Tuesday, 4 April 2017

Nidhi Gupta

Judicial activism v. Judicial Adventurism

Judicial activism-v-Judicial Adventuris

The lawmakers while framing the constitution had envisaged a system of checks and balances for the three organs of the government- the Legislature, Executive and Judiciary. While the legislature made laws, the executive implemented those laws and the Judiciary interpreted those laws. Over the course of time, the Judiciary has evolved from a mere interpreter to a protector of rights of the citizens. It can be traced back to Allahabad high court, rejecting the candidature of Indira Gandhi back in 1975. However while piecemeal judgments like these existed, the Supreme Court had bowed down to the government in 1975 when in the ADM Jabalpur v. Shiv Kant Shukla[1]case, popularly known as the Habeas Corpus case, the Supreme Court had held that no citizen had a right to move court against any arbitrary action of the government during Emergency, even if it resulted in the loss of his personal life and liberty. This had primarily been because the Chief Justice at that time, had been installed by Indira Gandhi after superseding the seniority of two other judges. This has been described as the biggest blot on the Indian Judiciary when the Supreme Court had bowed down to the government and surrendered its autonomy. However this did not continue for long. Haunted by this specter of Emergency and the relative failure on the part of Judiciary, Justice PN Bhagwati had given a very egalitarian judgment when he introduced the concept of Public Interest Litigation in SP Gupta v Union of India[2] case and Public Interest Litigation was hailed as an innovative step to protect the rights of the people and provide justice. Since then, historic judgments have been delivered, such as Sheela Barse vs State of Maharashtra (February 15, 1983). This was a historic judgment that dealt with the issue of custodial violence against women in prisons. MC Mehta v Union of India, lashed out at Kanpur authorities for polluting Ganga.[3] In SP Gupta case, the court had held that where access to justice being restricted by social and economic constraints, it is necessary to democratize judicial remedies, remove technical barriers against easy accessibility to Justice and promote public interest litigation so that the large masses of people belonging to the deprived and exploited sections of humanity may be able to realize and enjoy the socio-economic rights granted to them and these rights may become meaningful for them instead of remaining mere empty hopes.[4] The idea had been to ensure that the interests of the poor who cannot approach the court can be protected and that is why the strict procedures of law that usually apply are not applicable to a PIL Petition. The intent behind the judgment had been increasing access to justice and ensuring that justice seeped in every nook and cranny and injustice was removed. However over the course of time, we can observe a shift in PIL Litigations. These days, PIL litigation is not used to protect the rights of individuals, rather it is used to bring to fore, any grievances against the functioning or administration of a government or any public policy. 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 etc.[5] the court has now ended up becoming this overarching superstructure which is responsible for keeping the government in check. The court has incorporated the widest definition possible for Article 21 for protection of Life and liberty and construed these cases to be violative of this right even though in essence these were purely administrative decisions, which should have ideally been in control with the executive.. Many times the court has overstepped its boundary when it suggests guidelines, in effect making laws, which is outside the ambit f its power. While the intention behind the move is no doubt honorable, and especially relevant in the present paradigm, however, it is worrying to note that because of PIL Litigation, the concept of separation of powers and checks and balances is going for a toss. Court has increasingly started taking up suo motto cases, for the protection of rights of individuals. This has resulted in a direct dependence on the judiciary to address any grievances which has led to an increasing failure on the part of the people to hold the elected governments accountable for their decisions. The Supreme court itself has pointed out the problems of Judicial activism stepping into adventurism in Divisional Manager, Aravali Golf Cluband Anr. Vs. Respondent: Chander Hass and Anr.[6] And said “Courts cannot "create rights" where none exists nor can they go on making orders which are incapable of enforcement or violative of other laws or settled legal principles. With a view to see that judicial activism does not become judicial adventurism", the courts must act with caution and proper restraint. They must remember that judicial activism is not an unguided missile - failure to bear this in mind would lead to chaos. Public adulation must not sway the judges and personal aggrandizement must be eschewed. It is imperative to preserve the sanctity and credibility of judicial process. It needs to be remembered that courts cannot run the government. The judiciary should act only as an alarm bell; it should ensure that the executive has become alive to perform its duties.”

Conclusion

While judicial activism is no doubt, a very important phenomenon, serving a very important purpose, judicial adventurism is harmful for the democracy in the long run. “Judicial Restraint” is the only solution to this problem. The court must be mindful of the very important responsibility, the constitution had placed in it- identifying the jurisdiction of the three organs. The whole system is rested on a very delicate balance of power between the three organs, and even well-meaning intentions cannot destroy this balance as even the Judiciary itself is not adept or equipped for handling all the three functions.


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[1] ADM Jabalpur v. Shiv Kant Shukla , AIR 1976/SC/1207
[2] Sp Gupta V Union Of India AIR/SC/1982/149
[4] Sp Gupta v. Union of India
[5] http://www.thehindu.com/opinion/lead/Disturbing-trends-in-judicial-activism/article12680891.ece
[6] MANU/SC/4463/2007