Judicial Review, Public Interest Litigation And Judicial Activism
The Supreme Court and the High Courts in India are entrusted with the power of judicial review, which extends to adjudicating upon the Constitutionality of legislations as well as the legality of executive action.
Parliamentary and State legislations which contravened Constitutional requirements have been struck down by Judiciary.
Judicial review has been extended to review ability of Constitutional amendments by evolving the doctrine of the basic structure of the Constitution according to which a Constitutional amendment which destroys or damages an essential feature of the Constitution, for example secularism, democracy and federalism, would be unconstitutional.
Any citizen of India can approach the courts for public case (upon the interest of the public) by filing a petition under the Supreme Court by article 32, (b) in the High Court under article 226 and (c) in the magistrate court under section 133 of the CRPC. The guidelines provide that Public interest Litigations can be filed under the following categories: 1. Bonded labour matters, 2. Neglected children, 3. Non- payment of minimum wages, 4. Petitions from jails complaining of harassment, death in jail, speedy trial as a fundamental right etc. 5. Petitions against police for refusing to register a case, harassment of bride, bride burning, rape, murder, kidnapping etc. 6. Petitions complaining harassment or torture of persons belonging to scheduled caste and scheduled tribes. 7. Petitions pertaining to environmental pollution.
The Public interest Litigation jurisdiction forged by the Supreme Court is an extension of its jurisdiction under article 32 of the Constitution. Public interest Litigation is not in the nature of adversary litigation, but it is a challenge and an opportunity to the government and its officers to make such issues as human rights meaningful to the deprived and vulnerable sections of the society and to assure them socio-economic justice which is the signature tune of the Constitution. A Public interest Litigation may be filed against state and central government, municipal authority, but not against any private party.
Recently in India, many cases from the area of Public interest Litigation has come into picture which has been filed in the court of law. As in 2005 a case was decided by the Supreme Court named Common cause society Vs. Union of India. In this Public interest Litigation, the petitioner filed a Public interest Litigation praying to the court to enact a road safety act in view of the numerous road accidents. Secondly, in the Sangammal Pandey Vs. State of UP case the Lucknow bench of the High Court stayed construction activities near Kanshiram memorial up to a specific date.
In the Peoples union for democratic rights Vs. Union of India case, the Supreme Court permitted Public interest Litigations at the instance of ‘public spirited citizens’ for the enforcement of Constitutional and legal rights of any person or group of persons who because of their socially or economically disadvantaged position are unable to approach the courts for relief. Public interest Litigation is a part of the process of ‘participate justice’ and standing in civil litigation, of that pattern which has liberal reception at the judicial doorsteps.
In the Parmanand Katara vs. Union of India case the Supreme Court held in the Public interest Litigation filed by a human rights activist fighting for general public interest, that it is a paramount obligation of every member of the medical profession to give medical aid to every injured citizen as soon as possible without waiting for any procedural formalities.
The law making has assumed new dimensions through judicial activism of the courts. The judiciary has adopted a healthy trend of interpreting law in social context. Judicial activism describes judicial rulings suspected of being based on personal or political considerations rather than on existing law. The question of judicial activism is closely related to Constitutional interpretation, statutory constructions and separation of powers.
The Indian judiciary, being a wing of the State has thus played a more activist role than its US counterpart in seeking to transform Indian society into a modern one, by enforcing the modern principles and ideas in the Constitution through court verdicts. Article 21 of the Constitution has been called up frequently in the Supreme Court. Judgments upon thia article suggest the trends of judicial activism.
Judicial activism as a dynamic process of judicial outlook in a changing society. Arthur Schlesinger Jr. introduced the term judicial activism in 1947, in America in an article titled ‘The Supreme Court; 1947’. According to Black’s law dictionary judicial activism is a judicial philosophy which motivates judges to depart from the traditional precedents in favour of new progressive social policies.
In the A.K. Gopalan vs. State of Madras case, the Supreme Court rejected the argument that to deprive a person of his life or liberty, not only the procedure prescribed by law for doing so must be fair, but reasonable and just.However, subsequently in Menaka Gandhi vs. Union of India case this requirement of substantive due process was introduced into article 21 by judicial interpretation. Thus the due process clause, which was avoided by the Constitution makers, was introduced by judicial activism of the Supreme Court.
In subsequent decisions, the Supreme Court has upheld death sentences in cases such as Bagwan Dass vs. State of Delhi case, which involved honour killing of a man and woman for marrying outside their caste.
In Australia, the highest court is known as the High Court of Australia while the State Courts are known as the Supreme Court.
Do you as an Indian citizen have the right to disagree with judicial opinion? How will you express your opinion?
In group of three, discuss and make comments for class discussion on:
a. Criticizing the Judgment of the court
b. Consequences of the criticism