दै. सकाळ २४ एप्रिल १९९७
एकदा आमच्या चर्चामंडळीत राज्यव्यवस्था या विषयावर चर्चा चालू होती. आमच्यापैकी ब-याच जणांनी शाळा-कॉलेजमध्ये राज्यशास्त्र हा विषय शिकलेला नव्हता. म्हणून ज्या एका सदस्याने तो शिकला होता त्याने आम्हाला राज्यव्यवस्थेबद्दल व विशेषतः लोकशाही प्रणाली मधील राज्यव्यवस्था कशी असते त्याबद्दल प्रबोधन केले.
लोकशाहीत लोकांनी निवडून दिलेले सरकार राज्यावर असते हे तर खरेच; पण त्यांना सहकार्य करणा-या, तसेच राज्यव्यवस्था सुरळीतपणे चालू ठेवण्यासाठी सहाय्य करणा-या इतर ब-याच संस्था असतात. कुठल्याही लोकशाहीचे चार घटक असतात. वैधानिक, प्रशासकीय व न्यायिक घटकांबद्दल आपण समाजशास्त्राच्या पुस्तकात वाचलेले असते. चौथा घटक म्हणजे समाजातल्या शहाण्या, जाणत्या व्यक्तीचा घटक.
वैधानिक घटक म्हणजे लोकांनी निवडून दिलेले लोकप्रतिनिधि. यांचा लोकांशी वारंवार संबंध येतो. त्यांनी लोकांचे प्रश्न समजून घेतलेले असतात, त्यावर विचार केलेला असतो, ते सुटण्याची आच दाखविलेली असते व त्यासाठीच त्यांनी प्रयत्न करायचा असतो. म्हणूनच लोकांचे प्रश्न सुटावेत आणि त्यांच्या आकांक्षांना निश्च्िात विकासाची दिशा मिळावी यासाठी लागणारे कायदेकानू, नियम इत्यादी तयार करण्याची जबाबदारी या वैधानिक घटकावर असते.
लोकप्रतिनिधी मधूनच काही व्यक्ती निवडून त्यांचे मंत्रिमंडळ बनविले जाते, हे मंत्रिमडळ व नोकरशाही मिळून प्रशासकीय घटक बनतो. याचाच अर्थ असा; की प्रशासनात दोन भिन्न उपघटक असतात. राजकीय पुढारी आणि नोकरशाही हे ते दोन उपघटक. दोघांची मुळे वेगवेगळ्या मातीत जोपासलेली असतात. नोकरशाहीत असणारे लौकिक अर्थाने उच्चशिक्षित व अत्यन्त बुद्धिमान असतात. प्रशासनाच्या कलेत ते निष्णात व पारंगत असतात. नियमांचे जाळे तयार करणे, त्यांचे पालन करवून घेणे, त्या माध्यमातून समतोल विकास घडवून आणणे, इत्यादी कामांत त्यांचे कौशल्य पणाला लागत असते. मात्र लोकांचे प्रश्न, आकांक्षा आणि स्वप्न यांच्याशी त्यांचा जवळून व भावनिक संबंध येतोच असे नाही. या उलट मंत्रिमंडळात येणारे मंत्री लोकांचे प्रतिनिधी असतात. त्यांना लोकांच्या आकांक्षा आणि प्रश्न कळलेले असतात. त्यानुरूप कायदेकानू बनविण्यात त्यांचा हातभार लागलेला असतोच.
तिसरा घटक असतो न्यायसंस्थेचा. केलेल्या नियमांचे पालन होते का नाही ते बघून लोकांना न्याय मिळवून देण्याचे काम न्यायालये करीत असतात. या तिन्ही घटकांचे काम सर्व पुस्तकांमधून ग्रंथित करून ठेवलेले असते. चौध्या घटकाचे म्हणजे समाजातल्या सुजाण लोकांचे काम नेमके कुठे लिहून ठेवलेले नसले, तरी त्यांचे काम जागरूक पहारेक-याचे असते हे सर्वानीच कबूल केलेले आहे. शासनाच्या वरील कोणत्याही घटकाचे काहीही चुकत असेल, तर ते निदर्शनास आणून त्यांत सुधारणा करून घेणे हे या सुजाण लोकांचे काम असते. या सर्वांपैकी मंत्रिगण या घटकाकडेच सर्वात जास्त दृश्य सत्ता असल्याने ते सर्वश्रेष्ठ मानले जातात.
त्यांच्या उलट चौथ्या घटकाकडे कमीत कमी दृश्य सत्ता असते. त्याना कोणताही कायद्याचा अधिकार नसतो. त्यांना पगार मिळत नाही. त्यांच्यावर कोणतीही जबाबदारी देखील नेमकेपणाने बोट ठेवून टाकलेली नसते. त्यांची सदसद्विवेकबुद्धी, सरकारवर वचक ठेवण्याची गरज, ती ओळखण्याची जाण, चुकत असल्यास सरकारवर अंकुश लावण्याची कुवत इत्यादी गुण कुणी पैशाच्या किंवा कायद्याच्या जोरावर निर्माण करू शकत नाहीत. त्यामुळे ही जबाबदारी पार न पडण्याने जरी समाजाचे सामूहिक नुकसान होणार असले तरी कुणाचे वैयक्तिक नुकसान होणार नसतेः.
नोकरशाही आणि न्यायाधीश यांची गोष्ट निराळी. ते शासनाचे पगारी नोकर असतात आणि त्यांच्यावर काही जबाबदारी टाकलेली असते. त्यांना मिळणा-या पगाराच्या मोबदल्यांत त्यांनी ती जबाबदारी कर्तव्यबुद्धीने, सचोटीने, कार्यक्षमतेने, पार पाडायची असते. दोन्ही घटकांच्या जबाबदारीच्या सीमारेषा ठरवून दिलेल्या असतात. लोकप्रतिनिधी आणि मंत्रिमंडळाचे सदस्य मात्र तशा अर्थाने पगाददार नोकर नसतात. खरे तर आपण त्यांना पण पब्लिक सर्व्हंट म्हणतो आणि त्यांच्यासाठी पण पगार, भत्ते इत्यादी ठरलेले असतात; पण त्यांची परिस्थिती या कारणाने वेगळी म्हणायची, की दर निवडणुकीत पुन्हा निवडून येणे ही मोठी परीक्षा त्यांना पार पाडावी लागते.
एवढे प्राथमिक ज्ञानार्जन झाल्यानंतर लगेज आवाजांचे मोहोळ उठले. ज्याच्या त्याच्या तोंडी एकच प्रश्न, या तीन घटकांमध्ये एकवाक्यता नसते तेंव्हा काय? एखादा घटक चुकत असेल तेंव्हा काय? आमचे मित्र मुरब्बी व-े होते. फॉर्मात येऊन त्यानी सिद्धांत सांगायला सुरवाल केली, तेही सोदाहरण. तो सिद्धांत असा - तीनही घटकांची कार्यकक्षा वेगळी आहे त्यांच्या सीमारेषा नेमकेपणाने आंखलेल्या आहेत. तेंव्हा ज्या त्या घटकाने आपापले काम करायचे हेच अभिप्रेत आहे. एका घटकाने दुस-या घटकाच्या कार्यकक्षेत प्रवेश करायचा नाही, संविधानात तसे स्पष्ट ठरवून दिले आहे. याबद्दल मी एक चांगली उपमा देतो म्हणजे तुम्हाला कळेल.
तुम्ही कधी एखादा उत्तम आर्केस्ट्रा ऐकला आहे का? त्यांत वेगवेगळी वाद्ये असतात. ड्रम, पियानो, अकॉर्डियन इत्यादी. जी कोणती सिम्फनी (किंवा इतर काही) वाजवायची असेल त्यामध्ये प्रत्येक वाद्याची जागा ठरलेली असते. किंबहुना त्या वाद्याचे वैशिष्टय ओळखूनच त्याबरहुकूम त्यासाठी जागा निर्माण केली असते. ऑर्केस्ट्रा वाजत असताना पियानोसाठी लिहिलेल्या ओळीत पियानोच वाजवावा लागतो, गिटार वाजवून चालत नाही. त्याने ऑर्केस्ट्राची घडी, लय सौंदर्य बिघडून जाईल. पियानो मध्येच थांबला तर ऑकेस्ट्रासुद्धा थांबतो; पण तात्पुरती, वेळ निभावून न्यावी म्हणून, गिटार वाजवली असे करून चालत नाही.
तोच नियम लोकशाहीतील कायदेमंडळ, न्यायमंडळ, मंत्रिमंडळ आणि नोकरशाही या सर्व घटकांना लागू होतो. एका घटकास दुस-याची जागा घेता येत नाही. घेऊन चालत नाही.
आपल्याला ऐन वेळी उत्तम उपमा सुचल्याचे समाधान त्यांच्या चेह-यावर होते. त्यांचा मुद्देसूदपणा इतका प्रभावी होता, की सर्व जण भारावून गेले, निःशब्द झाले. त्याचबरोबर थोडेसे चकित व आनंदितही.
पण हा आनंद फार काळ टिकला नाही.... अशा चर्चामडळीत हमखास असतात तसे आमच्या ग्रुपमध्ये पण संशयात्मा होतेच. त्यांनी प्रश्न विचारायचा तो विचारलाच. लोकशाहीची संकल्पना पाश्चात्य देशातून आली असेल, कबूल. पण म्हणून तिला उपमा देतांना पाश्चात्य आर्केस्ट्राचीच उपमा दिली पाहिजे असं कुठे आहे? त्या ऐवजी आपल्या शास्त्रीय संगीताची उपमा कां देऊ नये? आपल्या मैफिलीचा विचार करू या. गायक वादक एकत्र येतात. खूप दिवसात कुणी कुणाला भेटलेले पण नसते ! मग रिहर्सल राहिली दूरच. फक्त वाद्ये जुळेवली जातात, तिथेही अमुक वाद्य हवेच असा आग्रह नाही. मुख्य गायक किंवा. वादक रागाची निवड करतो आणि मैफिल सुरू होते. मध्ये एखादी तार तुटते, तबल्याचा सूर उतरतो, गायकाला ठसका लागतो. पण इतर कलाकार ती जागा भरून काढतात. तेही बहुतेक वेळी मैफिलीची रंगत कमी न होऊ देता.
मग लोकशाहीतही एखादा घटक थांबला, चुकला, बिघडला, तुटला तर आपली जागा कशी सोडायची असा विचार न करता आणि कदाचित आपल्या मर्यादेच्या बाहेर जाऊन, पण आपल्या कुवतीप्रमाणे ती जागा भरून काढायला काय हरकत आहे? कदाचित थांबलेल्या कलाकारा इतकी रंगत आणता येणार नाही, मैफिल रंगविता येणार नाही. पण ती थांबून जाणार नाही. तिची लय, गती, रस, सातत्य यांचा भंग होऊ दिला जाणार नाही. चुकलेला कलाकार स्थिरस्थावर झाला, की पुन्हा त्या जागेपासून मैफलीला आणखीन पुढे नेईलः पण मैफिलच थांवली तर सर्वांनाच मैफिलीतून रसहीन आणि कळाहीन होऊन उठावे लागेल. अगदी समोरच्या प्रेक्षकांना सुद्धा. ती वेळ न येऊ देता मैफलीचा बाज टिकवून ठेवणे हे इतर कलाकारांचे कर्तव्य भारतीय संगीतात मानले जाते. मग भारतीय लोकशाहीची तुलना भारतीय संगीत मैफलीशी का नाही करू? मान्य आहे की याने तबलावादकांची, पेटीवादकांची जबाबदारी वाढेल, श्रोत्यांच्या अपेक्षाही वाढवील पण मैफिल तर भरभराटीला येईल की नाही?
आज ज्युडिशियल ऍक्टिविझमची चर्चा वाचली, ऐकली की मला ही जुनी चर्चा आठवत रहाते.
What is the judicial activism? Anil Dhavan
It is argued that judicial activism is an attack on legislation.
It is also termed as self-assumption of powers of legislature itself. In simple words the judicial activism reflected in an interpretation of laws sometimes looks like a political dialogue.
Though our learned judges drive safely on the established roads, they risk deviation in case of an urgent call for protecting the spirit of our constitution. They overreach when legislatures or executives cross the line of control drawn in constitution. But it’s equally true that the judges neither represent the people’s will, nor they are accountable to the people.
In democracy the ultimate say must rest with the people, the representatives of the people, and not in the hands of those who can’t be taken to task for any of their omission of commission.
Passing of the legislations is an exclusive right of legislatures. Though it is hard fact that when we count for dependability of our institutions, we have to stop after naming only two: our army and judiciary.
Passing of the legislations is an exclusive right of legislatures. Though it is hard fact that when we count for dependability of our institutions, we have to stop after naming only two: our army and judiciary.
In case of our parliament, except the aberration during the emergency, and recently flocked in by the presence of members like Sibu Soren, it has maintained the proverbial status of virgin Mother Marry.
Judicial activism and democracy
The great contribution of judicial activism in India has been to provide a safety valve and a hope that justice is not beyond reach.
LIVELY CRITICISM of judicial activism encroaching on the powers of the legislature and the executive has been voiced by many including Lok Sabha Speaker Somnath Chatterjee. Such controversies are the lifeblood of democracy and must be welcomed. On March 12, 2007, marshals were summoned in the Lok Sabha as Communist Party of India (Marxist) members stormed the well, menacingly advancing towards Shipping Minister T.R. Baalu. Dravida Munnetra Kazhagam members formed a human wall to protect him. On March 19, 2007, another scuffle took place in the Rajya Sabha when Bharatiya Janata Party member S.S. Ahluwalia and other Opposition members rushed threateningly towards Finance Minister P. Chidambaram who was protected by a cordon of Congressmen.
The Indian citizen's perception of the political class is overwhelmingly coloured by the above images. It is in this context that judicial activism has flourished in India and has acquired enormous legitimacy with the Indian public. Some glimpses from the past and a peep into the future may be rewarding.
In 1608, England was ruled by the Stuart King James I who claimed absolute power. On November 13, 1608, James entered the royal courts and claimed that he could take any case he chose, remove it from the courts, and decide it in his royal person. Chief Justice Coke answered that he could not do so but the case ought to be determined and adjudged in a court of justice according to the law and custom of England. The King was greatly offended and replied: "This means that I shall be under law which is treason to affirm." Coke replied: "Bracton says that the King should not be under man but should be under God and law." At that time the judges were removable by the King and had no security of tenure. Chief Justice Coke's reply was an affirmation of the judicial power while upholding the rule of law against arbitrary decisions of the sovereign. This was judicial activism at its finest.
In 1801, Chief Justice John Marshall highlighted and reaffirmed the power of the American Supreme Court to invalidate Congressional statutes in the celebrated case of Marbury v. Madison. John Marshall was Secretary of State in the administration of President John Adams who in the last days of his Presidency appointed as judges and magistrates more than 50 people belonging to his party. Meanwhile, Marshall was appointed Chief Justice and overlooked delivering some commissions. The incoming President Thomas Jefferson ordered his Secretary of State James Madison not to deliver these commissions. Marbury, an appointee, moved the Supreme Court for a direction against Secretary of State Madison praying that the commission be delivered to him. Chief Justice Marshall knew that if a direction was given it was unlikely to be obeyed by President Jefferson. By an act of judicial statesmanship Marshall ruled that Section 13 of the Judiciary Act under which Marbury had petitioned the court was unconstitutional and invalid and therefore the court had no original jurisdiction to grant relief. He avoided a direct conflict with the administration while highlighting and reaffirming the judicial review power to invalidate an Act of Congress.
Chief Justice Earl Warren of the U.S. was one of the great activist judges who has profoundly influenced the Indian Supreme Court. By his decisions he legitimised affirmative action by the courts and removed racial discrimination in schools by desegregation, reapportioned obsolete electoral districts, and enhanced the rights of poor accused and defendants. Warren and the judges supporting him came in conflict with their colleagues who championed judicial restraint. Bernard Schwartz recounts a public display of acrimony between Warren and Frankfurter, the latter a champion of judicial restraint. In Stewart v United States, a bare majority reversed a murder conviction because of improper questioning by the prosecution. After the majority opinion was read, Frankfurter in open court characterised it as "an indefensible example of judicial nit-picking" and "excessively finicky appellate review." Chief Justice Warren, visibly angered, said: "As I understand it the purpose of reporting an opinion in the courtroom is to inform the public and is not for the purpose of degrading this Court." This exchange was front-page copy for the national press.
President Eisenhower a conservative Republican, was distressed by the liberal views of his appointee Chief Justice Warren. When Eisenhower was asked what his biggest mistake was, he angrily replied "the appointment of ... Earl Warren."
What was the one case that was the high-water mark of judicial activism in India? No doubt it was the judgment of the majority in the Keshavananda Bharati case (the fundamental rights case). For the first time a court held that a constitutional amendment duly passed by the legislature was invalid as damaging or destroying its basic structure. This was a gigantic innovative judicial leap unknown to any legal system. The masterstroke was that the judgment could not be annulled by any amendment to be made by Parliament because the basic structure doctrine was vague and amorphous. The judgment was severely and passionately criticised by the executive and many eminent lawyers. The immediate response of the executive was the supercession of three senior-most judges (Justices Shelat, Hegde, and Grover) while the fourth Judge Justice A.N. Ray who had decided all major cases in favour of the Government was appointed Chief Justice. However, the critics were soon silenced. The excesses of the Internal Emergency of 1975 completely legitimised this judgment and one of its severest critics the great jurist H.M. Seervai changed his views.
Judicial activism earned a human face in India by liberalising access to justice and giving relief to disadvantaged groups and the have-nots under the leadership of Justices V.R. Krishna Iyer and P.N. Bhagwati. The Supreme Court gained in stature and legitimacy. Later, when the independence of the judiciary was threatened by punitive transfers, the court entered the arena of judicial appointments and transfers. With the increasing criminalisation and misgovernance and the complete apathy of the executive, the court (under the leadership of Chief Justice Verma and Justices Bharucha and Sen) took up the case of terrorist funding linked to political corruption through the `hawala' route in the Vineet Narain Case (Jain hawala Case). A cover-up by the Central Bureau of Investigation to protect its political masters was exposed and the court monitored the investigation upholding the principle "Be you ever so high the law is above you."
During the hearing there were reports that Prime Minister P.V. Narasimha Rao was interfering with the investigation and the court passed an interim order on March 1, 1996. It directed "that the CBI would not take any instructions from, report to or furnish any particulars thereof to any authority personally interested in or likely to be affected by the outcome of the investigation into any accusation. This direction applied even in relation to any authority which exercises administrative control over the CBI by virtue of the office he holds, without any exception." In substance Prime Minister Rao was forbidden from exercising control over the CBI in relation to that case. It was a bold and courageous order and carried judicial activism to hitherto unscaled heights. The fallout of the case was resignations following initiation of prosecutions against high profile political personalities including three Cabinet Ministers, two Governors, and the Leader of the Opposition. In the next general election the ruling Congress lost power.
The courts on several occasions have issued directions in public interest litigation (PIL) covering a wide spectrum such as road safety, pollution, illegal structures in VIP zones, monkey menace, dog menace, unpaid dues by former and serving legislators, nursery admissions, and admissions in institutions of higher learning. There is no doubt that sometimes these orders are triggered by righteous indignation and emotional responses.
The common citizens have discovered that the administration has become so apathetic and non-performing and corruption and criminality so widespread that they have no recourse except to move the courts through PIL, enlarging the field for judicial intervention. If a citizen's child is attacked by a stray dog or cattle roam the streets or hospitals suffer from monkey menace and nothing is done, should not the court intervene?
The great contribution of judicial activism in India has been to provide a safety valve in a democracy and a hope that justice is not beyond reach. Judicial activism has come to stay in India and will prosper as long as the judiciary is respected and is not undermined by negative perceptions, which have overtaken the executive and the legislature. There is concern among the public about lack of transparency in judicial appointments and a sense of increasing unease because of a lack of a credible mechanism to deal with serious complaints against the higher judiciary.
The plants slowly nurtured by judicial craftsmanship have grown into sturdy trees and have blossomed with colourful and fragrant flowers. Judicial activism has added much needed oxygen to a gigantic democratic experiment in India by the alchemy of judico-photosynthesis.
(The writer is a Senior Advocate, Supreme Court .)
A Theory Of Judicial Philosophy
By Justice A D Mane
Judge, High Court of Bombay,
Bench at Aurangabad
In order to understand the true meaning of expression – “Judicial Activism”,
for discussion, I think, it would be appropriate to consider various terms usually
spoken of in context to administration of justice.
2. The tem ‘Judicial‘ is an adjective from French word ‘Judex’ meaning a
Judge, it means or pertaining or appropriate to the administration of justice or
courts of justice or a Judge thereof or in the proceedings therein”. The right to
pronounce a definitive judgment is considered the sine quo non of a Court. [
See Sec. 19 Indian Penal Code by Ratanlal & Dhirajilal. 20th Edn.]
3. The word “Court of Justice” denotes a Judge who is judge empowered by
law to act judicially as a body, when such judge or body of judges is acting
judicially. The word “Judiciary” again is explained to mean the Judges of a State
Collectively. [Concise Oxford Dictionary, New Edition for 1990’s]
4. The term judicial activism is explained in Black’s law Dictionary, Sixty
Edition, [Centennial Edition (1891-1991)] thus, “Judicial philosophy which
motives judges to depart from strict adherence to judicial precedent in favour of
progressive and new social policies which are not always consistent with the
restraint expected of appellate Judges. It is commonly marked by decisions
calling for social engineering and occasionally these decisions represent
intrusions in the legislative and executive matters.”
5. Though it is the legislature, which makes the Law, the Judgments
rendered by the Supreme Court and High Courts give the Law a concrete shape,
which the people understand better as the Law. Hence, there is importance of
the decision making process. In the Common Law, development is permitted, if
not expected in Stature law, there must be at least a presumption that
Parliament has on the topic it is dealing with, said all that it wanted to say,
Justice V. R. Krishana Iyer, the greatest activist Judge, India has so far seen,
feels, judicial activism is a device to accomplish the cherished goal of social
justice. He said,
“ After all, social justice is achieved not by lawlessness process,
but legally tuned affirmative action, activist justicing and benign
interpretation within the parameters of Corpus Juris”.
[In Search of Social Justice, page.8]
6. Salmond defined “Law” in terms of its purposes. According to him, law is
a body of principles recognized and applied by the State in the administration of
Roscoe Pound’s essential contribution to jurisprudence is that law should be
used as an instrument of social control. He coined the phrase “social
engineering” as a description of the problems of the legal order in balancing
individual wants and social interests.
LAW AND JUSTICE
7. It may be emphasized here that, Law and justice are, however, two district
concepts. No doubt, they are interrelated but each has district sphere of its own.
The concept of Justice is even older than that of law. Justice is the legitimate
end of law. It must, therefore, necessarily precede law because people thought
of law as they wanted justice. Justice is a social value. Therefore, it is said that
“it is not the words of law but the internal sense of it that makes the law. Letter
of law is nobody, sense and reason of law is the sole.” These, in my view, are
the established principles in judicial philosophy.
ACTIVISM AS OLD AS LINCOLN
8. Abraham Lincoln has pointed out,
“ Have we not lived enough to know that two men may honestly
differ about a question, but both be rights? In this paradox lies the
secret of judicial process. There are areas where the judges must
be activists and there are areas where they must be passivists. In
which areas they should be activist and in which areas they should
be passivists can be gathered from the knowledge we get by
9. No one will dispute that judiciary has to perform an important role in the
interpretation and enforcement of human rights inscribed in the fundamental law
of the country. Therefore, it is necessary to consider what should be the
approach of the judiciary in the matter of constitutional interpretation. An
approach must be a creative and purposive approach in the interpretation of
various rights embodied in the Constitution. With a view to advancing human
rights jurisprudence and social justice. I stress the aspect because I believe
social justice approach is the command of the Constitution of India.
10. It reminds me what Chief Justice Ahmedi [as he then was] has said in his
interview of the week to The Sunday observer dated April 20-26, 1997. The
query was “ There is much talk about judicial activism. What does that mean?
How far should it be carried in democracy?” to which he answered.
“ I have always disapproved of this label of judicial activism
because it gives the impression that the Court was earlier passive,
which is incorrect. What is known as activism is where the
judiciary takes decisions in sensitive cases, which are
sensationalized by the media. When the media highlights the case
of an influential person, it often pets referred to as activism. But
the role of the court is limited.
The concept of judicial activism and public interest litigation are
connected. This started in the Seventies. The legal aspect of PILs
is the waiver of the rule of locus standi. The normal rule is that
only the aggrieved party can move the court. But the court found in
certain cases that the aggrieved party was so placed because of
economic constraints or lack of awareness of rights that it could not
move the court. So the count said that even if a third party moved
it, the locus standi rule would be waived, if the petition had
substance. In a situation where a mass of people would benefit,
the court may not insist upon the locus standing rule. Then it
becomes public interest litigation. This is sometimes described as
activism or assertive action.”
11. In this context, it would be appropriate to recall the words of Dr. B. R.
Ambedkar in context of the Constitutional provisions touching to the core of the
role of the Supreme Court.
On the day of the adoption of Constitution of India, Dr. Ambedkar said,
“.....Constitution of our country would be found to be bulky..........It
would be difficult for those who have been through it to realize its
silent and special features.”
Speaking about Article 32 of the Constitution, Dr. Ambekar said,
“........If I was asked to name any particular article in this
constitution, as the important as one, without which this
constitution would be nullity, I would not refer to any other article
except this one.......”
He further said,
“ ........It is the very sole of the Constitution and very heart of it.......”
12. Other aspect, which I would like to mention at this stage is from the
answers given by Dr. Ambedkar to various amendments suggested by the
members in the Draft Constituent Assembly, in regard to the provisions
contained in part IV Directive Principles of State Policy.
13. It was criticized by several members in the Constituent Assembly that the
directive principles are superfluous or mere guidelines or pious principles or
instructions. They are ineffective as they are non-justiciable, that they are apt to
land us in a dilema, and that they may be out of date. In this speech Dr.
“ What are called directive principles is that they are instructions
to the Legislature and the Executive. Wherever there is grant of
power in general terms for peace, order and good government that
it is necessary that it should be accompanied by the instructions
regulated its exercise.”
Dr. Ambedkar further said,
“ It is said that the Directive principles have no legal force........I
am prepared to admit it, but I am not prepared to admit that they
have no sort of binding force at all. Nor am I prepared to concede
that they are useless because they have no binding force in
law......” [See Constituent Assembly Debets].
It is not the Constitutional vision of Dr. Ambedkar, which has been
inspired from judicial philosophy?
14. What part III ( Fundamental Rights) outlines for the individual, Part IV
outlines for the entire fabric of society in which the individual is but a component
part. Ordinarily there can be no conflict between the two but if it arises, it is
capable of resolving the conflict, if only it is remembered that the Directives are
there to tame the wild extravagance of assertion of the individual regarding his
fundamental rights. The latter are the present irreducible minimum of rights of
individual in a free democracy while the Directive Principles are the character
for the further welfare of the State. Part IV can in no sense be considered as
subordinate to Part III. The gist of superiority cannot be split out of the test of
justiciability. To correctly put it if the Directive Principles are made nonjusticiable,
it is simply because courts are not suited to administer them. They
are nevertheless legal principles, law in face but only they have to be adhered to
by the State in its functions as an administrative and legislative agency. Article
37 enjoins them as fundamental in the governmental rights are subject to
reasonable restrictions in the interests of the general public. In terpreting those
rights the courts will be obliged to lay down cannons for determining what is
reasonable and it is impossible that a restriction should be reasonable if it
offends against the directive principles.
15. Considering the scope and extent of Article 32 of the Constitution of
India, the Supreme Court in clear terms observed that the court has power under
Article 32 to issue whatever direction. Order or writ that may be appropriate in
a given case for the purpose of enforcement of a fundamental rights. It is not
confined only to issuing the high prerogative writs, which are hedged in by strict
conditions differing from one writ to another. This is clear from the words “in the
nature of “ in clause . The Court has direction to evolve a procedure
appropriate in the circumstances of given case for the purpose of enabling it to
exercise its power to issue such direction, order to writ. There is no
constitutional compulsion to follow the adversial procedure only. The court can
adopt such procedure as it thinks fit in exercise of its new jurisdiction created to
enforcement of the fundamental rights. In entertaining the public interest
litigation, the Supreme Court is merely assisting in realization of the
Constitutional objectives [Bandhua Mukti Morach Vs/ Union of India (1984) 3
SCC 161 ].
16. It is also undisputed that where the Court finds, on being moved by an
aggrieved party or by any public spirited individual or social action group, that
the executive is remiss in discharging its obligations under the Constitution or
the law, so that the poor and the underprivileged continue to be subjected to
exploitation and injustice or are deprived of their social and economic
entitlements or that social legislation enacted for their benefit is not being
implemented thus depriving them of the rights and benefits conferred upon them,
the Court certainly can and must intervene and compel the executive to carry out
its constitutional and legal obligations. [State of H.P. Vs. A Parent of a Student,
(1985) 3 SCC 169 ].
17. Now, it is clear that the fundamental rights and directive principles
constitute the conscience of out constitution. The purpose of the Fundamental
Rights is to create an egalitarian society, to free all citizens from coercion or
restriction by society and to make liberty available for or all. The purpose of the
Directive principles is to fix certain social and economic goals for immediate
attainment by bringing about nonviolent social revolution. Through such a social
revolution the Constitution seeks to fulfill the basic needs of the common man
and to change the structure of our society. It aims at making the Indian masses
free in the positive sense. Without faithfully implementing the Directive
principles, it is not possible to achieve the welfare State contemplated by the
Constitution. Therefore, the Supreme Court has now removed the wall between
Part III and Part IV of the Constitution by holding that the ‘Directive Principles
are also fundamental and they must be read in the part III.
18. The democratic ideal rests on the foundation of the equality, liberty and
ultimate control of the Government. In case of Kasturi Lal Vs. State of J & K
[AIR 1980 SC 1992] directive principles are held as reasonable restriction sin
the public interest on the fundamental rights. The Supreme Court while
interpreting the Constitution also explains what the law is as it is constitutional
obligation upon it to see that while interpreting any provisions of law those
enunciated in the part are kept in view that the people be given main focus.
19. In case of Nilabati Behera Vs. State of Orissa [(1993)] 2 SCC 746] the
Supreme Court has evolved ‘new tools’ and moulded remedy to provides
redressal in case of deprivation of fundamental right like that under Article 21.
especially for have – nots.
20. It is therefore, clear that lack of care by the executive or the legislature
has given rise to new form of litigation namely, ‘public interest litigation”.
Realising its constitutional obligation towardss public, the judiciary has to adopt
aggressive form, which has been termed by some as “judicial Activism” in
common parlance. Judiciary has brought forward an ingenious devise to being
justice to the people. Namely public interest litigation. It has not only protected
rights of children and women but others also the land mark judgments have been
delivered by the Supreme Court which justify the progressive and inherent
judiciary to do justice to the people as per the mandata of the constitution of
India. It is in this sense of the term that the true meaning fo activism is the
theory of judicial philosophy.
21. It will not be out of place to mention what our beloved and revered the
Honourable Chief Justice Dr. A. S. Anand while delivering the Justice Krishna
Rao memorial lecture at the National Law School at Bangalore has said, and to
“.......The courts must not shy away from dischrging their
constitutional obligations to protect and enforce human rights”.
He further added,
“ While acting within the bound of law they must always rise to the
occasion as guardians of the Constitution, criticism of judicial
At the same time, he has observed that while expounding and expanding
the law, judicial enthusiasm and judicial restraint are two sides of the same coin
and with a view to see that judicial activism does not become judicial
adventurism and lead a judge going in pursuits of his own notions of justice and
beauty the Honourable the Chief Justice Dr. Anand has cautioned that we
should not ignore the limits of law. The bounds of his jurisdiction and binging
precedents in dealing with public interest petitions. “ It should develop on a
consistent and firm path” he added.
In other words, according to him,
“ ...Judicial authoritarianism cannot be permitted. The Courts have
to be very careful to see that their exercise of judicial creativity for
attaining social change is not allowed to run amuck and every court
functions within bounds its own prescribed jurisdiction.......”
22. Supporting the judiciary’s role in intervening wherever its support was
needed to get certain directives implemented for the public good, the
Honourable the Chief Justice Dr. Anand Said,
“ ..Intervention in such areas is because of the peoples perception
that Judicial interventions is perhaps the only feasible correctional
23. Judicial approach is increased partially in every walks of life, cleaning up
from politics to environment. There cannot be any dispute that the courts are
bound to evolve, affirm and adopt principles of interpretation which will further
and hot hinder the goals set out in the Directive Principles of State Policy, which
forms integral part of fundamental rights as per the Constitutional wisdom.
24. To conclude, judicial activism is justice personified. What is inherent in
the body of the Judiciary has come on surface, to do justice and to stop
miscarriage of justice. It has shed its shyness of adolescence and has learnt to
face bravely the odds put by the Establishment. It has realized that it has a
Third Eye of Lord Shiva to burn what is injustice. For that, every constitutional
judge must be active and never passive or negative. Judicial activism is a blood
- cell of the Judiciary. Therefore, the phraseology “Judicial activism” is nothing
but a new facet and expanded meaning to judicial interpretation and its
implementation within permissible limits cannot be termed as a mere fiction
inasmuch as with passage of time basic meaning do not change, but expansions
are given new colour to the meaning.