Judicial Activism is the liberal construction of the

provisions of statutes conferring rights: An appraisal

(Term Paper towards the partial fulfillment of the assessment in the subject of Jurisprudence II)

Submitted by: Submitted to:

Priyadarshi Banerjee Mr. Ajay Kr. Sharma
Roll Number – 469 Faculty of Law
Semester – VII

National Law University, Jodhpur

Summer Session
(July - November 2009)

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 CONTENTS

Contents...........................................................................................................................................2

Introduction......................................................................................................................................3

Judicial Activism.............................................................................................................................4

Liberal Construction in Constitutional Matters.............................................................................11

Conclusion.....................................................................................................................................14

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INTRODUCTION

The rule of law is essential to constitutional democracy, but its implications for how judges
should interpret the law are complex and contested. Since in most matters that arise before the
various High Courts of the country or the Hon’ble Supreme Court, it is the question of
interpreting a provision (not necessarily a statute or the Constitution itself, but often rules,
regulations and various texts of the like), it is imperative to address a question that how should
judges interpret statutory or constitutional law so that its rule is a reality that is consistent with a
constitutional democratic ideal. One of the most common tools that has been applied over the
years in aiding an exercise in interpretation is that of determining the intent of the legislators who
made the law. On its face it appears to be a democratic aim: to capture the intention of the law
makers, legislators who are accountable to the majority. However there is a critique to this theory
in the idea that a government is that of laws and not that of men, meaning that the unexpressed
intent of legislators must not bind citizens. Laws mean what they actually say, not what
legislators intended them to say but did not write into the law’s text for anyone to read. 1 The
problematic of such an approach crops from the fact that despite frequent statements to the
contrary, one does not really look for subjective legislative intent. One looks for a sort of
“objectified” intent – the intent that a reasonable person shall gather from the text of the law,
placed alongside the remainder of the corpus juris. It is in the perspective of such debate that it
shall be the objective in this paper to try identifying instances where judicial activism has
stemmed from the liberal interpretation of statutes and/or provisions and thus bestowing rights
onto the subjects which would otherwise have remained implicit alone. Whether such an
approach is right or wrong and its determination shall only come as an offshoot of the discussion
ensuing and shall not be the moot subject of this paper.

1
Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law, (Princeton University Press, Princeton,
1998)p.17
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JUDICIAL ACTIVISM

In the context of expectation aforesaid it is natural to investigate what is ‘judicial activism’.

Laws according to social activists have a social purpose i.e., betterment of society. Judiciary
under our Constitution has been conceived as an arm of social revolution. Legislature, while
emanating a law, cannot visualize all situations arising in future and needing the support of law.
New situations generally and usually develop and the law has to be so interpreted and applied to
solve problems arising out of such situations. In this process the judicial craftsmanship is utilized
to fill in the gaps between the law as it is and the law as it is ought to be, committed to proper
social values. This judicial creativity is called ‘judicial activism’2.

Judicial activism has to be so understood and with this meaning of the expression it can hardly
be disputed that such action of the judiciary is within the role assigned to it by the Constitution.
It is true that the occasion for the judiciary to so act, arises quite often because of the perception
of failure of some other organ to discharge its obligations. That situation can be avoided only by
preventing that situation and the absence of the need for anyone to approach the courts for
redressal of their grievances. It is therefore felt that it is the duty of the judiciary to keep the
charter of the government current with the times and not allow it to become archaic or out of
tune with the needs of the day.

Judicial activism is the search for the spirit of the Law when the letter of the law appears to be
deficient for justice in the cause. Judicial activism operates broadly stated, in two ways. Firstly in
the interpretation of ordinary statutes and secondly in the interpretation of the Constitution.

When it comes to the ordinary statutes, it is specially with reference to the beneficial legislations
or the remedial statutes that we shall observe the phenomenon of such activism. Since it is an
accepted rule of interpretation that remedial statutes should be given “the widest operation which
its language will permit, much of such activism crops from such liberal construction. The words

2
Smt. Geeta Shrivastava (2001) Judicial Activism In India & Abroad, CENTRAL INDIA LAW QUARTERLY Vol. 14,
pp.155-166 at 155
4
of such a statute must be so construed as “to give the most complete remedy which the
phraseology will permit.”3

AIR INDIA STATUTORY CORPORATION V. UNITED LABOUR UNION AND

ORS.4

This case is being discussed, notwithstanding the fact that it has since been overruled. This case
actually shall provide one of the ideal examples where judges in the higher judiciary in their
earnest attempt to provide relief to an underprivileged class interprets a statute and even brings in
a particular import in a provision when such a thing is not even remotely mentioned in the statute
itself. In fact in the instant case it shall be noteworthy that it’s due to the liberal interpretation a
right is being created in the Contract Labourers to be absorbed by the principal employer,
although such a provision did not exist in the statute.

The case revolved around the interpretation of S.2 [interpretation of the phrase ‘appropriate
government] and S.10(1)5 of the Contract Labour (Regulation & Abolition) Act, 1970. The two
main related issues in law that emerged from the contentions had been that what shall be the
meaning of the word "appropriate Government under Section 2(1)(a) of the Act, and whether on
abolition the contract labour are entitled to be absorbed.

The related facts had been that appellants engaged, as contract labour, the respondent union's
members, for sweeping, cleaning, dusting and watching of the buildings owned and occupied by
the appellant. The Central Government exercising the power under Section 10 of the Act, on
basis of recommendation and in consultation with the Central Advisory Board constituted under
Section 10(1) of the Act, issued a notification on December 9, 1976 prohibiting "employment of

3
In re: Hindu Women’s Right to Property Act AIR 1941 PC 72 at p.77
4
AIR 1997 SC 645
5
Notwithstanding anything contained in this Act, the appropriate Government may, after consultation with the
Central Board or, as the case may be, a State Board, prohibit, by notification in the Official Gazette, employment
of contract labour in any process, operation or other work in any establishment.
5
contract labour on and from December 9,1976 for sweeping, cleaning, dusting and watching of
buildings owned or occupied by the establishments in respect of which the appropriate
government under the said Act is the Central Government."6 Since the appellant did not abolish
the contract system and failed to enforce the notification of the Government of India dated
December 9, 1976, the respondents came to file writ petitions for direction to the appellant to
enforce forthwith the aforesaid notification abolishing the contract labour system in the aforesaid
services and to direct the appellant to absorb all the employees. The writ petition was allowed by
the learned single Judge on November 16, 1989 directing that all contract workers be regularised
as employees of the appellant from the date of filing of the writ petition. Subsequently the
learned judges of the Division Bench dismissed the appeal as well. And hence the matter was
appealed by special leave before the Supreme Court.

It is interesting to note that even in the determination of the true meaning of the provisions in
question, the Apex Court actually went into a lengthy discussion about the Constitution and its
various provisions insomuch as to bring in the constitutional principles in the aid of
interpretation. They freely referred to the Preamble, as also Part III and Part IV of the
Constitution to establish that the Act in question is essentially one to bring about social justice
and hence the same should be borne in mind when interpreting any provisions thereof. Referring
to a previous judgment by the Hon’ble Court, the bench approved the same7,

In fact, the cumulative effect of social and economic legislation is to specify the basic
structure. Moreover, the social system shapes the wants and aspirations that its citizens
come to have. It determines in part the sort of persons they want to be as well as the sort of
persons they are. Thus an economic system is not only an institutional device for satisfying
existing wants and needs but a way of creating and fashioning wants in the future. The
economic empowerment, therefore, to the poor, the dalits and the tribes as an integral
constitutional scheme of socio-economic democracy is a way of life of political democracy.
Economic empowerment is, therefore, basic human right and a fundamental right as part

6
Supra n.4 at para 3
7
Supra n.4 at para 46
6
 of right to live, equality and of status and dignity to the poor, the weaker sections, the
dalits and the tribes.8

Following another judgement9 the bench in the present matter accepted the widened sweep of
Art.21 and the Right to Life. It was held that right to life to a workman would include right to
continue in permanent employment which is not a bounty of the employer nor can its survival be
at the volition and mercy of the employer. Income is the foundation to enjoy many Fundamental
Rights and when work is the source of income, the right to work would become as such a
fundamental right. Fundamental Rights can ill-afford to be consigned to the limbo of undefined
premises and uncertain application.

It would, thus, be seen that all essential facilities and opportunities to the poor people are
fundamental means to development, to live with minimum comforts, food, shelter, clothing and
health. Due to economic constraints, though right to work was not declared as a fundamental
right, right to work of workman, lower class, middle class and poor people is means to
development and source to earn livelihood. Though, right to employment cannot, as a right, be
claimed but after the appointment to a post or an office, be it under the State, its agency
instrumentality, juristic person or private entrepreneur it is required to be dealt with as per public
element and to act in public interest assuring equality, which is a genus of Article 14 and all
other concomitant rights emanating therefrom are species to make their right to life and dignity
of person real and meaningful. It is interesting here to note that in that one single judgement the
bench tried to account for the philosophies laid down by a large number of thinkers, right from
St. Thomas Acquinas, Roscoe Pound, Mahatma Gandhi, Harold Laski, Edward Kent, M.R.
Cohen etc., and all to account for the emphasis that they are laying on law to become an
instrument for social engineering. As also through their lengthy reasoning did they surmise that
fundamental rights are to be actually set at naught if it’s not for economic freedom and certainty.

However the most interesting part of the judgement stems from the reasoning provided by the
Court when it tries to justify the decision of adjudging that absorption of the abolished contract
labours is implicit in the scheme of the statute itself. The Supreme Court surveyed the entire
statute to actually establish that it is essentially one which intends to lay down rights which are
8
R. Chandevarappa and Ors. v. State of Karnataka (1995) 6 SCC 309
9
Delhi Transport Corporation v. D.T.C. Mazdoor Corporation (1991) I LLJ 395 SC
7
essentially part of the right to life as under Art.21. The enforcement of the provisions to establish
canteen in every establishment under Section 16 is to supply food to the workmen at the
subsidised rates as it is a right to food, a basic human right. Similarly, the provision in Section 17
to provide rest rooms to the workmen is a right to leisure enshrined in Article 43 of the
Constitution. Supply of wholesome drinking water, establishment of latrine and urinals as
enjoined under Section 18 are part of basic human right to health assured under Article 39 and
right to just and human conditions of work assured under Article 42. All of them are fundamental
human rights to the workmen and are facets of right to life guaranteed under Article 21.

The Court went by the logic that an Act which intends to bring about justness in the system
possibly could not have ‘denuded’ the contract workers of the same rights and privileges that
they seek to ensure by abolishing the contract workers and not absorbing them under a direct
relationship of employer and employee with the hitherto ‘principle employer’.

Even after admitting that “it is true that [there can be found] no express provision in the Act
declaring the contract labour working in the establishment of the principal employer in the
particular service to be the direct employees of the principal employer” 10, they interpreted that
the phrase “matters connected therewith” in the Preamble of the Act would furnish the
consequence of abolition of contract labour. They held that “The operation of the Act is
structured on an inbuilt procedure leaving no escape route. Abolition of contract labour system
ensures right to the workmen for regularisation of them as employees in the establishment in
which they were hitherto working as contract labour through the contractor. The contractor
stands removed from the regulation under the Act and direct relationship of "employer and
employee" is created between the principal employer and workmen…. On abolition of contract
labour, the intermediary, i.e., contractor, is removed from the field and direct linkage between
labour and principal employer is established. Thereby, the principal employer's obligation to
absorb them arises. The right of the employee for absorption gets ripened and fructified.”

Hence we are to observe that it is through the process of liberal interpretation that almost a new
right is conferred while the Hon’ble Court acts as an instrument of judicial activism to bring
about a just order which according to them best supports the constitutional scheme.

10
Supra n.4 at para 59
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MUNICIPAL CORPORATION OF DELHI V. FEMALE WORKERS (MUSTER
ROLL)11

Female workers (muster roll), engaged by the Municipal Corporation of Delhi, raised a demand
for grant of maternity leave which was made available only to regular female workers but was
denied to them on the ground that their services were not regularised and, therefore, they were
not entitled to any maternity leave. Their case was espoused by the Delhi Municipal Workers
Union and, consequently, the following question was referred by the Secretary (Labour), Delhi
Administration to the Industrial Tribunal for adjudication. Whether the female workers working
on Muster Roll should be given any maternity benefit? If so, what directions are necessary in this
regard? The Tribunal, by its Award dated 2nd of April, 1996, allowed the claim of the female
workers (muster roll) and directed the Corporation to extend the benefits under the Maternity
Benefit Act, 1961 to muster roll female workers who were in the continuous service of the
Corporation for three years or more. The Corporation challenged this judgment in a Writ Petition
before the Delhi High Court which was dismissed by the Single Judge on January 7, 1997. The
letters Patent Appeal, filed thereafter by the Corporation was dismissed by the Division Bench
on March 9, 1998 on the ground of delay. And hence the matter came up before the Supreme
Court.

Hence all that was left for the Apex Court to decide was the scope of the provisions of the
Maternity Benefit Act, 1961 to determine if the workers on the muster roll were eligible for the
benefits under it. The Court again in the present case took up the mantle of activism and
promoted the constitutional objectives of social engineering.

Indeed the concept of social justice has now become such an integral part of industrial law
that it would be idle for any party to suggest that industrial adjudication can or should
ignore the claims of social justice in dealing with industrial disputes. The concept of social
justice is not narrow, onesided, or pedantic, and is not confined to industrial adjudication

11
AIR 2000 SC 1274
9
 alone. Its sweep is comprehensive. It is founded on the basic ideal of social-economic
equality and its aim is to assist the removal of socio-economic disparities and inequalities;
nevertheless, in dealing with industrial matters, it does not adopt a doctrinaire approach
and refuses to yield blindly to abstract notions, but adopts a realistic and pragmatic
approach.12

When the arguments agitated against the order of the Tribunal were directed towards the
applicability of the Act itself, the Court negatived such contention by looking into the humane
need of an individual for such benefits. A wide survey of the Constitutional provisions in Part III
as well as the Directive Principles of State Policy were made. Taking cue from the mandate
given in Art.39, 42, 43 as also the Fundamental Rights under Arts.14 & 15, the Court was more
inclined towards applying the Act to the distressed Respondents.

Further on, when it was argued that even if the Maternity Benefit Act, 1961 would be applied,
the women workers on the muster roll shall not be eligible for the same as they were paid on a
daily basis. The court commented that “This is a narrow way of looking at the problem which
essentially Is human in nature and anyone acquainted with the working of the Constitution,
which aims at providing social and economic justice to the citizens of this country, would out
rightly reject the contention.” The Court referred to the definition of ‘industry’ as has been given
in the Industrial Disputes Act and broadly construed that the Corporation shall amount to an
industry as has already been adjudged by the Apex Court. The workmen or, for that matter, those
employed on muster roll for carrying on these activities would, therefore, be "workmen" and the
dispute between them and the Corporation would have to be tack led as an industrial dispute in
the light of various statutory provisions of the Industrial Law, one of which is the Maternity
Benefit Act, 1961.13

To further the strength of their reasoning the Learned Judges also made a survey of the
International Conventions to which India is a signatory. They quoted from the Convention on the
Elimination of all forms of discrimination against women (CEDAW). Article 1114 was the main
12
Supra n.11 at para 29
13
Supra n.11 at para 33

14
2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their
effective right to work. States Parties shall take appropriate measures:
10
provision that was concentrated on for securing the ends of justice for the women workers. They
read the provisions of such conventions as well into the contract of service between Municipal
Corporation of Delhi and the women employees (muster roll); and so read these employees
immediately become entitled to all the benefits conceived under the Maternity Benefit Act, 1961.

Hence we find the phenomenon of judicial activism not only in the conferring of new rights to a
class but as well when the statute itself guarantees certain rights but are read broadly to
encompass a wider class.

LIBERAL CONSTRUCTION IN CONSTITUTIONAL MATTERS

It is not only in the interpretation of ordinary statutes that we find the activism of the Courts, to
address a social evil or wrong. Even in the field of constitutional law, there are various aspects
and circumstances wherein the Courts have adopted an activist stance. Again, it is being
reiterated that whether such activism is good or bad, is entirely a different question, but the
liberal interpretation to provisions nonetheless always creates an enormous impact that
revolutionizes the process of courts.

One of the most significant such fields shall be definitely the Public interest Litigation which
came to become a very important tool in vindicating rights of the underprivileged. The technical
doctrine of locus standi is being gradually widened to give it a social content in conformity with
the letter and spirit of the Constitution of India. In Fertilizer Corporation Kamgar Union v.

(a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave
and discrimination in dismissals on the basis of marital status;

(b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment,
seniority or social allowances;

(c) To encourage the provision of the necessary supporting social services to enable parents to combine family
obligations with work responsibilities and participation in public life, in particular through promoting the
establishment and development of a network of child-care facilities;

(d) To provide special protection to women during pregnancy in types of work proved to be harmful to them.
11
Union of India15 Justice Krishna Iyer prepared a real case for the broad-based application of the
principle of locus standi necessary to challenge administrative actions. Locus Standi must be
liberalized so as to meet the challenges of the times. Ubi jus ubi remedium must be enlarged to
embrace all interests of public minded citizens with serious concern for conservation of public
resources and the direction and correction of public power so as to promote justice in all its
facets.

Public interest litigation is part of the process of participative justice and standing in civil
litigation of that pattern must have liberal reception at the judicial doorsteps. It has been
conclusively proved that liberalized standing rules had caused no significant increase in the
number of actions brought, arguing that parties will not litigate at considerable personal cost
unless they have a real interest in the matter. The first building blocks for the expanding concept
of locus standi were provided by those Supreme Court decisions which indicated that the
expression ‘aggrieved person’ to whom standing may be given is an elastic concept the meaning
of which shall be varying from circumstance to circumstance, from statute to statute. The liberal
theory in Social Action Litigation is that the judge would not ask the petitioner how he was
affected and what was his personal injury or loss. The major outcome of these cases would be a
widening of the power of the citizen to move the courts even when his own rights are not
violated.

In India until the public interest litigation was developed by the Supreme Court, justice was only
a remote and even theoretical proposition for the mass of illiterate, underprivileged and exploited
persons of the country. They were unaware of the law or even of their legal rights unacquainted
with the niceties of procedure involved, and too impoverished to engage lawyers, file papers and
bear heavy expenditure on dilatory litigation. Thus the vested interests that exploited them were
emboldened to continue with their cruel and even illegal practices with cynical contempt for law.
This vast underprivileged section of the society found themselves utterly helpless. By
propounding the thesis that citizens should be enabled to enjoy the right to life and liberty

15
AIR 1981 SC 344
12
guaranteed under A.21 of the Constitution, the Supreme Court enlarged the scope of locus standi
to include the rightful concern of other citizens willing to espouse the cause of their less
fortunate countrymen.

Also again in the field of environmental law the Courts have again taken an activist stance to
protect the environment and ensure better living conditions for the populace. In the case of
Subhash Kumar vs. State of Bihar and ors.16 the Apex court gave a much wider platform for
litigants to approach by diluting the locus standi even further to the effect that a group of
journalists were entitled to file a PIL for the degradation of the environment. But alongside this
the court also made clear that there has to be a line drawn in allowing people to approach the
courts. There cannot be allowance for people who would surreptitiously want to settle their own
personal needs or would want to profit from the filing of such a litigation.

The apex court held that the enjoyment of a pollution free environment is included under the
right to life under art 21 it observed that

“Right to life is a fundamental right under art 21 of the constitution and it includes the
right of enjoyment of pollution free water and air for full enjoyment of life.if anything
endangers or impairs that quality of life in derogation of laws a citizen has right to have
recourse to art 32 of the Constitution for removing the pollution of water or air which may
be detrimental to the quality of life”

This judgment has been a landmark in the history of enviro-legal action in India because of the
broadening of the spectrum of the those who would be allowed to file a complaint.Now as a
pollution free environment is a fundamental right guaranteed under art 21 anyone who is affected
by pollution or there is a hamper to anyone from enjoying the environment they can approach the
courts.But the basic criterion remains the fact that it has to be for the betterment of the
environment and not for private gains.

16
AIR 1991 SC 420
13
CONCLUSION

At the very outset of this concluding section, it is to be admitted that by no means the survey of
literature specially in the form of case laws, sufficient in the present article. The same is due to
the simple fact of abundance in material. The Supreme Court of India, as also the various High
Courts, since their inception has been instrumental in shaping the socio-economic environ. And
at many instances much more than one, the same has been adopted through the activist approach
in liberally interpreting provisions in statutes as also the Constitution to bestow wider rights to
individuals.

However such an activist attitude is definitely to be adopted with a certain amount of

circumspection. It must not be forgotten that a statute is ordinarily to be given its plain and
ordinary meaning, and only when there is an ambiguity to the meaning that tools of interpretation
be applied. In the foregoing discussion the illustration of the Air India case had been given. This
perhaps shall be the best place to actually have a brief glimpse at the case that overruled it and
the reasons for the same. Substantially the same questions again had come up before the
Supreme Court in the case of Steel Authority of India Ltd. v. National Union Water Front
Workers.17 The Supreme Court here again looked into the question of abolition of contract labour
and the automatic absorption of the same in the same enterprise. However this time they refused
to read the automatic absorption of these workers in the provisions of the Act. In fact as a note of
caution they held that.

“The principle that a beneficial legislation needs to be construed liberally in favour of the
class for whose benefit it is intended, does not extend to reading in the provision's of the
Act what the legislature has not provided whether expressly or by necessary implication,
or substitution remedy or benefits for that provided by the legislature.”18

17
AIR 2001 SC 3527
18
Id at para 103
14
Judicial Activism in the shape of liberal interpretation of statutes has permeated almost all fields
of litigation. The scope of the fundamental rights has been widened progressively in an effort to
provide relief to the underprivileged. However we must realize the peril of such an exercise as is
well illustrated by the twin cases of Air India and Steel Authority of India. The difficulties and
uncertainties of determining original meaning and applying it to modern circumstances are
manifold and yet a very important tool for social engineering. The entire enterprise must also be
balanced by the ideals of Separation of powers, which is also explicit in our Constitution.

Hence although incidental tinkering with the law, in the process of interpreting it and applying to
a situation, can be named as liberal construction, it shall amount to judicial legislation, which is
not permissible, when judicial activism starts going absolutely beyond the bounds of the letters
promulgated by the legislature. It is admitted that it is essential to have a judiciary that is acutely
aware of the socio-economic realities of the nation, for effective dispensation of justice but the
same should be bound by proper judicial discipline which is often transgressed.

15