An Analysis of Judicial Activism and Public Interest Litigation
The article ‘An Analysis of Judicial Activism and Public Interest Litigation’ by Parimal Bajpai is a comprehensive study of the evolution, cause and impact of judicial activism. The author explores the benefit of Public Interest Litigation along with certain drawbacks. The author analyzes various important works of the judiciary done in India but still ponders over the flaws that need to be sorted out in order to make justice accessible for all in the real sense. The article also enumerates situations where frivolous cases hamper the time of the court. Thus, the author feels that it is essential to have a water-tight compartment among the organs of the Government for the effective administration of justice.
Judicial Activism is our duty against legislative adventurism and executive excesses. When the legislature’s law proves to be inadequate to administer justice, courts dare and ought to say what the law is and what the law should be.”…….Justice Kurian Joseph
The legislature, executive, and judiciary are the three organs of government. Their powers and functions are outlined in the Indian constitution, which serves as the supreme law of the land. The primary function of the legislature is to make law, while the executive’s primary function is to implement the law, whereas the judiciary is liable to enforce the law and to serve justice.
What is Judicial Activism
In the modern democratic world, judicial activism is defined as a mechanism used to prevent legislative flaws and executive abuse of power by enforcing constitutional limits. That is, when the executive and legislature fail to fulfil their responsibilities, the Indian Constitution operates in happy harmony with the executive and legislature’s instruments. But independence could become dangerous and undemocratic unless there is a constitutional discipline with rules of good conduct and accountability: without these, the robes may prove arrogant. The belief behind judicial activism is that judges serve as independent “trustees” or as independent policymakers. Judicial activism holds that judges, in addition to their traditional role as interpreters of the Constitution and laws, serve as independent policymakers or “trustees” on behalf of society.
“Judicial Activism” refers to the court’s decision, based on the judge’s individual cleverness or political alliance, that does not go counter the problems inside the content of the statutory gone by the legislature, and the comprehensive use of judicial power to give solutions for a wide range of social wrongs for ensuring legitimate rights. Technically, judicial activism in India can be seen with reference to the review of the frequency of the Supreme Court of India under Article 32 and Article 226 of the Constitution, especially in Public Interest Litigation.
Judicial Activism in India
It is not practically possible to find out the exact time period of the initialisation of judicial activism in India. The judiciary of India is seen as an independent organ of government after the Government of India Act, of 1935. And after the Constitution of India came into force in 1950, it would be appropriate to assume the period of 1935 for following the sources. However, there were few cases before 1935, where some of the judges of High Courts established under the Indian High Courts Act, 1861 displayed a sort of example of judicial activism.
The history of judicial activism can be linked back to 1893 when Justice Mahmood of the Allahabad High Court delivered opposing views and judgment in the case of an under-trial who did not have enough money to hire a lawyer; this decision laid the foundation of activism in India. The Supreme Court, in the 1990s, gradually began to gain more power through constitutional interpretation. Its evolution into an activist court has been slow and subtle. Indeed, the origin of judicial activism can be found in the court’s early assertion.
The doctrine of separation of powers has been adopted in India because the President has executive powers, Parliament and State Legislative Assemblies have legislative powers, and the Supreme Court and subordinate courts have judicial powers. However, in India, this principle has only been partially implemented. This is due to the fact that, while the Legislature and the Judiciary are independent, the Judiciary is supposed to enforce the laws passed by the Legislature through judicial precedents.
In the absence of laws on a specific issue, the judiciary issues guidelines and directions for the Legislature to follow. The executive also supersedes judicial power by appointing Supreme Court and High Court judges. Similarly, the Judiciary examines the law passed by the legislature through its review power, and the legislature, on the other hand, intervenes in the impeachment of the President of India, who is a member of the Union Executive.
Judicial review and activism are essential parts of our justice system because they keep a check on the legislature, who are the lawmakers of the land, so that they do not exceed their powers and work within limits set by the Constitution. The separation of the judiciary from the other organs is taken very seriously in order to ensure that the liberty of the common man is never jeopardised and that any individual (citizen of the state) has access to a fair remedy.
Thus, the Indian Constitution, which is an extremely carefully planned document designed to protect every citizen’s integrity and liberty, has not entirely embraced the doctrine of separation of powers but has drawn heavily from it and kept it as a guiding principle. However, as the Supreme Court has ruled and upheld in a number of cases, the doctrine of separation of power forms an important part of our basic structure doctrine. As a result, it holds a position of utmost importance, albeit altered to meet the needs of a modern, all-encompassing state.
Ram Jawaya v. State of Punjab, AIR 1955 SC 549, was the first major judgment by the judiciary in relation to the doctrine of Separation of powers. The Court, in the preceding case, concluded that the doctrine of separation of power was not fully accepted in India. Later, in the case of I.C. Golak Nath v. State of Punjab,1967 AIR 1643, it was held that-
“The constitution brings into existence different constitutional entitles, namely the union, the state and the union territories. It creates three major instruments of power, namely the Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits. They should function with the spheres allotted to them.”
As previously stated, Judicial Activism in India can be seen in reference to the Supreme Court’s review power under Article 226 of the Indian Constitution, particularly in public interest litigation cases. The Supreme Court was instrumental in developing several principles in public interest litigation cases.
For instance, the principle of “absolute liability” was put forward by the Court in the Oleum gas leak case, “public trust doctrine” in the Kamalnath case etc.
Furthermore, in various cases of public interest litigation, the Supreme Court issued a variety of guidelines. For e.g., in Vishaka v. State of Rajasthan, AIR 1997 SC 3011, a social activist was brutally raped when she was in her office, and an NGO filed a PIL in the Supreme Court on her behalf to protect women’s workplace rights. The court accepted the petition and established the guidelines to be followed in order to protect the interests of women in the workplace. Later Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was enacted on the guidelines served by the Court.
Methods of Judicial Activism
Under the standard of democratic ideals, the judiciary has a significant role, as it has been given the ability to decipher the laws confined by the legislature and coordinate the official in failure of law execution. As a result, there is no doubt that the judiciary deviates from its usual path to the extremist structure in order to effectively respond to the changing needs of the general public. From a legal standpoint, judicial activism is linked to the court framework in various ways.
The concept of “Judicial Review” refers to a method of court reiteration in which judges represent taking out unlawful and unstoppable choices or activities by a public authority exercising public obligations to secure constitutional rights and ensure the laws of the land, where no other productive solution for challenge exists. The court’s intensity of judicial review cannot be legitimately barred or changed, and it has authorised a “hands-off” order to the legislature.
Public Interest Litigation
Despite the fact that Public Interest Litigation is a direct consequence of judicial activism, it emerges as a productive method for the higher judiciary to engage in judicial activism. PIL demonstrates a legitimate activity for reimbursing ordinary interest or shielding from municipal complaints in which people have an interest and their legal rights are violated. PIL encourages any individual to enact the judicial procedure without being unnecessarily troubled; it should be regarded as a console through which the public participates in the judicial review of authoritative acts. Nonetheless, the court can take a PIL case on its own initiative and fulfil its obligations through judicial activism.
There is no doubt that today’s judicial activism is shaped as a path for the judiciary to maintain its capacity as a fortress of justice. To act as constitutional mediators, the judges must be candid in relation to their ideological approach.
Emergence of PIL in India
Many cases of judicial activism have come to light in the last decade. Health, child labour, political corruption, environment, and education are some of the areas in which the judiciary has taken effective steps. Through various cases, including Bandhua Mukti Morcha, Bihar under trials, Punjab Police, Bombay Pavement Dwellers, and Bihar Care Home cases, the judiciary has demonstrated its total dedication to participatory justice, fair procedural standards, immediate access to justice, and the prevention of arbitrary state action.
Today, public interest or social interest litigation is very important and has captured the attention of everyone involved. The Supreme Court’s recent decisions have significantly relaxed the traditional “Locus Standi” rule that a person whose right is infringed alone can file a petition. The court had now allowed public interest litigation at the request of “Public-Spirited Citizens” for the enforcement of constitutional and legal rights. Now, any public-spirited citizen can file a petition in the court for a public cause (in the interests of the public or public welfare) before:
1. Supreme Court (under Article 32 of Indian Constitution).
2. High Court (under Article 226 of Indian Constitution).
3. Magistrate (under section 133 of Code of Criminal Procedure).
The following reasons for economic integration of the Locus Standi rule were outlined in the Fertilizer Corporation Kamgar Union case, (1981 AIR 344):
- The use of state power to combat corruption may result in unrelated interference with the rights of individuals.
- The pursuit of social justice necessitates a liberal judicial review of administrative action.
- Restrictive standing rules are completely antithetical to a healthy administrative action system.
- Activism is essential for participative public justice.
Thus, a public-spirited citizen must be given the opportunity to petition the court in the public interest.
The very first case in relation to PIL which was filed in the Supreme Court of India was Hussainara Khatoon v. Union of India, 1979 SCR (3) 169. This PIL was concerned with under-trial prisoners of Bihar Jail. The verdict in context to the PIL filed resulted in the release of forty thousand prisoners who were under trial and the right to speedy remedy was recognised as a fundamental right.
The Supreme Court firmly established the validity of public interest litigation in S.P. Gupta v. Union of India, AIR 1982 SC 149, popularly known as the “Judges Transfer Case.” A large number of public interest litigation petitions have been filed since then. It should be noted promptly that PIL, at least as it has adapted in India, is not the same as a lawsuit or group litigation. Unlike the latter, which is motivated primarily by efficiency concerns, the PIL is concerned with ensuring equal access to justice for all societal constituents. In India, public interest litigation (PIL) has been a part of constitutional litigation rather than civil litigation. Therefore, to appreciate the evolution of PIL in India, a basic understanding of the constitutional framework and the Indian judiciary is required.
Is there any important role of PIL?
PIL plays an important role in the legal system because it provides a path to justice for those who are marginalised in society and may not even be aware of their rights. Furthermore, it offers a mechanism for enforcing magnified rights for which identifying an aggrieved party is difficult or where aggrieved parties have no opportunity to approach the Court. PIL could also help to improve governance by holding the government responsible. The concept of Public Interest Litigation carries a lot of benefits with itself.
The principal advantage of PIL is that it does not focus on any individual rather it addresses a larger concern of a huge number of people and to be precise, the lower section of society, for whom it is not practically possible to meet the expenses of the court. Another advantage of PIL is that it has laid no restrictions on any person to file PIL. There are no limitations such as whether the person who is filing the PIL is abused or not. The other merit of PIL is that it enables the party to speedy recovery as it can be directly filed in the High Courts or the Supreme Court of India.
Lastly, PIL helps democratic society to play a more active role in raising public consciousness about human rights, giving oppressed citizens a voice, and encouraging them to engage in government decision-making. In the Indian context, PIL has the potential to achieve all or a large number of these critical policy objectives. However, the Indian PIL experience demonstrates the importance of ensuring that PIL does not become a back door into the temple of justice in order to satisfy private interests, consolidate political scores, or obtain easy publicity. Courts should not use PIL to run the country on a constant basis or to intrude into the executive and legislative branches’ valid realms.
The only way forward for India and other jurisdictions is to strike a balance between permitting valid PIL cases and restricting frivolous ones. One’s approach to achieving this goal is to limit PIL to situations where access to justice is hampered by some deficit. Another effective method could be to impose fines on those who are found to be using PIL for illegitimate purposes. Simultaneously, it is worth considering if a certain type of economic incentives, such as a protected cost order, legal aid, pro bono litigation, funding for PIL civil society, and amicus curie briefs, must be provided in return for not preventing reasonable PIL cases. This is significant because, given the specific underlying rationale for PIL, potential plaintiffs are unlikely to be resourceful all of the time.
Misuse of Public Interest Litigation
It appears that the misuse of PIL in India has been for a very long, but now it has reached a stage where it is undermining the very purpose for which PIL was introduced. In other words, the PIL’s original sake is gradually overshadowed by its dark side.
1. Peripheral Goal
In PIL, the public is replaced by private or publicity. One of the main reasons why the courts supported PIL was its utility in serving the public interest. However, it is questionable whether PIL is still committed to that goal. As we have seen, almost any issue is presented to the court under the guise of public interest due to the allures that PIL jurisprudence provides. Of course, distinguishing between ”public” and ”private” interests is not always easy, but it is arguable that courts have not rigorously enforced the requirement that PILs be aimed at espousing some public interest. It is critical that courts do not allow the word ”public” in a PIL to be replaced by ”private” or ”publicity” by enforcing stricter gatekeeping.
2. Inefficient use of limited judicial resources
If handled properly, the PIL has the potential to contribute to the efficient resolution of people’s grievances. However, given that India has a much lower per capita judge population than many other countries, and given that the Indian Supreme Court and High Courts have a massive backlog of cases, it is puzzling why the courts have not done enough to stop non-genuine PIL cases.
Indeed, by allowing frivolous PIL plaintiffs to squander the courts’ time and energy, the judiciary may be violating those principles. In fact, allowing frivolous PIL leads to a waste of courts’ time and energy, and the judiciary may be violating the right to a speedy trial of those who are waiting for the judgment of their private interests through formal grievance litigation. A related issue is that courts are taking an inordinate amount of time to resolve even PIL cases. The fact that courts take years to resolve cases may also indicate that courts were not the best forum for dealing with the issues at hand as PIL.
3. Judicial Progressivism
Judges are human, but it would be unfortunate if they admitted PIL cases because they raised an issue that is (or may become) popular in society. In a democracy, however, the desire to become people’s judges should not prevent admitting PIL cases that involve an important public interest but are potentially unpopular because the court is not elected by the people and is not accountable to them in the same way that the House of People is.
However, it will gain a permanent place in the hearts of the people and increase its moral authority if it can shift the focus of judicial review away from the numerical concept of minority protection and toward the humanitarian concept of protecting the weaker section of society. It is argued that courts should refrain from viewing themselves as crusaders constitutionally obligated to redress all democratic failures. They do not have this authority, nor are they capable of achieving this goal.
Even if the grievance is in the public interest, PIL should not be the first step in resolving it. PIL should not be allowed to become a routine affair that is not taken seriously by the Bench, the Bar, and, most importantly, common people in order to remain effective. The overuse of PIL for every possible public interest sacrificed the original commitment to use this remedy only, which is to enforce the human rights of victims and disadvantaged groups.
If a democratic society and marginalized people lose faith in the effectiveness of PIL, it is destined to fail. In the case of Ashok Kumar Pandey v. State of West Bengal, writ petition (crl.) 199 of 2003, the court held that if it is found that the petition filed in the name of PIL is to foster personal disputes, then the court should dismiss the case.
Based on the above-mentioned issues, the Judiciary must formulate and implement specific solutions to ensure that the sanctity of judicial activism in the country is preserved while also addressing the interests of all classes of stakeholders in a proper and judicious manner.
A Detailed Critique of Judicial Activism vis PIL and the issues involved
Public Interest Litigation has proven to be a valuable and novel judicial remedy. It has made the rhetoric of fundamental rights a living reality for at least some of our exploited and oppressed humanity. Prisoners awaiting trial who have been imprisoned for inordinately long periods of time, inmates of asylums and care homes living in deplorable conditions, children working in hazardous occupations, and other disadvantaged groups.
However, the country’s development of Public Interest Litigation (PIL) has only recently revealed its own pitfalls and drawbacks. Genuine causes and cases of public interest have indeed receded into the background, and irresponsible PIL activists all over the country have begun to play a significant but non-constructive role in the arena of litigation. In a recent case, the court, while dismissing an ostensible PIL against the public auction sale of a plot of land, held that the matter had been raised not in the public interest at all but to ventilate a private grievance.
Many PIL activists in the country have recently discovered the PIL to be a useful tool of harassment because frivolous cases could be filed without the investment of large court fees required in private civil litigation, and deals could then be negotiated with the victims of stay orders obtained in the so-called PILs. The decrease of the locus standi requirement has allowed privately motivated interests to pose as public interests, just as a weapon designed for defence can be used equally effectively for the offence.
PIL abuse has become more common than its use, and genuine causes have either faded into the background or begun to be viewed with the suspicion generated by baseless causes promoted by privately motivated interests under the guise of so-called public interests.
The debate over the limits of judicial activism, particularly in the field of PIL, has also been heated in the political arena. Concerns have been raised in political circles about the judiciary’s attempt to enter the realm of policymaking and policy implementation through PILs.
In Rajya Sabha, a private member’s bill titled Public Interest Litigation (Regulation) Bill, 1996 was introduced. The PIL, according to it, was being widely abused. Furthermore, PIL cases were given precedence over other cases that had been pending in court for years. It was argued that if a PIL petition failed or was proven to be fraudulent, the petitioner should be imprisoned and made to pay the damages.
The credibility of the PIL process has been affected by assertions that the judiciary is overstepping its jurisdiction and is unable to supervise the effective implementation of its orders. It is also particularly emphasized that PIL is being abused by people agitating for private grievances in the name of public interest and seeking publicity rather than advocating for a public cause. The judiciary has recognized and addressed these concerns on several occasions. Another source of concern is that as the judiciary enters the legislative arena, it will be forced to devise new remedies and mechanisms to ensure effective compliance with its orders.
There is no greater threat to a judicial system’s credibility than the perception that its rules can be broken with ignorance. The court must refrain from issuing orders that cannot be enforced, regardless of whether the fundamental right is violated or the cause is. It is pointless to issue a high-profile mandamus or declaration that will only exist on paper. Although the Supreme Court usually issues interim relief orders right away, a final verdict is rarely issued, and in most cases, the follow-up is inadequate.
The Supreme Court has surrounded certain rules in order to direct the abuse of PILs (to administer the administration and transfer of PILs). The court must exercise caution to ensure that the applicant who approaches it is acting in good faith and not for personal gain, private gain, political or other slanted considerations. The court should not allow political parties or other authorities to use its process to delay an administrative decision or increase community targets.
There may be situations where the PIL may influence the privilege of people who are not under the constant gaze of the court; thus, in shaping the relief, the court should constantly consider its effect on those interests, and the court must exercise most noteworthy alert and receive technique guaranteeing adequate notice to all interests prone to be influenced.
The judicial activism embodied in the PIL strategy paves the way for public-spirited and intelligent folks to engage in India’s building process and demonstrates the legal system’s ability to provide justice to the poor and oppressed. Many medieval practices still exist in India, including prisoner relief, the plight of women in domestic places, victims of trafficking, children in juvenile institutions, and slavery of bonded and migrant labourers, untouchables, tribals, and others. The attempt has been made to demonstrate how the Supreme Court is emerging as the guardian of the rights and liberties of victims of violence, cruelty, and torture by taking up such cases.
As a result, the activist relative proximity to PIL, the Supreme Court of India has taken a pace and modern approach in the interest of justice by simplifying the most complex and outmoded procedures. The Court has taken justice to the doorsteps of the poor, the unprivileged, and exploitative sections of society by expanding the reach of Article 32 and speeding up the process of socio-economic revolution, and thus has revolutionised constitutional jurisprudence in the 1980s.
Maintaining constitutionalism requires striking a balance among the branches of government. Since judges are considered non-aligned adjudicators under common law adversarial jurisprudence, and they serve to promote values and dignity. The judiciary should be a distinct organ with judicial dispute resolution and political law-making functions, and it should work to fulfil the statutory dents for upholding public longing without interfering with the power of others. In fact, judicial activism is a very effective approach to almost every problem that exists today, but judicial dominion is never desirable. Furthermore, the exhaustion of constitutional principles of separation of powers is not desired. As a result, this two-edged sword should be used with caution and discernment.