Judicial & Legislative Activism in India: Principles and Instances

Saji Koduvath, Advocate, Kottayam.

  • India is a rich country.
    • True.
    • At the same time, the number of under-privileged class, below poverty-line, surpasses the poor in any other country.
  • India has flourished under the secular-socialist Constitution, in the past seven decades.
    • Correct.  
    • At the same time, the number of downgraded and side-lined populations is very large.
  • India is shining with scientific advancements.
    • Right.  
    • At the same time, the number of deprived ones owing to lack of basic necessities is very high.
  • India has a progressed under the democratic administrative system which offers Justice, Liberty, Equality and Fraternity to all its citizens.
    • No doubt.
    • At the same time, the number of persons who toil out of poverty, illiteracy and pathetic social condition are outsized.
  • India is a country the Supreme Court of which has declared that ‘access to justice is a fundamental right’ [Imtiyaz Ahmad v. State of Uttar Pradesh, AIR 2012 SC 642].
    • True fact.
    • At the same time, it is a sheer joke that vast majority of the people here cannot even think about ‘justice’.  
  • Who has to take care of the poor, and who has to raise concern?
    • Legislature, Executive or Judiciary?
      • Or, all?
  • One thing is certain.
    • Though apparently it is a matter of concern primarily to Legislature and Executive, Court had ‘activised’ into the field, very often. All the time, it was pointed out, directly or indirectly, that the activism was necessitated because of the grim attitude of the hapless Legislatures or hopeless Executive.
  • It is also a truth that several beneficial legislations in India, some of which are listed below, might not have been properly implemented. It will not be true that these Acts reflect ‘Great Indian Hypocrisy’ of the legislatures and the executive. But, the erudite people genuinely expect serious and sincere action from the executive.
    • Employment of Children Act, 1938
    • The Protection of Civil Rights Act, 1955
    • Suppression of lmmoral Traffic in Women and Girls Act, 1956
    • Maternity Benefit Act, 1961
    • Dowry Prohibition Act, 1961
    • The Dowry Prohibition Act, 1961.
    • Equal Remuneration Act, 1976
    • Bonded Labour (Abolition) Act, 1976
    • The Child Labour (Prohibition and Regulation) Act, 1986
    • Juvenile Justice Act, 1986
    • Indecent Representation of Women (Prohibition) Act, 1986
    • Sati (Prevention) Act, 1987
    • The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989
    • The National Commission for Women Act, 1990
    • The National Commission for Minorities Act, 1992
    • The National Commission for Safari Karamcharis Act, 1993
    • The National Commission for Backward Classes Act, 1993
    • The Mental Health Act, 1993
    • The Protection of Human Rights Act, 1993.
    • The Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995
    • The Protection of Women from Domestic Violence Act, 2005
    • The Right of Children to Free and Compulsory Education Act, 2009.

Is this activism of our Courts, judicial and Constitutional?

Our Supreme Court was dare enough to say, few decades back, through Justice PN Bhagwati, in Neeraja  Chaudhary Vs. State of Madhya Pradesh, AIR 1984 SC 1099,  as under:

  • “Poverty and destitution are almost perennial features of Indian rural life for large numbers of unfortunate ill-starred humans in this country and it would be nothing short of cruelty and heartlessness to identify and release bonded labourers merely to throw them at the mercy of the existing social and economic system which denies to them even the basic necessities of life such as food, shelter and clothing. It is obvious that poverty is a curse inflicted on large masses of people by our malfunctioning socio-economic structure and it has the disastrous effect of corroding the soul arid sapping the moral fibre of a human being by robbing him of all basic human dignity and destroying in him the higher values and finer susceptibilities which go to make up this wonderful creation of God upon earth, namely, man. It does not mean mere inability to buy the basic necessities of life but it goes much deeper; it deprives a man of all opportunities of education and advancement and increases a thousand fold his vulnerability to misfortunes which come to him all too often and which he is not able to withstand on account of lack of social and material resources. We, who have not experienced poverty and hunger, want and destitution, talk platitudinous of freedom and liberty but these words have no meaning for a person who has not even a square meal per day, hardly a roof over his head and scarcely one piece of cloth to cover his shame.”

Judicial Activism – Definition

Black’s Law Dictionary defines judicial activism as ‘a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent’.

In Indian perspective, Courts Reach Poor Otherwise than by ‘Traditional Disputes’

Primarily, the Judicial process is adjudication of disputes initiated by an injured party. The public interest litigation differs from the traditional ‘oppositional justice system’. In Indian perspective, it is intended to ‘promote’ and ensure justice to poor – who are socially or economically disadvantaged sections of the society.

When does Judicial Activism Begin

Judicial activism begins when the courts apply new legal principles, deviating from the conventional course of judicial resolution of the issues placed before it. The court cannot remain silent, when novel remedial actions are warranted in such issues, saying that there is no express provision of law that enables that court to proceed upon. By virtue of ‘judicial activism’ the Courts:

  1. Realise and indulge into the issues that are apparently awesome, and strike inordinate injustice, especially, to the poor; and also into the topics appertain environment, ecology etc.
  2. Confer locus-standi to the public-spirited persons who approach the courts with the object of attainment of Social Justice.
  3. Apply its own conscience and perspectives, in the absence of constitutional doctrines, legislation or common law principles.
  4. Review and correct unjustifiable or illegal acts or omission on the part of the legislature and executive.

Right ‘judicial intervention’ that amounts to Judicial Activism is welcomed by all legal systems. Such Judicial Intervention is necessitated when the Judges have to find out a novel path to judicially sort-out a particular matter placed before it. This jurisdiction obliges the courts to maintain transparency and integrity in its activities.

Criticism on Judicial Activism

The courts are expected to function within the limits permitted under the doctrine of separation of powers. Courts do not have the mandate of the people possessed by the legislature, or practical expertise gained by the executive. Personal opinion of judges cannot prevail over the wisdom of the general public, and that reflected through their elected representatives. Courts do not have the machinery of its own to execute all and whatever orders that are passed by it. Courts cannot snatch the bridles of the executive and ride it.

SOURCES OF JUDICIAL ACTIVISM

Article 32 and 226 of the Constitution of India

Articles 32 and 226 of the Constitution of India itself confer vast powers and active role to the Supreme Court and High Courts whenever they find violation of fundamental rights out of inaction or unjust and unfair acts of the legislature or executive. This power of judicial review of Legislative and Executive actions on the grounds of violation of fundamental rights of citizens makes the courts guardian and protector of the Indian Constitution.

The High Courts have supervisory jurisdiction under Article 227 over the subordinate judiciary and tribunals. Article 136 of the Indian Constitution confers the Supreme Court the power to grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal.  These powers of judicial review of courts are held to be the integral part of the basic structure of Indian Constitution (S.P. Sampath Kumar v. Union of India: (1987-1 SCC 124; Fertilizer Corporation Kamgar Union v. Union Of India  AIR 1981 SC 344;  L. Chandra Kumar v. Union of India, 1997-3 SCC 261).

Article 142 of the Constitution

Article 142 of the Indian Constitution is the thoughtful outcome of the founding fathers of our Constitution. It expressly gives a candid power to the Supreme Court to pass any appropriate decree or order for doing complete justice.

Article 142 reads as under:

  • “142. Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc
  • (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.
  • (2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.”

When Court Enacts Law

Court enacts Law (under the terms Scheme, Rule, Guidelines etc.) for enforcement of the fundamental rights (Kalyan Chandra Sarkar v. Rajesh Ranjan, AIR 2005 SC 972). In the absence of an enacted law, the courts apply such Laws only to fill-up a vacuum (Vineet Narain v. Union of India, AIR 1998 SC 889). In Vishaka v. State of Rajasthan, AIR 1997 SC 3011, the Supreme Court held as under:

  • “Absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places, we lay down the guidelines and norms specified hereinafter for due observance at all workplaces or other institutions, until a legislation is enacted for the purpose. This is done in exercise of the power available under Article 32 of the Constitution for enforcement of the fundamental rights and it is further emphasised that this would be treated as the law declared by this Court under Article 141 of the Constitution.”

Parliament, after a pretty long time, enacted Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and replaced the Vishakha Guidelines of 1997.

Court Cannot Override Exisiting Law Under Article 142

As observed by our Apex Court, in Asha Ranjan vs State of Bihar, AIR 2017 SC 1079, vast powers given to the Apex Court under Art. 32 and 142, and the High Courts under 226 , do not bestow power to ‘curtail the fundamental rights of the citizens conferred under the Constitution and pass orders in violation of substantive provisions which are based on fundamental policy principles’.  Our Apex Court further pointed out that in the nature of a particular case, the Court can ‘issue appropriate directions so that criminal trial is conducted in accordance with law as it is the obligation and duty of the Court to ensure free and fair trial’.

JUDICIAL ACTIVISM – Landmark Cases

1. His Holiness Kesavananda Bharati Sripadagalvaru Vs. State of Kerala: AIR 1973 SC 1461

Novel doctrine of ‘basic structure’ was exposed out.

Whether the Parliament had the unlimited power to amend the Constitution was the main point came for judicial consideration in Kesavananda Bharati case. The Parliament enacted several legislation including Land Reform Laws to give effect to Directive Principles of State Policy (Part IV of the Constitution). It was strongly argued before the Apex Court that the Parliament cannot destroy Fundamental Rights (Part III of the Constitution), while amending the Constitution, on the ground that they are essential or basic feature, or basic structure, of the Constitution. It was also heavily urged that there were implied limitations for the Parliament.

The arguments were countered from the part of the Government saying that unless there were no express words, or compelling implication from the existing provisions, for limiting the extent of amendment, then there would be no implied limitation; and that the Government was duty bound to give effect to Directive Principles and to enact ‘Laws’ to achieve those objectives.

After detailed hearing, finally, the largest ever – 13 Judge – Bench of the Supreme Court held: “Article 368 does not enable the Parliament to alter the basic structure or frame work of the Constitution”. This novel doctrine of ‘basic structure’ was exposed out not by churning any internal principle contained in the Constitution. Therefore, it is qualified as an act of ‘judicial activism’.

2. Jasbhai Motibhai Desai v. Roshan Kumar, AIR 1976 SC  578: 1976-1 SCC 671

Court may interfere  at the instance of a ‘stranger’ if ‘exceptional circumstances’ of:

  • (i) miscarriage of justice
  • (ii) adverse  impact on public interests’ and
  • (iii) the ‘stranger’ has ‘a substantial and genuine interest in the subject-matter’.

Justices RS Sarkaria, AN Ray (CJ), HM Beg and PN Shingal, held – ‘as a  rule, the court should  not interfere  at the instance of a ‘stranger’ unless there  are ‘exceptional circumstance involving a grave miscarriage of justice having an adverse  impact on public interests‘ and the ‘stranger’ has ‘a substantial and genuine interest in the subject-matter’. It was also observed as under:

  • “The traditional rule is flexible enough to take in those cases where the applicant has been prejudicially affected by an act or omission of an authority, even though he has no proprietary or even a fiduciary interest in the subject-matter. That apart, in exceptional cases even a stranger or a person who was not a party to the proceedings before the authority, but has a substantial and genuine interest in the subject-matter of the proceedings will be covered by this rule”.

3. Mumbai Kamgar Sabha v. Adbulbhai Faizullabhai, AIR 1976 SC 1455: 1976-3 SCC 832

Importance of promotion of Public Interest Litigation is highlighted

A Union of workers was figured as the appellant. Justice VR Krishnaiyer & NL Untwalia expanded the concept of locus standi. Importance of promotion of Public Interest Litigation by a ‘spacious construction of locus standi‘ in our ‘socio-economic circumstances‘ is highlighted in this case. It was observed:

  • “Procedural prescriptions are handmaids, not mistresses of justice and failure of fair play is the spirit in which Courts must view processual deviances. … Public interest is promoted by a spacious construction of locus standi in our socio economic circumstances and conceptual latitudinarianism permits taking liberties with individualisation of the right to invoke the higher courts where the remedy is shared by a considerable number, particularly when they are weaker. Less litigation, consistent with fair process, is the aim of adjectival law.”

4. Maneka Gandhi v. Union of India, AIR 1978 SC 597.

In A.K. Gopalan v. State of Madras, AIR 1950 SC 27, arose from the case where the CPI leader, AK Gopalan, was arrested under the Preventive Detention Act, and denied bail. The grounds for arrest were not disclosed even in court, pointing out the provisions of the Preventive Detention Act, 1950. The arguments of Gopalan as to ‘illegality and unconstitutionality of the Act’ was not accepted – referring to the wordings of Article 21 – ‘procedure established by law’; that is, if the action was under a law no one can question the validity of that law.
A.K. Gopalan v. State of Madras was overruled by the Supreme Court in Maneka Gandhi v. Union of India, AIR 1978 SC 597. Maneka Gandhi’s passport was impounded in ‘public interest’. Government declined to provide reasons ‘in the interests of the general public’. In the Writ Petition filed by Maneka, the Government relied on AK Gopalan. The Supreme Court, overruling AK Gopalan, and allowing the petition of Maneka, held that a ‘procedure’ under Article 21 of the Constitution must not be arbitrary, unfair, oppressive, or unreasonable. 

5. MH Hoskot v. State of Maharashtra. AIR 1978 SC1548:  (1978) 3 SCC 544.

Ensured prisoners’ rights.

VR Krishnaiyer, DA Desai, O Chinnappa Reddy (J) ensured prisoners’ rights in this case directing all courts in India, inter alia, as under:

  • “Courts shall forthwith furnish a free transcript of the judgment when sentencing a person to prison term; in the event of any such copy being sent to the jail authorities for delivery to the prisoner, by the appellate, revisional or other court, the official concerned shall, with quick despatch, get it delivered to the sentence and obtain written acknowledgment thereof from him; where the prisoner seeks to file an appeal or revision, every facility for exercise of that right shall be made available by the Jail Administration”.

6. Sunil Batra v. Delhi Admini-stration: (1978) 4 SCC 494: 1980 SCC (3) 488

Initiated steps to avoid jail-torture, on a prisoner’s letter to one Judge.

On a prisoner’s letter to one Judge of the Supreme Court, alleging that the head Warder brutally assaulted another prisoner inflicting serious anal injury driving a rod thereto and that it was with intent to extract money from his visitors. The letter was treated as a habeas corpus petition and issued notices. The amicus curiae after visiting the jail reported that the prisoner had been removed to the jail hospital and later to another Hospital. The writ petition was allowed by the Court (Justices VR Krishnaiyer, RS Pathak,  O Chinnappa Reddy)  directing to take legal actions against the warder and initiating various steps with a view to avoid jail-torture, in future, in any jail in India.

7. Hussainara Khatoon  v. State of Bihar: AIR 1979 SC 1369

It is a landmark decision on the locus-standi of the petitioners in the PIL.

In 1979, Advocate Pushpa Kapila Hingorani, greeted as ‘Mother of PIL’, filed a habeas corpus petition before the Supreme Court ‘on behalf of’ certain under-trial prisoners in Bihar.

In 1979 RF Rustum-ji, a member of national police commission published articles in “The Indian Express” about pitiable conditions in the jails at Patna.  It was pointed out that many of them were under-trial prisoners who had been in jail for periods longer than the maximum punishment that may be imposed, if they were charged. The first petitioner was  Hussainara Khatoon, lady refugee from Bangladesh in 1975.  She was kept under protective custody for four years though Indian government had issued instructions to release such persons, on bond.

Till that time, a victim or his relative alone could have approached the court for the reddressal of their grievances. The habeas corpus petition filed by Pushpa Kapila Hingorani ‘on behalf of the prisoners’ was rejected by the Registry. But the Court (Justices P.N. Bhagwati, and D.A. Desai), after hearing Kapila, issued notice to the Bihar government.

Finally, it was held by the Supreme Court (Justices PN Bhagwati, RS Pathak, AD Koshal) that the practise of keeping persons in jail beyond the maximum punishable term, that may be awarded to them, was violation of Article 21 (Right to Personal Liberty) of the Constitution. Because of the verdict in this case, about 40,000 under-trial prisoners across the country were caused to be released.

8. People’s Union for Democratic Rights v. Union of India: AIR 1982 SC 1473

Inaugurated a new way in the line of Public Interest Litigation (PIL)

PN  Bhagwati, J. in People’s Union for Democratic Rights v. Union of India: 1982 AIR 1473: (1982) 3 SCC 235;  1983 SCR (1) 456, inaugurated a new way in the line of Public Interest Litigation (PIL).  The 1st petitioner in this PIL, People’s Union, sent a letter to Justice PN Bhagwati complaining the  disgraceful conditions of the workmen engaged in the various ‘Asiad Projects’. The Union pointed out that the Govermental authorities engaged contractors.  These contractors brought workers through ‘Jamadars’. Contractors paid Jamadars the minimum wage at Rs. 9.25 per day per worker. But the Jamadars paid mere one Rupee per day to the workers.  

The petitioner Union urged that apart from the violation of Article 24 of the Constitution of India (Article 24 of the Constitution provides  that no child below  the age  of  14 shall be  employed to work in any factory or mine or engaged in any other hazardous employment.) there were violations of  various welfare enactments such as the Minimum Wages Act, 1948; Equal Remuneration  Act, 1976; Employment of  Children Acts,  1938 and 1970; Contract Labour  (Regulations and  Abolition) Act, 1970;  Inter-state Migrant Workmen (Regulation  of   Employment; and Conditions of Service) Act, 1979, etc.

The Supreme Court treated the letter of the People’s Union as a writ petition and issued  notice  to  the  Union  of  India,  Delhi Administration and the Delhi Development Authority.

After hearing, the petition was allowed (authored by PN Bhagwati, J.), holding, inter alia, the following:

  1. Public interest litigation is intended to bring justice within the reach of the poor masses. Public interest demands that violations of constitutional or legal rights of poor, ignorant or disadvantaged persons should not go unnoticed and unredressed. That would be destructive of the Rule of Law.
  2. The Rule of Law demands that the poor too have civil and political rights. Today it exists only on paper and not in reality. Large numbers of men, women and children who constitute the bulk of the population are today living a sub human existence in conditions of abject poverty. They have no faith in the existing social and economic system.
  3. To make the social and economic right a meaningful reality for the poor, the social and economic order has to be restructured. Of course, the task is one which legitimately belongs to the legislature and the executive. Mere initiation of social and economic rescue programmes by the executive and the legislature would not be enough.  These social and economic rescue programmes can be made effective only through multi-dimensional strategies including public interest litigation.
  4. Public  interest  litigation is  essentially  a cooperative or collaborative effort  to secure rights conferred  upon  the  vulnerable sections of  the community and to  reach social  justice to them. The State or public authority against whom public interest litigation is brought should be as much interested in ensuring basic human rights to those who are in a disadvantaged position.
  5. The State or public authority which is arrayed as a respondent in public interest litigation should, in fact, welcome it, as it would give it an opportunity to right-a-wrong or to redress-an-injustice done to the poor whose welfare is and must be the prime concern of the State or the public authority.
  6. The public interest litigation that seeks to  bring justice to  these  ‘forgotten specimens of  humanity’ constitute  the  bulk  of  the citizens of  India. Pendency of large arrears in the courts cannot be any reason for denying access of justice to the poor and weaker sections of the community.
  7. The time has now come – the courts must become the courts for the poor and struggling masses of this country. They must be sensitised to the need of doing justice to the large masses of people to whom justice has been denied by a cruel and heartless society for generations.
  8. The realisation must come  to the judges  that social  justice is  the signature  tune of our  Constitution  and   it is   their  solemn  duty  under  the  Constitution to  enforce the  basic human rights of the poor and vulnerable sections of  the community and actively help in the realisation of the constitutional goals. This new change has to come if the  judicial system  is to  become an effective instrument of  social justice,  for,  without  it,  it  cannot survive for  long. 
  9. Fortunately  this  change  is  gradually taking place  and public  interest litigation  is playing  a large part  in bringing  about this  change. It is through public interest litigation that the problems of the poor are now coming to the forefront and the entire theatre of the law is changing. It holds out great possibilities for the future. This writ petition is one such instance of public interest litigation.

9. Decisions that recognised ‘Right to Privacy’ as a Fundamental Right

Justice KS Puttaswamy v. Union of India, AIR 2017 SC 4161 is the landmark decision that considered ‘Right to Privacy’ under Art. 21 read with Art. 14 and 19 of the Constitution. Puttaswami, a retired judge of the Madras High Court, challenged the constitutional validity of imposing the Aadhaar Act, 2016. It was pointed out that the Act took away the rights and liberties granted through Fundamental Rights by the Constitution to the citizens of India. It was argued that the country cannot be drawn to a ‘surveillance’ state whereby the Government can screen the actions of its citizens. The purport of the Act is claimed to be facilitating subsidies, benefits, and services to the deserving. But, a section to whom these benevolent matters are extended will be excluded from availing such benefits, by the imposition of the Act. The nine judge bench of the Supreme Court which heard the matter affirmed the right to privacy as a fundamental right, qualifying the same (Chandrachud, J.) as “the ultimate expression of the sanctity of the individual”, though it is not an ‘absolute right’. Earlier decisions, M.P Sharma and Kharak Singh, were overruled in Puttaswami.

Other Notable  Cases

Municipal Council, Ratlam v. Vardichand. (1980) 4 SCC 162  Filed by a group of citizens – for removal of open drains
Francis Coralie v. UT of Delhi, AIR 1981 SC 746.Persons in jail – right to meet his or her family relatives and friends
People’s Union for Democratic Rts. v. UoI.  AIR 1982 SC 1473PIL – Bonded labor –  rehabilitation process to give a full remedy
S.P. Gupta v. UoI: AIR 1982 SC 149.  Bar association filed PIL questioning transfer of  judges
Prabha Dutt v. UoI. (1982) 1 SCC 1Freedom of speech and expression
Sheela Barse v. St. of Maharashtra AIR 1983 SC 1086Letter by a journalist alleging custodial violence of women prisoners
Bandhua Mukti Morcha v. UoI: AIR 1984 SC 802Right to education is implicit in Article 21.
Rural Litigation and Entitlement Kendra, Dehradun v. State of UP, AIR1985 SC 652Healthy environment
MC Mehta v. UoI: AIR 1988 SC 1115 Prevent pollution of the water in the river Ganga
Parmanand Katara v. UoI: A.I.R. 1989 SC 2039PIL filed by an advocate provide immediate medical treatment to the persons injured in road or other accidents without going through the technicalities of the criminal procedure
Gaurav Jain v. Union of India, AIR 1990 SC 292Rehabilitate the children of prostitutes
Vishal Jeet v. Union of India, AIR 1990 SC 1412Children of prostitutes should not be allowed to live with their mothers in the undesirable surroundings of prostitute homes. They require accommodation and rehabilitation
Mohini Jain v. State of Karnataka AIR 1992 SC 1858  Articles 21, 38, Articles 39 (a) and (b), 41 and 45 bind the State to provide education to all of its citizens The right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education. right to education flows directly from right to life.
J.P. Unnikrishnan v. State of AP: AIR 1993 SC 2178(a) Every child/citizen of this country has a right to free education until he completes the age of fourteen years and (b) after a child/citizen completes the age of 14 years, his right to education is circumscribed by the limits of the economic capacity of the State and its developments.
Vishaka v. State of Rajasthan AIR 1997 SC 3011; Guidelines for ensuring a safe work environment for women were given and made it mandatory for employers to take responsibility in cases of sexual harassment at work.
M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388.Doctrine of public trust for the protection and preservation of natural resources
D. K. Basu v. State of West Bengal, AIR 1997 SC 610Supreme Court laid down guidelines for arrest, detention and matters dealt with prison. There is no legislation in this regard.
Vineet Narain v. Union of India, (1998) 1 SCC 226,
AIR 1998 SC 889.  		SC issued directions to the government in order to bring transparency and accountability in the Central Bureau of Investigation (CBI).
Sakshi v. Union of India (2004) 5 SCC 518Highlighted the need to establish a procedure that would help the child victim to testify at ease in the court and held that proceedings should be held in cameras

Rohinton Nariman, J., pointed out in Justice KS Puttaswamy v. Union of India, AIR 2017 SC 4161, that Article 21 has been the repository of a vast multitude of human rights, as a result of constitutional interpretation in Maneka Gandhi v. Union of India (1978) 1 SCC 248. The list of cases given by the all time eminent Judge are the following:

  • (1) The right to go abroad. Maneka Gandhi v. Union of India (1978) 1 SCC 248 at paras 5, 48, 90, 171 and 216;
  • (2) The right of prisoners against bar fetters. Charles Sobraj v. Delhi Administration (1978) 4 SCC 494 at paras 192, 197-B, 234 and 241;
  • (3) The right to legal aid. M.H. Hoskot v. State of Maharashtra (1978) 3 SCC 544 at para 12;
  • (4) The right to bail. Babu Singh v. State of Uttar Pradesh (1978) 1 SCC 579 at para 8;
  • (5) The right to live with dignity. Jolly George Varghese v. Bank of Cochin (1980) 2 SCC 360 at para 10;
  • (6) The right against handcuffing. Prem Shankar Shukla v. Delhi Administration (1980) 3 SCC 526 at paras 21 and 22;
  • (7) The right against custodial violence. Sheela Barse v. State of Maharashtra (1983) 2 SCC 96 at para 1;
  • (8) The right to compensation for unlawful arrest. Rudul Sah v. State of Bihar (1983) 4 SCC 141 at para 10;
  • (9) The right to earn a livelihood. Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545 at para 37;
  • (10) The right to know. Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers (1988) 4 SCC 592 at para 34;
  • (11) The right against public hanging. A.G. of India v. Lachma Devi (1989) Supp (1) SCC 264 at para 1;
  • (12) The right to doctor’s assistance at government hospitals. Paramanand Katara v. Union of India (1989) 4 SCC 286 at para 8;
  • (13) The right to medical care. Paramanand Katara v. Union of India (1989) 4 SCC 286 at para 8;
  • (14) The right to shelter. Shantistar Builders v. N.K. Totame (1990) 1 SCC 520 at para 9 and 13;
  • (15) The right to pollution free water and air. Subhash Kumar v. State of Bihar (1991) 1 SCC 598 at para 7;
  • (16) The right to speedy trial. A.R. Antulay v. R.S. Nayak (1992) 1 SCC 225 at para 86;
  • (17) The right against illegal detention. Joginder Kumar v. State of Uttar Pradesh (1994) 4 SCC 260 at paras 20 and 21;
  • (18) The right to a healthy environment. Virender Gaur v. State of Haryana (1995) 2 SCC 577 at para 7;
  • (19) The right to health and medical care for workers. Consumer Education and Research Centre v. Union of India (1995) 3 SCC 42 at paras 24 and 25;
  • (20) The right to a clean environment. Vellore Citizens Welfare Forum v. Union of India (1996) 5 SCC 647 at paras 13, 16 and 17;
  • (21) The right against sexual harassment. Vishaka and others v. State of Rajasthan and others (1997) 6 SCC 241 at paras 3 and 7;
  • (22) The right against noise pollution. In Re, Noise Pollution (2005) 5 SCC 733 at para 117; (23) The right to fair trial. Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors. (2006) 3 SCC 374 at paras 36 and 38;
  • (24) The right to sleep. In Re, Ramlila Maidan Incident (2012) 5 SCC 1 at paras 311 and 318;
  • (25) The right to reputation. Umesh Kumar v. State of Andhra Pradesh (2013) 10 SCC 591 at para 18;
  • (26) The right against solitary confinement. Shatrugan Chauhan & Anr. v. Union of India (2014) 3 SCC 1 at para 241.

JUDICIAL OVERREACH

Doctrine of Separation of Powers

Doctrine of separation-of-powers between legislature, executive and judiciary is strictly practised in us. One wing will not transgress beyond limits; and there will be a judicial ‘self restraint’.   In principle, this doctrine is followed in India too. But, Justice Chandrachud, the former CJ, had observed in AK Roy Vs. Union of India (AIR 1982 SC 710) that ‘our constitution does not follow the American pattern of strict separation of powers’.

When the activist approach of the courts transgress the boundaries fixed by the well-accepted precedents, and shatters the accepted norms of the society at large, such decisions are subjected to strong criticisms. When such harsh acts are not at all bewildering and outwit the the glaring Constitutional principles, or obliterate the judicial consonance, they are recounted as ‘judicial overreach’.

Referring Union of India v. Deoki Nandan Agarwal, AIR 1992 SC 96, and  V.K. Reddy v. State of Andhra Pradesh, J.T. 2006(2) SC 361, in Divisional Manager Aravali Golf Course v. Chander Hass:  2008-1 SCC 683, our Supreme Court (JJ. A K Mathur and Markandey Katju) emphasised the principle that the Judges cannot legislate. It was further pointed out that the judicial activism was ‘resorted to only in exceptional circumstances when the situation forcefully demands it in the interest of the nation or the poorer and weaker sections of society’.

It is also emphasised that the legislatures in India could ‘enact a fresh law with retrospective effect to alter the foundation and meaning of the legislation and to remove the base on which the judgment is founded’ (Cheviti Venkanna Yadav Vs. State of Telangana: AIR 2016  SC  4982). That is, the legislature could, change the ‘basis’ (enactment) on which a decision was founded by the Court, and invite the court (in appeal, revision or review) to change the decision on the new ‘basis’ (Cauvery Water Disputes Tribunal Case: AIR 1992 SC 522).

Judge-made Laws

In India, from 1980, Judges began to give directions, schemes etc. for governance in various fields. It is simply nothing but legislation by Judges.  The most pitiable thing is that, in many occasions, the Legislators and the Executive themselves seek or prefer it. They welcome judicial legislation in certain areas where they dare not to make laws or promulgate directions, fearing social interdiction or dreading communal forces.  We see it on environmental issues, imposing restrictions in using old vehicles, enforcing restrictions to activities of religious communities, directing States to share water of Rivers, networking of Rivers (In Re, Networking of Rivers: 2012-4 SCC 51) etc.

Judicial Overreach: Examples Pointed out by critiques

As shown above, when the Judicial Intervention exceeds virtuous bounds, it is termed, Judicial Overreach. It being extremely difficult to draw the dividing line between Judicial Activism and Judicial Overreach, a right judicial intervention, according to many, which legitimately amounts to Judicial Activism, may be a judicial overreach in the perception of some people. Generally speaking, the innovative verdicts invoking Article 21 are hailed, and activist decisions in other areas are subjected to debate.

Some Cases criticised as telling examples of judicial overreach.

1. Board of Control for Cricket v. Cricket Association of Bihar is pointed out as an example of judicial overreach. The BCCI is a registered Society registered under the Tamil Nadu Societies Registration Act. There were serious allegations against BCCI, as to corruption, match-fixing etc. Lodha Committee was appointed by the Supreme Court (Board of Control for Cricket vs Cricket Aasociation of Bihar: 2015-3 SCC 251) to enquire into the allegations. The committee placed its report with recommendations. It was accepted by the Supreme Court with such modifications and clarifications set out in the 2016 judgment. It included, inter alia, the following:

  • BCCI should come under RTI.
  • No person can hold office more than two consecutive terms in BCCI.
  • No minister or government servant should hold official positions.
  • There shall be only one post per one person.
  • Only state cricket bodies should have full membership and voting rights in BCCI.
  • Other members like All India Universities, Railway Sports Promotion Board etc. should not have voting rights.

the Supreme Court had pointed out that the Board of Control for Cricket in India (BCCI) is an ‘authority’ for the purpose of issuance of Writs by the courts. (See also: Board of Control for Cricket in India v. Netaji Cricket Club: AIR 2005 SC 592. Board of Control for Cricket in India v. Cricket Association of Bihar: AIR 2015 SC 3194.) Our Apex Court appraised that, as a member of ICC, BCCI represented the country in the international fora; it exercised enormous public functions; and it had the authority to select players, umpires and officials to represent the country in the international fora.

Still, the criticism maintained is that the Court had no jurisdiction to interfere with the internal management of an association registered under the Socities Registration Act.

2. Three ‘judges cases’ (SP Gupta v UOI,   AIR 1982 SC 149; Supreme Court Advocates on Record Association v. UOI, 1993(4) SCC 441; and Special Reference 1 of 1998 , 1998 (7) SCC 739, the Supreme Court has virtually overturned Articles 124(2) and 217 which pertain to appointment of Supreme Court and High Court Judges. And, a ‘collegium’ consisting of the CJI and senior-most judges of the Supreme Court was formed for the appointment of a High Court and the Supreme Court judges, and justified, by these decisions.

Article 124(2) reads as under:

  • “124(2): Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years.”

Article 217(1) reads as under:

  • “217(1): Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an additional or acting judge, as provided in Article 224, and in any other case, until he attains the age of sixty-two years.”

It is noteworthy that it has been pointed out by the Law Commission itself (214th Report, 21. 11. 2008) that the ‘collegium’ system is contrary to the plain language of the relevant Articles of the Constitution. On this basis the Parliament passed The Constitution (Ninety-ninth Amendment) Act, 2014 and The National Judicial Appointments Commission Act, 2014; and National Judicial Appointments Commission (NJAC) was constituted.

Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1 (NJAC case).  The Supreme Court struck down The Constitution (Ninety-ninth Amendment) Act, 2014 and The National Judicial Appointments Commission Act, 2014, declaring them as unconstitutional. The ‘collegium’ system has been restored.        

3. Shah Bano Case & Subsequent Legislation: In Shah Bano Case (Mohd. Ahmed Khan Vs. Shah Bano Begum: AIR 1985 SC 945) the Constitutional Bench of the Supreme Court, headed by the Chief Justice Chandrachud, upheld the right of Muslim Women to get maintenance under Sec. 125 of the Cr.PC. Soon after Shah Bano decision Muslim Women (Protection of Rights on Divorce) Act, 1986 was enacted. It diluted, if not nullified, the Supreme Court verdict limiting the claim of divorce to the period of iddat, or till 90 days. It was criticised that the Act was an attempt to politically pacify a displeased vote-bank. However, in Danial Latifi Vs. Union of India (AIR 2001 3958) the Supreme Court held that the Act ‘actually and in reality’ codified what was stated in Shah Bano Case.

4. Jagadambika Pal v. Union of India: AIR 1998 SC 998: (1999) 9 SCC 95: The Supreme Court directed to conduct ‘Floor Test’ in the Uttar Pradesh Assembly.

5. In Anil Kumar Jha v. Union Of India: (2005) 3 SCC 150, the Supreme Court directed to conduct ‘Floor Test’ in the Jharkhand Assembly and required the pro-term speaker to video-record the proceedings and send a copy to Supreme Court, forthwith.

6. In 2G Spectrum case (Centre for Public Interest Litigation v. Union of India, (2012) 3 SCC 1 : AIR 2012 SC 3725) telecom licenses were cancelled by the Supreme Court.

7. State of West Bengal v. Committee for Protection of Democratic Rights  (2010) 3 SCC 571:  The Constitution Bench of the Supreme Court held that a High Court can, under Art. 226 of the Constitution, direct the CBI to investigate offences alleged to have taken place within the territorial jurisdiction of a State without the consent of the State Government and that it will neither violate the federal structure of the Constitution nor the doctrine of separation of power. 

Eminent jurists including Senior Advocate PP Rao pointed out – “If the Court comes to the conclusion that the refusal on the part of the State Government to give consent to investigation by the CBI in a given case is arbitrary, then and only then, the court may direct investigation by the CBI in which case it would be enforcing the right to equality conferred on all persons by Article 14 of the Constitution.”

8. Nandini Sundar v. State of Chhattisgarh, (2011) 7 SCC 547:  Salwa Judum was a group in Chhattisgarh countering Naxalite violence. They involved in violent incidents and crimes against citizens. The Supreme Court found that the actions taken against them by the State Government was not adequate. Hence the Court ordered the Central Bureau of Investigation to “immediately take over the investigation of, and taking appropriate legal actions against all individuals responsible for the incidents of violence alleged to have occurred”.

9. In the State of Tamilnadu v. K Balu, 2017-2 SCC 281, the Supreme Court banned sale of liquor within 500 m. of any national or state highway.

10. Shyam Narayan Chouksey v. Union of India: 2018-2 SCC 574: Mandatory direction was given by the Supreme Court to sing National Anthem in Cinema Hall.

Legislative Overreach

Following are some examples (which indirectly confronted with court decisions).

1. In Cauvery Water Disputes Tribunal Case (In Re Cauvery Water Disputes Tribunal: AIR 1992 SC 522) our Apex Court observed that the Karnataka Cauvery Basin Irrigation Protection Ordinance, passed by the Karnataka State, was unconstitutional. The Ordinance rebutted the jurisdiction of the Tribunal under the Inter-state Water Disputes Act, 1956; and it nullified the interim order passed by the Tribunal.

2. In M.C. Metha Vs. Union of India, (2006) 7 SCC 456, the legislature extend a time frame fixed by the Supreme Court. The Apex Court observed that such an extension by the State legislature was virtually exercising judicial functions and it was impermissible.

3.In ‘Medical Council of India Vs. State of Kerala (AIR 2018 SC 5041)  State of Kerala promulgated an Ordinance for regularising the admission of 180 students and  overturned a decision of the Apex Court. The Supreme Court held that the State had clearly transgressed upon the field of judicial review and obviously resorted to a misadventure.

4. In State of Tamil Nadu Vs. State of Kerala: (2014) 12 SCC 696; [Quoted in: State of Karnataka Vs. Karnataka Pawn Brokers Assn.: AIR 2018 SC 441]:  the Constitution Bench of the Apex Court dealt with the question as to whether the Legislature could set at naught the decision of the superior courts. The principles laid down, include the following:

  •  (i) That the doctrine of separation of powers is a well-established principle in the Constitution of India even though there is no specific provision touching the same in the Constitution;
  • (ii) Independence of Courts from Executive and Legislature is fundamental to the rule of law and it is one of the basic tenets of the Indian Constitution;
  • (iii) The doctrine of separation of powers between the three organs of the State – Legislature, Executive and the Judiciary – is a consequence of principles of equality enshrined in Article 14 of the Constitution of India.

Enactments Directly overturned court decisions

It is also pointed out by our Apex Court, in various decisions, that the Legislature had no jurisdiction to determine rights of contesting parties in courts, by making enactments. Following are some of such cases where the legislatures made enactments directly to annul court verdict.

Such enactments were considered in the following decisions:

(i) Ameerunnisa Begum v. Mahboob Begum: AIR 1953 SC 91:  An enactment,  the  Waliuddowla Succession Act, 1950, was passed by  the Hyderabad  Legislature which provided that ‘the claims of  Mahboob  Begum and Kadiran Begum  and  of  their respective  children to participate in the  distribution  of the  ‘matrooka’  of the late Nawab are hereby  dismissed’  and that the above decision ‘cannot be called in question in any court of law.

Our Apex Court held that the Act  contravened  the provisions  of article  14  of the  Constitution  and was therefore void. It was also pointed out that the analogy of private Acts of the British Parliament was not helpful, in Indian situation as the British Parliament enjoyed legislative omnipotence.

(ii) Ram Prasad Narayan Sahi v. The State of Bihar: AIR 1953 SC 215:  The Court of Wards granted land to the appellants who were then under the management of the Court of Wards, on the recommendation of the Board of Revenue.  A few years  later, the Working Committee of the Indian National Congress  expressed  the opinion that the settlement of the lands  was  against public interest, and in 1950, the Bihar Legislature passed an Act called the Sathi Lands  (Restoration)  Act,  1950,  which declared  that, notwithstanding anything  contained  in any  law  for the time being  in  force the  settlement granted to the appellants should be null and  void.  The appellants, alleging that the Act was unconstitutional, approached the High Court under Article 226.  

The Supreme Court held that the enactment contravened the provisions of Article 14 of the Constitution and the impugned Act was void.

(iii) Indira Nehru Gandhi v. Shri Raj Narain: AIR 1975 SC 2299:  While an election petition was pending, before the Supreme Court, the Constitution (Thirty-ninth Amendment) Act, 1975 was passed which stated that “no election to either House of Parliament of a person who holds the office of Prime Minister at the time of such election or is appointed as Prime Minister after such election …. shall be called in question.”

The Supreme Court held that the amendment was against the ‘basic structure’ of the Constitution. It is the first case the Supreme Court applied the doctrine of Basic Structure enunciated in Kesavananda Bharati case.

(iv) His Holiness Kesavananda Bharati Sripadagalvaru Vs. State of Kerala: AIR 1973 SC 1461 (the ‘Fundamental Rights Case’): The foundational finding of the earlier 11 Judge Bench decision in IC Golak Nath Vs. State of Punjab: AIR 1967 SC 1643 was that power of amendment of the Constitution under Article 368 of the Constitution was subject to, and controlled by, Article 13 (which lays down that no ‘law’ can be made abridging Fundamental Rights). It was nullified by the 24th Constitutional Amendment, by the Parliament (on the premises that the Constitutional Amendment is not a ‘law’ laid down in Art, 13.

It is strange that the ‘propriety’ of nullifying a Supreme Court decision – that too based purely on interpretation and analysis of Constitutional issues – by a Constitutional Amendment was not taken-up as an an important point in the 13 Judge Bench decision; on the contrary, this Amendment Act was expressly upheld by all the 13 Judges .

(v) Shah Bano Case & Subsequent Legislation: It is a case find place in the list of Judicial-overreach and Legislative-overreach. As shown above, the Supreme Court upheld the right of Muslim Women to get maintenance under Sec. 125 of the Cr.PC in Shah Bano Case (Mohd. Ahmed Khan Vs. Shah Bano Begum: AIR 1985 SC 945). The verdict was overturned, allegedly for political-gain, by the Muslim Women (Protection of Rights on Divorce) Act, 1986. (However, in Danial Latifi Vs. Union of India (AIR 2001 3958) the Supreme Court upheld the Constitutional validity of the Act).

‘Legislative Overruling’ of SC Decision as to filing Complaint under NI Act

The Supreme Court held  Dashrath Rupsingh Rathod v. State of Maharashtra, AIR 2014 SC 3519, that the territorial jurisdiction of courts for filing a complaint on dishonour of cheques, under NI Act, was ‘restricted to the location where the cheque was dishonoured, i.e., cheque was returned unpaid by the bank on which it was drawn’.*

  • * Broadly speaking, Drawer-Bank is the Bank of the person who signs/draws the cheque.

By the amendment of 2015, the dictum in Dashrath Rupsingh Rathod v. State of Maharashtra, AIR 2014 SC 3519, was overturned – Section 142 has been re-numbered as Sub-section (1) and Sub-section (2) has been inserted (which specified the territorial jurisdiction of the court).

The dictum of the Supreme Court in Dashrath Rupsingh Rathod case has been “legislatively overruled” by an amendment to the Negotiable Instruments Act, in 2015 (as observed in  P. Mohanraj v. Shah Brothers Ispat Pvt. Ltd: (2021) 6 SCC 325 – RF Nariman, J.)

After the 2015 amendment (after inserting Sub-section – 2) the territorial jurisdiction is limited to the Drawee-Bank**. It stands as under:

    • “(2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction –
    • (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or …..
  • **Generally speaking, Drawee-Bank is the Bank in which the payee presents the cheque for ‘collection’.

Executive Overreach

Though the executive is daily confronted with allegations as to executive extremism in High Courts and the Supreme Court, the executive action deliberated in H H Maharajadhiraja Madhav Rao v. Union of India, AIR 1971 SC 530, 1971 SCR (3) 9, was strange and very important.

By the promulgation of the Indian Independence Act, 1947, the Princely States adjoining the Dominion of India were merged with  the  Dominion  of India. The  instruments  of  merger guaranteed to the Rulers, iner alia, the Privy Purse. Special provisions were enacted in the Constitution regarding  Privy Purses and  the  rights and  privileges  of  the  erstwhile Rulers. The  sum,  guaranteed  as Privy  Purse  was charged on and paid out  of the Consolidated Fund of India. 

By Art. 366(22) of the Constitution,  a ‘Ruler’  is the prince, chief or other person  by whom covenant and agreements were entered into, and it included any person who ‘for the time being’ recognised by the President as the successor  of such Ruler. The Constitution (24th  Amendment) Bill, 1970 suggested that Articles 291, 362 and 366(22) of the Constitution ‘shall  be  omitted’.  The Bill was  passed in  the Lok  Sabha; but, not in  the Rajya Sabha for no requisite majority.  A  few  hours thereafter  the President of India, purporting to exercise power under Art. 366(22) of the Constitution, signed an instrument ‘withdrawing recognition’ of all the Rulers.  

This action of the President “derecognising” the Rulers was challenged in Supreme Court under  Art.  32  of  the Constitution stating that it was unconstitutional, ultra  vires  and void. It was  contended that the  President had no power for ‘withdrawing recognition’ and that  it amounted  to  arbitrary exercise of power.

Nine judges of the 11 Judge Bench of the Apex Court held in H H Maharajadhiraja Madhav Rao v. Union of India, AIR 1971 SC 530, that the  Order  of the President “derecognising” the  Rulers  was ultra vires and illegal. It was found that the  use of the expression  “for  the time being” in cl. (22) Art. 366 did not  invest the President with  an  authority to accord a temporary recognition to a Ruler, nor with any authority to recognise or not to recognise a Ruler arbitrarily; and that the expression predicated simply that there would be one Ruler. 

S. R. Bommai v. Union of India (AIR 1994 SC 1918) is often cited as another good example of executive overreach. President of India dismissed several State Governments and imposed ‘president’s rule’ in several States on the ground of internal disturbance and breakdown of constitutional machinery. It was challenged before the Supreme Court. The Supreme Court struck down the Presidential orders finding it arbitrary and unconstitutional.

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Evidence Act

Constitution

Contract Act

Easement

Club/Society

Trusts/Religion

Published by sajikoduvath

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