposed in extreme cases of murder. He nevertheless
held that public opinion should not deter the judiciary from interpreting and upholding
constitutional provisions without fear or favour. According to him, if public opinion were to
be decisive, there would be no need for constitutional adjudication. In his words:
(T)he very reason for establishing the new legal order, and for vesting the power of judicial
review of all legislation in courts, was to protect the rights of minorities and others who
cannot protect their rights adequately through the democratic process.
The Makwanyane judgment was greeted with public outcry and calls for a referendum. It was
also criticised in legal circles. As pointed out by a scholar:
In the wake of a rising crime rate the Courts judgment has become a political football,
compromising the credibility of (not only) the Constitutional Court itself, but also of the
administration of justice as such.
However, the Makwanyane decision appears to have had no negative impact on the Courts
legitimacy. The final draft of the 1996 Constitution did not retain the death penalty. Again,
following the judgement, and in keeping with the abolitionist policy of the African National
Congress (ANC), Parliament moved quickly to abolish the death penalty by the Criminal
Law Amendment Act 105 of 1997.

Right to health
In Minister of Health v Treatment Action Campaign, the Treatment Action Campaign (TAC),
a non-governmental organisation, challenged the constitutionality of governments

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prevention programme of mother to child transmission (MTCT) of HIV in the High Court.
The programme, inaugurated in July 2000, was confined to two selected sites in each South
African province for a period of two years. One site was rural while the other was urban.
Governments aim was to extend the programme to other public facilities outside the pilot
sites by developing a national policy in the pilot phase. During the test phase of two years,
state doctors outside the pilot sites were not given access to the preferred anti-retroviral drug,
Nevirapine. The High Court ordered the state to extend its MTCT programme and make
Nevirapine available to all HIV positive pregnant women (and their children) after childbirth,
wherever medically recommended and where such women had undergone HIV counselling
and testing. The High Court also ordered the state to develop a comprehensive national
programme to prevent or reduce MTCT of HIV. Unimpressed by the judgment, the state
appealed the decision on the ground, inter alia, that it violated the doctrine of separation of
powers. The TAC countered by arguing that governments policy was irrational. In its
judgment, the Constitutional Court acknowledged that the legislature and the executive
should be the primary formulators of policy; but this does not mean that where mandated by
the Constitution, the courts cannot, or should not make orders that have an impact on
policy.It ordered the state to inter alia, remove restrictions placed upon Nevirapine outside
public health facilities that do not fall within the research sites and to facilitate availability
and use of the drug at public hospitals whenever medically prescribed. While the
Constitutional Courts judgment in the TAC case was resented by government as an intrusion
in policy matters, it was welcomed by civil society as a victory for sufferers of HIV in South
Africa.
Right to housing
The right of access to adequate housing and the nature of the states duty in that regard came
before the Constitutional Court in the Grootboom case. Here, an extremely poor community
of 390 adults and 510 children had lived in an informal settlement, Wallacedene, in very
appalling circumstances. Their horrible living conditions eventually forced them to illegally
occupy a site earmarked for low cost housing. Following their eviction from that site, and
having nowhere else to go, they occupied a sports field and an adjacent community hall.
Sometime after this, they applied to the High Court for an order requiring the state to provide
them with adequate basic shelter or housing until they obtained permanent accommodation.
Section 26 of the 1996 Constitution provides that:
(1) Everyone has the right of access to adequate housing.
(2) The state must take reasonable legislative and other measures within its available

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resources, to achieve the progressive realisation of this right.

Section 28 gives children right to shelter which is not limited by restraints like progressive
realisation nor available resources.
The High Court declined to grant relief to the applicants under section 26, but granted relief
(to some of them) under section 28 by ordering the state to provide children and
accompanying parents with bare minimum shelter in form of tents and potable water. In
doing this, the High Court adopted the approach of the Committee on Economic, Social and
Cultural Rights (ESCR Committee) in relation to the International Covenant on Economic,
Social and Cultural Rights (ICESCR). The ESCR Committee had defined the substance of the
right to adequate housing by reference to its minimum core.
The state appealed to the Constitutional Court, which chose to approach the issue from the
angle of the reasonableness of measures taken by the state to fulfil its obligations under
section 26 of the Constitution. It noted that the ESCR Committee did not define the
minimum core obligation of states in reference to the enforcement of socio-economic
rights, and further that the minimum core is only one consideration in determining whether
the State has met its constitutional duty to implement reasonable legislative and other
measures to progressively achieve the right of access to adequate housing. In determining the
question of whether the measures adopted by the state were reasonable, the Court held that
the existing programme was inadequate because it failed to cater for homeless and
desperately poor communities such as the respondents. It therefore ruled that the state had
breached its obligation to devise and implement within its available resources, a
comprehensive and coordinated programme to realize progressively the right of access to
adequate housing. In arriving at this decision, the Court departed from its precedent in the
Soobramoney case and accorded judicial recognition to enforcement of socio-economic rights
in South Africa Grootboom was hailed for its departure from Soobramoney, but criticised for
failure to adopt the minimum core approach of the ESCR Committee and granting only
declaratory, rather than injunctive relief, which would have given the Court supervisory
jurisdiction over the judgment.
Definition of rape
The Court was faced with the constitutional validity of the common law definition of rape in
Masiya v DPP.The case arose from the judgment of the Pretoria High Court, confirming that
of the Regional Court.The Regional Court had convicted one Fanuel Masiya of unlawful,
non-consensual sexual intercourse with a nine-year old girl. The evidence had established

7
that the complainant was penetrated anally. The state had accordingly applied that the
applicant be convicted of indecent assault rather than rape. The common law defines rape in
a gender-specific manner that excludes anal penetration. In its judgment, the High Court
upheld the definition of rape to include acts of non-consensual sexual penetration of the male
penis into the vagina or anus of another person. It struck down certain provisions of the
Criminal Law Amendment Act and its schedules, and section 261(1) (e) and (f) and (2) (c) of
the Criminal Procedure Act. It ordered a reading in of the word person wherever reference
is made to a gender-specific provision.
In a majority judgment read by Nkabinde J, to which Moseneke DCJ, Kondile AJ, Madala J,
Mokgoro J, ORegan J, Van der Westhuizen J, Van Heerden AJ and Yacoob J. concurred to,
the Constitutional Court admitted the patriarchal origin of the common law definition of rape
and the fact that it falls short of the spirit and provisions of the Bill of Rights. Despite this
admission, it argued that because the victim of the rape was female, it could not consider the
question of whether nonconsensual male-on-male penetrative sex would constitute rape. The
Court argued that to extend the definition of rape to include men would infringe on the
legislative terrain. However, it extended the definition to include non-consensual anal
penetration of women.
In a dissenting opinion concurred to by Sachs J, Langa CJ held that the anal penetration of a
male should be treated in the same manner as that of a female for to do otherwise fails to
give full effect to the constitutional values of dignity, equality and freedom.

The Masiya judgment has drawn criticism for declining to develop the common law to
include non-consensual male-on-male sexual penetration in a gender-neutral fashion.
Gay rights
In the Fourie case, the Constitutional Court dealt with one of its most divisive decisions:
same-sex marriages. It was asked to determine the constitutionality of the common law
definition of marriage as being between a man and woman, and section 30(1) of the Marriage
Act (which required the words lawful wife and lawful husband during exchange of
marriage vows). The state opposed the applicants on the ground that it was inappropriate for
the judiciary to cause such significant changes to the institution of marriage. It argued that
such change should be addressed by Parliament and relied on the following for its argument:
(a) Recognition of same sex marriages was not an appropriate solution to discrimination
against homosexuals;
(b) The Constitution did not protect the right to marry, and

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(c) International human rights law recognised only heterosexual marriages.

In rejecting the states contentions, the Court acknowledged religious opposition to same-sex
marriages by ruling that ministers of religion were not legally obliged to solemnise a same-
sex marriage if it would contradict their religious belief. The Court described gays and
lesbians as a permanent minority in society who are exclusively reliant on the Bill of Rights
for their protection. It declared that the mere fact that the legal system might embody
conventional majoritarian beliefs on homosexuality does not by itself lessen the
discriminatory effect of those laws. It therefore easily found that section 30(1) of the
Marriage Act violated the right to equality and prohibition of unfair discrimination146 in a
manner that did not satisfy the reasonableness requirements of section 36 of the
Constitutions limitation clause. The Court was however divided over the issue of an
appropriate remedy for the applicants. It was faced with two options: to read in the words or
spouse, into section 30(1) of the Marriage Act, so as to accommodate same-sex partners, or
suspend the declaration of invalidity of section 30(1) to enable Parliament find an appropriate
remedy. The state argued for the second option on these grounds:
(a) The public should be allowed to debate the issue;
(b) The judiciary was not competent to alter the institution of marriage in such a significant
manner;
(c) Only Parliament had the power to alter the institution of marriage in such a dramatic
fashion.

The minority judgment, drafted by O Regan J, held that a reading in of the words or
spouse into section 30(1) of the Marriage Act would not create great uncertainty when the
legislation is eventually amended in favour of same-sex marriages, nor would reading in
obstruct the legislature in its policy choices. The majority reasoned that it was appropriate for
Parliament, in light of its democratic and legitimating role, to determine an appropriate
remedy to encourage greater stability in the institution of marriage and greater acceptance of
same-sex marriages. The Court therefore suspended section 30(1) of the Marriage Act for one
year, to give Parliament time to remedy the defect invalidated by the Courts judgment.

INDIAN COURTS JUDICIAL ACTIVISM

CURRENT SCENARIO

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As in any constitutional democracy, the Supreme Courts primaryrole is to interpret the
Indian Constitution. However, as in the UnitedStates, the line between interpretation of law
and making laws oftengets blurred in Supreme Court rulings. The basic structure
doctrine,articulated by the Indian Supreme Court in the landmark Kesavanandacase, more
about which later, means that that the Court can nullify any legislation that it thinks runs
counter to the fundamental principles of the Constitution. This seeks to place the Court as the
final arbiter of the Constitution. A leading legal scholar, UpendraBaxi, has this to say about
the Indian courts: The question is not any longer whether or not judges make law. Rather the
questions are: what kind of law, how much of it, in what manner, within which self imposed
limits and to what willed results and with what tolerable accumulation of unintended results,
may the judge make law?

During the first decade and a half of the Supreme Courts existence, it is estimated to have
struck down 128 pieces of legislation. Of the first 45 amendments to the Constitution, about
half were aimed at curbing the judiciary. Hence, Baxi describes the Indian Supreme Court
asprobably the only court in the history of human kind to have asserted the power of judicial
review over amendments to the Constitution.Relations between the judiciary and the other
two branches have been exceptionally bumpy in the last few years. It even led the mild-
mannered prime minister of India, Manmohan Singh, to complain in April last year that the
dividing line between judicial activism and judicial overreach is a thin one . . . A takeover of
the functions of another organ may, at times, become a case of over-reach.

In the post-Emergency era, the courts would significantly expand their scope of operation
through the Public Interest Litigation (PIL)revolution from the 1980s. Chief Justice P. N.
Bhagwati, who was one of the prime movers be hind the idea of PILs, said in a historic
judgment
In BandhuaMuktiMorcha v Union of India:

Public interest litigation is not in the nature of adversity litigation

but it is a challenge and opportunity to the Government and its
officers to make basic human rights meaningful to the deprived
and vulnerable sections of the community and to assure them
social and economic justice, which is the signature tune of our
Constitution.

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In the PIL cases, the Court has allowed a wide range of matters to be heard. Letters addressed
to the Court are entertained as PILs so long as they meet guidelines. The guidelines, as listed
by the Supreme Court, cover a wide range of issues. As clause 8 of the Courts guidelines
says, petitions pertaining to environmental pollution, disturbance of ecological balance,
drugs, food adulteration, maintenance of heritage and culture, antiques, forest and wild life
and other matters of public importance would be admitted. On the one hand, this has made
access to the courts easier; on the other it has enabled the courts to dramatically expand their
powers. The Courts PIL initiatives have allowed judges to force widespread policy changes
and implementation in a host of areas. Many of these initiatives have been welcomed by the
public and a media fed up with a slow moving and messypolitical process. Indeed, the
Courts interventions have quite often provided for quick and beneficial remedies. For
instance, in the celebrated Visakha case 31 in 1997, the Supreme Court defined sexual
harassment and issued several directions to prevent harassment of women in the workplace.
Again, to cite a few instances, the Court has given relief to bonded labor, ensured
implementation of mid day meals in schools and cleaned up the air in New Delhi.

A Fine Balance

Judicial activism, which is at the heart of the recurrent battles between the judiciary and the
other branches, raises profound questions about the role of a judiciary in a democracy that is
marked by glaring contradictions in all spheres of life. The judges themselves are well aware
of this. In the judgment by Justices Mathur and Katju, referred to earlier,the Court observed,

If the legislature or the executive are not functioning properly it is for the people to correct
the defects by exercising their franchise properly in the next elections and voting for
candidates who willfulfill their expectations, or by other lawful methods e.g. peaceful
demonstrations. The remedy is not in the judiciary taking over the legislative or executive
functions, because that will not only violate the delicate balance of power enshrined in the
constitution, but also the judiciary has neither the experience nor the resources to perform
these functions.

In another ruling in 2008, Justice Katju raised questions about the impact of PILs:

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 PIL which was initially created as a useful judicial tool to help the poor and the weaker
sections of society who could not afford to come to the courts, has in course of time, largely
developed into an uncontrollable Frankenstein and a nuisance which is threatening to choke
the dockets of superior courts obstructing the hearing of genuine and regular cases which
have been waiting to be taken up for years together.

This also highlights how much the judiciary is stretched in tackling an ever-increasing
backlog of cases. CJI K. G. Balakrishnan has recently pointed out that there are 3.65 million
pending cases in the high courts and another 24.8 million cases in the lower courts. One of
the reasons for the mountain of cases is the absurdly low number of judges for a population
of 1.1 billion litigious Indians. Indias population-to-judge ratio is one of the lowest in the
world. While the United States and the United Kingdom have about 100 to 150 judges for
every million of its population, India has a mere ten judges for every million people. The
huge backlog of cases threatens to seriously affect the functioning of courts as well as impact
the rule of law in India.

The Supreme Court has now realized its proper role in a welfare state and it is using this new
strategy not only for helping the poor by enforcing their fundamental rights of persons but for
the transformation of the whole society as the ordered and crime free society.The Supreme
Courts pivotal role in making up for the lethargy of the legislative and inefficiency of the
executive is commendable. Those who opposed the growing judicial activism of the higher
courts do not realize that it has proved a boon for the common man.

Judicial activism has set right a number of wrongs committed by the states.

Protection against inhuman treatment

In Sunil Batra versus Delhi Administration- it has been held that the writ of habeas corpus
can be issued not only for relating a persona from illegal detention but also protecting
prisoners from inhuman and barbarous treatment.

In Veena Sethi versus state of Bihar the court was informed through a letter that some
prisoners, who were insane at the time of trial but subsequently declared sane were not

12
released due to in action of state authorities and had to remain in jail from 20 to 30 years. The
court directed that they be released forthwith.

Child Welfare

In Laxmikant Pandey versus Union of lndia" Writ petition was filed on the basis of a letter
complaining of malpractices indulged in by several organization and voluntary agencies
engaged in the work of offering Indian children in adoption to foreign parents. It was alleged
that in the guise of adoption Indian children of tender age were not only exposed to the long
dreadful journey to distant foreign countries at greater risk to their lives but in case they
survive they were not provided only shelter and relief homes in course of time they become
beggars or prostitutes for want of proper care. J. Bhagwati laid down principles and norms
which should be followed in determining whether a child should be allowed to the adopted by
foreign parents with the object of ensuring the welfare of the child his lordship directed the
government and various agencies dealing with the matter to follow these principles in such
cases as it is their constitutional obligation under Article 15(3) and 39(C) and (f) ensure the
welfare of the child.

In M.C. Mehta versus state of Tamil Nadu it has been held that the children cannot be
employed in match factories which are directly connected with the manufacturing process as
.it is a hazardous employment within the meaning of employment of children Act 1938. They
can, however, be employment packing process but it should be done in are away from the
place of manufacture to avoid exposure to- accident. Every children must be insured for a
sum of Rs. 15,000/- and premium to be paid by employer a condition of service.

Protection of Ecology and Environmental Pollution

Supreme Court ordered the closure of certain limestone quarries on the ground that these
were serious deficiencies regarding safety and hazards, In them. The court had appointed a
committee for the purpose of inspecting certain limestone quarries. The committee had
suggested the closure of certain categories of stone quarries having regard to adverse impact
of mining operations therein. Large scale pollution was caused by limestone quarries
adversely affecting the safety and health of the living in the area.

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In Shri Ram food and fertilizer case the Supreme Court directed the company manufacturing
hazardous and lethal chemicals and gases posing danger to health and life of workmen and
people living In its neighborhood,to take all necessary safety measures before reopening the
plant. There was a leakage of chlorine gas from the plant resulting in death of oneperson and
causing hardships to-work as and residents of the locality.

Professional Ethics and Medical men

In Parmanand Katara versus Union of India the Supreme Court has held that it is a paramount
obligation of every medical (private or government) to give medical aid to every injured
citizen brought for treatment immediately without waiting for procedural formalities to be
completed in order to avoid negligent death.

Power to Commute Death Sentence into Life Imprisonment

In Harbans Singh versus State of U.P it was held that under Article 32 very wide power has
been conferred on the Supreme Court for due and proper administration of justice. This
inherent power is to be exercised in extraordinary situations in the large interests of
administration and for prevention of manifiest injustice. The court will examine the nature of
delay in the light of all circumstances of the case and then decide whether death sentence
should be carried out or altered into life imprisonment.

Rape of working women-guidelines for rehabilitation and compensation

In a significant judgement in Vishakha versus state of Rajasthan the Supreme Court has laid
down exhaustive guidelines for preventive sexual harassment of working women in place of
their work until a legislation is enacted for this purpose. The court held that it is the duty of
the employer or other responsible person in work place and other institutions, whether public
or private to prevent sexual harassment of working women.

Corruption in public life and PIL

The PIL has proved to be a strong and potent weapon in the hand of the court enabling it to
unearth many scams and corruption cases in public life and to punish the guilty involved in
those scams. Howala scam, uria scam, fodder scam in Bihar, St. Kit's scam, Ayurvedic

14
Medicines scam' and illegal Allotment of government Houses and petrol pumps have come
to light through the public interest litigation, certain social organizations and public spirited
individuals filed a writ petitions in the Supreme Court and High Courts by way of public
interest litigation requesting court to inquire and punish those who are found guilty of by
passing laws of the country and mis using their official positions in public life.

Directions to make CBI independent and efficient

In a significant judgement in Vineet Narayan versus Union of India court has issued
directions to make the CBI independent agency so that it may function more effectively and
investigate crimes and corruptions at high places in public life which poses a serious threat to
the integrity, security and economy of the nation and to take necessary measure to prosecute
the guilty. The matter was brought before the court by way of a public interest litigation
under Article 32 of the constitution. It was contended that the government agencies, like the
CBI and the revenue authorities has failed to perform their duties and legal obligations in as
much as they has failed to investigate matters arising out of the seizure of the "Jain diaries"
and to prosecute all persons who were found to have committed an offence.

Custodial Death

In Nilabati Bahere versus state of Orissa the Supreme Court has laid down the principle on
which compensation is to be awarded by the court under Article 32 and 226 to the victim of
state action. The object to award compensation in public law proceedings under Article 32
and 226 is
Different from compensation in private tort law proceeding. Award of compensation in
proceeding under Article 32 and 226 is a remedy available as a defense in private law in an
action based on tort. The purpose of public law is not only to civilize that they live under a
legal
system which aims to protect their interests and preserve their rights. The payment of
compensation in such cases to provide relief by way of "monetary amends" for wrong done
due to breach of public duty of not protecting the fundamental rights of the citizen.

COLUMBIAN COURTS JUDICIAL ACTIVISM

15
A presentation of the Courts powers and workload within the new constitutional system of
judicial review would be clearly insufficient to complete a picture of the role that the Court
has played in Colombia. A summary of the Courts key decisions and main doctrines in a
number of matters, which have proven to be especially controversial and significant for
Colombia, will facilitate an appreciation of the magnitude and impact of its work. This
summary includes the main decisions adopted with regard to constitutional rights, the
organization and functions of the branches of Government, the economy, and the limitation
of private powers .
Even though Colombia has earned a sad reputation as a country with one of the worst human
rights records in recent history, the constitutional system adopted in 1991, which is highly
protective of fundamental rights and liberties, will ameliorate this problem to some degree.
Indeed, the bill of rights included in the new Constitution is one of the Colombian peoples
most noteworthy collective achievements.
Basic Liberties

Euthanasia
In a notorious 1995 verdict, the Court examined the provision of the Criminal Code that
penalized mercy killing, or murder motivated by pity. An actio popularis had been filed
against this provision on the grounds that the slight nature of the penalty imposed (six months
to three years in prison) was tantamount to an authorization to kill. Evaluating the
proportionality and reasonableness of the measure, the Court found that these types of actions
were motivated by humanitarian considerations. The Court found that these actions were
meant to put an end to intense suffering and that it was precisely this subjective element that
had led Congress to impose light penalties upon conviction. Regarding the issue of
euthanasia, the Court asserted that it is a matter that should be approached in Colombia from
a secular and pluralist perspective, fully respectful of the individuals moral autonomy and
other constitutional rights and liberties. The Court stated that individuals may not be forced to
live in extreme circumstances in which they deem life undesirable. From a pluralist
perspective, the assertion of an absolute duty to live is not sustainable, because life must not
be understood as merely tenable, but instead as life with dignity. Therefore, because the state
may not carry out its duty to protect life by completely disregarding an individuals autonomy
and dignity, the Court concluded that in the case of terminally ill persons who are
experiencing intense suffering, the state should respect the informed consent of the patient
that wishes to die a dignified death. As a consequence, the tribunal stated that the person who

16
helps people in these circumstances die, would be acting out of humanitarian feelings, rather
than a desire to kill. Therefore, the Court ordered that in cases in which the necessary
conditions were met (i.e., terminal illness, intense suffering, informed consent of the patient
that wishes to die), euthanasia was permitted. Nevertheless, to avoid risks of abuse and to
protect the individual circumstances of patients, the Court held that the justification for
applying euthanasia could only be invoked by physicians. It is noteworthy that the Court
expressly called upon Congress to regulate euthanasia with the seriousness and detail
required by the complex nature of the problem. The Court also ordered that in the absence of
such a regulation, future cases of euthanasia must be initially investigated by the judicial
authorities in order to determine whether the strict conditions outlined for exonerating doctors
are met. This extremely divisive decision was accompanied by strong dissenting and
concurring opinions. The dissentees argued that the Court had invaded legislative functions
and that the majority decision had diminished the constitutional value of life. The dissenters
believed that the decision to die under such circumstances can never be a truly free one, and
thus cannot be protected as an expression of personal liberty. The dissent stated that the right
to freely develop ones own personality is not absolute and should be limited, above all, by
the value of life. On the other hand, one justice issued a concurring statement in which he
emphasized that, in addition to the conditions outlined in the majority decision, the physician
should have provided the terminally ill patient with some form of treatment that alleviated her
suffering but did not extend her life in an artificial manner. This formulation ensures that the
final decision to cause death is not a result of a desire to kill, but of a desire to put an end to
intense suffering, even if death comes as an indirect, unintended consequence.
Freedom and Equality of Religions

Protection of Minorities Cases

A number of tutela decisions issued by the Court have focused on the protection of the rights
of members of minority religious groups, which are often discriminated on the grounds of
their religious belief by public and private powers. The Court has consistently upheld the
right to abstain from compulsory catholic education in academic institutions at all levels,the
right not to be dismissed from work for observing religious traditions (e.g., the Sabbath), and
the rights of minority churches to receive state recognition of their autonomy and hierarchies.
From another perspective, defending human dignity and religious practices, the Court has
protected minorities even when they are within a given religion. In a highly publicized case,
the Court recently protected a disabled minors right to dignified treatment. The minor had

17
been denied holy communion by a Catholic priest, who publicly argued that, due to the
minors mental capacity, the child could not comprehend the meaning of the ritual at hand,
and thus was like a little animal.Although the Court did not order the priest to administer
the Communion because of the religious authorities autonomy over the matter and the
absence of a unjustified differential treatment, the Court did order the priest to retract
publicly his statement that people with mental discapacities are like animals. The Court held
that such a position disregarded the most basic dignity of any human being.
Freedom of the Press

Journalists Licensing case

One particular case concerning freedom of the press that has raised a significant degree of
public debate was a 1998 constitutionality decision in which the Court banned a law requiring
journalists to carry a professional card. This requirement had, in practice, created a kind of
licensing system. The primary argument advanced by the Court was the fact that the
Constitution does not restrict freedom of expression to those who can prove they have
obtained a certain type of education or qualifications in journalism. In other words, no
specific group can claim control over the exercise of an activity classified by the Constitution
as a fundamental freedom for all persons. The Court also asserted that the exercise of a given
profession or occupation can only be regulated when it entails some type of social risk and
found that the risks involved in allowing the freedom of opinion implicit in a democratic
system are preferable to the risks of suppressing it. In the end, the Court declared the law
unconstitutional.The Court recently ratified this doctrine when it struck down part of a bill,
which the President had vetoed. In the Courts view, the bill was an attempt to re introduce a
licensing system by defining professional journalists as those who held a university degree in
journalism, or were certified by the Ministry of Social Protection and had worked as
journalists during the past ten years. After expounding upon the crucial function of a free
press within a democracy and highlighting various previous forms of control over the press
that are forbidden by the Constitution, the Court declared that any person can become a
journalist because of her right to freedom of expression. Nevertheless, the Court accepted that
a law can grant labor and social security benefits to journalists, as well as protect them
against violent threats, in so far as: (a) these protective measures are narrowly tailored to
exclude any risk of governmental intervention with the free press; and (b) the enjoyment of
these benefits depends exclusively on objective criteria .
Freedom of Expression

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Equality
While the right to equality was not expressly protected by the 1886 Constitution, its existence
had been recognized by the Supreme Court of Justice and the Council of State in their
interpretation of other constitutional provisions protecting liberties. Both tribunals, however,
espoused a formal vision of equality, understood as equality before the law. In contrast, the
Constituent Assembly declared the right to equality to be the forerunner for all fundamental
rights and an essential goal of state activity. Delegates were especially keen on promoting a
substantial, and not merely formal, notion of equality. This call was issued a number of
times throughout the history of Colombias profoundly unequal society. It was most sharply
voiced by assassinated popular leader and presidential candidate Jorge Elicer Gaitn. Gaitn
declared in the 1940s that the people do not require rhetorical equality before the law, but
real equality before life.
The Constituent Assembly thus focused its efforts on trying to balance power relationships,
ensuring a more equitable distribution of social and economic resources and benefits,
interpreting the needs of the marginalized and the weak, and alleviating social injustice in
general. Consequently, the 1991 Constitution contains strong provisions on universal, formal,
and substantial equality. Article 13 includes six basic elements:
(i) a general principle of equality of treatment, opportunity, and protection, as well as equality
before the law and in the enjoyment of rights;
(ii) a prohibition on discrimination based on sex, race, national or family origin, language,
religion, and political or philosophical opinion;
(iii) a state duty to promote the conditions necessary to attain real and effective equality;
(iv) the possibility of creating advantages for discriminated or marginal groups;
(v) a directive to grant special protection to the weak; and
(vi) a mandate to punish those who abuse and mistreat vulnerable persons. The role of states
in establishing and preserving equality among their citizens was radically redefined to reflect
modern constitutional tendencies. Instead of merely preventing discrimination, the state must
now affirmatively correct the numerous inequities that pervade social and economic life. The
states duty is one that has been developed through myriad Court judgments. The examples
that follow must be understood in light of Colombias complex constitutional mandate.
However, the Courts decisions on the equality clause have not lived up to the potential of the
Constitutional mandate nor have those decisions sufficiently alleviated enduring social
inequalities.

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 RACE
The Courts silence on the issue of race can only be described as surprising. In a country with
a population that is approximately thirty percent black, an emerging political and social Afro-
Colombian movement, and a cultural heritage with substantial African and Afro- Colombian
roots, it is shocking that not one of the Courts pronouncements has dealt with the issue of
racial discrimination. This does not mean, of course, that Colombia is a racism-free
democracy; sadly, the situation is very much to the contrary. Perhaps the Courts silence can
be explained by the fact that the issue of race has not yet become a matter of national
attention. Very few cases of individual racial discrimination have been litigated; fewer still
have reached the Court. Afro-Colombian communities have entered the public sphere as
multiple ethnic groups, and their lack of unity has affected their treatment by the Court. For
example, the myriad groups special participation rights were upheld when a statute granting
ethnic groups a special constituency in Congress was reviewed. In addition, the Court has
defended the cultural specificity of some Afro-Colombian communities, such as the isleo
communities of San Andres. In a recent tutela decision,the Court examined a case in which
the management of a building in Cartagena forbade its employees to use the elevators.
Although the plaintiff in this case was a black woman and racial discrimination was present,
the Court granted the tutela on grounds that the right of equality is violated whenever access
to services based on wholly subjective criteria. In other words, people cannot be denied equal
access to everyday services on the grounds of personal conditions, such as socioeconomic
status. Such restrictions are only acceptable when there is an objective, reasonable, and
constitutionally acceptable justification. The issue of race was only mentioned as one among
many unacceptable discrimination factors; it did not constitute a central part of the ratio
decidendi. In spite of recent efforts aimed at empowering Afro-Colombian movements, the
issue of racial discrimination and segregation is still so deeply entrenched within social
practice and culture that, despite the abolition of slavery over 150 years ago, the black
population remains one of the poorest, most under represented, and vulnerable groups in the
country.
COLLECTIVE RIGHTS

Environmental Rights
We have a green Constitution. Approximately fifty constitutional articles refer directly or
indirectly to the preservation of nature, which is one of Colombias most valued and
threatened assets. Not only does the Constitution entitle persons to a healthy environment, but

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it also imposes upon the authorities and citizens alike the obligation to refrain from damaging
the environment and preventing its degradation. The state has affirmative constitutional
obligations to promote the conditions necessary for environmental conservation and
development, including providing environmental sanitation services, promoting protected
areas, enforcing community participation, and engaging in other environmental protection
activities. The protection of the right to a healthy environment is not new to Colombian
constitutional law. The Supreme Court of Justice, in a salient 1987 decision, upheld criminal
provisions penalizing environmental law violators. This decision showed how public law was
evolving progressively to defend the quality of human life. The Court also stated that the
State has the unquestionable duty to incorporate into its activities the protection of the
environment, a duty which may be included even within its classical mission to protect
Colombian residents life. However, no specific constitutional provisions were enacted to
protect natural resources as a fundamental right.
The right to enjoy a healthy environment, which was classified by the Constitution as a
collective right,has been defined by the Court as the basic conditions surrounding
individuals, which allow their biological survival and guaranteeing their normal performance
and balanced development within society.In that sense, the Court has classified the right to a
healthy environment as essential for the survival of our species. The Court highlighted the
fact that, although the Constitution has classified this right as a collective right, under certain
conditions its violation may entail a threat to fundamental human rights. This threat makes
tutela claims admissible to protect it.Consequently, the Court has issued tutela decisions
protecting the right to a healthy environment when there are specific actions of environmental
disruption or degradation and when the integrity of this right is threatened by situations of a
general nature. There are three recent cases in this area. First, the Court has consistently
protected the rights of ordinary citizens to live in a healthy environment, when
malfunctioning public utilities or private works disrupt normal living conditions. For
example, in a 1997 tutela decision, the Court protected the rights of private citizens affected
by a smell caused by their neighbors septic tank, which had not received the appropriate
attention of relevant authorities. Stating that the neighbors undue disruption of the plaintiffs
domestic environment constituted a threat to their rights to health and life, the Court ordered
the removal of the tank and the installation of adequate drainage facilities. Another set of
decisions concerns individuals or communities affected by inappropriate waste disposal sites.
In a 1999 decision, the Court reviewed the tutela presented by a woman on behalf of herself,
her family and her neighbors. These citizens lived in poor households alongside a seriously

21
faulty municipal landfill, which had noxious effects on their daily environments and their
health. The Court granted the tutela, because it considered the disruption of the right to a
healthy environment to be a severe threat to the fundamental rights to health and life.
Consequently, the Court ordered municipal authorities to buy the plaintiffs land next to the
landfill, so she could purchase adequate living elsewhere. In the alternative, the Court ordered
the authorities to suspend use of the landfill.
For the same reasons, in a 1996 decision the Court prevented the establishment of a waste
disposal site in Villavicencio because environmental requirements were not met. Second, the
Court has upheld the rights of individuals and communities affected by specific events of
environmental damage. However, the actual protection of such rights in cases in which
environmental harm has already resulted has been limited by the nature of the tutela
procedure. This kind of a limitation occurred in a 1996 tutela case in which the Court
assessed the impact of a serious oil pollution incident in the Pacific Ocean upon the members
of an Afro-Colombian coastal community who depended on fishing for their livelihood.
Taking into account that the affected community was entitled to special constitutional
protection as an ethnic group, the Court restated the States special obligations for
environmental preservation. The Court affirmed that sustainable development should be
sought through decisions that minimize environmental harm, while promoting economic
growth from a precautionary perspective. Because the damage had already occurred, and the
tutela cannot be used in principle to seek economic indemnity, the Court limited its holding
to ordering the Ministry of the Environment to monitor the long-term effects of pollution
incidents. The Court also called upon other relevant authorities to fulfil their functions in
promoting the communitys welfare. This judgment is important because it stressed the
importance of the precautionary principle for Colombian authorities.

Further, according to the Court, the states constitutional obligation to provide environmental
sanitation services includes adopting emergency measures to address oil spill incidents and
compensating for individual loss and patrimonial damage sustained by affected persons. But
in this particular pollution incident, enforcing such an obligation to compensate through the
tutela was expressly rejected by the Court. Finally, the general situation of environmental
degradation in the coastal city of Santa Marta was examined by the Court in a 1997 tutela
decision. In this decision the Court examined a complaint filed by several inhabitants against
local authorities, which argued that the generalized pollution of the sea and beaches, and the
inadequacy of urban drainage systems, were due to the citys lack of planning and control

22
over sewage disposal, urban construction, and coal shipping. The Court granted the tutela to
protect the plaintiffs rights to a healthy environment, life and health. The Court felt these
rights were violated by the local authorities failure to regulate land use and urban growth and
excessive issuing of construction licences. As a consequence, the Court ordered the pertinent
public entities to issue a plan for the regulation of land use in the District of Santa Marta,
which was to include sewage disposal systems in accordance with legal requirements. The
Court also ordered that construction licences should be granted by the relevant environmental
authorities and prohibited license conferral in certain particularly degraded areas of the city.
As to the noxious effects of air pollution caused by coal shipping activities, the Court ordered
the Ministry of the Environment to adopt a comprehensive plan for the management of coal,
through its extraction and commercialization processes, in order to avoid negative impacts on
human health .

The Court also upheld the right to a healthy environment in a series of abstract review cases.
For example, in a 1998 judgment, the Court reviewed the use of the Presidential veto against
a bill that established criminal penalties for persons convicted of causing serious
environmental damage by illegal mining or oil extracting. The President argued that the
requirements of serious damage and illegality of the activity were unconstitutional,
because as they restricted the scope of the general obligation to preserve the environment to
extreme cases. The Court accepted these objections and explained that environmental
damage, even if it is caused by legal activities, should always be seen as constitutionally
illegitimate conduct. The Court stated that the issuance of environmental licences should
never be seen as authorization to harm nature. Moreover, it expressed that the Constitution
not only requires the state to punish infractors of environmental regulations, but also to
actively prevent and control degradation factors and seek compensation for the damages
caused.

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CONCLUSION
Judicial activism by South Africas Constitutional Court is influenced by injustices
perpetrated by apartheid era regimes. Remarkably, this influence has not deterred the Court
from considerable deference to the executive and Parliament.This deference was manifest in
Grootboom. The Courts failure to adopt the minimum core approach in determining state
compliance with right of access to adequate housing diluted its authentication of justiciability
of socio-economic rights.
Similarly, in the Fourie case, excessive deference to the legislature resulted in deferring
equality rights of same-sex couples for 12 months. While the Courts approach to the
minimum core obligation of government in realising socio-economic rights may be explained
on the ground of budgetary implications, its deference to Parliament in the Fourie case is
inexcusable. Finally, the decision in Masiya v DPP shows that the Courts deference to
Parliament tends to defeat its mandate of minority protection. As Langa CJ pointed out in his
dissenting opinion in the Masiya
case, groups of men like young boys, prisoners and homosexuals, who are most often the
survivors of rape, are, like women, also vulnerable groups in our society. How then does the
Constitutional Courts mandate to protect minority rights mix with deference to Parliament
and preservation of its legitimacy? This forms the crux of the remainder of this study.

Amidst the political incompetency of tackling the social issues prevailing in the society right
now, the judiciary has emerged as the last hope to common man.In a remarkable judgment
delivered in 2007 by a two-judge bench of the Supreme Court, Justices A. K. Mathur and
MarkandayKatju deviated from the case before them and pronounced:

Recently, the Courts have apparently, if not clearly, strayed into the executive domain or in
matters of policy. For instance, the orders passed by the High Court in recent times dealt with
subjects ranging from nursery admissions, unauthorized schools, criteria for free seats in
schools, supply of drinking water in schools, number of free beds in hospitals on public land,
requirements for establishing a world class burns ward in the hospital, the kind of air Delhites
breathe, begging in public, the use of sub-ways, thenature of buses we board, the legality of
constructions in Delhi,identifying the buildings to be demolished, the size of speed breakers
on Delhi roads, auto-rickshaw over-charging, growing frequencyof road accidents and
enhancing of fines etc.

24
Time and again the Indian courts have come to rescue the common man whenever his
fundamental rights have been infringed upon. With changing times and changing political
landscape the Indian Judiciary has to adapt itself to tackle array of issues. Now the Indian
courts are closing scrutinizing the work of investigating authorities like police and CBI by
making individual panels.

The Constitutional Courts contribution to the materialization and development of the 1991
Constitution has deeply impacted most aspects of Colombian life. Its judgments, which have
touched upon all areas of the law and all facets of Colombias complicated national reality,
have led the Court to become a necessary reference point for anyone who wishes to know in
detail what has transpired in Colombia in the past decade.
The purpose of this summary of the Courts work is not to transmit the image of a perfect
or flawless tribunal. On the contrary, as a key player in the new system of constitutional
judicial review introduced in 1991, the Court has faced the challenge of materializing a very
innovative
constitutional order within a highly complicated and violent reality. The Court has done so
during a short decade of evolution. Consequently, many aspects of its decision-making
process and its case law should be pointed out as areas where substantial attention and
improvement are required, as described below.
A.
First, there are several critical issues that the Court has left out of its case law even though
they are important components of Colombias everyday social and political life. The Court
has not given the same degree of attention to these issues compared to other, sometimes
equally, crucial
matters. For example:
(1) The issue of race, as mentioned in Part II.B.1.b , has received scant consideration by
constitutional judges nation-wide even though racism, which still prevails in Colombia, is one
of the most silent structural traits of Colombias Hispanic socio-cultural heritage.
(2) The principle of participative democracy, enshrined in Article 1 of the Colombian
Constitution and other basic precepts (such as the Social State grounded on the Rule of
LawEstado Social de Derecho-pluralism or human dignity), has not been developed or
applied to its full extent in the Courts case law, in contrast with other basic constitutional
principles that have been addressed by the Court. Although it has been mentioned as an
important general mandate in some of the Courts decisions, especially those concerning

25
popular participation mechanisms or the participation of indigenous groups in the decisions
that concern them, the broad reach and implications of participative democracy, as well as its
necessary impact on all aspects of ordinary social and political life, have not yet been fully
grasped or elaborated on by the
Constitutional Court.
(3) Some of the most salient and complex features of the new Administrative State designed
by the Constituent Assembly (i.e., the most characteristic aspects of the new Public
Administration
established in 1991, such as the trend towards direct provisions of public utilities and services
by private entities under State regulation; the new scheme of relations and control between
the Executive and other independent regulatory agencies; the principle of administrative de-
centralization; or, the functions and activities of the Administrative Police) have not yet been
sufficiently explored by the Court. This lack of attention by the Court occurs in spite of the
complexities of their application to the ordinary activities of the Public Administration and
the important role the features of the new Administrative State play in the transformation of a
traditionally distant, inefficient, and bureaucratic system into an effective and present
network of committed public entities.
(4) Although the constitutional principle of equality has given rise to a high number of
decisions by the Court, and has been applied in a very diverse range of situations through
conceptual instruments such as tests, much still needs to be done regarding its precise and
accurate conceptualization. For example, much needs to be done in accordance with the
constitutional distinction between equal treatment, equal opportunities, and equal protection.
(5) In spite of Colombias sad reputation as one of the most insecure countries in the world,
the protection of personal security, especially of those groups or persons at great risk in the
context of Colombias violent conflicts (i.e., political dissidents, human rights defenders,
demobilized guerrillas, etc.), has not been addressed in a solid and consistent manner by the
Court.
(6) Finally, although social rights have been directly enforced in concrete cases, the Court
has done so mainly in situations where a statute can be invoked to support its holding and
order. Therefore, the Court still has to develop a doctrine concerning the application of social
rights to poor Colombian citizens wherever Congress has not enacted legislation to respond
to social exclusion.

26
Recent scholarship has argued that standard constitutional theory asks a question--how to
square judicial review with democracy--that it cannot answer in a coherent or satisfying way.
Constitutional theorists should therefore arguably seek a different, and more productive, set
of questions. This article is an attempt to construct a more practical and productive
constitutional theory, at least for a subset of constitutional courts.

The emerging constitutional courts and constitutional orders of what scholars have called
the Global South merit analysis on their own terms. These courts face a set of institutional
and social problems that often dwarf those found in more mature democracies. This paper
argues that a defensible conception of judicial role in these systems is a dynamic one, which
focuses on courts seeking to improve the quality of democracy over time. The main
advantage of such a conception is in suggesting a more fruitful set of questions, most of
which need empirical study.

We need more work on the kinds of judicial strategies that are possible in different kinds
of political contexts, and also on the effects of those strategies on their political systems. We
need to know whether insider strategies, which focus on building up political institutions
directly, or outsider strategies, which focus on building up democratic spaces around
political institutions, are more likely to be effective. And most broadly, we need research on
the dynamic effects of judicial activism, within initially problematic political orders, on
politics and society. To what extent can courts improve the functioning of democratic
institutions, build up civil society, or spread constitutional culture? It is remarkable how little
we know about the answers to those important questions. The ultimate value of a dynamic
theory, then, may be in suggesting an agenda for scholars and judges.

27
BIBLIOGRAPHY

1. UpendraBaxi, Courage, Craft and Contention: The Indian Supreme Court in the
Eighties (Bombay: N. M. Tripathi Ltd., 1985), p. 3.
2. Manuel Jos Cepeda-Espinosa, Judicial Activism in a Violent Context: The Origin,
Role, and Impact of the Colombian Constitutional Court, 3 Wash. U. Global Stud. L.
Rev. 529 (2004),
3. JUDICIAL ACTIVISM IN SOUTH AFRICAS CONSTITUTIONAL COURT:
MINORITY PROTECTION OR JUDICIAL ILLEGITIMACY? BY DIALA
ANTHONY CHIMA ( University of Pretoria )

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