Under The Guidance of: Submitted by:- Mr. Manwendra Kumar Tiwari Sumit gehlot Asst. Professor (Law) Rollno.145 Dr. RMLNLU 1 s Semester
Signature of Professor Signature of student
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TABLE OF CONTENTS
1. Introduction...................................................................................................................1 2. Judicial Activism...........................................................................................................2 3. Reasons of Emergence of Judicial Activism.................................................................2 4. Public Interest Litigation (PIL).....................................................................................5 5. Origin & Development of PIL.......................................................................................5 6. PIL & Judicial Activism................................................................................................5 7. ROLE OF JUDICIAL ACTIVISM AND PIL IN CHANGING SOCIETAL NEEDS: I .Labour Jurisprudence & PIL...............................................................................5 II. Women & Children............................................................................................6 III. Prisoners & PIL................................................................................................7 IV. Environment & PIL..........................................................................................2 V. Corruption & Judicial Activism........................................................................5 8. Conclusion.......................................................................................................................5 9. Bibliography....................................................................................................................2
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1. INTRODUCTION Most social movements in India since the 1970s have actively used the Courts-especially the Supreme Court-as a part of their struggles. 1 This has been possible because of the higher Courts activism, especially under the guidance and action of Public Interest Litigation. Through the instrument of Public Interest Litigation, the Court liberated itself from traditional constraints in the legal system so as to reach out to the weaker sections of Indian humanity. 2
The Supreme Court of India has adopted a forward-looking approach since last few years, particularly having regard to the socio-economic conditions prevailing in the country. In fact there are two kinds of approaches which characterise the functioning of the highest Court in every democracy. Either the Court adopts an activist approach or resigns itself to passive role. 3 In a country like India, judges adopt an activist approach to bring about social and economic change and to improve the life conditions of the people and make basic human rights available to them. The Supreme Court has revolved a new doctrine of judicial activism with a view of making basic human rights meaningful and effective for the deprived and exploited sections of humanity. Judiciary is the third wing of the Government empowered to administer justice to the people of India. The Courts are protectors of an individuals Fundamental and Legal Rights when they are violated. But in these days, access to Court is also a difficult task and especially litigation has become costly and unaffordable for socially and economically backward people. The traditional method of providing justice has operated to close the doors of Courts to the poor and has caused denial of justice to millions of people. Only a person having ample of time and money is able to afford the services of the judiciary. Justice P.N. Bhagwati rightly observed that our system of administration of justice suffers two serious defects, namely, delay and expense. 4
Judicial Activism has opened up new dimensions for the judicial process and in the administration of justice and has given a hope of the justice to the million starving people.
1 Balkrishan Rajgopal, Judicial Governance and Ideology of Human Rights, in C Raj Kumar, k Chockalingam(eds), Human Rights, Justice & Constitutional Empowerment, Oxford University Press,2007 as cited in Upadhyay, Videh PIL in India, Lexis Nexis,2007,pno.331. 2 id. 3 Sharma, DR. S.S., Legal Services, PIL & Para-Legal Services, Central Law Agency, 2003, pno.204. 4 In the forwarding note of the book by Justice G.M. Lodha,Fumes, Flames and Fire, unique traders, 1983, pno. VII as cited in Sharma, DR. S.S., Legal Services, PIL & Para-Legal Services, Central Law Agency, 2003, pno.203. 4
The Fundamentals Rights enshrined in the Constitution have no meaning for the large masses of people who are leading a life a poverty and destitution, unless a socio-economic structure in which these rights become meaningful for them is created. The concept of Public Interest Litigation intended to bring justice within the reach of poor masses and to people who are not in a position to have access to Courts. It was initiated for the benefit of a class of people, who had been denied their constitutional and legal rights as they could not have access to the Courts on account of their socio-economic disabilities. Public Interest Litigation or PIL is understood and treated as the citizens invocation and the use of the delivery of legal services in aid of and as a tool of administration of justice. 5
PIL is sometimes termed as active judicialism applied by the Higher Courts (Supreme Courts and High Courts) for the public welfare. 6 It is the function of activist court to convert the claims of the poor, disabled masses into constitutional and legal rights. By judicial activism the court has been trying to bring the enforcement of Fundamental Rights within the reach of weaker sections. 7
2. JUDICIAL ACTIVISM Judicial activism is the view that the Supreme Court and other judges can and should creatively (re)interprets the texts of the Constitution and the laws in order to serve the judges' own visions regarding the needs of contemporary society. Judicial activism believes that judges assume a role as independent policy makers or independent "trustees" on behalf of society that goes beyond their traditional role as interpreters of the Constitution and laws. The concept of judicial activism is the polar opposite of judicial restraint. 8
Acc. to former Chief Justice of India A.M. Ahmadi, Judicial Activism is a necessary adjunct function since the protection of public interest as opposed to private interest happens to be its main concern. 9
5 ROIL Public Interest Litigation, Universal Law Publishing, New Delhi, 2011, pno. 9. 6 Sirohi, J. P. S., Public Interest Lawyering, Legal Aid and Para Legal Services, Allahabad Law Agency, 2003, pno. 21. 7 Sharma, DR. S.S., Legal Services, PIL & Para-Legal Services, Central Law Agency, 2003, pno.205 8 definitions.uselegal.com 9 A.M. Ahmadi, Judicial Process: Social Legitimacy and Institutional Viability (1996) as cited in Sathe, S.P., Judicial Activism in India, Oxford University Press, 2007 pno. 25. 5
Any system that is not keeping pace with the changing society cannot survive for a long time. Indeed, our judiciary has realised the changing situation and has shed the grab of traditional method of administering justice. This is what we call Judicial Activism. The Supreme Court of India has undertaken many ventures such as Bihar under trials; Bhagalpur blinding etc. 10 . It has adopted a proactive approach regarding the peculiar socio-economic conditions prevailing in the country. The judges have adopted an activist approach. In the climate of exploitation, conflict and violence, Judges are not justified in invoking the doctrines of self- restraint and passive attitude. Judicial Activism deals with the political role played by the judiciary, like the other two branches of the state viz., the Legislature and the Executive. The judiciary is required to act impartially and impartiality means not only observe of personal bias or prejudice in judging but also exclusion of irrelevant considerations, even his own political or religious views. Acc. to Prof. Upendra Baxi-Judicial Activism is that way of exercising judicial power which seeks fundamental re-codification of power relations among the dominant institution of State, manned by members of the ruling classes. 11
The expectation from the Higher Courts is increasing rapidly as the groups of citizens bring their grievances daily. The role of judiciary is important because it is the final interpreter of Fundamental Rights and it has a supreme social duty to eliminate injustice and exploitation in the society. The judiciary has to make new procedures to meet the challenges and grievances of the people. The policy of judicial self restraint created a situation in which minority interests are not properly protected. 12
In order to get rid of such problems, the Indian judiciary while adopting pro- active approach pronounced glorious judgements for which the poor masses of the country were waiting for long for ex. in the case Sheela Barse 13 , a letter addressed by Sheela Barse, a journalist, complaining of custodial violence to women prisoners whilst confined in the police lock-up in the city of Bombay was treated as a writ petition under Article 32 of the constitution. The Supreme Court expressed hope that these directions will be carried out both in letter and in spirit.
10 Justice Bhagwati, P.N., How the Supreme Court enforces, Citizens Rights, Extract from Indian Express, Delhi. Dated 31.1.1982 as cited in Sharma, DR. S.S., Legal Services, PIL & Para-Legal Services, Central Law Agency, 2003, pno.204. 11 Wadehra, Dr. B.L. , Public Interest Litigation, Universal Law Publishing2009, pno. 160. 12 Sharma, DR. S.S., Legal Services, PIL & Para-Legal Services, Central Law Agency, 2003, pno.205 13 Sheela Barse v State of Maharashtra [1983] AIR 378 (SC). 6
The issues, which are now coming before the Court, are not so much issues of individual rights, but issues of the rights of the underprivileged sections of society. It illustrates how society is changing against the interest of poor. Now it is the duty of activist court to convert the claims of poor, disabled masses into constitutional or legal rights. By judicial activism the Court has been trying to bring the enforcement of Fundamental Rights within the reach of the weaker sections of society.
3. REASONS OF EMERGENCE OF JUDICIAL ACTIVISM 1 .Collapse of responsible Government: When the legislature fails to make necessary laws in accordance with the changed scenario or where executive fails to implement those laws, it results in erosion of the confidence in the constitution and democracy amongst the citizens. In these kind of extra-ordinary circumstances judiciary tries to take the legitimate step and the result is judicial legislation and government by judiciary. 14
2. Pressure on Judiciary: In the changed circumstances the judiciary cannot remain inactive as Fundamental rights are infringed of the citizens by the government or third parties. The citizens look up to the Courts for the safeguard of their rights and freedom and this all leads to tremendous pressure on judiciary to deal and aid with the suffering masses.
3. Judicial Enthusiasm: The judiciary cannot be a mere spectator. The judges like to participate in the social reforms and changes that take place in the changing times 15 . It encourages the Public Interest Litigation and liberalises the principles of Locus Standi.
14 Wadehra, Dr. B.L., Public Interest Litigation, Universal Law Publishing2009, pno. 161. 15 id. 7
4. Legislative Vacuum: Inspite of the existence of large quantum of pre and post constitutional laws, there still may be certain areas, which have not been legislated upon. It is therefore, upon judiciary to indulge in judicial legislation and to make necessary laws and to meet the changing social needs.
5. Constitution of India: The Constitution of India itself contains provisions by which judiciary is given enough scope to legislate: Under Article 32 of the Indian Constitution, any citizen can approach directly the Supreme Court for the enforcement of Fundamental Rights. Thus, the Supreme Court has been designated as guardian of fundamental rights of the citizen. Article 131 of the Constitution makes the Supreme Court the highest appellate Court and it exercises this appellate jurisdiction in civil, criminal and constitutional matters. Article 141 of the Constitution gives the authority to the Supreme Court to make final declaration as to the validity of law and is binding on all.
4. PUBLIC INTEREST LITIGATION In Indian law, Public interest litigation means litigation for the protection of the public interest. It is litigation introduced in a court of law, not by the aggrieved party but by the court itself or by any other private party. It is not necessary, for the exercise of the courts jurisdiction, that the person who is the victim of the violation of his or her right should personally approach the court. Public interest litigation is the power given to the public by courts through judicial activism. However, the person filing the petition must prove to the satisfaction of the court that the petition is being filed for a public interest and not just as a frivolous litigation by a busy body. It is a non-adversarial procedure evolved by the Supreme Court. 16
16 S.P. Gupta v Union of India [1982] AIR 149(SC). 8
Such cases may occur when the victim does not have the necessary resources to commence litigation or his freedom to move court has been suppressed or encroached upon. The court can itself take cognizance of the matter and precede suo motu or cases can commence on the petition of any public-spirited individual. 17 An analytical perusal of PIL cases before the Indian Supreme Court and High Courts shows that the courts have been really very liberal in granting standing to persons coming from different fields. It is apparent that the courts are more concerned with the kinds of issues raised than with the persons bringing those cases to the courts. 18
PIL is sought to be encouraged in the larger interest of public. Under PIL, the Supreme Court allows any member of the public to seek judicial redress for a legal wrong done to a person or to a determine class of persons, who by reasons of poverty, helplessness or disability or a socially or economically disadvantaged position is unable to approach the court directly. Former Chief Justice P.N. Bhagwati termed it as Social Action Legislation because herein the SC has settled the dismal problem of lack of access to justice to the poor and oppressed sections of Indian society by empowering volunteers representatives or organisations to approach the court on behalf of the poor and oppressed. 19
5. ORIGIN & DEVELOPMENT OF PIL
The concept of public interest litigation were initially sown in India by Krishna Iyer J., in 1976 in Mumbai Kamgar Sabha vs. Abdul Bhai 20 and was initiated in Raihvaiy vs. Union of India(wherein an unregistered association of workers was permitted to institute a writ petition under Art.32 of the Constitution for the redressal of common grievances).
17 www.manupatrafast.com 18 Rao, Mamta, PIL Legal Aid and Lok Adalats, Eastern Book Company, 2004, pno.29. 19 id. 20 Mumbai Kamgar Sabha v Abdul Bhai [1976] AIR 1455(SC). 9
Krishna lyer J. enunciated the reasons for liberalization of the rule of Locus Standi in Fertilizer Corporation Kamgar vs. Union of India 21 (the Court established the principle that decision taken by the management affecting their rights directly their rights directly, the workers of a factory have the locus standi to challenge that major decision of management) and the ideal of Public Interest Litigation was blossomed in S.P. Gupta and others vs. Union of India 22 .
6. PIL AND JUDICIAL ACTIVISM Activism, like beauty, is often in the eye of the beholder. Activism is essential for participative public justice. In India, the opening up of access to courts to the poor, indigent and disadvantaged sections of the nation through Public Interest Litigation, popularly known by its acronym PIL, is unexceptionable judicial activism. 23
Public interest litigation today has great significance and drew the attention of all concerned. The traditional rule of Locus Standi that a person, whose right is infringed alone can file a petition, has been considerably relaxed by the Supreme Court in its recent decisions. Now, the court permits public interest litigation at the instance of public spirited citizens for the enforcement of constitutional or legal rights. 24 Now, any public spirited citizen can move/approach the court for the public cause (in the interests of the public or public welfare) by filing a petition: 1. in Supreme Court under Art.32 of the Constitution; 2. in High Court under Art.226 of the Constitution; and 3. in the Court of Magistrate under Sec.133, Cr. P.C. Therefore, a public minded citizen must be given an opportunity to move the court in the interests of the public.
21 Fertilizer Corporation Kamgar v Union of India [1981] AIR 1981 149(SC). 22 S.P. Gupta and others v Union of India [1982] AIR 149(SC). 23 www.thehindu.com 24 www.manupatrafast.com 10
Judicial Activism which started from the mid-seventies injected the judicial stream which brought about revolutionary change in the outlook of Indian judiciary. Till then the conservative tradition bound institution became sensitive to the need of the weaker sections, downtrodden and traditionally oppressed classes of India. 25
Public Interest Litigation or Pro Bono Public Litigation is litigation at the instance of public-spirited citizen espousing cause of others. 26 From 1979, the judiciary led by the Supreme Court in India became relevant to the nation in manner not contemplated by the makers of the Constitution and became an active participant in the dispenser of social justice. In 1979, Supreme Court advocate Kapila Hingorani drew the Courts attention to a series of articles in a newspaper exposing the plight of Bihar under trial prisoners, most of whom had served pre-trial detention more than the period they could have been imprisoned if convicted. Sunil Batra, a prisoner, wrote a letter to Justice Krishna Iyer of the Supreme Court drawing his attention to torture by prison authorities and the miserable conditions of prisoners in jails. This was taken up as a petition and the Court passed orders for humane conditions in jails.
In 1980, two professors of law wrote a letter to the editor of a newspaper describing the barbaric conditions of detention in the Agra Protective House for Women which was made the basis of a writ petition in the Supreme Court. The exploitation of workmen at construction sites in violation of labour laws was brought to the attention of the Supreme Court by a letter. The slave-like condition of bonded labourers in quarries was brought to the attention of the Court by a social activist organisation. A journalist moved the court against the evictions of pavement dwellers of Bombay. Several cases of this type followed. In dealing with such cases, the Court evolved a new regime of rights of citizens and obligations of the State and devised new methods for its accountability.
25 Santosh Negde: PIL and Control of Government Indian Bar review, Vol. XV Nos. 1& 2 Jan-June,1998 p. 1 as cited in Wadehra, Dr. B.L., Public Interest Litigation, Universal Law Publishing2009, pno. 162. 26 Shukla, V.N., Constitution of India, pno. 226 as cited in Wadehra, Dr. B.L., Public Interest Litigation, Universal Law Publishing2009, pno. 163. 11
In 1982, Justice P.N. Bhagwati correctly stated the purpose of PIL as it originated. He emphasised that PIL a strategic arm of the legal aid movement which is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity, is a totally different kind of litigation from the ordinary. 27
In Public Interest Litigation (PIL) vigilant citizens of the country can find an inexpensive legal remedy because there is only a nominal fixed court fee involved in this. Further, through the so-called PIL, the litigants can focus attention on and achieve results pertaining to larger public issues, especially in the fields of human rights, consumer welfare and environment. 28
7. ROLE OF JUDICIAL ACTIVISM AND PIL IN CHANGING SOCIETAL NEEDS Public interest litigation is an extremely important jurisdiction exercised by the Supreme Court and the High Courts. The Courts in a number of cases have given important directions and passed orders which have brought positive changes in the country. The Courts directions have immensely benefited marginalised sections of the society in a number of cases. It has also helped in protection and preservation of ecology, forests, marine life, wildlife etc. The Courts directions to some extent have helped in maintaining probity and transparency in the public life. 29
1. LABOUR JURISPRUDENCE AND PIL: In Bandhu Mukti Morcha v Union of filed India 30 , the 3-judge bench of the Court entertained a petition filed by an organisation dedicated to the cause of release of bonded labourers. The bench considered the allegation that large number of labourers from Maharashtra, Madhya Pradesh, Uttar Pradesh and Rajasthan were working in inhuman and intolerable conditions in stone quarries situated in Faridabad and some of them were bonded labourers. The Court issued number of directions to Central and State Government to free the bonded labourers.
27 www.thehindu.com 28 www.manupatrafast.com 29 www.legalblog.in 30 Bandhu Mukti Morcha v Union of India [1984] AIR 802 (SC). 12
2. Women & Children: In Gaurav Jain v Union of India 31 , the Supreme Court issued number of directions for the rescue and rehabilitation of child prostitutes and establishment of Juvenile Homes for them. In Vishakha v State of Rajasthan 32 , the Court issued number of guidelines and norms to protect and to enforce the fundamental and human rights of working women, against the sexual harassment. In Lakshmikant Pandey v Union of India 33 , the Supreme Court laid down various principles and norms which should be followed in determining whether child should be allowed to be adopted by the foreign parents.
3. Prisoners & PIL: In Hussainara khatoon v Home Secretary, Bihar 34 , the Supreme Court held that keeping under trials in prison without any trial for long durations, violates their right to speedy trial implicit in Article 21 if the Indian Constitution. In Rudal Shah v State of Bihar 35 , wherein the petitioner was acquitted by the Court of Sessions in 1968 but he was released from jail in 1982, (after 14 years) for inexplicable reasons, the Supreme Court as an intensive measure awarded the compensation of Rs. 35,000 for deprivation of his liberty.
4. Environment & PIL: This is the area where PIL played an important role from 1980 till now. The judiciary through judicial activism increased the arena of Section 21 of the Constitution. 36
31 Gaurav Jain v Union of India [1997] AIR 3012 (SC). 32 Vishakha v State of Rajasthan [1997] AIR 241 (SC). 33 Lakshmikant Pandey v Union of India [1992] AIR 118 (SC). 34 Hussainara khatoon v Home Secretary, Bihar [1980] 1 AIR 81(SC). 35 Rudal Shah v State of Bihar [1983] AIR 1086(SC). 36 Wadehra, Dr. B.L., Public Interest Litigation, Universal Law Publishing, 2009, pno. 166. 13
In M.C. Mehta v Union of India 37 , PIL was filed by the Lawyer complaining about the leak of petroleum gas from the units of M/s. Shriram Foods to the persons in the vicinity. The Court issued the direction to the industry and also to the Union of India to prevent any future leakage and also awarded a sum of Rs. 10,000 each. In M.C. Mehta v Union of India 38 , PIL was filed alleging that Delhis air had become one of the highest polluted in the world due to pollution being caused by the addition of about one lakh new motor vehicles every year. The Supreme Court in the above case directed the Delhi Administration to furnish complete list of prosecutions launched against the heavy vehicles, for causing pollution by infringement of various requirements of law.
5. Corruption & Judicial Activism: The Apex Court has made number of decisions with regard to the corruption charges. In Dinesh Trivedi v Union of India 39 , PIL was filed by Member of Parliament in conjunction with NGO seeking direction to the Government of India to make public the Vohra Committee Report along with supporting materials and also seeking declaration that Official Secrets Act is unconstitutional. The Court held that under Article 19(1) (a), the citizens have a right to know but like all rights, it is also subject to certain reasonable restrictions. The Court directed that high level committee be appointed by the President of India in consultation with the Prime Minister and Lok Speaker which can monitor the investigation and take necessary action.
37 M.C. Mehta v Union of India [1987] AIR 965(SC). 38 M.C. Mehta v Union of India [1991] 2 SCC 353. 39 Dinesh Trivedi v Union of India [1997] 4 SCC 306. 14
8. CONCLUSION
Through the device of Public Interest Litigation, the Supreme Court has made a positive contribution to enforce the rights of prisoners, workers, pensioners, consumers, victims of environmental pollution and others. PIL has played an important role in ensuring that there is accountability of administration to the people, there is a rule of law in all spheres of public life and also in areas like maintaining the independence of judiciary. In fact, scope of PIL has been widened considerably in recent years as the ambit of public interest has undergone a metamorphosis. Now, the beneficiaries of PIL are not only the socially and economically disadvantaged sections of society but also the entire society at large. Through PIL it has been ensure that victims of violation of fundamental rights have been paid adequate monetary compensation, by way of fundamental rights recognised and enforced by the higher judiciary through judicial activism 40 . It is actually a welcome move because no one in the country can deny that even PIL activists should be responsible and accountable. In any way, PIL now does require a complete rethink and restructuring. Anyway, overuse and abuse of PIL can only make it stale and ineffective. Since it is an extraordinary remedy available at a cheaper cost to all citizens of the country, it ought not to be used by all litigants as a substitute for ordinary ones or as a means to file frivolous complaints.
40 Wadehra, Dr. B.L., Public Interest Litigation, Universal Law Publishing, 2009, pno. 168. 15
9. BIBLIOGRAPHY
BOOKS REFERRED:
Upadhyay, Videh PIL in India. Sharma, DR. S.S., Legal Services, PIL & Para-Legal Services. ROIL Public Interest Litigation, Universal Law Publishing, New Delhi. Sirohi, J. P. S., Public Interest Lawyering, Legal Aid and Para Legal Services. Sathe, S.P., Judicial Activism in India. Wadehra, Dr. B.L., Public Interest Litigation. Rao, Mamta, PIL Legal Aid and Lok Adalats.