Is public good adequately served by judicial intervention in diverse issues, sometimes to the extent that it appears the legislature and executive have become superfluousij
Public Interest litigation (PIl) is directly filed by an individual or a group of people when it is felt that public interests are being undermined by the Government. It is a new legal horizon in which a court of law can initiate and enforce action to serve and secure significant public interest. PIls in India began towards the end of 1970s and came into full bloom in the 80s. Justice VR Krishna Iyer and Justice PN Bhagwati, both judges of the Supreme Court of India, delivered landmark judgements which opened up new vistas for PIl.
According to Justice VR Krishna Iyer, PIl is a process of obtaining justice for the people for voicing people’s grievances through the legal process. The aim of PIl is to give to the common people of this country access to the courts to obtain legal redress to such grievances. Judicial activism means that instead of judicial restraint, the apex court and other lower courts, become activists and compel the authority to act. The courts can also direct the Government, its policies and the administration. One can see the practice of judicial activism in the form of PIls. As examples of some representative cases of judicial activism in India, the following may be cited:
i) A PIl filed filed by Birender Sangwan to reduce the price of stents is one such case of judicial activism through which the price of stents saw a cut of around 84 per cent.
ii) A PIl filed by Chandigarh-based activist Harman Sidhu led to the imposition of ban on liquor near highways.
The most prominent case of judicial activism, in my opinion, happened when the top court ordered the UPA Government to set up a SIT to probe black money stashed in foreign banks by Indians, but it failed to act. However, the first thing that the NDA Government did after assuming power was to take note of this in earnest. There are also instances where the court has encroached upon the role of the legislature by way of making laws. Such cases, where the courts encroach upon the role of the executive by making rules or directives amounting to executive orders can be termed as judicial overreach. Some such cases are as follows:
Bombay High Court orders cuts in Jolly llB 2: A few lawyers had approached the Bombay High Court to cut some scenes in the film that showed them in bad light. The court passed a judgement in their favour. This was a unique case where a court took the role of censorship for the first time.
Reforms in cricket: The apex court set up a Mudgal panel and the lodha Committee to investigate the betting charges and suggest reforms. Now, the top court has dismissed the BCCI officials for not adhering to the suggested reforms.
Striking down of NJAC Act: The National Judicial Appointments Commission (NJAC) was proposed by the body which would have given it powers to appoint judges to the higher judiciary. Passed by both the Houses of Parliament it was termed as unconstitutional by a Constitution Bench of the apex court and now stands repealed.
Not very long ago, the Supreme Court was harsh on both the Union Government and the Uttar Pradesh Government on what it saw as their apathy in protecting the Taj Mahal and said that because no one seemed to be doing anything to protect the monument, it would start hearing the matter everyday from July 31. “You can shut down Taj. You can demolish (it) if you like and you can also do away with it if you have already decided,” said a Bench of Justice MB lokur and Justice Deepak Gupta.
The observations of the judges do not seem to be germane to the issue. On July 20, the court ruled that third-party insurance for three years will become mandatory for cars being sold from September 1. These matters could really have been left to the executive.
If we analyse all the above cases, it will make us wonder if public good is hereby adequately or significantly served and the issues are so diverse that it appears that the top court can and does interfere in public policy to an extent that the legislature and the executive become superfluous. After all, it is only these two organs of the state that are responsible for framing and implementing policies for public good and the judiciary’s role is to prevent any transgression in respect of Constitutional breach and fundamental rights. Moreover, such activist steps run the risk of going against the spirit of democracy in the long-run by undermining the authority and image of the elected representatives.
Judicial activism is not backed by the Constitution; it is a product devised solely by the judiciaries in some countries. The operative word in PIl is public interest or public good. If that is not served, PIl is erroneous. When the judiciary steps over the line of the powers given to it, in the name of judicial activism, it becomes judicial overreach. One can say that the judiciary then begins to nullify the concept of separation of powers specified in the Constitution. Black’s law Dictionary defines judicial activism as a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.”
Finally, Justice Markandey Katju delivered some judgements which call for introspection by the judiciary over its activist role in the affairs of the state. In the case of State of Uttar Pradesh vs Jeet S Bisht, he warned the judiciary over the danger of judicial activism by observing: The judiciary must, therefore, exercise self-restraint and eschew the temptation to encroach into the domain of the legislature or the administrative or statutory authorities. By exercising self-restraint it will enhance its own prestige. Of course, if a law clearly violates some provisions of the Constitution, it can be struck down, but otherwise it is not for the court to sit in appeal over the wisdom of the legislature, nor can it amend the law.
(The writer is an author and a senior commentator)
