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Updated: August 6, 2012 02:32 IST

Disturbing trends in judicial activism

T. R. Andhyarujina
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120806 - Lead - Judicial Overreach
120806 - Lead - Judicial Overreach

Public Interest Litigation is a good thing when it is used to enforce the rights of the disadvantaged. But it has now been diluted to interfere with the power of the government to take decisions on a range of policy matters

Judicial activism is not an easy concept to define. It means different things to different persons. Critics denounce judicial decisions as activist when they do not agree with them. Activism, like beauty, is often in the eye of the beholder. 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. From 1979, the judiciary led by the Supreme Court in India became relevant to the nation in a manner not contemplated by the makers of the Constitution and became an active participant in the dispenser of social justice.

It is a matter of concern that over the years this original, beneficial and unexceptionable character of the Court’s activism in PIL has been largely converted into a general supervisory jurisdiction to correct actions and policies of government, public bodies and authorities. This is a type of judicial activism unparalleled in any other judiciary.

For basic rights

PIL jurisdiction began haltingly with little idea of its potential when the Supreme Court, in 1979, entertained complaints by social activists drawing the attention of the Court to the conditions of certain sections of society or institutions which were deprived of their basic rights.

In 1979, Supreme Court advocate Kapila Hingorani drew the Court’s attention to a series of articles in a newspaper exposing the plight of Bihar undertrial prisoners, most of whom had served pretrial 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. 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 traditional litigation.”

No longer were the Court’s clientele drawn from landlords, businessmen, corporations and affluent persons. With PIL, the common man, the disadvantaged and marginalised sections of society had also easy access to the Court with the help of social activists.

This unique judicial activism was not found in other countries and leading judges abroad such as Lord Harry Woolf of the United Kingdom and Justice Michael Kirby of Australia, applauded it.

The new intervention

However, over the years, the social action dimension of PIL has been diluted and eclipsed by another type of “public cause litigation” in courts. In this type of litigation, the court’s intervention is not sought for enforcing the rights of the disadvantaged or poor sections of the society but simply for correcting the actions or omissions of the executive or public officials or departments of government or public bodies. Examples of this type of intervention by the Court are innumerable. In the interest of preventing pollution, the Supreme Court ordered control over automobile emissions, air and noise and traffic pollution, gave orders for parking charges, wearing of helmets in cities, cleanliness in housing colonies, disposal of garbage, control of traffic in New Delhi, made compulsory the wearing of seat belts, ordered action plans to control and prevent the monkey menace in cities and towns, ordered measures to prevent accidents at unmanned railway level crossings, prevent ragging of college freshmen, for collection and storage in blood banks, and for control of loudspeakers and banning of fire crackers.

In recent orders, the Supreme Court has directed the most complex engineering of interlinking rivers in India. The Court has passed orders banning the pasting of black film on automobile windows. On its own, the Court has taken notice of Baba Ramdev being forcibly evicted from the Ramlila grounds by the Delhi Administration and censured it. The Court has ordered the exclusion of tourists in the core area of tiger reserves. All these managerial exercises by the Court are hung on the dubious jurisdictional peg of enforcing fundamental rights under Article 32 of the Constitution. In reality, no fundamental rights of individuals or any legal issues are at all involved in such cases. The Court is only moved for better governance and administration, which does not involve the exercise of any proper judicial function.

In its most activist and controversial interpretation of the Constitution, the Supreme Court took away the constitutionally conferred power of the President of India to appoint judges after consultation with the Chief Justice, and appropriated this power in the Chief Justice of India and a collegium of four judges. In no Constitution in the world is the power to select and appoint judges conferred on the judges themselves.

The Court is made the monitor of the conduct of investigating and prosecution agencies who are perceived to have failed or neglected to investigate and prosecute ministers and officials of government. Cases of this type are the investigation and prosecution of ministers and officials believed to be involved in the Jain Hawala case, the fodder scam involving the former Chief Minister of Bihar, Lalu Prasad Yadav, the Taj Corridor case involving the former Chief Minister of Uttar Pradesh, Mayawati, and the recent prosecution of the Telecom Minister and officials in the 2G Telecom scam case by the Supreme Court.

Military operation

The Supreme Court has made an order even in a military operation. In 1993, the Court issued orders on the conduct of military operations in Hazratbal, Kashmir where the military had as a matter of strategy restricted the food supplies to hostages. The Court ordered that the provision of food of 1,200 calorific value should be supplied to hostages. Commenting on this, an Army General wrote: “For the first time in history, a Court of Law was asked to pronounce judgment on the conduct of an ongoing military operation. Its verdict materially affected the course of operation.”

Even proceedings of Legislatures are controlled by the Court. In the Jharkhand Legislative Assembly case, the Supreme Court ordered the Assembly to conduct a Motion of Confidence and ordered the Speaker to conduct proceedings according to a prescribed agenda and not to entertain any other business. Its proceedings were ordered to be recorded for reporting to the Court. These orders were made in spite of Article 212 of the Constitution which states that Courts are not to inquire into any proceedings of the legislature.

Other examples

Matters of policy of government are subject to the Court’s scrutiny. Distribution of food-grains to persons below poverty line was monitored, which even made the Prime Minister remind the Court that it was interfering with the complex food distribution policies of government. In the 2G Licenses case, the Court held that all public resources and assets are a matter of public trust and they can only be disposed of in a transparent manner by a public auction to the highest bidder. This has led to the President making a Reference to the Court for the Court’s legal advice under Article 143 of the Constitution. In the same case, the Court set aside the expert opinion of the Telecom Regulatory Authority of India (TRAI) to sell 2G spectrum without auction to create greater teledensity in India.

The Court has for all practical purposes disregarded the separation of powers under the Constitution, and assumed a general supervisory function over other branches of governments. The temptation to rush to the Supreme Court and 21 High Courts for any grievance against a public authority has also deflected the primary responsibility of citizens themselves in a representative self government of making legislators and the executive responsible for their actions. The answer often given by the judiciary to this type of overreach is that it is compelled to take upon this task as the other branches of government have failed in their obligations. On this specious justification, the political branches of government may, by the same logic, take over the functions of the judiciary when it has failed, and there can be no doubt that there are many areas where the judiciary has failed to meet the expectations of the public by its inefficiency and areas of cases.

Justice Jackson of the U.S. has aptly said: “The doctrine of judicial activism which justifies easy and constant readiness to set aside decisions of other branches of Government is wholly incompatible with a faith in democracy and in so far it encourages a belief that judges should be left to correct the result of public indifference it is a vicious teaching.” Unless the parameters of PIL are strictly formulated by the Supreme Court and strictly observed, PIL which is so necessary in India, is in danger of becoming diffuse, unprincipled, encroaching into the functions of other branches of government and ineffective by its indiscriminate use.

(The writer is a senior advocate of the Supreme Court and former Solicitor General of India. This article is an abridged version of a lecture he recently delivered at the sesquicentennial of the Bombay High Court.)

More In: Lead | Opinion

Important question is that why SC has to interfere or guide the
executive. Had Supreme court not intervened , Delhi would not be that
Delhi that we see today . In majority of Judicial activism , such
issue had been taken care by Honorable SC which should have been taken
by executive long back . Fastening of seat belt, steps taken to curb
noise,air pollution is all because of judicial activism . 11 Pm limit
on loud music played in parties, marriage , burning of cracker has
been cherished by all. It's actually shame on executive and legislature that SC had to take care of many investigation by itself
and ask investigative agency to speed up problem . Legislative and
executive lethargy has actually forced SC to step in and fill up the
void. Indian judiciary has more sensible and responsible person who
knows the limit and doing thing that has in actual sense helped
people.

from:  pawan
Posted on: Aug 9, 2012 at 00:25 IST

The point to be looked at is why the courts are being forced into the business the executive must carry out and then if we look at the percentage of time the parliament spends on legislative business, the whole story is revealed.From the spirit of the constitution, where equality and fraternity were the guiding principles, we now have a stage where the courts have to remind the legislature and the executive of their duties.Such lacunae have been created by the non-participation of a major chunk of the middle class(particularly urban) in the election process and will get resolved only by their participation which will ensure accountability and election of candidates of substantial calibre.

from:  harish
Posted on: Aug 8, 2012 at 18:25 IST

As already said in so many comments earlier, the government of the day has stooped such low levels that the courts had to step in to strengthen the faith of masses in the system. If justice is not dispensed by any (in fact MANY) functions and functionaries of the CORRUPT government, then courts are absolutely right. Mr. TR your article reeks of unjustifiable defense of the totally inefficient and corrupt government and ministers. Please give it a little deeper thought before writing such articles next time.

from:  Rahul
Posted on: Aug 8, 2012 at 13:20 IST

Judicial activism is indeed not an easy concept to define.PIL is surely a powerful tool.Public
power can be misused within the hands of the robusts like the executive and the legislature
hence there is a need to keep a strong vigil in the public interest..

from:  vipin rawat
Posted on: Aug 7, 2012 at 23:29 IST

Putting forward this instrument of PIL in order to bring social justice into reach of that larger community of India to whom attempting of approaching court is a distant dream ..is definitely commendable, because what it is actually trying here to do is to protect the rights of the people who are finding it difficult to access courts!! but when judiciary tries to interfere into proceedings of other two less significant bodies of constitution as it it states ,must be moderated since there is a very big risk of mistrust developing in public's mind on protection of constitution which is very dangerous more than anyone can expect!! Court's say might be true as per its own interpretation of law but the basic intention of constitution which says that all the three bodies have to co-exist and no one should ever try to over reach the other, has to be preserved !!

from:  RAVI RAJA NAIDU
Posted on: Aug 7, 2012 at 23:02 IST

Author is viewing Judicial Activism with prejudice lens. Separation of power is pious but its not solid glass chamber. sometimes threshold of one domains gets encroached by other machinery. There is grey areas in every sector either it be government or its be corporates. encroaching into greys areas will never hamper democracy nor it will disturb separation of power.
Author is projecting wrongs picture before the readers. SC has been guardian of poor and sole respite to common people. Showing SC/ HC in darker shade is not appreciable at all.

from:  Pawan Singh
Posted on: Aug 7, 2012 at 21:42 IST

True that PIL has been monitoring with policies of Government. Consider the case of Under Trials in Bihar, Vrindhawan shadvi positions or consider MC mehta PIL, all cases lead us to single point which is that ineffectiveness of Executive and legislature forced Judiciary to take up such activism.
PIL or its Public cause litigation all are only for only one purpose , that is to provide remedy to public. Never ever in its judgement Sc or HC encroached into pious domain of Legislature or executive. Judiciary with his prudent has balanced the situation and maintained sanctity of Separation of Law.
Justice Jackson is quote is true but not appropriate in India scenarios. Judicial Activism is blessing in disguise for common masses. With Judicial Activism , no where democracy seems to be disturbed or endangered. We have only gained from pro active role of Judiciary.
It is shame that person of such repute believes that PIL is threat to democracy.

from:  Pawan Singh
Posted on: Aug 7, 2012 at 21:32 IST

i do not agree with the author but believed that this activism by the court is healthy and a need of the houe, the goverment has failed in many areas and has created a rent seeking enviroment in the country which has pulled the country backwards. we have lost our rivers, our national animal is on the brink of extinction and the forest department don't seems to care and need an intervention to force it to act. so i do feel there is nothing wrong in what is going on and what is being done for the coomon good.

from:  Ronald Evans
Posted on: Aug 7, 2012 at 18:27 IST

I agree with the author.
Judiciary is there to interpret the law as it stands and not as it ought to be. Yes, in many cases the courts may feel that the existing laws are not justified or flawed but they are (expected to be) helples.
A proactive judiciary may look progressive. But in the long run a backlash cannot be avoided.
It is a pity that the Court has progressively encroached the realm of Administration. This does not augur well for the long term interests of Country.
But it should also be said that in India, we have set of law makers who have failed their country men miserably and reduced this country to a lawless jungle. In this background, any popular decision by the Courts are hailed by the citizens though they are legally flawed.

from:  Vaidyanathan
Posted on: Aug 7, 2012 at 15:44 IST

I would like to point out that class actions are substantially different from PIL. The objective of a class action is efficacy. It has nothing to do with PIL, nor is it an inspiration for PIL.

from:  Prateek Rath
Posted on: Aug 7, 2012 at 15:38 IST

Even in the US there are multiple perspectives on responsibility of the judiciary to protect the basic rights enshrined in the constitution. It does not serve the readers well to quote only one side of the story when referring to the prevailing opionion in the West.

from:  Sagar
Posted on: Aug 7, 2012 at 14:51 IST

There is no arguing that any activism is bad when it crosses the limits prescribed in the Constitution. The author however seems to hold a brief for the "politician take it all system" that now prevails in the country.

from:  Hilary Pais
Posted on: Aug 7, 2012 at 10:58 IST

Undoubtedly, this is an important and controversial article by one, who knows and
who knows better and who could have grasped the best. Comments are diverse,
interesting and some are mere unsubstantiated opinions. Let us face the music:
1. Legislature: Most representatives seldom represent the electorate, pursue
personal undue enrichment and buy, of all things, guns.
2. Executive: By all accounts, they are mired in their own misdeeds, notably
corruption.
3. Judiciary: This being the only bastion for the poor and the oppressed, judicial activism of the kind deplored by TRA.4. God helps only those, who help themselves. He may not help India.

from:  Soundararajan Srinivasa
Posted on: Aug 7, 2012 at 09:12 IST

There is absolutely no doubt about the fact that Public interest litigation is a very effective tool. It is not our innovation. The affirmative action and class action in countries like the U.S have in fact inspired though rightly also the Indian judges to improve upon those skills and in fact it is the constitution of India that possessed such a potentiality.It provided, interalia, for issue of Mandamus and high prerogative writs for the judicial Protection of fundamental rights. Now in most of the instances cited by the learned author to drive home his theme directed against the abuse of Public Interest Litigation or Public Cause Litigation the fundamental rights of citizens are under challenge. Every illegal invasion upon the system be it corruption or environmental pollution can be very well shown as an infraction of fundamental right of a person or group of persons.It is only the abuse and fake judicial activism that should be figured out and surgically attacked

from:  Satyanand Kattamuri
Posted on: Aug 7, 2012 at 06:45 IST

"Justice not only be done it should be manifestly done "this cardinal
principle only guide the judiciary not because of any populist
intention it should be noted and supreme court as the guardian and
sentinel of the constitution protect the rights of the people in true
sense.

from:  Sathiya.I.G
Posted on: Aug 7, 2012 at 04:08 IST

The overwhelming sentiment in the comments is that such activism is necessary since the executive does not act (at least in public interest!)
But the point is is the solution any better than the problem? Such a solution clearly is bad ideology. It is also bad practice. Think about the CNG judgement. If now the CNG emissions are found to be carcinogenic, can the government set the decision aside? Will the court pass a mandate to find a healthy alternative or to switch back to petrol engines?!
There is a reason why day to day decisions are taken by the executive.

from:  Kiran
Posted on: Aug 7, 2012 at 02:32 IST

The point made by the author is excellent and worth evaluating. The majority of the comments above seem to have misunderstood the essence of the author's argument. He is not against judicial activism; he is against judicial over-reach. There is a difference between the two and in the pursuit of highlighting that difference, he gives you various examples that the readers above have assailed. He is trying to highlight the fact that the reasoning provided by the judiciary for interfering is not a sound one. It could well be used against the judiciary as well. He is merely trying to communicate that the judiciary must interfere only in matters of grave importance and not usurp the realm of policy based governance. I think that is a sound argument which resonates with the separation of powers theory.
With regard to the comment as to why Justice Jackson's comment was utilised, I think the reader would agree that no one holds a monopoly over wisdom. The author is at liberty to quote anyone.

from:  Prateek Rath
Posted on: Aug 7, 2012 at 01:49 IST

I partially agree with Mr. Andhyarujina. I can agree "activist" role
by higher judiciary. Whether its flawed or not, I am not sure.
There were multiple references to "first time" within this Op-Ed. I am
not sure whether he meant we are supposed to followers always or there
has to be precedent set else where in this world.
What kind of representation one gives to a fellow Indian who is a
street vendor or for that matter victim of a violence other than that
set by Hon. Supreme Court of India. Can we expect our corrupt
executive or legislature to stand up to this exercise?
India itself is a nascent democracy with just 60 years and still
learning from its mistakes. We still do not have social safety net
for our citizens and are left to rot, yes our citizens are left to
rot. With dismal living conditions, no proper sanitation, water, or
food at their disposal, lets rob them of their last hope, the
Judiciary.

from:  Vish
Posted on: Aug 7, 2012 at 00:21 IST

Absolutely correct and timely article. We certainly need to remind the
judiciary that it is only one of the pillars of democracy, and that its
mandate is only equal to that of the other pillars (legislature and
executive). Over-indulgence of the interference of courts in the policy
and execution domains can ultimately lead to a situation like that in
Pakistan, where the judiciary considers itself more powerful and
legitimate than an elected Government.

from:  Gayathri
Posted on: Aug 6, 2012 at 23:24 IST

The only reason we can still breathe at all in New Delhi is the order of SC to enforce CNG.

from:  Amitabh Mukhopadhyay
Posted on: Aug 6, 2012 at 23:21 IST

It is true that PIL is for the rights of the poor disadvantaged section of the society.The role of the government through its legislators has code of conduct of business and can not be unchallenged one when it acts against the public interest in implementation may be economical or social issues. Many of the cases cited have become an eye opener for government for corrections and public as well.But for the interference of judiciary though said to have crossed its boundaries, the opaque policies and blind or ulterior method of implementations of the government would not have been brought to light. Be it food grain loss or Exchequer loss In a changing society where morality,ethics and principles of living are becoming a thing of past only Law and judiciary will be recourse available to address the issues for the public.Unless it is strong we can not retain the hard fought democracy with divergent society.Let there be a law not suited for the few in governance but for the country.

from:  santhanam
Posted on: Aug 6, 2012 at 23:16 IST

Judicial Activism should be interpreted as a check on the other branches of the Government by judiciary. Public power can be corrupted if left in the hands of the executive and the legislature hence there requires checks on these organs in the public interest. However it is for the other organs of the Government to have a proper check on Judiciary.

from:  Daniel
Posted on: Aug 6, 2012 at 21:50 IST

Numerous members of central and state legislature have pending criminal charges and have won their seats by questionable means. So much for legislative credibility. Administrative corps such IAS, IPS, IFS, and the postal and railway services are by and large honest, but have been rendered impotent by their unscrupulous political bosses. At the slightest resistance an honest IAS officer can be shipped off to a remote “waterless jungle”. In the milieu of all round corruption we cannot expect pristine purity from the Administration. Thus the judicial system, for better or worse – for better mostly – is de-facto running the country. But wait – all is not lost yet. If Anna Hazare’s activists fight elections and win seats to pass a good Lok-Ayuka bill there will be no need for Judicial Activism. The solution is to vote a Lok-Aykta Party into absolute Majority Power. Verily, a long term project!

from:  MUKUNDAGIRI SADAGOPAN
Posted on: Aug 6, 2012 at 21:06 IST

Constitutionally-speaking, the theoretical basis for the author's assertions are sound. However, in my mind the courts, especially the Apex Court, along with the Election Commission, forms the last bastion of integrity as far as public institutions are concerned. Many activities which are indeed in the public interest would be shelved and allowed to gather dust were it not for the courts. Ultimately, given the dynamics of the current situation, the public is unable to hold its elected representatives accountable in any effective, long-term manner. The public's right to demand accountability from elected representatives has been endowed to the guardians of justice.

from:  Samir Mody
Posted on: Aug 6, 2012 at 20:14 IST

As a citizen and as a legal professional, I have problem with the proposition made in title "Disturbing trends in judicial activism".
I think that, if we read the various instances given(criticized in this essay) in head of “public cause litigation” it is quite justified because of special powers given to supreme court under article 32 read with article 142 ( power to do complete justice)under Indian constitution.
Can we expect the Supreme Court to be a mute spectator when there is rampant corruption everywhere in the country?
Thank GOD, the Supreme Court has gone beyond from its traditional bumps and is trying to put some accountability in system which has now become subverted and insensitive.
Therefore I don’t agree with the so called allegation/critique made in the essay and would say that we cannot ignore the plight of poor, wretched and marginalized class of people mere on ground of procedural technicalities.

from:  Ankur Tripathi
Posted on: Aug 6, 2012 at 19:54 IST

Some of the comments above have totally missed a point made by the
author:
"On this specious justification, the political branches of government
may, by the same logic, take over the functions of the judiciary when
it has failed, and there can be no doubt that there are many areas
where the judiciary has failed to meet the expectations of the public
by its inefficiency and areas of cases."
I'd like to emphasize a point that i understood from reading the
article. That the author is not against Judicial Activism but only
warns that the Courts need to watch themselves conducting it,
especially if we do not wish (add ever) that the politicians (add
majority) to step in.
One needs to be sensitive, fully understanding, responsible and
neutral while commenting here, under a neutral article meant for
Judicial Reform alone and not to curb the Judiciary, and keep in line
with The Hindu's neutrality, which simply does not exist in most other
news media. Let us not malign it.

from:  Karthik
Posted on: Aug 6, 2012 at 15:34 IST

As it has been pointed out in this article that judicial activism and
was in its initial stage a boon for the poor people.It was PIL which
made the justice accessible to the poor mass. But what suddenly change
its purpose and as Mr. TR pointed out that court started it using as a
tool to supervise the action of other two branches of government? An
answer to this question is that it was not the SC over enthusiasm but
the failure of other branch of gov. who made the path for this kind of
activism.However, it's normal to glorify the past.And harping on the
purpose for what different things were created will only make us
confuse because change is desirable but what direction it take will be
decided by the circumstances. So it's better to think ahead instead of
being influenced by the nostalgia of the past.

from:  uttam kumar
Posted on: Aug 6, 2012 at 15:31 IST

This senior advocate has forgotten or conveniently forgets/hide the reality. Opinion changes as the days passed. Once upon a time, nobody can talk about gay rights. Now what has happened? "Live-in" relationship, have you heard even 10years ago. Has the society accepted? What about the definition of age limit for rape in the eye of law. Has it not been changed now? Everything evolves over a period of time. Have you not heard about legalising prostitution?
Our government is ready to spoil (get it rotten) the food in the godowns and nobody should interfere!! Now looting is in thousands of crores only and nobody should question these politicians, bureaucrats etc. That is what this senior advocate wants? Just think it in otherway. Why even the bsaic things were not delivered by government to citizens whether it is pollution free atmosphere, solving monkey menace or unmanned railway crossing issue etc? Does he say, let all politicians loot and the advocates, bureaucrats take their share!!

from:  M.Gnanasekaran
Posted on: Aug 6, 2012 at 15:23 IST

Better results matter more than better processes
The author would rather have the public suffer, than use a redressal
mechanism that is not optimum. Yes, in theory using a PIL may not be
the best alternative, but it is one which is yielding results, a
rare feat in a process oriented bureaucracy.

PIL's could be our best shot at accountability, given the structural
factors.
Justice Jackson's quotation hints at PIL's causing public
indifference. A more realistic analysis would reveal that structural
factors prevent the public from taking action, which results in
public indifference. PIL's could be our only way to tackle a
democracy where people are unable to use conventional methods to
ensure accountability.
There are many structural factors for public indifference.
It is flawed to think that public indifference is the primary cause
of our inability to ensure accountability from government bodies.
There are many structural factors that prevent the people from
organizing effectively.

from:  dronesh
Posted on: Aug 6, 2012 at 15:16 IST

One point that the author makes is that PIL legislation is not found even "advanced" countries. This is true. In fact, countries like the UK would certainly benefit from a PIL legislation. So let's not believe that we are on the wrong track. From my experience of the UK legal system, it is high time that the UK had something like the PIL to counteract a heavy handed top-down approach.

The PIL is useful in India for the very opposite reason - the apathy of the state in enforcing its own laws, and the callous way in which governments carry out their daily functions.

Which brings us to the last point of the article, that "is in danger of becoming diffuse, unprincipled, encroaching into the functions of other branches of government and ineffective by its indiscriminate use".

No, any attempt to restrict the use of the PIL will make the PIL redundant. This is a specious argument.

from:  Pradeep
Posted on: Aug 6, 2012 at 14:32 IST

PIL (Public Interest Litigation ) have now become (personal Interest Litigation ) by some individuals, they are taking the advantage to the personal interest or their close allies interest.

only NGOs and public service organisation be allowed to file PIL.
I remember when the then government wanted to widen the OMR IT corridor there was a PIL opposing the expansion. The widening could have eased traffic. narrow corridor has the chances to lineraly grow upto Mahaballipuram.
how we know that the PIL opposing the widening of the corridor was for public interest or some people who have bought the cheap land near mahabalipuram and waiting the corridor to reach their land to reap the highier land value.

from:  Farooqui
Posted on: Aug 6, 2012 at 13:55 IST

In a country where a president is a political pawn, I am happy that
atleast Chief justice is not so.

from:  Pankaj
Posted on: Aug 6, 2012 at 13:54 IST

In my opinion, the writer is right at some places but is wrong most of
the time. At a time when legislative and executive branches of
government are not functioning properly, someone has to take the
responsibility to keep the things in order and Supreme court is doing
the same. We have seen unprecedented corruption in the past. We are
witnessing how political bosses are shunning off their responsibilities. We are seeing corruption everywhere be it armed
forces, sports or sciences. So if the Supreme court works in curbing
this menace, i think it is fine and healthy for the society. In the
end i would like to say that the honorable supreme court should also
not cross its' mandate. But places where other branches of government
not doing their duties, Supreme court should intervene for the benefit
and betterment of society and democracy.

from:  Amit Kumar
Posted on: Aug 6, 2012 at 13:40 IST

There is a difference between 'judicial activism' and 'judicial
adventurism'. The latter is intolerable. However, the way our
democracy has evolved has left the citizens clueless. Our
representatives are inaccessible rulers and are entrenched in vote-
bank politics. They are ready to even sacrifice us for votes. In such
a scenario, whom do we trust? Our democracy means simply voting once
every five years. In the absence of options like the right to recall,
and an arrogant political class controlling the otherwise very able
bureaucracy citizens look up to the judiciary. Undoubtedly,its
prodding has been beneficial in a number of cases.

from:  Neetika
Posted on: Aug 6, 2012 at 12:56 IST

In a country like India without healthy political conventions and
plagued by rampant political corruption making majority of the
population survive only on state freebies and remain poor in
perpetuity,Courts have been doing an exemplary service in listening to
the grievances of indigent people and ordering the state machinery to
act.This situation does not arise if the citizens are well informed
and are not carried away by the momentary evil designs of the
political class and the bureaucracy stands up to maintain rule of law
and perform their duties without fear or favour unmindful of
adversities.

from:  G.Kulandaivelu
Posted on: Aug 6, 2012 at 12:35 IST

i do not agree with the author to some extent. It is the legislature
and executive who made the SC to chip in. if they are functioning so
well, then why do we have today illegal mining, forceful land acquisitions for private gains in the disguise of so called "public
interest", 2G scandal etc.., can't they bar criminals and goons from
contesting elections? this is the reason we, the public losing faith
in them. And yes, judiciary too restrain itself to some extent
meddling with the other branches in instances like interlinking of
rivers. Overall, Judicial activism is highly beneficial to us if it
focusses on right issues.

from:  srikanth
Posted on: Aug 6, 2012 at 11:49 IST

It is the time of inactivism on the part of executives and
legislature.both being infested of corruption pest can not perform
their daily activities regularly.judiciary should not claim
innocence,by very nature the other two branches are more prone to
scrutiny by media and judiciary.but sacredness offered by
constitution and people of india to judiciary should not be taken
for granted,if democracy is to survive in this land.

from:  dr sachin borde
Posted on: Aug 6, 2012 at 11:38 IST

Thoughts penned down by the author has been crafted to what is needed
the most at this point of time . When all the three system ( Judicial
, legislative and the administration) are going haywire , one system
cannot make up for the deficiency in the others . As a matter of fact,
the constitution has been designed in such a way that there exists a
balance of control that would enable the co-existence of individuals
peacefully . Judicial system does not have the expertise in various
arms that runs the country , May be in a couple of cases the
directives may have been fruitful , that does not give the power or
the authority for similar exercise. When things are overdone , the
belief in democracy will eventually erode . Judiciary trying to run a
democracy will do no good than people getting disgruntled even more
eventually losing faith in the entire system. Change eventually has to
be throughout and shall start from the grass root level.As India , we
have got a long way to go for that.

from:  Socrates C
Posted on: Aug 6, 2012 at 11:34 IST

What the author does here is make an academic argument. That too, an academic argument devoid of practicality inspite of the high offices the author has occupied. Any layman with a basic knowledge of separation of powers could have told us that there exists a judicial over reach in recent times. But the point here is, as the author pointed out, why does this over reach exist here and nowehere else? Its elementary my dear watson (read TR)- other countries dont suffer from lame politicians, scams at every corner, policy paralysis and utter disregard for the common man as soon as the polls are over. The common man is bound to reach out to that institution which he thinks is going to support his cause in a just and efficient manner. And if the SC has done so, it deserves a pat on the back and not be chided for judicial over reach. What does the author want? To stifle even the SC so that at the end of the day the common man is left with no recourse? Thank god it is not upto him.

from:  Abhilash
Posted on: Aug 6, 2012 at 11:19 IST

Yes it seems that courts have overused PIL. But is our executive
working well? The three pillars of our democracy were erected to work
in balance.But over the years executive misused it powers and not
taken care of common people.To rescue common man PIL was necessary.
If overusing of power is in common interest of people,let this
overusing be continued.

from:  gautam kumar
Posted on: Aug 6, 2012 at 11:07 IST

Fair enough "In no Constitution in the world is the power to select
and appoint judges conferred on the judges themselves"...But I dont
trust our respected President either..We have always wanted
'apolitical' and a strong president ..who do not have any affiliation
or background of affiliation to any political party.But in our current
system this is impossible..In effect today's president is a puppet of
the ruling party..So how can we trust him in making choices for
Juiciary..Why cant we have a free election all over India also for the
presidental candidate with the general elections..And also make sure
that no persons with any active party based political background is
allowed to contest in the presidential elections..Then we can make the
Judiciary come under the president..You can see how easily things
could go wrong by the way the last Chief Justice of India was promoted
by certain political parties..

from:  Dinoop
Posted on: Aug 6, 2012 at 10:59 IST

This article has raised a very important aspect on the matter of PILs. I respect the opinion since it comes from a very respectable member of the legal fraternity. It is high time the Courts or the Supreme Court lays down the principles under which PILs should not step into issues involving the functioning of the executive. He has also raised the fundamental position on the appointment of Judges. THe LOKpal Bill should also be careful in not treading into areas where they should not interfere. The question is how to have checks and balances in the system without interfering in the separation of the judiciary from the executive functions.

from:  S.N.Iyer
Posted on: Aug 6, 2012 at 10:52 IST

In all the actions by the supreme court cited by the writer, the
Court has always acted to enforce principle of our constitution or
existing laws. That's what's courts supposed to do -- otherwise a
section of our citizen will never get anything that resembles justice.
Courts cannot be held responsible for incompetence of the government.
The allegation of Judicial activism is meaningless. The term
"Judicial activism" was coined by the Neo Cons in the USA to criticize judges appointed by the Democratic President when judgment go against
the Neo Cons. Most of those criticism will be considered bizarre in
India. Appointment of judges in consultation of the Chief Justice
allows Indian to have relatively impartial judges. Some other
countries do have this system. This is much better system of
appointment than most other system of appointment around the world,
e.g. appointing judges on the basis of politics or election by voters.
Please do not destroy our judiciary.

from:  Maya Ghose
Posted on: Aug 6, 2012 at 10:42 IST

Honourable Supreme Court Advocate feels that PIL would become
ineffective by overuse. This line of thinking itself is flawed as its
evident that Supreme court intervenes only when the
government/legislative etc. are unable to do its duty for the country.
I opine that its still underused.

from:  dheeraj
Posted on: Aug 6, 2012 at 10:25 IST

Instead of focusing on the expected interpretation of concept, we must
consider them in the practical context. The judiciary has stepped into
the sphere of the government because the latter, clearly, is falling
short of its responsibilities. Had it not been so, judicial activism
would not have become a concern the way it is now. But then, we do
have a lack of governance in the country.

Why is the obsession with sticking to the wordly definitions of
concepts? Paper democracy according to the dictionaries might work for
ideal societies. But no society is ideal.

from:  Rohit Srivastava
Posted on: Aug 6, 2012 at 10:01 IST

The Hindu has voiced similar apprehensions earlier, not only on the
activism part but also the manner in which some cases have been
dismissed like the disproportionate assets case against Mayawati. One
reader has pointed out the activism was required to reduce pollution
in Delhi but at the same time the Gujarat High Court passes order to
covert all four wheelers to CNG. While CNG may reduce pollution but I
remember that CNG emissions can be carcinogenic. Also how can the
Courts set a deadline for conversion and make people spend hard earned
money to convert their vehicles to CNG?

from:  Zephyrine Goveas
Posted on: Aug 6, 2012 at 09:47 IST

Who takes oath under Constitution of India in the name of Public Interest- It is the president alone. Oath to an office precisely lays down the basic features of that office. Such oaths in Constitution of India are placed at different levels of our Constitution and are worded differently. This was not accidental. The change of words, the different situational positions of different oaths carry great significance. We have already damaged some thing of our constitutional basic feature, may be with good intention but not really good for the ultimate constitutional frame. Judgocracy must be avoided.

from:  ramesh kumar rateria
Posted on: Aug 6, 2012 at 08:59 IST

The author has failed to understand the basic problems of the
people that is the delay made in the Government offices in
disposing of the cases relating to the people, which force the
people to move to the courts which is the only place that people
think could do justice with them. unless Government and parliament/legislature of the states take cognizance and make self
introspection no one can stop the people from going to the courts
and courts delivering the judgments. If the executive wishes non
interference in its powers then it must deliver things to the
satisfaction of the people, take due care for prevention of the
corruptionand favoritism.Why should people move to the courts when
the would find it in the offices of the Government. The courts
need not to be alleged for the their active role in the executive
matters

from:  TAMSHEED GILANI
Posted on: Aug 6, 2012 at 08:52 IST

The author like other intellectuals always concern about the means rather than the end,social justice.the constitution does not empower absolute power to the parliament.being the source of that basic power people have their faith more on judges than the politicians.it is a fact that lower judiciary has full of corruption,it is also the same fact that most of higher level politicians are criminals and corrupt.people always look for minimal evil.so at the prevailing condition judicial activism is a minimal and necessary evil. In a democratic country,in the course of time, all the three pillars will regain their power .so nothing need to worry.

from:  jawahar
Posted on: Aug 6, 2012 at 08:49 IST

The author, Andhyarujina, seems to have missed the whole point for the PIL upsurge which is, that the governments (State and Centre) have become corrupt to the core and have stopped governing and have become looters of the Public Treasury and resorted to wholesale violations of the Constitution and the Law of the Land. In other words, the only branch of the government(of the three branches, viz. Executive, Legislative, and Judicial)that is functioning to some extent and that too at the High Court and Supreme Court levsl. Even the Judicial System at lower levels has become extremely corrupt. And who cares what Justice Jackson has said and how does that gets to be quoted here? Couldn't the Supreme Court Advocate think of any Indian Justice for reference? Is he so completely a lackey of the US?

from:  Subhash Reddy
Posted on: Aug 6, 2012 at 05:01 IST

Justice Jackson was right: “The doctrine of judicial activism ... is
wholly incompatible with a faith in democracy". So why do Indians ask
the courts to meddle in elected govt’s actions?
Is there any truth to media reports that Political Parties (= dynastic
family businesses for private gain & power) exercise absolute control
over the country by (i) subverting the Constitution, Parliament, the
Electoral System, Democratic Institutions, Democratic Checks &
Balances, the Laws (ii) forming a nexus of the legislature, the
executive, the judiciary and corporate houses (iii) buying up
electoral votes with money from corruption, and even (iv) control
sections of the media?
Is it because democracy in India is currently not functioning as it
should, the citizens feel disenfranchised, and compelled to appeal to
the HC/SC to examine govt actions, when they perceive them to be
against national interest, and hope that the Courts will re-establish
rule of law and prevent future abuse of power?

from:  D Mahapatra
Posted on: Aug 6, 2012 at 04:16 IST

Points raised about Supreme Courts action on matters of governance are valid as
TR points out. Court has gone out of its way to do governance while the
government which has the responsibility to govern slept or otherwise let the things
go their way because there were many cronies to satisfy. The case of air pollution
in Delhi is one significant example. Delhi government did not do anything to
reduce diesel engine fume pollution for fifteen years till the court stepped in and
ordered change of diesel engines to gas engines. The courts in India have to
become activist because the other two arms of the government, the legislature and
the executive are run by crony capitalists who will not do anything to harm their
friends. It is unfortunate for judiciary to get involved in running the country, but
the blame lies with the politicians not the judiciary.

from:  Mohammad Imran
Posted on: Aug 6, 2012 at 03:19 IST
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