INTRODUCTION:

The power of the supreme court for the protection of the constitutional rights of citizens are of the widest amplitude and there is no reason why the court should not adopt activist approach similar to courts in America and issue to the state directions which may involve taking of positive action with a view to securing enforcement of the fundamental right. The judiciary has been assigned this active role under the constitution. They are not expected to sit in an ivory tower like an Olympian closing their eyes uncaring for the problems faced by the society.

One should, however, understand that this exercise of authority of the judiciary is not for vain glory but it is in discharge of its constitutional obligation. For otherwise the judiciary will become crippled which in turn will cripple democracy. When the executive and legislature are apathetic and fail to discharge their constitutional obligations. The bureaucracy shows a total indifference and insensitivity to its mandatory duties. This in turn affects the basic rights of the people. When the law enforcing authorities show their brutality in the process of implementation of law, the judiciary should check the excesses and also direct the authorities to effectively implement the welfare legislation².

It emergence can be traced back to 1893, when Justice Mahmood of Allahabad High Court delivered a dissenting judgment. It was a case of an under trial who could not afford to engage a lawyer, so the question was whether the court decide his case by merely looking his papers, Justice Mahmood held the pre-condition of the case being “heard” would be fulfilled only when somebody speak. As to its meaning judicial activism is not a distinctly separate concept from usual judicial activities. The word ‘activism means ‘being active’ ‘doing things’ with decision and activist either on the forward gear or on the reverse.

Judicial policy making can be either an activity in support of legislative and executive policy choices or in opposition to them. But the latter one is usually referred to as judicial activism. The essence of true judicial activism is the rendering of decision which is in tune with the temper and tempo of the times.

The place of ‘Judicial Review’

In post- independence India, the inclusion of explicit provision for ‘judicial review’ were necessary in order to give effect to the individual and group rights guaranteed in the text of the constitution. Dr. B.R.Ambedkar, had described the provision related to the same as the ‘heart of the constitution’. Article 13(2) of the constitution of India prescribes that the union or the states shall not make any law that takes away or abridges any of the fundamental rights, and any law made in contravention of the aforementioned mandate shall, to the extent of the contravention, be void³.

With the advent of public interest litigation (PIL) in recent decades, Article 32 has been creatively interpreted to shape innovative remedies such as a ‘continuing mandamus’ for ensuring that executive agencies comply with judicial directions. In this category of litigation, judges have also imported private law remedies such as ‘injunctions’ and ‘stay orders’ into what are essentially public law related matters⁴.

Beginning with the first few instances in the late- 1970’s the category of Public Interest Litigation (PIL) has come to be associated with its own ‘people-friendly’ procedures. The foremost change came in the form of the dilution of the requirement of ‘locus standi’ for initiating proceedings. Since the intent was to improve access to justice for those who were otherwise too poor to move the courts or were unaware of their legal entitlements, the court allowed actions to be brought on their behalf by social activists and lawyers⁵. In numerous instances, the court took suo moto cognizance of matters involving the abuse of prisoners, bonded laborers and inmates of mental institutions, through letters addressed to sitting judges. This practice of initiating proceedings on the basis of letters has now been streamlined and has come to be described as ‘epistolary jurisdiction⁶.

In PIL the nature of proceedings itself does not exactly fit into the accepted common- law framework of adversarial litigation. The courtroom dynamics are substantially different from ordinary civil or criminal appeals. While an adversarial environment may prevail in cases where actions are brought to highlight administrative apathy or the government’s condonation of abusive practices, in most public interest related litigation, the judges take on a far more active role in the literal sense as well by posing questions to the parties as well as exploring solutions. Especially in actions seeking directions for ensuring governmental accountability or environmental protection, the orientation of the proceedings is usually more akin to collective problem- solving rather than an acrimonious contest between the counsels. Since these matters are filed straightaway at the level of the Supreme Court or the High Court, the parties do not have a meaningful opportunity to present evidence on record before the start of the court proceedings. To overcome this problem, our courts have developed the practice of appointing ‘fact- finding commissions’ on a case-by-case basis which are deputed to inquire into the subject- matter of the case and report back to the court. These commissions usually consist of experts in the concerned fields or practicing lawyers. In matters involving complex legal considerations, the courts also seek the services of senior counsels by appointing them as amicus curiae on a case-by-case basis⁷. But over the year, the social action dimension of PIL has been diluted and eclipsed by another type of “public cause litigation” in courts. In this type of litigation the courts intervention is not sought for enforcing the rights of the disadvantaged or poor sections of the society but simply for correcting the actions or omissions of the executive or public officials or departments of government or public bodies.

Is judicial review undemocratic?

The question whether judicial review was undemocratic arose in an acute form in connection with President Roosevelt’s New Deal, following the “great depression” of 1929. The pre-Roosevelt Supreme Court had a conservative majority, and this majority held an economic theory which was opposed to that underlying the New Deal.⁸ The following passage described the situation created by what we would now call judges of the right, in invalidating laws enacted by a govt. of the left:

“The decision which provoked the greatest discontent was the decision in which a carefully drafted New York minimum wages law was struck down as unconstitutional, on the ground that it interfered with the freedom of contract. Even the Republican Party pledged itself to secure its reversal. Writing to his sister, Mr. Justice Stone described the Supreme Court term in which these decisions were rendered as in many ways the most disastrous in its history. He said that the court had been needlessly narrow and obscurantist.”⁹

The framers of the U.S. constitution believed that, by judicial interpretation, the Supreme Court would adapt the constitution to meet the social, political and economic changes required by time and circumstance. This political role of the Supreme Court was foreseen, because Section 2 conferred upon the president the power to appoint, inter alia, judges of the Supreme Court with the advice and consent of the Senate. It should also be mentioned that the U.S. constitution does not expressly provide for judicial review of legislation. But chief justice Marshall’s Judgment in Marbury v. Madison¹⁰ firmly established this doctrine as part of the U.S constitution.

The provision of the U.S. constitution relating to the Supreme Court and the appointment of Judge’s, was opposed to the ingrained tradition of a non-political judiciary which we had inherited from Great Britain, culminating in the Government of India Act, 1935. The framers of our constitution adhered to that tradition. Judges of the High Courts and the Supreme Court were to be insulted from political and executive pressure, and the legislature had no voice in their appointment¹¹.

Therefore the American experience of judicial review had little relevance to our judiciary. The Roosevelt court’s fight was known to the eminent lawyers who were members of the drafting committee, but they did not consider judicial review undemocratic, as it is clear from the fact that Article 32, which provided for judicial review of laws violating fundamental rights, was itself made a fundamental right to judicial remedies.

It is also important to mention that in year 1959, the perceptive eye of chief justice S.R.Das saw danger ahead. On the day of his retirement – 30 September 1959, he was entertained to a dinner by his brother judges, at which the president of India and Prime Minister Nehru were present. In an after dinner speech of singular felicity, he referred to his brother judges, and he said, only half in jest:

“Then comes my learned brother, Gagendragadkar. His heart is literally bleeding for the under-dogs and unless the bleeding can be stopped, the under-dogs will very soon be the top dogs… then we have brother Subba Rao, who is extremely unhappy because all our fundamental rights are going to the dogs on account of some ill- conceived Judgments of his colleagues which require reconsideration¹².

Actually what was going through the mind of justice S.R.Das at that time? Whether he was anticipated the danger which would be going to be happen in near future or it was just a farewell speech. According to the H.M.Seervai, he saw the danger of judges dividing themselves into judges of the left and judges of the right. Justice Gajendragadkar’s frequent references to socio-economic factors were to be matched by Justice Subba Rao’s “rightist” views which culminated in Golak Nath in which he tried to prevent “all our fundamental rights going to the dogs by some ill-conceived judgments of his colleagues” by holding that fundamental rights could not be amended from the day the judgment was delivered. This move towards “the right” continued when the Supreme Court struck down the Bank Nationalization Act.¹³ The Supreme Court decision in Golak Nath was the first significant step towards establishing judicial supremacy in constitutional interpretation, Kesavananda established that it is unmatched and unchangeable¹⁴. In Kesavananda, the Supreme Court made a strategic retreat over amendments to fundamental rights¹⁵, but significantly broadened the scope of its judicial review by assuming the power to scrutinize all constitutional amendments- not just those affecting fundamental rights¹⁶. If parliament had an unfettered right to amend the constitution the supreme court had a coextensive power to review and declared any amendment unconstitutional¹⁷. By limiting the parliament’s power to amend the constitution the supreme court pre-empted such a scenario and ensured that the people’s representatives-meant to be servants of the constitution-would not become its masters¹⁸. In the later year concept of judicial review had gained more importance as the concept of fundamental rights would become more prominent and had crossed its notional boundaries. The court transformed itself from being merely a supervisor, to being a watchdog of the constitution¹⁹.

The Supreme Court of India has made an order even in a military operation. In 1993, the court issued orders on the conduct of military operation in Hazaratbal, Kashmir where the military had as a matter of strategy restricted the food supplies to hostage. The court ordered that the provision of food of 2000 calories should be supplied to hostages. Commenting on this, an army general wrote: “for the first time in history, a court of law was asked to pronounce judgment on the conduct of an ongoing military operation. Its verdict materially affected the course of operation”.

There are lots of examples where proceedings of legislature are controlled by the court. In the Jharkhand legislative assembly case, the Supreme Court ordered the assembly the conduct a motion of confidence and ordered the speaker to conduct proceedings according to a prescribed agenda and not to entertain any other business. Its proceedings were ordered to be recorded for reporting to the court. There orders were made in spite of Art 212 of the constitution, which states that courts are not to inquire into any proceedings of the legislature. Matters of policy of government are subject to the court scrutiny. Distribution of food grains to persons below poverty line was monitored, which even made the prime minister remind the court that it was interfering with the complex food distribution policies of government. In the 2G licenses case, the court held that all public resources and assets are a matter of public trust and they can only be disposed of in a transparent manner by a public auction to the highest bidder.

Judicial activism was criticized by the Prof Schwartz in his “A Basic History of the American Supreme Court”to which Justice Desai referred in support of the proposition that “the power of judicial review often been described as undemocratic.”Critics of judicial review have stressed that “the review power of the one non democratic organ in our government should be exercised with self- restraint”. The will of the people was defeated not by anything contained in the constitution prohibiting expressly or by necessary implication the enactment of the impugned law, but because the judges read their own economic theories into the constitution. According to H. M.Seervai judicial review is not undemocratic and to support his view. He takes the help of an observation made by the Prof.Schwartz:²⁰

“An organic instrument is naught but empty words if it cannot be enforced by the courts. It is judicial review that makes the provisions of a constitution more than mere maxims of political morality.

It is needless to labor the point in relation to the U.S. constitution coming to our constitution, unlike the U.S constitution, it is a detailed and elaborate constitution, and the fundamental rights conferred by it are not couched in absolute terms, but the restrictions to which those rights are to be subject have been expressly mentioned.

The power of judicial review has not been exercised by the judiciary to give effect of its personal views, whether it may be right or of the left and it would not considered undemocratic because our democratic constitution itself contemplates Government of limited power. So, far as the internal governance of India is concerned it is limitation in three fold. First there is a division of power between the union and the states. Secondly, exclusive legislative powers have been conferred on parliament and state legislatures. Thirdly, legislative powers, exclusive and concurrent, are fettered by fundamental rights and other constitutional limitations. As prof. Schwartz rightly pointed out that these restraints on power would be mere maxims of political morality if the restraints could not be enforced by independent courts.²¹ It is further argued by H.M.Seervai in his “Constitutional Law of India”²² that in the light of the changed circumstances, and the experience gained after the second world war in Europe and in the United States, and in the light of the emergency of 1975-77 in India, it is not possible to say that judicial review administered judicially is undemocratic, or defeats the people’s will. In Golak Nath case Justice Subba Rao had defeated the people’s will when he held that fundamental rights cannot be amended.²³ Although judicial review is now generally considered a constitutional check, this is technically incorrect since judicial review is not found in the text of the constitution²⁴. The first prime minister of India Pt. Jawaharlal Nehru had said in his constituent assembly speech that no court would stand in the way of social reform and that ultimately the constitution itself was a creature of parliament showed his distrust of the Judges capacity to adjudicate on social policy²⁵. However, Supreme Court made it clear in one of the earliest judgment that the power of judicial review is inherent in a written constitution and exists independently of Article 13(2)²⁶. Thus, it is unjustified to say that a written constitution with a bill of rights can hardly ever become so definite and certain as to let the courts function as mere slot machines²⁷. There may be a situation when the provisions are itself not sufficiently clear to cater the need of the hour but it does not mean that provisions are ultra virus to the constitution. it is to be remember that some amount of certainty and stability are required to make a written constitution as a workable constitution. Uncertainty warranted a situation from where the contradictions would start between the judiciary and legislature. One of the incidences was raised in the matter of Article 31(Right to Property) in which court and parliament came to adopt entirely contradictory positions²⁸. In the original constitution itself the land reform legislation had been excluded from the protection of Article 31²⁹. In one of the case of acquisition the question of compensation was came into consideration before the Supreme Court³⁰ in which ambivalent judicial approach had adopted by the apex court on the question of compensation. Such ambivalence is also to be seen in the observation of Mr. Justice Hidayatullah in Golak Nath that among all of the fundamental right, the right to property was the weakest³¹. As a result of the judicial favoritism of compensation, the Supreme Court is often accused of having espoused the property right at the cost of Social Justice³².

CONCLUSION:

Hence, the view adopted by the Supreme Court from past seventy years has changed a lot. Now judicial review would take the shape of judicial activism, in every matter judiciary has involved. This situation is not an ideal situation as far as the judicial discipline and proprietary is concerned. Judicial restraint must be there for the institutional growth of any institution. Doctrine of separation of power is also a part of a basic feature of our constitution. It is true that Supreme Court is the guardian of the constitution and has a duty to protect it from every type of infringement. On the other hand it is also equally true that legislature has vested with the law making power which include in its ambit the power to amend the constitution and it is imperative for the socio-economic development that to strike a balance between these two conflicting interest. In the democracy, will of the people is supreme and it cannot be ignored and constitution is the reflection of this will. Therefore, it has to be interpreted according to the existing socio-economic condition of the country. Unnecessary interference in the working of the legislation would make the situation more complicated and cumbersome.

REFERENCE:

1. Constitution of India

2. Dr.J.N.Pandey, Constitutional Law of India 340 (Central Law Agency, Allahabad, 41^stedn., 2004)

3. Hon’ble Mr.K.G.Balakrishnan, CJ. “Judicial Activism under the Indian Constitution”, Trinity College Dublin, Ireland, October 14, 2009.

4. See: Ashok H. Desai and S Muralidhar, Public Interest Litigation: ‘Potential and Problems’ in B.N.Kirpal et. al.(eds.), Supreme but not Infallible-Essays in Honour of the Supreme Court of India (OUP, 2000) at p. 159-192.

5. In the united kingdom, courts have developed another tool for ruling on legislative action – i.e. issuing a ‘declaration of incompatibility’ for statutory provisions that contravene the ECHR.

6. Address K.G.Balakrishnan,CJI, “Judicial Activism under the Indian Constitution” (in Trinity College Dublin, Ireland-October 14,2009)

7. Ashok H.Desai and S.Muralidhar, “Public Interest Litigation: Potential and Problems” in B.N.Kirpal et. al. (eds), supreme but not infallible (OUP, 2000) 159-192, at p. 164-167

8. Seervai, “Government By Judges” An American Experience of Judicial Review: Setalvad Lectures. Pp. 17-20

9. Morehead v. Tilpado (1936) 298 U.S. 587

10. (1803) 2 L.ed.60

11. Comparative judicial behavior, edited by Glendon Schubert and David j. danelski.

12. (1959) S.C.R Appendix p.xvi

13. R.C.Cooperv. Union (1970) A.Sc.564, (1970) 3 S.C.R.530

14. Zia Mody, Judgements that Changed India, Penguin Random House India, 2013

15. Richard Stith, ‘Unconstitutional Constitutional Amendments: The Extraordinary Power of Nepal’s Supreme Court’, the American university journal of international law and policy, vol.11 (1996): p.47

16. Supra note 13

17. Surya deva, ‘Does the Right to Property create a constitutional Tension in Socialist Constitutions: an analysis with reference to India and China’, NUJS Law Review, vol.1(2008): p.583

18. Palkhivala, We The People, p.208

19. Supra note no.13

20. Prof.Schwartz, A Commentary on the Constitution of the United States Vol.1, 19

21. H.M.Seervai, Constitutional Law of India, 2894 vol.3 (Universal Law Publishing Co.Pvt.Ltd, Fourth Edition., (2006)

22. ibid

23. ibid

24. Donald S.Lutz., “Principles of Constitutional Design” Cambridge University Press, 2006

25. Constituent Assembly Debates 1195-96

26. A.K.Gopalan v. State of Madras (1950) 37 AIR

27. S.P.Sathe, “Judicial Review in India: Limits and Policy, Ohio State Law Journal, Vol.35, no.4 (1974)

28. Ibid

29. Clause (4) and (6) of Article 31

30. State of Gujrat v. Shantilal (1967) 54 AIR 1643

31. (1967) 54 AIR 1643

32. Supra note 26

Received on 12.05.2018 Modified on 22.08.2018

Int. J. Rev. and Res. Social Sci. 2018; 6(3): 238-242 .

DOI: 10.5958/2454-2687.2018.00021.7