Every Institution has been given a conventional role and conventional means to fulfil the said objectives; anything above and beyond this called Activism
Activism is a democracy’s undemocratic alternative when the democratic institutions fail.
A) 3 Phases of the Supreme Court
- Apolitical Phase (1950-67)
- Scientific and rational Interpretation of Constitution
- Supreme court did not pass jurisdictions in crusader spirit
- Some judgements went against the government while others favored the government
- g. Land Acquisition Law was struck down but in cases of Kharak singh and MP sharma ( both pertaining to Right to Privacy) Supreme court ruled in favor of Government on the basis of merit of the arguments and facts out forward
- Phase of Increasing Politicization(1967-77)
- The court started to increasing be influence by the executive
- The court suffered a loss of reputation and image especially after the verdict in the ADM Jabalpur case
- Phase of requiring legitimacy and rise of Judicial Activism(1977 onwards)
Factors responsible for the rise of Judicial Activism
- Inadequacies in the working of the Legislature and Executive
- Inability of Government to take tough decisions e.g. phasing our BS IV vehicles, banning Liquor shops on Highways etc.
- Rise of Demos-prudence ( Democracy enhancing judicial Prudence)
- Flexible Interpretation of the concept of Locus standi/Doctrine of standingwhere any person can apply to the court on behalf of those who are economically or physically unable to come before it has helped.
- To recover its lost prestige after the debacle in the ADM Jabalpur case
- Rise of Epistolary jurisdiction(even a letter to a judge can be treated as a petition) and Suomoto Cognizance
- India has a written constitution which through Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy) provides a framework for regulating relations between the state and its citizens and between citizens inter-se.
- Courts have creatively read these into fundamental rights thereby making them judicially enforceable. For instance the “right to life” in Article 21 has been expanded to include right to free legal aid, right to live with dignity, right to education, right to work, freedom from torture, bar fetters and hand cuffing in prisons, etc.
- Judicial innovations to help the poor and marginalised: For instance, in the Bandhua Mukti Morcha, the Supreme Court put the burden of proof on the respondent stating it would treat every case of forced labor as a case of bonded labor unless proven otherwise by the employer.
- Indian courts being subjected to Global Constitutionalism (Case of declaring rivers as an individual with rights)
Doctrine of standing
It implies a third party can litigate on behalf of the aggrieved party in large public interest
Positive outcomes of Judicial Activism
- It has helped in checking undue administrative discretion
- Judicial activism helps promote transparency and openness in administration
- Activism helps reconcile the permanent values of the Indian constitution with the transitory changes in the environment
- Judicial Activism has helped in expanding the scope and enforcement of social, political, economic and environmental rights
- Judicial activism has played a decisive role in checking government Inaction in various areas such as electoral reforms, rights of children and women, corruption etc.
- It has helped in filling up legal vacuums in existing laws where the law is silent
- It has also led to the rise of PIL(Public Interest Litigation) activism to check Bureaucratic and Political misuse of Executive power
Negative Outcomes of Judicial Activism
- Judicial activism is often accused of judicial inflation resulting into judicial Overreach/Adventurism
- It has led to excessive judicial interference in the function of the executive thereby adversely affecting the separation of power doctrine
- Courts have less time for their mandated goal as defenders of the constitution and the arbiter of disputes
- Activism may also sometime lead to excessive delays in the implementation of Government projects thereby adversely affecting the beneficiaries
- Activism has also caused the bureaucracy to become over cautious further slowing down the decision making process in the administration
- It has led to the rise of inter institutional conflict such as the Supreme court being at loggerheads with the Executive
- Further the abuse PIL mechanism has become a major headache to the judiciary by further adding into load of Pendency
- Also the rise of frivolous PILs have become a major source of Political and personal benefit seeking
- Activism is also accused of replacing jurisprudence of principles with jurisprudence of predilection ( personal bias and whims)g. the scrapping of NJAC has been a stand out example of Judicial Activism turning into judicial Overreach
Public interest Litigation (PIL)
Public interest Litigation (PIL) means litigation filed in a court of law, for the protection of “Public Interest”, such as Pollution, Terrorism, Road safety, Constructional hazards etc. Any matter where the interest of public at large is affected can be redressed by filing a Public Interest Litigation in a court of law.
A) Salient features of PIL
- Public interest litigation is not defined in any statute or in any act.
- It has been interpreted by judges to consider the intent of public at large.
- Public interest litigation is the power given to the public by courts through judicial activism. The court can itself take cognizance of the matter and proceed suo motu or cases can commence on the petition of any public spirited individual.
- A Public Interest Litigation can be filed against a State/ Central Govt., Municipal Authorities, and not any private party. The definition of State is the same as given under Article 12 of the Constitution
- Any citizen can file a public case by filing a petition:
- Under Art 32 of the Indian Constitution, in the Supreme Court.
- Under Art 226 of the Indian Constitution, in the High Court.
- Under sec. 133 of the Criminal Procedure Code, in the Court of Magistrate.
- The court must be satisfied that the Writ petition fulfils some basic needs for PIL as the letter is addressed by the aggrieved person, public spirited individual and a social action group for the enforcement of legal or Constitutional rights to any person who are not able to approach the court for redress.
The first reported case of PIL was Hussainara Khatoon vs. State of Bihar (1979)that focused on the inhuman conditions of prisons and under trial prisoners that led to the release of more than 40,000 under trial prisoners.
B) Significance of PIL
- The aim of PIL is to give to the common people access to the courts to obtain legal redress.
- PIL is an important instrument of social change and for maintaining the Rule of law and accelerating the balance between law and justice.
- The original purpose of PILs have been to make justice accessible to the poor and the marginalized.
- It is an important tool to make human rights reach those who have been denied rights.
- It democratises the access of justice to all. Any citizen or organisation who is capable can file petitions on behalf of those who cannot or do not have the means to do so.
- It helps in judicial monitoring of state institutions like prisons, asylums, protective homes, etc.
- It is an important tool for implementing the concept of judicial review.
C) Checking abuse of PIL
- Set up PIL cells to ensure that the PILs fit within the laid down domain before being listed in Courts
- Speedy disposal of PILs where major Government Projects are involved
- Penalize Frivolous and baseless PILs
- The courts should classify the areas where PILs can be filed
- The judiciary also needs to exercise Self restrain and avoid core policy areas
Judicial restraint refers to the belief that courts should limit the use of their powers to strike down laws or declare them unfair and unconstitutional unless there is a direct and clear conflict with the constitution and not based on personal beliefs of the Judges
Judicial restraint relies heavily on uniform adherence to case law
Judicial restraint doctrine argues that courts should decide cases on the basis of:
- Original intent of constitution framers
- Established Precedents- past decisions in earlier cases
- Leave policy making and implementation to the legislature and executive
Judicial activism and judicial restraint are a check against the fraudulent use of powers of the government or any constitutional body.
Apex Court has evolved the following principles
- Trusteeship Principle
The natural resources are collective heritage of society and the government manages them as a trustee.
- Polluter Pays Principle
The ‘polluter pays’ principle is the commonly accepted practice that those who produce pollution should bear the costs of managing it to prevent damage to human health or the environment.
- Polluter Fine Principle
This means that a polluter may be asked to pay for the actual costs of clean-up, the damage caused to the victims of environmental damage, a fine or a penalty based on their ability to pay, a general levy aimed at a clean-up of the problem as a whole or all of the above.
- Intergenerational Equity Principle
The principle of intergenerational equity states that every generation holds the Earth in common with members of the present generation and with other generations, past and future.
- Precautionary Principle
An effort to anticipate, prevent and attack the factors causing environmental degradation