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Judicial Activism

, 29 September 2008  
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            The predominant approach of the Indian Judiciary was positivist, to interpret the Constitution literally and to apply it more or less the same restrictive canons of interpretation as are usually applied to the interpretation of ordinary statutes. This approach emanates from the basic traditional theory that a judge does not create law but merely declares the law and judicially the principle was laid down in these words: “In interpreting the provisions of our Constitution, we should go by the plain words used by the Constitution Makers. The General rules of Construction in the General Clauses Act also apply to the Constitution and interpretation of legislative enactments. The Judicial Activism is the process by which the courts checks whether a law is valid or not and a law to be valid must conform with the Constitutional norms. The Constitutionality of a statute arises from various constitutional violations like:

1)     Violation of the scheme of distribution of powers between the Centre and the States;

2)     Infringement of a Fundamental Rights;

3)     Violation of other Constitutional restrictions / limitations.

A statute which is not within the scope of legislative authority or which offends any of the provisions of Constitutional restriction or prohibition is said to be unconstitutional and hence void. To struck down a statute from the statute books, the main importance is given to its Constitutionality tests and it is validity under the eyes of law and a onerous burden is placed on the Courts because a Statute is enacted by elected members which are the required aspirations of the people.


          The Supreme Court has now realized its proper role in a Welfare State, and it is using this new strategy not only or helping the poor by enforcing their fundamental rights of a persons but for the transformation of the whole society as an ordered and crime free society and the role of individuals and group of people in participating the government day to day issues and checks all the activities of the concerned authorities like Central Investigating Authorities to discharge their legal obligations in the various scams cases, need for enactment of Uniform Civil Code, Pollution Control, Preservation of historical monument like Taj Mahal, cleaning and keeping the big cities more hygienic, ban of smoking in public places, removal of encroachments, interim compensation to rape victims, speedy trial, legal aid to all prisoners and economically backward people, puncturing the ego of Chief Election Commissioner T.N.Seshan and senior Karnataka IAS officer, Vasudevan are the notable approach by the Courts. Thus the filing of Writ Petitions and Public Interest Litigations are the two eyes of the Courts which guards the Constitution from all kind of encroachments and this is the dynamic approach of Activism



            The traditional rule of Locus Standi is that a petition under Article.32 or Article.226 can only be filed by a person whose fundamental right is infringed has now been considerably relaxed by the Supreme Court in its recent rulings and the present scenario is that the Court now permits Public Interest Litigations or Social Interest Litigations, PIL or SIL, at the instance of ‘public spirited citizens’ for the enforcement of Constitutional and Statutory rights of any person or group of persons who because of their poverty or socially or economically disadvantaged position are unable to approach the Court for relief.


A.B.S.K. Sangh (Rly) Vs. Union of India, AIR 1981 SC 298:

            The Supreme Court held that the Akhil Bhartiya Soshil Karmachari Sangh (Rly), though an unregistered association could maintain a writ petition under Art.32 for the redressal of a common grievance. Access to justice through ‘class actions’, ‘public interest litigation’ and ‘representative proceedings’ is the present Constitutional jurisprudence and it further held that the individual acting pro bono publico can readily bring a PIL action before the Court of law by even writing a letter to the Court regarding the infringement of a group or any individual person.



            The Supreme Court has laid down the guidelines that it is the duty of the Court to decide from case to case and upon the facts and circumstances of the case, the person approaching the Court by way of Writ or PIL for relief has “sufficient interest” and has not acted with malafide or political motives and not come to court with clean hands and it came to conclusion that any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provisions of the Constitution or the law and seeks enforcement of such public duty and observance of such constitutional or legal provisions and it is absolutely necessary for maintaining the rule of law and thereby realization of the Constitutional objectives. The scope of Locus Standi is thereby liberalized but this rule of law must not be misused by vested interests and it is again the duty of the Court not to allow the remedy to be abused.


Janatal Dal Vs. H.S.Chowdhari, AIR 1992 4 SCC 653:

            In the Bofors Gun Purchase Scam, the CBI registered a case against 3 named and 11 unnamed accused and it moved an application before the special judge to issue a letter of rogatory to Switzerland for getting more information and evidence from Swiss authorities. At this stage, the Petitioner, an advocate, Sri Harinder Singh Chowdhari made an application in PIL under Art.51-A before the Special Judge requesting that the Court not to issue the letter of rogatory unless allegations against named persons are proved. The Judge dismissed the petition for want of Lous Standi and against the order, Criminal Revision filed before the High Court of Delhi and the High Court held that the Petitioner has no locus standi to file the case and hence it is not maintainable and the Court taking into the illegalities in the trial court ordered that the FIR filed by the CBI be quashed.

            APEX COURT RULING: The Supreme Court held that the Liberal approach of the Rule of Locus Standi is misused by the petitioner in this case and thus the Supreme Court agreed with the first part of the ruling and quashed the second part of the order of the High Court.


Krishnaswami Vs. Union of India, AIR 1992 4 SCC 605:

            The Petitioners filed a PIL under Art.32 of the Constitution for quashing the motion given to the speaker by 108 members of ninth lok sabha for initiating proceedings for the removal from office of Mr.Justice V.Ramaswami of the Supreme Court against whom there were allegations of financial irregualarities and they further prayed to quash the Inquiry Commission under the Judges (Inquiry) Act, 1968 as it is unconstitutional. The Supreme Court held by 4-1 majority that the petitioners have no locus standi to file this petition as they have no public purpose for filing this petition.


Bandhu Mukti Morcha Vs. Union of India, AIR 1984 SC 802

The petitioners, an organisation through a letter to the Supreme Court informed about their survey in Faridabad District stone quarries at Harayana and found that the labours in that quarry were in inhuman and intolerable conditions and many of them were bonded labours and the petitioners prayed that a writ be issued for proper implementation of the constitution towards the bonded labours in that stone quarry. The Supreme Court has observed that the right to live with human dignity is enshrined in Art.21 which derives its life breath from the Directive Principle and the petitioner organisation is moving the Court for social cause and thus they have locus standi to pray a relief for those labours. In this case to secure the release of bonded labour and free them from exploitation was held to be valid and the courts also insisted for proper rehabilitation after release of bonded labourers and thereby safeguarded their fundamental rights.


Mohanlal Sharma Vs. State of Uttar Pradesh, AIR 1989 2 SCC 609:

                        The petitioner sent a telegram to the court alleging that his son was

murdered by the police in the police lock up and the telegram was treated as a writ petition by the Court and the case was directed to be referred to C.B.I. for a complete and thorough and detailed investigation as the locus standi principle is liberalized to a level to treat a letter as a writ petition.



            The Supreme Court’s pivotal role in making up for the lethargy of the Legislature and the inefficiency of the executive is commendable. Those who oppose to the growing judicial activism of higher courts do not know the value and boon of its importance and thus the Judicial Activism has set right a number of wrongs committed by the States in the following cases:



Murali S.Deora Vs. Union of India, AIR 2002 SC 40:

            The Congress leader Murali S.Deora filed a PIL in the Supreme Court seeking orders for banning smoking in public places and the Supreme Court seeing the ill effects of smoking held that public smoking is banned and it directed all States and Union Territories to immediately issue orders banning the smoking in public and this ruling of the Court is to boost the public health. Thus the Center has introduced an Anti Smoking Bill in the parliament and it is being implemented in many parts of the Country but not effective at present.



Sunil Batra Vs. Union of India, AIR 1978 SC 1975:

            The Supreme Court on hearing the Petitioner about the inhuman and barbarous treatment made by the Jail authorities towards the prisoners of the Jail and they were not in a position to reach the Court and thus the issuance of writ of habeas corpus is prayed. The Court held that the rights of prisoner either under the constitution or under other laws are violated the writ power of the court can run and should run to rescue them and the dynamic role of judicial remedies imports the same vitality and utility of liberty even within the jails. Thus the writ is issued and guidelines are laid down by the apex court to be followed in jails.



Sheela Barse Vs. Union of India, AIR 1986 SC 1773 :(1986) 3 SCC 596:

            The Supreme Court in this case has directed to release all children below the age of 16 years from jails in pursuance of Art.39 (f) but instead it also exhorted the States to set up remand homes and juvenile courts and the court held that the Child is a national asset and the State shall ensure fullest development of its personality and it directed Rs.10,000/- to be paid to social worker for her cause to highlight the problem of child’s tortures and the provisions of Children Act.


Vishal Jeet Vs. Union of India, AIR 1990 SC 1412: (1990):

            A public interest litigation writ petition emphasizing the malady of child prostitution was filed before the Supreme Court and the Court expressed its anguish on the pitiable condition of child prostitutes and it also referred the constitutional provisions such as Art.23, 35(a)(ii), 39(a), (e) and (f) and issued several directions urging upon the various governments to take further remedial action in this matter and it also emphasized upon severe and speedy enforcement of juvenile laws such as Immoral Traffic (Prevention) Act, 1956 by the State.



M.C.Metha Vs. Union of India, AIR 1997 SC 734:

            The Supreme Court in this case has ordered for closure of tanneries at Jajmau near Kanpur, polluting the River Ganga water to prevent water pollution unless they take steps to set  up treatment plants and thereby the Courts developed two environmental principles namely “Precautionary Principle” and “Polluter Pays Principle”

Similarly in other case, the same petitioner prayed for closure of nearby industries in Agra and prayed for issuing directions in order to protect the Historical monument, Taj Mahal from deterioration on account of environmental pollution and emphasized Art.49 and also enabled Parliament to enact such law under Entry 67 and List I. The fundamental duty to preserve the rich heritage of our composite Indian culture enshrined in Art.51A of the Constitution is made enforceable by this writ petition.


Rural Litigation and Entitlement Kendra Vs. State of Uttar Pradesh, AIR 1987 SC 359: 1986 Supp SCC 517:

            The Supreme Court  on reading Arts.21, 47, 48A and 51A (g) together ordered for the closure of certain lime stone quarries on ground of safety and hazardous deficiency exists there and they has taken an active interest in the protection of the environment and many questions pertaining to environment and ecology problems have been brought before the Court of Law by way of Public Interest Litigations and the right to live in clean environment has been brought and given status as one of the fundamental right available to all the citizens and it is made enforceable under Art.32 and 226 by Courts. It is clear that under Art.51 (g), the Courts imposed a fundamental duty on every citizen to protect and preserve environment and to check Air, Water and Noise pollutions and to inform the state and to stop such pollutions effectively.



Ramesh Vs. Union of India, AIR 1988 1 SCC 668:

            The Petitioner practicing advocate of High Court filed a public interest litigation under Art.32 to issue a writ of prohibition restraining the respondents, the Director General of Doordarshan, New Delhi from telecasting or screening the serial titled ‘Tamas’ written by Sri Bhisam Sahni, which clearly depicts as to how the partition of India took place and how the communal violence was generated by fundamentalists in both the communities and he argued that the Art.25 is disturbed by this serial. The Court held that there is no violation of Art.25 instead it teaches a good lesson to the people of India that such things should not be repeated again in future and the communal atmosphere is kept clean and unpolluted by the courts and the petitioner is right in his act of drawing the attention of the courts in this case and it is a social cause and thus the petitioner has a locus standi.



National Federation of Blind Vs. U.P.S.C., AIR 1993 2 SCC 411:

            The Supreme Court has held that the visually handicapped blind and partially blind are eligible to compete and write civil services examination in the categories of group ‘A’ and ‘B’ posts which are suitable for the handicapped in Braille Script or with the help of a Scribe. The Court gave this description on the representative petition filed by the National Federation of Blind. The Court declared that visually handicapped constitute a significant section of our society and as such it is necessary to encourage their participants in every walk of life.


Nixon M. Joseph Vs. Union of India, AIR 1998 Ker 385:

            A Writ Petition in the nature of Public Interest Litigation bearing a question on independence of judiciary has been raised in Kerala High Court. The writ petition sought a ban on the retired High Court and Supreme Court Judges from contesting elections to the legislatures and accepting appointments as commissions of inquiry. The argument made was that it compromised their independence. The High Court emphasized Art.50 which states that the bedrock of the constitution is the principle of independence of the judiciary which can effectively combat corruption and nepotism in high places. “In fact it occupies an exalted position in the minds of the people as the saviour of democracy” and the High Court has emphasized that the principle of judicial propriety assumes vital importance and in the best interest of an independent judiciary and it being a matter of national concern and thus alone it can act as a protector and guarantor of Fundamental Rights of the Constitution.



Harbans Singh Vs. State of Uttar Pradesh, AIR 1982 SC 849:

            The Supreme Court held that under Article.32 very wide powers has been conferred on the Supreme Court for due and proper administration of justice and this inherent power is to be exercised in extraordinary situations in the large interests of administration and for prevention of manifest injustice. Accordingly, the Court commuted the death sentence of the petitioner into the imprisonment for life on the ground that one of his co-accused’s sentences was commuted by the Court. The Court recommended that the President should normally exercise his power under Art.72 to commute the death sentence because he has considered petitioner’s mercy petition and rejected it and if he fails to do justice in a particular case. Under Art.32, the Supreme Court has the power to commute death sentence into life imprisonment if there is undue delay in execution of sentence of death. However, for this, no period can be fixed for making the sentence of death to be changed into life imprisonment. The Court will examine the nature of delay in the light of all circumstances of the case and then decide whether death sentence should be carried out or altered into life imprisonment.



Delhi Judicial Services Association Vs. State of Gujarat, AIR 1991 4 SCC 406:

            The Supreme Court for the first time sent 5 police officers including an I.P.S. officer to jail as they were found guilty for committing criminal contempt by a Judicial Magistrate Court for harassing and hand cuffing the Chief Judicial Magistrate of Nadiad, Kheda District of Gujarat. On 25.09.1989, the police inspector of Nadiad arrested, assaulted and handcuffed the Chief Judicial Magistrate and tied him with thick rope like an animal and took him openly to the hospital for medical examination on the alleged charge of having consumed liquor in breach of the State Prohibition Law. The incident undermined the dignity of Courts in the country. A member of the Bar Associations and the Indian Judges Association approached the Supreme Court under Art.32 for saving the dignity and honour of the judiciary. The Court considered the Public Interest Petition and appointed a committee to inquire the matter and to submit the report to the Court  and based on the report, seven police officers were found guilty of criminal contempt and sent to jail and thus the dignity of the Court is thus safeguarded.



Paschim Banga Khet Mazdoor Samity Vs. State of West Bengal, AIR 1996 SC 2426: (1996) 4 SCC 37:

            The Supreme Court has observed that it is the paramount medical aid to every injured citizen brought for treatment immediately without waiting for procedural formalities to be completed in order to avoid negligent death and it is the constitutional obligation of the State to provide adequate medical services to the people as enshrined in Art.47. The Petitioner is a human right activist and he also appended to the article published in Hindustan Times, a report about “Law helps the injured to die” and the Supreme Court took this writ petition as it is a valid one in the public interest and held that this right which has a status of fundamental right is culled out from Art.47 together with Art.21 and stated that in a welfare state, the primary duty of the Government is to secure the welfare of the people by running hospitals and health centres and providing medical care.



All India Reserve Bank Employees Vs. Reserve Bank, AIR 1966 SC 305, 317: (1966) 1 SCR 25:

            The Supreme Court in this Public Interest Litigation has observed that the political aim is living wage for all workers, in actual practice, this ideal has eluded our efforts so far and that our general wage structure has at best reached the lower level of ‘fair wage’ and a ‘fair wage’ is a mean between ‘living wage’ and ‘minimum wage’ and the living and fair wages have to be fixed keeping in view the capacity of the industry to pay. Fixing of minimum wages under the Minimum Wages Act has been characterized as “just and first step” in the direction of fulfilling the mandate of Art.43 and in course of time, the State has taken more steps to implement that minimum wages mandate.



Suk Das Vs. Union Territory of Arunachal Pradesh, AIR 1986 SC 991:

            The Supreme Court in this Public Interest Litigation filed by the social activist has held that Art.39A read with Art.21 states that free legal assistance at state cost has been raised to the status of a fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty and the Presiding Judge has been obligated by the State to inform the accused that he can obtain free legal service at the cost of the state if he is unable to engage a lawyer because of his indigence.

H.M.Hoskot Vs. State of Maharashtra, AIR 1978 SC 1548:

            The Supreme Court has held that the “legal aid” and “speedy trial” concepts enshrined in directive principle of state policy are fundamental right available to all prisoners under Art.21 and it is also available to all citizens during judicial proceedings in a court of law and can be enforced by courts as one of the fundamental right available to every citizens by way of writ proceedings



Hussainara Khatoon Vs. Home Secretary, State of Bihar, AIR 1979 SC 1322:

            The Supreme Court by this Public Interest Litigation has held that the State is under a duty to provide a lawyer to a poor person and it must pay to the lawyer his fee as fixed by the courts and the “Free legal aid” and “equal justice” and “speedy trial” enshrined in Art.39-A has held to be a Fundamental Right and thereby cast a duty on the State to secure that the operation of legal system promotes justice, on the basis of equal opportunities and further mandates to provide free legal aid in any way – by legislation or otherwise so that justice is not denied to any citizen by reason of economic or other disabilities. It means justice according to law.



Olga Tellis Vs. Bombay Municipal Corporation, AIR 1986 SC 194:

            The Supreme Court in this case considered the Public Interest Litigation filed by the petitioner and held that the directive principles are fundamental in the governance of the country and hence they must therefore be regarded as equally fundamental to the understanding and interpretation of the meaning and content of Fundamental Rights and the Right to Shelter of pavement dwellers and their occupational rights was given a status of Right to livelihood available to all citizens as one of the fundamental right in this landmark case law.



Vishaka Vs. State of Rajasthan, AIR 1997 SC 3011:

            The Supreme Court in this Public Interest Litigation filed by non-governmental organisation has formulated effective measures and exhaustive guidelines to check the evil of sexual harassment of working women at all work places until legislation is enacted for this purpose and to guarantee gender equality of right to work with human dignity as enshrined in Arts. 14, 15, 19(1) (g) and 21 of the Constitution and thereby safeguards against sexual harassment implicit therein. The Courts by reading the Directive Principle enshrined in Art.51(c), brought the international norms and measures under Art.21 and made it as a fundamental right and held that the Court has the power under Article.32 to lay such guidelines for effective enforcement of fundamental rights.



Rudal Shah Vs. State of Bihar, AIR 1983 4 SCC 141:

            The Supreme Court awarded Rs.30,000/- as compensation to the petitioner who had to remain in jail for 14 years because of the irresponsible conduct of the State authorities and in this Petition under Art.32 of the Constitution, the Supreme Court laid down that the power of the court to grant such remedial relief may include the power to award compensation in appropriate cases and in this case the court exercised its power to award compensation.



            The Supreme Court and the High Court by way of Public Interest Litigation have thrown light to those scams like Hawala Scam, Uria Scam, Fooder Scam in Bihar, St. Kits Scam, Ayurvedic Medicine Scam and Illegal Allotment of Government Houses and Petrol Pumps and proved that they are the strong and potent weapon in enabling the truth as it is and by punishing the guilt involved in the corruption and scam cases.



Vineet Narain Vs. Union of India, AIR 1997 SC 889:

The petitioner by way of Public Interest Litigation brought before the Court that the government agencies like the CBI, revenue authorities has failed to perform their duties in investigating the crimes and corruptions at high places in pubic life and the Supreme Court hearing the petition issued directions to make the CBI, Central Bureau of Investigation; CVC, Central Vigilance Commission, Enforcement Directorate and Nodal Agency are the independent agencies and hence they are in a position to function effectively against corruption and scams.



Nilabati Behara Vs. State of Orissa, AIR 1993 2 SCC 746:

            The Supreme Court has laid down the principle on which compensation is to be awarded by the Court under Arts.32 and 226 to the victim of State action. The object to award compensation in public law proceedings under Arts.32 and 226 is different from compensation in private tort law proceedings. Award of compensation in proceeding under Arts.32 and 226 is a remedy available in public law based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity. In this case the Supreme Court has held that due to the custodial death of the person directed the State to pay Rs.1,50,000/- as compensation to the deceased mother and a further sum of Rs.10,000/- as costs and the court further clarified that this will not affect the petitioner right to claim compensation in other proceedings by the Court.



P.N.Kumar Vs. Municipal Corporation of Delhi, AIR 1987 4 SCC 609:

            The two judges Bench of the Supreme Court held that the Citizens should not come to the Court directly for enforcement of their fundamental rights but they should first seek directly for the enforcement of their fundamental rights, but they should first seek remedy in the High Courts and then if the parties are dissatisfied with the judgment of the High Court, they can approach the Supreme Court by way of Appeal.

The following guidelines were made by the Apex Court in this case:

1.      The scope of Art.226 is wider than Art.32

2.      The parties to seek relief from High Court then they should come to Supreme Court

3.      The High Court has eminent judges, good bar and it has its own tradition.

4.      The Supreme Court has no time to decide cases pending therein

5.      The time consumed by Supreme Court will be considerably minimized.

6.      The dignity, majesty and efficiency of the High Courts are protected.



Romesh Thappar Vs. State of Madras, AIR 1956 SC 124:

The Supreme Court in this case has clearly explained the difference between the two articles namely Art.32 and 226. Articl.32 can be exercised for the enforcement of fundamental rights only as per the constitutional provisions as an important part of the basic structure of the Constitution because it is meaningless to confer the fundamental rights without providing an effective remedy for their enforcement when they are violated whereas the Article.226 can be exercised not only for the enforcement of fundamental rights only but for “any other purpose”.  Hence the power of the High Court is wider than the power conferred by Article.32 on the Supreme Court.



1.         Article.33 is an exception to the judicial activism. This article states that the parliament to restrict or abrogate law fundamental rights applicable to members of armed forces and maintenance of public order and persons in connection with the tele communication system of any force, bureau or organisation and in bureau or other organisation for purposes of intelligence.

2.         The Judicial Activism and the enforcement of fundamental rights are restricted when the Martial Law is in force to maintain restoration of public order and law in any area of the Country. (A.D.M. Jabalpur Vs. ShivKant Shukla Case popularly known as Habeas Corpus Case)

3.         Resjudicata: This concept is a rule of public policy that there should be finality of decisions by Courts of Competent jurisdiction and the same question which is heard and decided on merits cannot be allowed to be reopened

Lallubhai Vs. Union of India, AIR 1986 SC 728:

            The Supreme Court enunciating the principle of Res Judicata in this case held that the matter heard and decided by the High Court under Art.226 then the writ under Art.32 is barred by the rule of Res judicata and could not be entertained. The exception to this rule is this rule of res judicate does not apply to Writ of Habeas Corpus.


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