Open Forum

New Delhi, 27 February 2008

Judicial Activism

PROTECTING PEOPLE’S RIGHTS

By Dhurjati Mukherjee

The Prime Minister recently stated that “a thin line divided judicial activism from judicial overreach”. As is well known, tension between the legislature and judiciary has surfaced in recent times, and perhaps Manmohan Singh was referring to this. On his part the Chief Justice, K. G. Balakrishnan, has said such friction was “natural and even desirable” in a healthy and democratic society. And, referring to public interest litigations (PILs), which Dr. Singh agreed had great utility for initiating corrective action, the CJI warned that these should not become vehicles for settling political or other scores.

Recent incidents have given a fillip to the ongoing debate on the legitimacy of alleged judicial forays into seemingly exclusive domain of the Executive and the Legislature in the constitutional scheme of separation of powers. The two most significant of these have been the debate in Parliament seeking to curb judicial activism along with enforcement of judicial accountability, followed by Supreme Court judges, Justice A. K. Mathur and Justice M. Katju ruling on December 6 viz genuine  PILs, calling for judicial restraint to prevent erosion of the judiciary’s independence. 

The Chief Justice is all for good guidelines concerning PILs, a step essential for consistency and judicial intervention. For it cannot be denied that public interest litigations have greatly helped in the realm of environment, human rights and welfare of weaker sections of society. 

One may refer to various judgments such as the Bihar Assembly dissolution, Jharkhand government formation, expulsion of MPs in cash-for-query scam, reservation in promotions and the stay on 27 per cent OBC quota, which have unnerved the Centre. The apex court’s ruling on Bihar and Jharkhand was greatly appreciated by the public, as it helped putting in place a system of governance in tune with the Constitutional provisions, even though it may have dented many egos of political leaders of the ruling class, who raised the question of the judiciary’s interference in political matters.

Furthermore, giving reservation within reservation in the M. Nagaraj case and the stay on the OBC quota in Central universities appears to have added fuel to fire. The judiciary, according to the political class, was being branded as “overstepping” its constitutionally demarcated limits.

It may be recalled that the framers of the Constitution had placed a time limit of 10 years on such social affirmative actions. But, though not much could be accomplished in the past 60 years since Independence, there is need for the judiciary to go deep into the problem and strike a balance between the right to equality and the extent to which social affirmative action is needed at this juncture.

The Supreme Court is regarded highly world-over for its independence and judicious approach. Right to equality, promising equal treatment to all citizens, irrespective of birth, caste, class or sex has been the cornerstone of all judgments in tune with the provisions of the Constitution. Instead of appreciating the apex court’s approach, some of our political leaders, having criminal or dubious reputation, have sought to challenge this independence of the judiciary and bring it under control.

But, we all know that there needn’t be any conflict between the legislature and the judiciary, as each has its respective role to play as laid out in the Constitution. All the three wings – legislature, executive and judiciary – owe their place and power to the Constitution, which has created and empowered them with a mandate from none other than “we the people” of India.

However, according to a former Supreme Court chief justice, in recent times, the judiciary is being seen to be taking the lead in enlarging its jurisdiction because of “inaction on the part of the executive and legislature in performing their constitutional obligation”. 

In fact, there is need for the judiciary to follow its own course to ensure better governance and equality of opportunities to all. And, for this, it is necessary that cases should not be kept pending for lack of judicial officers. Moreover, number of fast-track courts should be increased and set up all over the country to ensure speedy trials as delays may allow room for manipulation.

While judges command respect, allegations are that the rich and the powerful seem to benefit because of delays as well as by being allowed to approach a higher court, in case of an adverse judgment. Many consider this to be a major flaw in our system and seek remedial action to help those who cannot afford to engage lawyers. While fast-track courts have been of some help, the poor continue to suffer because of expenses incurred and the time taken to settle cases.

In recent past, the judiciary has played an exemplary role but if the legal process is expedited there can be no doubt that more would benefit.  This apart, the poor should have the benefit of a legal counsel at the cost of the State or be allowed to plead their own case. This would make the judiciary “people-oriented” and further ensure that the rights of all, including women and children, are safeguarded.                       

 The involvement of the judiciary in the realm of environment too has evoked much discussion and debate in recent times. In the areas of forest degradation, pollution control, solid waste management, water contamination, arsenic control, conservation of wetlands and lakes etc. vigilant action by the judiciary has helped in the enforcement of laws by various State governments, which affect the lives and well being of the people.

The importance of the public interest law, which gained currency in the US in the 60s, has now been accepted world over as part of the new endeavour of jurisprudence. And, the judiciary has come a long way-- from the traditional rule of locus standi to the present day public interest litigation with the expanded scope of Articles 14 and 21 of the Constitution.

It cannot be denied that PILs have been successful in awakening the State to fulfill its constitutional obligations to achieve socio-economic justice, especially for the poor and disadvantaged sections of the society. Articles 32 and 226 of the Constitution have provided a major platform for protection of the rights and have led to implementation of various welfare legislations. This has been done by widening the scope and content of Fundamental Rights by equalizing and elevating several statutory rights within the ambit of such rights.

Activist-lawyer M. C. Mehta’s contribution is a pointer, whereby PILs have led to landmark orders such as shifting out of tanneries from Kolkata and polluting industries from Delhi, the switch over to CNG by public transport in Delhi and by the local authorities in Agra.  

Regrettably, not all judgments are always enforced. In the past few years, around 500 judgments have not been implemented, up from 300 in year 2000. In public perception, the judiciary is the last bastion of hope and it is necessary that the executive enforces its orders. In addition, the role of NGOs and the media viz enactment of various provisions of the law, specially related to development and environmental issues, has become phenomenal. If laws need to benefit society, then NGOs and the media have to continue being watchdogs and educate implementing agencies to remain effective.

Besides, there is need for good governance and effective cooperation with governmental organizations in implementing programmes for the poor and the vulnerable sections of society. Last but not the least, there is need for a broad-based and united people’s movement along with effective jurisprudence to act promptly on matters that affect the masses.. ---INFA

 (Copyright, India News and Feature Alliance)