For quite some time now the over reaching role of Judiciary, came to be infamously known as “Judicial Activism”, has been under a microscopic scanner from almost every section of the society. But when on 10th December 2007, a division bench of the Supreme Court presided by Justice A.K. Mathur and Justice Markandey Katju chose to slam the Judiciary and clip its wings, it was an ominous sign of not very pleasant things to be expected in the future.
Among other things, in their 22 page judgment, while setting aside Punjab & Haryana HC order that two gardeners of Haryana tourism be appointed tractor drivers, the Division Bench warned the Judiciary from straying into turfs that were not in its domain in the following words
Among other things, in their 22 page judgment, while setting aside Punjab & Haryana HC order that two gardeners of Haryana tourism be appointed tractor drivers, the Division Bench warned the Judiciary from straying into turfs that were not in its domain in the following words
“If the judiciary does not exercise restraintand overstretches its limits, there is bound to be reaction from politicians and others. The politicians will then step in and curtail the power or even the independence of the Judiciary”.
The bench although termed improper and uncalled for by various legal experts, also criticized orders of a three judge bench of the Supreme Court which had asked Jharkhand Assembly to hold trust vote on CCTV. Pointing out other instances where the Judiciary faltered, the bench listed the instance of an order by Delhi HC which banned interviews for admissions to nursery in schools as also a Delhi HC directive on overcharging by autos, road accidents, fines, etc.
The repercussions were seen the very next day when a division bench of Supreme Court comprising of Justice S.B.Sinha and Justice H.S.Bedi refused to hear a PIL, seeking clarifications from a larger bench on the judiciary’s stand on PILs.
It is a matter of concern that the Judiciary is now shying away from its role feeling threatened by “reactions from politicians and others”. It is also disappointing that Judges now themselves feel that the Judiciary is going beyond its boundaries and wrongly entering the domains which are not in its domain. However, the fact of the matter remains that the Judiciary was the only organ of our Democracy which was doing its job and doing it well and also within the guidelines of the Constitutional provisions from where all the three wings of our Democracy derive their powers.
Let us examine, how Activism ( a misnomer) by the Judiciary began visa vi the powers vested in the Judiciary as provided by the Constitution.
PILs – Public Interest Litigation, wherein a public spirited person could initiate a litigation either in the High Court or Supreme Court, on behalf of people who otherwise normally could not or did not have the means to knock on the doors of Judiciary, for restoring any breach of fundamental rights that they had suffered or were suffering.
Now people reacted to this, although favourably, cheering and applauding this “new” concept that the judiciary had initiated in the interest of larger justice. However, they forgot that this was nothing new. This concept is as old as atleast our Constitution, if not older. Article 32 which empowers the Supreme Court to provide remedies for enforcement of the fundamental rights and Article 226 which empowers the High Court for providing remedies for Fundamental as well as other rights has always talked about certain writs. One of them being “Habeas Corpus”, which means to produce a body that has been illegally detained. Now, is this not a PIL as the affected person does not and for that matter cannot himself approach the Court of Law and somebody else has to do pursue litigation on his behalf?
In the famous Bandhua Mukti Morcha case the Supreme Court took cognizance of a post card sent to it and started proceedings based on that treating it as a petition. There was again a lot of speculation about Supreme Court acting in an arbitrary manner and doing as it pleases. However, a perusal of Article 32 would reveal that the Apex Court was working well within its Constitutional limits. Clause 1 of the said Article reads
“The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this part are guaranteed.”
Now here the above clause is talking about Part III of the Constitution which provides for fundamental rights. The words to be noted here are “appropriate proceedings”. Deciding what would qualify as appropriate proceedings is an exclusive domain of the judiciary and at the sole discretion of the Courts to define and lay down. Now if the Apex Court is pleased to entertain a post card and qualify it as an appropriate proceeding where has it overreached its authority and who are we to object when the Supreme Law of the Country itself vests such powers in it.
Writs – Article 32 clause (2) of the Constitution reads “The Supreme Court shall have power to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate for the enforcement of any of the rights conferred by this part.”
Similarily Article 226 (which defines powers vested with the High Court) clause (1) reads “Not withstanding anything in Article 32, every High Court shall have powers, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate for the enforcement of any of the rights conferred by Part III and for any other purpose”
The underlined segment “including writs in the nature of” clearly reveals that the 5 writs mentioned are not exhaustive in themselves and both the Supreme Court and High Court have powers to issue other writs or orders as well, when the question of protecting fundamental rights and other rights in case of High Courts arise.
It can also be seen from the wordings of Article 226 “Not withstanding anything in Article 32”, that the High Courts enjoy equal powers as the Supreme Court in this respect. Also Article 226 clearly mentions “including in appropriate cases any Government”, meaning thereby the High Court has been vested with powers by the Constitution to issue orders or writs even to Governments when it feels it to be appropriate for the protection of fundamental rights and “for any other purpose”. Now, the words “for any other purpose” provide unlimited scope to the judiciary, to pursue establishing and providing justice.
So if the Courts issue orders to the State for implementing some work or regulating or curbing certain practices, that are otherwise detrimental to the fundamental rights of the people, specially the Right to Life and Liberty, which is increasingly being seen with a wider scope, then where has the Judiciary exceeded in its role more than what the constitution has made it law bound to perform? Where has the Judiciary promoted activism when, the Delhi High Court issued orders on overcharging by autos, road accidents, fines, etc (any other purpose).
Lastly Article 142 empowers the Supreme Court in the following words, “The Supreme Court in the exercise of its jurisdiction may pass any 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 order 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.”
This, thus makes the Apex Court duty bound to ensure complete justice and is not necessary that it would only follow the laws as have been laid down, but that it can pass any orders in pursuance of the cause of complete justice and it would assume the nature of Law.
Hence it can be seen that the term Judicial Activism is a misnomer. The Constitution in fact has given unlimited jurisdiction and powers to the Judiciary to ensure a Society where justice is within reach of one and all. The judiciary has been ensured exclusivity making it independent of the Legislature and the Executive but it does not necessarily follow that the Legislature and Executive have also been endowed with the same privilege. Various provisions of the Constitution if clearly interpreted shows that Judiciary has not been placed at an equal pedestal with the Legislature and the Executive but above them, making it an overall Guardian of the Democracy.
It is difficult to explain to the lay man, who are not aware of what the powers of the Judiciary really are and then it has been rightly said that it is impossible to win an argument with an ignorant person, but when the judiciary itself acts in a matter as if ignorant of its own powers and duties, then the orphaned democracy has something to be worried about.
Now here the above clause is talking about Part III of the Constitution which provides for fundamental rights. The words to be noted here are “appropriate proceedings”. Deciding what would qualify as appropriate proceedings is an exclusive domain of the judiciary and at the sole discretion of the Courts to define and lay down. Now if the Apex Court is pleased to entertain a post card and qualify it as an appropriate proceeding where has it overreached its authority and who are we to object when the Supreme Law of the Country itself vests such powers in it.
Writs – Article 32 clause (2) of the Constitution reads “The Supreme Court shall have power to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate for the enforcement of any of the rights conferred by this part.”
Similarily Article 226 (which defines powers vested with the High Court) clause (1) reads “Not withstanding anything in Article 32, every High Court shall have powers, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate for the enforcement of any of the rights conferred by Part III and for any other purpose”
The underlined segment “including writs in the nature of” clearly reveals that the 5 writs mentioned are not exhaustive in themselves and both the Supreme Court and High Court have powers to issue other writs or orders as well, when the question of protecting fundamental rights and other rights in case of High Courts arise.
It can also be seen from the wordings of Article 226 “Not withstanding anything in Article 32”, that the High Courts enjoy equal powers as the Supreme Court in this respect. Also Article 226 clearly mentions “including in appropriate cases any Government”, meaning thereby the High Court has been vested with powers by the Constitution to issue orders or writs even to Governments when it feels it to be appropriate for the protection of fundamental rights and “for any other purpose”. Now, the words “for any other purpose” provide unlimited scope to the judiciary, to pursue establishing and providing justice.
So if the Courts issue orders to the State for implementing some work or regulating or curbing certain practices, that are otherwise detrimental to the fundamental rights of the people, specially the Right to Life and Liberty, which is increasingly being seen with a wider scope, then where has the Judiciary exceeded in its role more than what the constitution has made it law bound to perform? Where has the Judiciary promoted activism when, the Delhi High Court issued orders on overcharging by autos, road accidents, fines, etc (any other purpose).
Lastly Article 142 empowers the Supreme Court in the following words, “The Supreme Court in the exercise of its jurisdiction may pass any 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 order 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.”
This, thus makes the Apex Court duty bound to ensure complete justice and is not necessary that it would only follow the laws as have been laid down, but that it can pass any orders in pursuance of the cause of complete justice and it would assume the nature of Law.
Hence it can be seen that the term Judicial Activism is a misnomer. The Constitution in fact has given unlimited jurisdiction and powers to the Judiciary to ensure a Society where justice is within reach of one and all. The judiciary has been ensured exclusivity making it independent of the Legislature and the Executive but it does not necessarily follow that the Legislature and Executive have also been endowed with the same privilege. Various provisions of the Constitution if clearly interpreted shows that Judiciary has not been placed at an equal pedestal with the Legislature and the Executive but above them, making it an overall Guardian of the Democracy.
It is difficult to explain to the lay man, who are not aware of what the powers of the Judiciary really are and then it has been rightly said that it is impossible to win an argument with an ignorant person, but when the judiciary itself acts in a matter as if ignorant of its own powers and duties, then the orphaned democracy has something to be worried about.
Justice without force is powerless; force without justice is tyrannical.
