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Examine and explain the following statements:
i. Public Interest Litigation is a tool to promote politics of the judiciary.
ii. Judicial Activism has both positive and negative impact on the judiciary
Importance of this question : This question was asked as question 4(c) -UPSC Law Optional Mains 2019
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HOW TO ANSWER THIS QUESTION
The question demand examination and explanation for the statements
To do them without flaw, one must understand the statement given
Re- writing statement 1 : PIL is used as a tool to increase the power of judiciary
Re- writing statement 2 : Judicial activism helps judiciary to grow but at times its detrimental to its growth.
Firstly discuss the nature of the statement and then try explaining them with apt cases
STATEMNT 1 EXAMINED AND EXPLAINED | PIL – Public interest litigation – concept of locus standi expanded empowering anybody to file writ for public good especially down trodden # public spirited person chasing a wrong doer in court.
PIL first originated in American jurisprudence, postulated by judicial activism.
In India this concept is introduced by P.N. Bhagwati.
“PIL is 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, a totally different kind of litigation from the ordinary traditional litigation.”
Now lets discuss few major PIL that raised the position of judiciary :
In the case of Hussainara Khatoon v. State of Bihar on behalf the prisoners who were detained in jail for period more than maximum punishment prescribed for such offences. The court issued directions and ensured appropriate relief to the prisoners. Here Supreme Court became an authority to check administrative malfunctioning.
After this case, filing PIL has become a trend, deciding the PILs in Sunil Batra v. Delhi Admin. (1980) and in Sheela Barse v. Union of India (1983), the court issued directions for protection of accused and convicts concerning their safety, ensuring better living conditions in jails and separate cells for female prisoners. Another case where SC dictates the mandates to executive.
In M.C Mehta v. Union of India, the court ordered closure of large number of industries to save the public from effects of air and water pollution caused by such industries in Ganga basin. It ordered that such industries can be reopened only after it set up effluent treatment plants and controlled pollution. Here SC became the savior of our environment.
In Parmanand Katara v. Union of India, a PIL was filed by human rights activist where doctors refused to attend the victim who was injured by speeding car. The Supreme Court held that preserving human life is of paramount important and every doctor whether at government hospital or private must extend his services in protecting the patients life.
Supreme court has also stood for expanding right to life and this is another case where it also uttered the code of conduct for doctors.
National Legal Services Authority vs Union of India or NALSA - For the first time in legal history, Transgender people were recognized as citizens of this country, all the Fundamental Rights were extended to them and they were given the identity of Third Gender. This showed how PIL lifted SC to be ultimate guardian of underprivileged.
Supporting this in the case Navtej Singh Johar v Union of India (2018 ) struck down Section 377 to the extent that it criminalized sex between two consenting adults, allowing LGBT personal liberty.
In Parivartan Kendra v. Union of India (2013), the Supreme Court directed the Bihar government to compensate the acid attack survivors with Rs. 10 lakh. By PIL the writ jurisdiction of courts were extended as compensatory jurisdiction
IN RE: DISTRIBUTION OF ESSENTIAL SUPPLIES AND SERVICES DURING PANDEMIC ( 2021 ) Supreme Court ordered for free vaccination for covid-19, which elevated itself to the savior of our entire nation.
Yes ! PIL has always been a tool for the politics of judiciary but majorly it paved way for good of our society.
STATEMENT 2 EXAMINED AND EXPLAINED : Judicial activism means as the name goes, the active role played by Indian judiciary. It’s a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions
The expression ‘judicial activism’ was introduced by Arthur Schlesinger Jr. in January 1947 Fortune magazine article, ‘The Supreme Court: 1947”.
Positive impacts of Judicial activism
a) It provides a system of checks and balances to the other branches of government.
In Keshavananda Bharti case, the Supreme Court held that executive cannot intervene and destroy the basic structure of the Constitution.
In I.C. Golaknath & ors. v. State of Punjab, the apex court held that legislative assembly cannot amend the fundamental rights provided under part III of the Constitution of India.
b) Judges can use their personal judgment if law fails to establish a balance
c) It allows judges to keep a check on misuse of power by government authorities.
d) It permits the judges to act within their reasonable limits.
e) Judiciary becomes active to decide the matter when no precedent is applicable or in cases where legislature fails to take any decisions e.g. NAZ Foundation case to recognize LGBT as third gender.
f) Judiciary can suo motto take cognizance of the matter and decide it accordingly, we can see a lot of suo moto PIL during pandemic – Delhi High Court paving way for vaccination of legal fraternity etc
g) Judiciary can apply its mind on any matter in absence of any law regarding the issue or matter
The most famous Vishaka v State of Rajasthan where rules were framed from CEDAW to check sexual harassment of women in work places.
In D.K Basu v. State of West Bengal, (1997) Court issued directions regarding arrest of persons.
Negative impacts of judicial activism
Sometimes judicial activism turns into judicial over-reach.
It can harm the public as large as sometimes the judgments are influenced by personal or selfish motives.
General public can lose faith in government’s efficiency if judiciary repeatedly interferes in government functions.
While exercising judicial activism, judges sometimes over-ride the existing laws and thus exceed the limits set by Constitution.
The decisions taken by judges under judicial activism become standards for ruling other related matters.
During pandemic the Supreme Court, while hearing cases concerning management of the Covid crisis at a pan-India level, declared Delhi as a “representative of the entire nation” and asked the Centre to supply oxygen to it by whatever means was an over-reach but for public life, yet need not differentiate life based on locality.
Some of notable over-reach are –
ban on Deepavali firecrackers citing rising pollution and safeguarding the environment;
banning use of private vehicles after 10 or 15 years;
monitoring police investigations;
denying the executive any role in the appointment of judges by instituting a collegium which is said to be an extra-constitutional body;
invalidating the National Judicial Appointments Commission Act; ban of liquor sale at retail outlets that are within 500 meters of any National or State highway;
cancellation of telecom licenses in 2G case etc
but all these ultimately worked out for public good, yes, by going out of ones power and jurisdiction.