Chapter- 4

PUBLIC INTEREST LITIGATION AND JUDICIAL ACTIVISM

Defining the sphere of Judiciary

II Meaning, Development and Working of Judicial Activism

Ill Public Interest Litigation and Judicial Activism

IV Concluding Remarks
 CHAPTER4

PUBLIC INTEREST LITIGATION

AND
JUDICIAL ACTIVISM

I. DEFINING THE SPHERE OF JUDICIARY

A strong, independent, impartial and well-organised judiciary plays

an important role in the democratic system of governance. It not only

prevents the arbitrary use of governmental authority but also safeguards

the rights and liberties of citizens. Moreover, under the federal form of

government, the judiciary has the additional role of the guardian of the

constitution. 1

This view of judiciary having an independent sphere is an off-shoot

of the famous doctrine of separation of powers - the legislative powers of

the Parliament and the judicial powers of the Supreme Court, which is

one of the three broad features of the Constitution. The others are - Rule

of law, i.e. supremacy of law; and distribution of powers between various

levels of Government, i.e. Central, States and Local.

Montesquieu and Locke in Europe and Madison in U.S.A. believed

'lat separation of powers with checks among the three branches of the

•ment will ensure smooth working of the legal system. The basic

tdicia/ Review in India, Radiant, New Delhi, 1988, p.1.

139
premise of the doctrine of separation of powers is limited role of

government, limited expenditure and limited administrative structure. 1

The doctrine also assured that legislature will play a leading role

and the other two organs, i.e. judiciary and administration will be

neutral. 2 The logic behind the doctrine was that legislature will take care

of the interest of the majority of the population and judiciary will protect

minority rights and administration has only to implement the statutes

passed by the legislature.

In India the demand for the separation of the judiciary from the

executive owes its origin as far back as times of Raja Rammohan Ray as

a result of reaction to the British rule which combined the two functions

in order to suppress the national movement. Because they were

concerned not with justice so such as to keep their power by all means

fair or foul. 3

Soon after Rammohan Ray a band of devoted workers of whom

Mr. Dadabhai Naroji was the most prominent took up the cause and

association were formed for the purpose in Bengal, Bombay and Madras.

With the spread of education the movement gained in volume and

1
K.C. Gopalkrishna, Administration and Law, Journal of Indian Institute of Public
Administration, Sept-Oct. 1995, p.694.
2
Ram Jainaya v. State of Punjab, (1995), 12, SCR, 225(236).
3
B.L. Garg, Problems of the Separation of Judiciary in India, Indian Journal of
Political Science, Vol.25, 1964, p.124.

140
momentum and the Indian National Congress took up the subject in 1885.

The public opinion about this demand was so strong that the Constituent

Assembly could not resist it in spite of the difference of the opinion

between two groups. While one group consisting of Bakshi Tekchand, Rik

Sidwa and H.V. Kamatu supported the separation, the other group

consisting T.T. Krishnamachari, K.M. Munshi and B. Das opposed it. In

the original Draft Constitution there was no provision for it but due to the

pressure of public opinion, Dr. B.R. Ambedkar introduced it on the 24th

November, 1948, in the form of an amendment and thus a new Article

39A was proposed to the Draft. Later on, in the final draft the articles

were renumbered and Article 39A. thus become Article 50 of the

constitution. 1

II. MEANING, DEVELOPMENT AND WORKING OF JUDICIAL ACTIVISM

A comparatively recent development in the judicial field is the

emergence of judicial activism which is essentially action by the judiciary

to realise social justice. According to Justice P.N. Bhagwati, it is nothing

but another form of constitutionalism which is concerned with

substantivisation of social justice. It tries to free the judiciary from

constraints of traditional judicial processes in the interests of social justice

and permits or rather enjoins a more dynamic interpretation of the social

values enshrined in the Constitution, beyond what the framers of

1
Constituent Assembly Debates, Voi.VII, No.13, p.590.

141
Constitution had contemplated. A good example of judicial activism is

seen in the Supreme Court ruling that legal aid to the poor, accused in a

criminal trail, is an essential requirement of reasonable, fair and just

procedure and is implicit in Article 21. So also is its advocacy of the right

to speedy trial and its view that the right to life includes the right to live

with basic human dignity and the right to livelihood.

MEANING OF JUDICIAL ACTIVISM

Judicial activism is not a new phenomenon, way back in 1893,

Justice Mahmood of the Allahabad High Court delivered a dissenting

judgement which served the seed for judicial activism in India. It was a

case of an under trial who could not afford to engage a lawyer. So the

question was whether the court could decide his case by merely looking

his papers. Justice Mahmood held that the precondition of the case being

heard would be fulfilled only when somebody speaks. 1 In fact, Judicial

activism is not a distinctly separate concept from usual Judicial activities.

The expression activism lexical as well as ordinary parlance, means 'being

active', doing things with decision and the expression activism should

mean one who favours intensified activities. 2 In this sense every Judge is,

1
See Jutice J.S. Verma's interview with Manoj Mitra in India Today, March 15,
1996, p.122.
2
B.L. Fadia, Indian Government and Politics, Sahitya Bhawan, Agra, 1996, p.833.

142
or at least, should be an activist, as Justice Krishna lyer observed, every

judge is an activist either on the forward gear or on the reverse.

The activity of Judiciary can be of two types, i.e. either in support

of the legislative and the executive policy choices or in opposition to

them. But it is the latter pattern which is usually understood as judicial

activism. The essence of true judicial activism is the rendering of

decisions which are in tune with the temper and tempo of the times.

Hence an activist judge activates the legal mechanism and makes it play a

vital role in socio-economic process. Activism on the part of the judiciary

furthers the cause of social change or articulates the concept such as

liberty, equality or justice. In contrast to the traditional concept of

judiciary as a mere umpire, it works as an active catalyst in the

constitutional scheme. Therefore, judicial activism refers to the power of

judicial review dealing with the issues which they have traditionally not

touched.

Judicial review is not an expression exclusively used in

constitutional law. Literally, it means the revision of the decree or

sentence of an inferior court by a superior court. Under general law, it

works through the remedies of appeal, revision and the like, as prescribed

by the procedural laws of the land, irrespective of the political system

which prevails. Judicial review, has, however, a more technical

significance in public law, particularly in countries having the written

143
Constitutions. in such countries it means that the courts have the power

of testing the validity of the legislative as well as other governmental

actions. 1

Thus the expression judicial review can be used both in a narrow

sense and in a wider sense. In its narrow sense, judicial review is

essentially collateral. It does not go into the merits of the impound

decision but examines only its constitutionality or its basic legality. The

attack is collateral. Here the contention is not that on merits the impound

decision was wrong but that decisions was given either without

jurisdiction or that it was contrary to the Constitution or to the

fundamental provisions of a statue under which the administrative

authority was acting. 2

In its wider sense, judicial review would include even appeals on

the merits of decision of the administrative authority or even civil or

criminal courts. All the questions of the fact and law, i.e. merits of the

whole case would be open to review. In fact it is reconsideration of case

by a higher court. 3 Hence it is a usually a vertical review. In this type of

review, dispute under test may be between two private parties or

between a private party and the State or a public authority, but it is

1
Baldev Singh, Jurisprudential Basis of Judicial Review in India!. Civil and Military
Law Journal Vol. 30, No.1, Jan-March 1994, p. 44.
2
V.S. Despande, Judicial Review in India, Radiant, New Delhi, 1988, p. 14.
3
Supranote 1, p. 21 .

144
mostly a question of private law. But the narrower view is essentially a

question of public law. For all practical purposes judicial review has

acquired a narrow usage to signify the power of the courts to pass upon

the constitutionality of legislative acts which fall within their normal

jurisdiction to enforce such as they find to be unconstitutional and hence

The collateral judicial review may be of two kinds depending on the

nature of the State action against which it is directed. If it is a review of

action taken by the executive department or administrative authorities of

State, it is called judicial review of administrative action. If it is a review

of a statute of legislative or subordinate legislature it is called judicial

review of legislation.

Both kinds of judicial review have much in common regarding their

origin and rationale, but their development has been on different lines.

The basic difference is the difference between rule of government and

limited government. The former works under parliamentary sovereignty,

but the latter postulates constitutional limitations of legislative power.

Review of administrative action is purely judicial while the review of

legislation is semi-political as it has to test the validity of legislative policy

on the anvil of the Constitution. The former is used very widely because

1
Edward Corwin, The Constitution and What it means Today, Princeton University,
1973, pp. 142-143.

145
the administrative action touches individuals at many more points that the

validity of legislation does judicial review of administrative action is an

essential part of the rule of law. The area of its exercise is therefore

expanding to meet the felt necessities of the times. The more the

administrative action of the welfare State expands, the more the scope of

its judicial review expands on the other hand, the judicial review of

legislation may or may not be an essential part of the rule of law,

depending upon the conditions obtaining in a particular country or

. 1
SOCiety ..

DEVELOPMENT OF JUDICIAL ACTIVISM

After understanding the meaning of judicial review, it would be

relevant here to look into its genesis. It is generally asserted that the

institution of judicial review originated in United States of America but a

deeper analysis reveals that this is true only in a very limited sense

because historically, the origin of this situation can be traced to English

legal history. The genesis of judicial review may be traced in the

celebrated pronouncement of Chief Justice Lord Coke in Dr. Bonham case

where he asserted that an act of Parliament could be subjected to judicial

review and adjudged void by the court. This view was reiterated by the

next Chief Justice Hobart in 1615. 2 The doctrine of Judicial Review,

1
Supranote 9, p.32.
2
Ibid, p.45.

146
however, did not take root in England because of two reasons. First, the

sovereignty of Parliament did not brook any rival, i.e., the Power of

Parliament is absolute and without control. Second, the spirit of

moderation of British people ensured the rule of law without judicial

review. 1 Thus, it failed to create any permanent impression in England,

the land of Parliamentary sovereignty. In this way the modern concept of

judicial review is, therefore, considered to have taken birth in the United

States.

It was in Marbury v. Madison case, that Chief Justice Marshall of

the American Supreme Court in the year 1803, judicially adopted the

principle of judicial review by declaring 'constitution is what Judges say it

is'. This doctrine of judicial review as propounded by Chief Justice

Marshall has reiterated by the judge of repute like Taney, even Hungnes,

Harlan, Stane, Warren and Burger. Thus it can be concluded that the idea

of judicial review sparked in England but was adopted as a jurisprudential

concept only in the USA.

The basic issue of judicial review in the modern democratic society

inheres within itself the apparent possibility of an anti-thesis between a

rigid attitude in reserving the fundamental human rights and the effective

pursuit of a social welfare objective by the legislature in accordance with

1
D.D. Basu, Commentary of the Constitution of India, Vol. 1, 1955, p. 151.

147
the dominant socio-economic political factors. 1 Judicial review under the

Constitution of India stands as a class by itself. It represents a synthesis

of the ideas of several Constitutions of the world, particularly of UK and

USA, processed and adjusted to meet the specific situations, arising out

of the prevailing socio-economic and political conditions within the

country. Under the Government of India Act 1935, the absence of a

formal Bill of Rights in the constitutional document very effectively limited

the scope of the courts review power to an interpretation of the Act in

the light of the division between the Centre and the States units. 2 But in

Post-independent India the judiciary was contemplated as an extension of

the rights and an arm of social revolution. 3 Therefore, judicial review was

considered to be an essential condition for the successful implementation

of Fundamental Rights and Directive Principles of State Policy.

In India, the proper position of the judiciary and its power of judicial

review should be understood in the light of the governmental structure

adopted by the framers of the Constitution. The governmental structure

was a via media between the American style of judicial supremacy and

the English principle of parliamentary sovereignty. The framers of the

Constitution adopted the British model of parliamentary government and

1
S.N. Ray, Judicial Review and Fundamental Rights, Eastern Law House, New
Delhi, 1974, p. 1.
2
Op.cit., p. 4.
3
G. Austin, The Indian Constitution- Cornerstone of a Nation, OUP, 1966, p. 164.

148
made the Parliament the focus of political power in the country, however,

they did not make it a sovereign law-making body like its English counter-

part. Although the power of judicial review is expressly mentioned in the

Constitution, it is not implied one like that of the Constitution of United

States. Unlike in the United States, the expression used is 'procedure

established by law' and not 'due process of law'. It has been provided in

the context of federal structure with defined and delimited competence of

Central and State legislature. In the long drawn controversy regarding the

concept of individual rights vis-a-vis society's needs, that characterised

the deliberations of the Constituent Assembly during the framing of most

of the constitutional judicial review was circumscribed to a great extent.

Members of the Constituent Assembly agreed upon one

fundamental point, that judicial review under the new Constitution of

India was to have a more direct basis than in the Constitution of USA,

where the doctrine was more on 'inferred' than 'conferred' powers, and

more implicit than expressed through constitutional provisions. In the

report of the Adhoc Committee of Supreme Court, it was recommended

that a Supreme Court, with jurisdiction to decide upon the constitutional

validity of Acts and laws can be regarded as necessary implication of any

federal scheme. 1

1
Reports of the Adhoc Committee of Supreme Court, 1st Series, p. 61.

149
 This was eventually extended to and interpretation of the laws of

executive orders on the touchstone of Fundamental Rights. In the Draft

Constitution of India, this power of juridical review in relation to

Fundamental Rights found formal expression in Article 5(2) and Article

25(1) and (2), which when adopted by the nation's representatives in the

Constituent Assembly on 26th November, 1949 became new Articles

13(2), 32(1) and (2), respectively under the Constitution of India.

However, there was a sharp controversy among the members of the

Constituent Assembly over the question of reconciling the conflicting

concepts of individual fundamental and basic results and socio-economic

needs of the nation. A compromise had to be struck between the two

extreme view-points of individualism and socialism, and judicial review,

which was recognised as the basic and indispensable precondition for

safeguarding the rights and liberties of the individuals was sought to be

tempered by the urge for building up a new society based on the concept

of socio-economic welfare.

The differences of opinion on the acceptance or rejection of the

"due process of law" clause, were manifested at least between two

leading figures namely K.M.Munshi, who wanted its adoption and Alladi

Krishnaswami Ayyar who opposed that move. Thus the "due process of

law" clause became the "first causality". In Article 21 of the new

Constitution of India (Article 15 of the Draft Constitution). It was replaced

150
by "except according to procedure established by law". In a note Article

to 15 of the Draft Constitution, the Drafting Committee justified and

referred to Article 31 of the Japanese constitution of 1946. 1 One reason

for limiting the scope of judicial review could be that the framers of the

Constitution may h·ave feared that the unbridled power of judicial policy

making could usher in a series of "judicial vagaries" and prevent the

national leadership from achieving its socio-economic goals in pursuance

of a welfare State. As G. Austin puts it: The Assembly had created an

idol and then fettered at least one of its arms ...... the limitations on the

court's review power .... however were drafted in the name of social

revolution. 2

Simultaneously, a cluster of provision were incorporated into the

constitutional document so as to restrict the rights envisaged in Articles

19, 21 and 31 to reduce the Supreme Court's power of judicial review to

"formal view". Besides this a comparatively flexible amending procedure

was adopted to improve the ultimate will of the popular representative in

the matter of remaining constitutional limitations. Thus to all intents and

purposes the seed of discord between the legislature and the judiciary in

India was unconsciously sown by the fathers of the Constitution. D. D.

Basu rightly points out that: "The factors which fostered growth of

1
Constituent Assembly Debates, 13 December 1948, p. 1000.
2
Supranote 18, p.1 74.

151
judicial supremacy in the USA are either absent or are not so much

prominent in our constitutional system. 1

The power of judicial review of legislation have been specifically

recognised in Article 15, 32, 131, 216 and 137 of the Indian

Constitution. The courts can strike down a law passed by the Parliament

or State Legislatures if (a) it is beyond their legislative competence as

provided in Articles 245, 246, 248 and other provisions of the

Constitution, or 245(b) it violated any fundamental rights as provided in

Article 246(b); or 248(c) it transgressor any other provision of the

Constitution.

Judicial review over executive action signifies that if any executive

action is taken without the authority of law it can be stuck down, or if

any executive action violates any fundamental right of an individual, the

court can enforce that rights by issuing an appropriate writ. Similarly, if

the Government has made any rule, order or by-law, which is not within

the scope of delegated legislation, such rule, order or by-law may be

struck down. Through the power of judicial review, the Supreme Court

can keep a check in arbitrariness and illegality which arises out of

manifold authority exercising discretionary powers.

1
Supranote 15, p.160.

152
WORKING OF JUDICIAL ACTIVISM

The working of the judicial decision-making during last four

decades has been marked by two conflicting attitudes of judicial self

restraint and judicial activism at different times. The interpretation of

nature and scope of judicial review in India began with the case of A.K.

Gopalan v. State of Madras, (AIR 1950 SC 27). The decision in this case

scrupulously avoided the notions of natural justice and due process and

constructed the law in favour of literal judicial interpretation in India and

provided a firm base for judicial self-restraint. The guidelines set by the

Supreme Court in the case of Romesh Thapar State of Madras v.

Champakam Dorai Rajan (AIR 1951, SC 2261 ), where fundamental rights

were made sacrosanct, (see M.S.M. Sharma v. Sri Krishna, (AIR 1959 SC

395), Shankar Prasad v. Union of India (AIR 1951 SC 458), and Sajjan

Singh v. State of Rajasthan, (AIR 1965 SC 456). "This period of 17 years

( 1950-67) reflected a trend of judicial self-restraint. There was no

confrontation between the judiciary and the executive though tensions

between the judiciary and the legislature and the executive were visible.

Judicial review during this period failed to strike a happy compromise

between the two extremes of legislative penchant on constitutional

protection of individual liberties. " 1

1
Supra note 1 5, p. 70.

153
 This tension, however, turned into confrontation in 1967 when the

constitutionality of the Constitution (17th Amendment) Act was

challenged in I. C. Goloknath v. State of Punjab, (AIR 1967 SC 1943). The

Court ruled that Parliament had no power to amend the Constitution

embodied in Part Ill, thereby over-ruled the court's earlier decision in the

Shankar Prasad case and Sajjan Singh case. The next land mark

judgement was the famous Bank Nationalisation case R. C. Cooper v.

Union of India, (AIR 1970 SC564), where the Court declared the Banking

Companies (Acquisition and Transfer of Undertakings) Act, 1969 void.

The era of judicial activism started by the Goloknath case and the Bank

Nationalization case was carried forward by the Privy Purse case (Madhav

Rao Sindhia v. Union of India (AIR 1970 SC 530). The open confrontation

between the Parliament and the judiciary led to the declaration of the mid

term poll in 1971 in which Mrs. Gandhi won with a thumping majority

and subsequently the Constitution 24th, 25th and 29th Amendment Acts

were pushed through the Parliament.

The constitutional validity of the Constitution 24th, 25th, 26th and

29th Amendment Acts was challenged in 1973 in Keshvanand Bharati v.

State of Kerala, (AIR 1973 SC 1961) in which the Supreme Court

reversed the ruling of the Golaknath case and allowed Parliament to

exercise the power to amend the Constitution but not the basic structure

of the Constitution. The confrontation between the legislature and the

154
judiciary led to an extreme step by the Government to bring pressure on

the courts to soften them and the concept "committed judiciary" as a

means was revealed by Mohan Kumar Mangalam.

Soon the three Senior judges of the Supreme Court Justices Shelat,

Hegde and Grover, who were in the Keshavanand Bharti case bench,

were suppressed and Justice A.N. Roy was appointed as the Chief

Justice of India on the retirement of Justice S.M. Sikri. This was

something like Roosevelt's threat to 'pack the court'. The suppression

subsequently of Justice H.R. Khanna was yet another instance of packing

the court.

The decision of Justice J.M.L. Sinha of the Allahabad High Court

on 12th June, 1975 in which Prime Minister Mrs. Indira Gandhi was held

guilty of corrupt electoral practices and was disqualified to hold public

office for the next six years, led to the declaration of internal emergency

on 25th June, 1975. The Supreme Court soon struck down Article

328A(4) added by the Constitution (39th Amendment) Act and thus

maintained the dignity of justice. But the Supreme Court soon descended

from the right into dare valleys below - where dwells the Habeas Corpus

case. (ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207). The five

separate judgements in this case reflects the height of judicial self-

restraint. With the introduction of the Constitution (42nd Amendment)

Act to institutionalise the emergency, the power of judicial review was

155
taken away to establish the complete and total sovereignty of Parliament.

However, the tide was turned after the passing of the Constitution (Forty-

third Amendment) Act in December, 1977 by Janata Government, which

rested the pre-emergency position. Parliament's unlimited power to

amend the Constitution was challenged in Minerva Mills v. Union of India,

AIR 1980 SC 1789, which was a set back to the unlimited powers of

Parliament to amend the Constitution when it said that basic structure of

the Constitution could not be altered. After the Emergency, judiciary did

show some signs of activism but the judgement of the Supreme Court in

the famous judges Transfer case (S.P. Gupta v. Union of India, AIR 1980

SC 1 622) once again raised the question of the relationship between the

executive and the judiciary. Many people felt that those decisions

deflected 'judicial restraint'. However, in several other issues the Court

ruled in favour of the citizen. The most important dimension of the verdict

in the judges case was that it laid down the principles of litigation in the

public interest as opposed litigation for the protection of one's own

interest thereby enlarged the area of judicial review.

Ill. PUBLIC INTEREST LITIGATION AND JUDICIAL ACTIVISM

PIL and judicial activism go hand in hand. PIL itself is the result ot

judicial activism. Under Article 32, violation of a fundamental right must

first be shown before the Supreme Court can directly entertain a PIL

matter. Besides other rights, life and personal liberty in Article 21 have

156
been given a very wide interpretation, e.g., in Francis Coralie Mullin v.

Administrator, Union of Territory of Delhi (AIR 1981 SC746), wherein the

Court has observed through Bhagwati J., "we think that the right to life

includes the right to live with human dignity and all that goes along with

it. Every act which offends against or impairs human dignity could

constitute deprivation pro tanto of this right to live .... " It has been

reiterated in subsequent cases, for example in P. Nalla Thampy Terah v.

Union of India (AIR 1985 SC 135), Ranganath Misra, J., has observed,

"The right to life has recently been held by this court to connote not

merely animal existence but to have a much wider meaning to include the

finer graces of human civilization (e.g. efficient and safe means of

communication). 1

In the Bandhua Mukti Morcha v. Union of India (AIR 1984 SC 802),

Bhagwati J. has observed " ... the state can certainly be obligated to

ensure observance of such legislation for inaction on the part of the State

in securing implementation of such legislation would amount to denial of

the right five within human dignity enshrined in Article 21 ... He held that

the Central Government and State of Haryana can, therefore, be obliged

by writ petition under Article 32 to ensure observance of various social

welfare and labour laws. In Neeraja Chawdhary v. State of Madhya

1
S.K. Agarwal, Public Interest Litigation in India : A Critique, N. M. Tripathi Pvt.
Ltd, Bombay, 1985, p.36.

157
Pradesh (AIR 1984 SC 1099), Bhagwati, J ., has held that Articles 21

and 23 of the Constitution would require not only the identification and

release of bonded labourers, but also their rehabilitation on release. The

direction extended to chalking out programmes of rehabilitation and its

supervision by a vigilance committee in which persons suggested by the

court were to be taken as members. 1

This widest amplitude of the court can be given to the right to life

and personal liberty is most welcome. But then the point is that all the

sufferings and socio-economic deprivations of the Indian People, Political

mismanagement and corruption, and any others conceivable

governmental action or inaction can be said to be violative of Article 21.

India being a welfare State, legislation already exist on most matters (and

the existing legislation can/should also be given a most comprehensive

interpretation in the general public interest to covers matters not

specifically provided for). If the court starts enforcing all such legislation

under the spacious plea that non-enforcement is violative of Article 21,

perhaps no State activity can be spared from the purview of the Supreme

Court as a PIL matter. Its logical extension could mean the taking over the

total administration of the country from the executive by the court. 2

1
S.K. Agarwal, op.cit., p.37.
2
Ibid.

158
 Now the question arise are there any limits to such judicial

activism?

According to Archibald there are mainly two worries arising out of

recent activism in constitutional adjudication by the court. Firstly, there is

the concern that the court may sacrifice the power of legitimacy that

attacks to decisions within the traditional judicial sphere rendered on the

basis of conventional legal criteria, and so may disable itself from

performing the narrower but nonetheless vital constitutional role that all

assign to it. And secondly, there is fear that excessive rely upon courts

instead of self government through democratic processes may deaden

people's sense of moral and political responsibility.

Without the power of legitimacy, moreover, the judicial branch

would be exceedingly vulnerable to assault and reprisals from other

branches of Government.

The powers of the Supreme Court to command acceptance and

support not only for its decisions but also for its role in Government

seems to depend upon a sufficiently widespread conviction that it is

acting legitimacy, that is performing the functions assigned to it and only

those functions, in the manner assigned. The conviction of that is the

resultant of many voices, not all carrying equal weight : of the opinion of

159
the legal profession, of attitudes in the executive, of the response in

State Governments, of the press and of public opinion.

Of course, there are no set standards for judging the legitimisation

of the activist approach of the Supreme Court, however it seems to be

only fair to comment that discordant notes have been sounded from

several quarters. It requires on independent study to evaluate and assess

the legitimisation that the PIL associated activism has received in the

country. When the court is the final interpreter of its own powers, it does

not appear to any checks on judicial activism can be read other than its

legitimisation.

Justice Landau of the Supreme Court of Israel on the limits of the

judicial process suggested:

Regarding the limitations of the judicial process, courts do

not possess the necessary tools to conduct a thorough
inquiry into issues of social and economic policy which may
rise in the judicial review of parliamentary legislation. A
court may decide what should not be done, but the subject-
matter may still require a further decision what should now
be done instead of the solution rejected. In that respect a
court is generally powerless since it does not possess the
power of the sword or purse.

As far as the protection of human rights are concerned, the law is

but a second line of defence protecting the citizen against aggression of

governmental authority and which is no less vital - protecting society

against internal disorder. The first line of defence is the general spirit of

160
law obedience which prevails in a community and that spirit has to be

sustained by generally accepted notions of legality, of morality and

common decency. When that first line of defence weakens, a

correspondingly greater strain is imposed on the second line, greater than

that line was designed to bear and thus increases the danger of its

collapse. If that should happen, nothing will remain to protect society

against anarchy. Salvation must come from the strengthening of those

moral restraints which in any days have so woefully weakened. It is the

spirit that matters ....

Judicial activism in constitutional interpretation is a most healthy

trend. It makes the Constitution a living, dynamic document and enables

the accommodation of the aspirations of the vast masses of our people.

But it has its limits. In a system of Government wherein the court is the

final interpreter of the Constitution and its own powers, this activism

must be legitimised by its constituencies and the consumers of the

administration of justice. In any case, the delicate balance between the

three organs of the State any time must not be overloaded in favour of

any one of them beyond tolerable limits.

The power to punish for contempt, or for entertaining PIL and the

issuing of directions under it, or for money compensation or exemplary

costs must be used extremely sparingly by the Supreme Court. That

extreme area seems to be that of illegal detention and custodial violence.

161
The norms must be adequately developed by the court as to when the

one or the other remedy shall be granted. The remedy of claiming

compensation from the lowest courts for the violation of any right is

already available under the law. It should be pursued in appropriate cases.

The shortcomings of delay, heavy stamp duties and low awards of

compensation, however, need to be rectified.

Judiciary and the legal processes can not be an answer to all over

administrative ills. The doctrine of separation of powers is based on

sound logic and has been evolved through long experience with societal

institutions. We should not, therefore, seek on the improvement through

judicial processes alone, perhaps the better solution might be found in

other improvements.

Our law, however, has not yet developed adequate principles of

individual official responsibility for administrative wrong, of course the

officer has to be protected in all respects if he acts in good faith. But it

only encourages, and induces administrative irresponsibility and

callousness if the officer is able to escape personal liability even where he

is grossly negligent, biased or acting without any jurisdiction. The

administration in our country cannot be made to all responsibly only by

fixing responsibility on the State, liability must be fixed on individual

officers as well. In all PIL matters before the Supreme Court, the action or

inaction leading to violation of Fundamental Rights has been the

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consequence of the negligence, bias, callousness or crussedness of

individual officers, whether it might be long detention of undertrial

prisoners, custodial violence, non-implementation of labour laws, non-

identification and non-release of bonded labour or any other. The

individual functionary shall hardly change his ways if all that ultimately

happens is that only the State an amorphous entity, is held responsible.

IV. CONCLUDING REMARKS

The judicial activism manifested in the strategy of PIL paves the

way for the participation of public spirited and enlightened people in

India's development process and displays the potentiality of the legal

system to offer justice to the poor and the oppressed. The strategy has

brought to light many a medieval practices still prevalent in India such as

relief to prisoners, plight of women in protective homes, victims of the

flesh trade and children of juvenile institutions and exploitation of the

bonded and migrant labourers, untouchables, tribal etc. The attempt has

been made to show how in taking up such cases, the Supreme Court is

emerging as the guardian of the rights and liberties of the victims of

repression, cruelty and torture.

Hence the Supreme Court of India in its activist role vis-a-vis PIL

has taken a goal-oriented approach in the interest of justice by

simplifying highest technical and anachronistic procedures.

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 By enlarging the scope of Article 32 and by accelerating the

process of socio-economic revolution, it has brought justice to the

doorstep of the weak, the unprivileged and exploitative section of society

and therefore, has revolutionised constitutional jurisprudence in the

1980's.

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