Justice N.D. Krishna Rao Memorial Lecture Protection of Human Rights
Judicial Obligation or Judicial Activism
by Delivered by Dr Justice A.S. Anand
Judge, Supreme Court of India
Cite as : (1997) 7 SCC (Jour) 11
I consider it a great honour and privilege to have been invited to deliver the Justice Krishna Rao Memorial Lecture for the year 1997.
I have not had the pleasure of meeting Late Justice N.D. Krishna Rao, a distinguished Judge of the Andhra Pradesh High Court personally but from many who knew him well I have learnt that he was a brilliant Judge with an equally brilliant academic record. He passed his B.Sc. Hons. in Chemistry from the Madras Presidency College, standing first in the University. Later he went to England and passed the much coveted Indian Civil Services Examination in 1927. After returning to India he worked as Sub-Collector for some time and then opted for the judiciary. He served as District Judge before being elevated to the Andhra Pradesh High Court in 1955. He retired in 1966. His friends and admirers say that he was a charming person and a pleasing human being. The judgments rendered by him show that he had a keen and incisive intellect. He mastered the facts and was an excellent judge of facts, seldom ever making a mistake on a question of fact. He was tempered by a high sense of integrity. He was a realist and did not indulge in any fanciful high-flying. He won the acclaim of all concerned. He was a sound Judge all round and I have been greatly impressed by what I have learnt about him. I, therefore, stand before you in all humility to dedicate this lecture to his memory.
I now come to the subject of the lecture today: Protection of Human Rights - Judicial Obligation or Judicial Activism.
To appreciate the topic, which is of current relevance, we have to appreciate not only what are "human rights" but also to re-evaluate the role of the judiciary in the context of the protection of those rights and to examine whether the development of the law as response of the judiciary to the needs of the society is a constitutional obligation or some sort of "activism" or "adventurism" being indulged in by the judiciary. First, what are "human rights" and how are those protected and enforced.
"Human rights" are those rights which inhere in every human being by virtue of being a person. These are nothing but the modern name of what had been traditionally known as "natural rights" i.e. rights bestowed upon human beings by nature. "Human rights" are based on mankind's increasing demand for a decent civilized life in which the inherent dignity of each human being is well respected and protected. Human rights are fundamental to our very existence without which we cannot live as human beings. The basic human rights constitute what might be called "sacrosanct rights" from which no derogation can be permitted in a civilised society. The bare necessities, the minimum and basic requirements which are essential and unavoidable for a person are the core of human rights concept. Human rights are universal and cut across all national boundaries and political frontiers.
The preamble to the Universal Declaration of Human Rights states:
"... It is essential if man is not to be compelled to have recourse, as a last resort to rebellion against tyranny and oppression, that human rights should be protected by the rule of law."
Article 3 of the Universal Declaration of Human Rights adopted by the General Assembly on 10-12-1948 provides:
"Everyone has a right to life, liberty and security of person."
Section 2(d) of the Protection of Human Rights Act, 1993, lays down:
" 'human rights' means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India;"
Prof. Louis Henkin of Columbia University in his article "Rights Here and There" 81 Columbia Law Review, 1582 (1981) explained human rights as:
"... claims which every individual has, or should have, upon the society in which she or he lives. To call them human rights suggests that they are universal; they are the due of every human being in every human society. They do not differ with geography or history, culture or ideology, political or economic system or stage of development. They do not depend on gender or race, class or 'status'. To call them 'rights' implies that they are claims 'as of right' not merely appeals to grace, or charity or brotherhood or love; they need not be earned or deserved. They are more than aspirations or assertions of 'the good' but claims of entitlement and corresponding obligation in some political order under some applicable law, if only in a moral order under a moral law.
When used carefully, 'human rights' are not some abstract, inchoate 'good'. The rights are particular, defined, and familiar, reflecting respect for individual dignity and a substantial measure of individual autonomy, as well as a common sense of justice and injustice."
When we talk about a Constitution, it is important to bear in mind that the Constitution, though by itself an important document, is after all cold print on a piece of paper. What is important to remember is the system the Constitution seeks to introduce and the way that system works. The Constitution no matter how well crafted it is, will not be able to deliver the goods unless the system which it introduces functions effectively to realise the dreams of the founding fathers of the Constitution. When we talk of the Constitution as living law it is usually understood to refer to the doctrines and understandings that the courts have invented, developed, spread and applied to make the Constitution work in every situation. Unless life can be pumped into the cold print of the Constitution to keep it vibrant at all times it shall cease to be a living law. Generally speaking, this role of pumping life is assigned to the higher courts, more particularly under a Constitution which has separation of powers as its core. The Constitution of a State essentially reflects the aims and aspirations of the people who gave to themselves the Constitution. It is well accepted that while a Bill of Rights (like the Chapter on Fundamental Rights in the Constitution of India) is the conscience of the Constitution - an independent judiciary is its conscience-keeper.
The constitutional law starts and gets into motion only when though a constitutional right is ascertained but the authorities refuse to recognise it. It is at that stage that the cause enters the portals of the courts. The Constitution being the suprema lex, every institution created under the Constitution is expected to respect its command and no organ or instrumentality of the Government, not President, not the Prime Minister not Parliament, not the policeman in uniform, not even the Judge, can ignore it. Its words are law which every State instrumentality must respect and enforce. The courts are in the scheme of the Constitution guardians of the Constitution, though not the only guardians, and upon them rests the responsibility to check unconstitutional behaviour and enforce the constitutional mandate. Every instrumentality under the Constitution is charged with similar duties and obligations, courts are just the last resort. Under the Constitution, judicial institutions have a role to play not only for resolving inter se disputes but also to act as a balancing mechanism between the conflicting pulls and pressures operating in a society. Courts of law are the products of the Constitution and the instrumentalities for fulfilling the ideals of the State enshrined therein according to the language of the law. Evolving new juristic principles for the development and growth of law is an accepted role of the judiciary in almost all the countries.
The function of the higher courts in this country has not been limited to exploring what the Constitution-makers meant when they wrote those words but also to develop and adapt the law so as to meet the challenges of contemporary problems of the society and respond to the needs of the society. The Constitution cannot be a living and dynamic instrument if it lives in the past only and does not address the present and the future. This exercise of jurisdiction by the courts in India has been criticised by some as "judicial activism" indulged by non-elected Judges who upset the decisions of the elected representatives of the people. They would like the courts to confine themselves to what the Constitution-makers actually or literally meant when the Constitution was drafted. But is it possible to say that the word or expression must mean the same thing at all times regardless of changing times and situations? After another fifty years will the Judges still be carrying out the exercise of digging out what meaning was assigned to a word a century back! That may be in my opinion the surest way to kill the Constitution and be wedded to the status quo. The world changes - should not the judiciary try to make the Constitution work in changed circumstances?
Judicial review is an essential component of the rule of law, which is a basic feature of the Indian Constitution. Every State action has to be tested on the anvil of rule of law and that exercise is performed, when occasion arises by the reason of a doubt raised in that behalf, by the courts. This well-established constitutional principle of the existence of the power of judicial review and its need was indicated by Chief Justice Marshall in Marbury v. Madison1 . He said: "It is emphatically the province and duty of the judicial department to say what the law is." At that time, it appeared to be an innovation or an act which is now being termed as "judicial activism". However, no one since then has doubted the correctness of this constitutional imperative in the scheme of separation of powers. Over a period of 47 years, beginning from 1950 when the Constitution conferred on the High Courts, the power to issue prerogative orders and writs, the judiciary in India has come to control by judicial review every aspect of governmental and public functions. Every legislation is amenable to judicial review, be it momentous amendments to the Constitution or drawing up of schemes and bye-laws of municipal bodies which affect the life of a citizen. Judicial review extends to every governmental or executive action - from high policy matters like the President's power to issue a proclamation on failure of constitutional machinery in the States like in Bommai case2 , to the highly discretionary exercise of the prerogative of pardon like in Kehar Singh case3 or the right to go abroad as in Satwant Singh case4 . Judicial review knows no bounds except the restraint of the judges themselves regarding justiciability of an issue in a particular case.
The growth of judicial review is the inevitable response of the judiciary to ensure proper check on the exercise of public power. Growing awareness of the rights in the people; the trend of judicial scrutiny of every significant governmental action and the readiness even of the executive to seek judicial determination of debatable or controversial issues, at times, may be, to avoid its accountability for the decision, have all resulted in the increasing significance of the role of the judiciary. There is a general perception that the judiciary in this country has been active in expansion of the field of judicial review into non-traditional areas, which earlier were considered beyond judicial purview. Some critics object to the enlargement of the scope of judicial power beyond its orthodox limits. But this criticism, notwithstanding the expanded role of the judiciary has received acceptability not only by the people but by other wings of the State as well. What may appear to be non-traditional at the time of the performance of such a task by the judiciary to be described as "Judicial Activism", when considered in proper perspective may turn out to be really the process of development of the law to respond to the needs of the society. Intervention into such areas is because of the peoples' perception that judicial intervention is perhaps the only feasible correctional remedy available. There is therefore no reason to treat this exercise as an attempt by the judiciary to "clutch at jurisdiction" or to usurp the function of any other organ of the State. In this context, let us not forget that the role of the judiciary commences only when its jurisdiction is invoked in a cause brought in a court of law, on the perception that the remedy to the aggrieved is not available elsewhere. In that event, should the judiciary express its helplessness, or should it make an attempt to give meaning and content to the law which provides a solution to the problem brought before it? To reaffirm the faith of the people in the rule of law, to preserve democracy and confirm the belief in the Latin maxim ibi jus ibi remedium - that there is a remedy under the law for every legal injury - the judiciary is under a constitutional obligation to exercise its jurisdiction to meet the challenge because law abhors a vacuum. When a citizen is unable to get redress from the other branches of the Government, the courts do sometimes need to step in because if the courts also shut their doors to the citizen in that event, he is likely to take to the road which would be bad for the preservation of rule of law.
Lord Denning while concluding his first "Hamlyn Lecture" under the title "Freedom under the Law" in 1949 warned:
"No one can suppose that the executive will never be guilty of the sins that are common to all of us. You may be sure that they will sometimes do things which they ought not to do: and will not do things that they ought to do. But if and when wrongs are thereby suffered by any of us what is the remedy? Our procedure for securing our personal freedom is efficient, our procedure for preventing the abuse of power is not. Just as the pick and shovel is no longer suitable for the winning of coal, so also the procedure of mandamus, certiorari, and actions on the case are not suitable for the winning freedom in the new age. They must be replaced by new and up-to-date machinery, by declarations, injunctions and actions for negligence... . This is not the task for Parliament ... the courts must do this. Of all the great tasks that lie ahead this is the greatest. Properly exercised the new powers of the executive lead to the welfare State; but abused they lead to a totalitarian State. None such must ever be allowed in this country."
This warning, in a way sums up, what the courts of law are expected to do when faced with a problem touching upon the abuse of freedom or human rights of a citizen.
Mr C.R. Irani, in his article "Cry the Beloved Country" (The Statesman, Delhi Edn., 9-8-1997) says:
"When the executive refuses to apply the law and wilfully, constantly and conspicuously refuse to do their duty, it falls to the judiciary to act in defence of the Constitution and the mandate of the rule of law and equality before law."
Thus, the enlightened opinion welcomes the social role sought to be played by the courts perhaps because of the lack of public trust in many of the politicians of the present time, and the executive in their hands.
In human affairs there is a constant recurring cycle of change and experiment. A society changes as the norms acceptable to the society undergo a change. Old ideologies and old systems give place to new set of ideologies and new systems which in their turn are replaced by different ideologies and different systems. The Judges have to be alive to this reality and while discharging their constitutional duties have to develop and expound the law on those lines acting within the bounds and limits set out for them in the Constitution. Judicial creativity (often being termed as judicial activism), as a means of evolving new juristic principles for the development and growth of law, is an accepted and well-recognised role of the judiciary not only in this country but in almost all the common law countries. The law must move with the times and the judiciary has forever to remain alive to this reality. This role of the judiciary is not new either in India or elsewhere. It has been there all along. The current judicial process which has given rise to the debate on judicial activism, is merely a continuation of the justice delivery system which has been prevalent in this country all along. The reason for this judicial creativity is not far to seek.
The legislature, when it enacts the law is naturally unable to visualize all the situations to which it would apply in future. In the myriad situations which arise thereafter there are some occasions when the existing law appears to be deficient to provide for the felt needs of the time. In such a situation the role of the judiciary is not only to interpret but also to expound the law to provide for those situations as well, though within the bounds of law, since rule of law which does not permit any vacuum, must prevail to respond to the needs of the society.
In interpreting the existing law, that is to say, what the law is, the courts are required to keep the particular situation in view and interpret the law so as to provide a solution to the particular problem to the extent possible. This is a legitimate exercise by the judiciary and its constitutional obligation by virtue of the role assigned to it in the constitutional scheme. The gaps in the existing law which are filled by updating the law result in the evolution of juristic principles, which in due course of time get incorporated in the law of the land and thereby promote the growth of law.
In Nilabati Behera v. State of Orissa5 the Supreme Court while considering the question of grant of relief in a case of custodial death of the son of the petitioner opined that the old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much as the "protector and guarantor of the indefeasible human rights of the citizens" and went on to say that the courts have an obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations. The Court, therefore, in that case moulded the relief by granting compensation by way of penalizing the wrongdoer and fixing the liability for the public wrong on the State which failed in its public duty to protect human rights of the citizen. It was stressed that a public body or officials should not act unlawfully and should perform their public duties in accordance with law. This was done by the Court in exercise of its public law jurisdiction. The Court explained the purpose of public law and said "that the purpose of public law is not only to civilize public power" but also to assure to the citizen that they live under a legal system which aims to protect and preserve the rule of law. Thus, new "tools" were invented to give redress to the citizen.
What has been and is being done by the higher judiciary in India today is not something which can be said to be a "new innovation". Let us not fool ourselves into believing that the present generation is the pioneer in this field. Ours is only a participatory role in an ongoing judicial process. Life of law, generally speaking, is not logic but experience and experience is the basis for the development and evolution of law, which cannot be allowed to remain static. The judiciary in various other jurisdiction has also been involved in developing law to meet the changing needs of the society. Let us in this connection analyse the process of development of law by the Supreme Court of the United States. In Dred Scott v. Sandford6 that Court held that a negro was the property of his master and not a 'citizen' thereby legitimising "slavery" and discrimination on the grounds of "colour and creed". This doctrine was cast away, a century later by the same Court, in Brown v. Board of Education7 , when it said that slavery is "de-humanizing" despicable institution denying human dignity to such an extent that no court of law can uphold it and later that Court gave it a decent burial in Bakke case8 . This happened not because the Court was indulging in some sort of activism but because the Court was alive to the changing need of the society. The Court realised that the values which guided the society when Dred Scott case6 came to be decided had undergone a sea change and could not stand the scrutiny of the age when the judgment in Brown case7 or Bakke case8 was given. It cannot be denied that the law laid down in the nineteenth century - however, suited to social conditions prevailing at that time - may not be suitable to the social necessities of the twentieth century and the judiciary has, therefore, to mould and shape the principles of law to meet the needs of the people in the twentieth century. In the United States of America also, of late there has been some criticism of the so-called activist role of the judiciary because of certain pronouncements. There is tension between "judicial activism" and "judicial restraint", but this has not come in the way of that court to continue to take some bold and courageous steps in the interpretation of the U.S. Constitution in matters such as prohibition of school prayer and police invasion of individual civil liberties. The Court has even protected the bakers by regulating the hours of their work in Lochner v. New York9 under the due process clause of the 14th Amendment.
Even in Great Britain, which has no written Constitution and where Parliament is sovereign and is source of all power the trend of expansion of judicial review has been quite marked and the judiciary has been taking a much more active course. The recent trend of judicial review in England, (which even became subject-matter of a debate in the House of Lords in June 1996) as indicated in an Article by Anthony Lewis is interesting. In his Article - "Judges in Britain create a flutter" (Times of India, Bombay Edn. of 7-11-1995), he said that the significant change towards judicial activism in British Courts is on account of outlook of Judges and the functions they perform. The reasons given in the analysis made therein are interesting. I quote:
"(1) The Judges realise that there is a vacuum since Parliament is virtually under the total control of the executive when it was supposed to correct any Government injustice to individual;
(2) the modern legislation is loosely drafted and delegates large powers to the Government which tends often to be arbitrary in its exercise;
(3) the new generation of Judges think of law not as fixed rules but as a set of values designed above all to protect democracy and human rights; and
(4) the new judicial generation is more outward-looking and is influenced by the courts in Commonwealth countries, for example, India in the rigorous enforcement of individual rights."
The article ends thus:
"The politicians, or many of them, will resist judicial review. But my guess is that the British public likes it when Judges stand up for them against the State - and that the public will demand more of the new constitutionalism, not less."
Please mark the identity of the views of the critics in the context of Indian experience also!!
Like the United States of America, in India too in the post constitutional era law has been in the process of evolution. In 1950 in A.K. Gopalan case10 , the Supreme Court placed a rather narrow and restrictive interpretation upon Article 21 of the Constitution. By a majority, it was held in Gopalan case10 that the "procedure established by law", means procedure established by a law made by the State and the Court refused to infuse in that procedure the principles of natural justice. The Court evolved the doctrine of exclusivity and declined to infuse the rights contained in Article 19 for want of capacity to enjoy the same. The doctrine of exclusivity of fundamental rights as evolved in Gopalan case10 was thrown overboard by the same Court about two decades later in Bank Nationalisation case11 and four years later in 1974 in Haradhan Saha case12 the Supreme Court judged the constitutionality of preventive detention with reference to Article 19 also.
Twenty-eight years after the judgment in Gopalan case10, the Supreme Court in Maneka Gandhi case13 pronounced that the procedure contemplated by Article 21 must be "right, just and fair" and not arbitrary; it must pass the "test of reasonableness" and the procedure should be in conformity with the principles of natural justice and unless it was so, it would be no procedure at all and the requirement of Article 21 would not be satisfied.
The Supreme Court has been consistently expanding the dimensions of Article 21 (Right to Life and Personal Liberty) within the bounds of law by purposeful interpretations. More than fifteen years ago in Francis Coralie Mullin v. Administrator, Union Territory of Delhi14 Justice Bhagwati observed: (SCC pp. 618-19, para 8)
"The right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. The magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human self. Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights."
In Bandhua Mukti Morcha case15 the Supreme Court reiterated once again that right to life guaranteed by Article 21 included the right to live with human dignity, free from exploitation. In Mohini Jain case16 the Court held the right to free education to the children until they complete the age of 14 years also to be a fundamental right by taking note of Article 45 of the Constitution. The concern of the courts for the underprivileged and the poor sections of the society was reflected a decade ago in Bihar Legal Support Society v. Chief Justice of India17 when the Court said: (SCC p. 768, para 2)
"... that the weaker sections of Indian humanity have been deprived of justice for long, long years: they have had no access to justice on account of their poverty, ignorance and illiteracy. They are not aware of the rights and benefits conferred upon them by the Constitution and the law. On account of their socially and economically disadvantaged position they lack the capacity to assert their rights and they do not have the material resources with which to enforce their social and economic entitlements and combat exploitation and injustice."
In M.H. Hoskot case18 , the Supreme Court recognised the right of an indigent person to have legal aid.
The courts have been making judicial intervention in cases concerning violation of human rights as an ongoing judicial process. Decisions on such matters as the right to protection against solitary confinement as in Sunil Batra19 the right not to be held in fetters as in Sobraj case20 the right against handcuffing as in T. Vatheeswaran case21 the right against custodial violence as in Nilabati Behera case5 or the rights of the arrestee as in D.K. Basu case22 or right of the female employees not to be sexually harassed at the place of work as in the case of Vishaka v. State of Rajasthan23 are just a few pointers in that directions. I need not multiply illustrations.
It would, therefore, be wrong to call it as an act of "judicial activism" when the judiciary in discharge of its constitutional powers seeks to protect the human rights of the citizens in case after case where a citizen has been deprived of his life or liberty otherwise than in accordance with the procedure prescribed by law or when the courts insist upon "transparency and accountability" in respect of the orders made or action taken by public servants. The requirement that every State action must satisfy the test of fairness and non-arbitrariness are judicially evolved principles which now form part of the constitutional law.
There is of late some criticism also of the judiciary in respect of its role in cases involving environment. It is said that courts have started acting as "environmentalists" without "any expertise" in that field and that the courts earlier on did not venture into this field.
The right to pollution-free environment has to be conceived of as a human right being a facet of right to life guaranteed by Article 21. Let us not forget that while human rights are necessary to promote the personality development of human beings, healthy environment is necessary to safeguard conditions conducive to such a personality development. There is a natural link between environment, development and human rights. It ought to be remembered that human rights are based on mankind's increasing demand for a decent, civilised life in which the inherent dignity of each human being must receive respect and protection. Human rights are fundamental to human nature and therefore the relationship between environment and human rights becomes much too obvious. In other words, human rights and environment are interdependent. As such it can be legitimately argued that the right to an adequate environment is a human right because human species cannot exist on this planet without proper environment. The Supreme Court has ruled that right to pollution-free air falls under Article 21 in Subhash Kumar v. State of Bihar24 .
In the Doon Valley case25 Article 21 was invoked by the Court to prevent the degradation of Mussoorie Hills due to the mining operations there, which was becoming a health hazard. The Court held that Article 21 included in its sweep a right to clean environment and that the permanent assets of mankind cannot be allowed to be exhausted in our generation. Again, in M.C. Mehta v. Union of India26 the Supreme Court reiterated the fundamental right to a clean environment for healthy living and held that pollution treatment plant is a fore-condition of the existence and continuation of an industry. It observed: (SCC p. 478, para 14)
"Just like an industry which cannot pay minimum wages to its workers, cannot be allowed to exist, a tannery which cannot set up a primary treatment plant cannot be permitted to continue..."
as otherwise it would pose a threat to the health and well-being of the citizens residing in the surrounding areas.
In the Oleum Gas Leak case27 the rule of strict liability was applied without exception to a polluting undertaking employing hazardous process of manufacture. Bhagwati, C.J. observed in this case:
"An enterprise engaged in hazardous or inherently dangerous industrial activity posing a potential threat to the health and safety of persons working in the factory and residing in the surrounding area was under an obligation to pay compensation for the injury caused."
Article 48-A of the Constitution provides:
"48-A. Protection and improvement of environment and safeguarding of forests and wild life.-The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country."
Indeed, this article is a part of the Directive Principles of the State Policy and not of the Chapter on Fundamental Rights. But the Directive Principles of State Policy are complementary to the fundamental rights guaranteed under the Constitution of India as they spell out the obligation of the State towards the citizens in the discharge of its functions. Resort had by the judiciary to the directive principles for interpreting the content of the fundamental rights is therefore logical. A reference to Article 51-A(g) detailing the fundamental duties of the citizens, which reads, "to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures", is also interesting in this context.
It also needs to be stated that the courts when they deal with cases concerning "environment" do not by themselves act as experts. They rely upon expert bodies like National Environment Engineering Research Institute (NEERI) which are requested by the courts to examine the grievance relating to environmental pollution and submit their report. The courts also call upon the Pollution Control Boards of the Union or the State, as the case may be, to submit their reports and then base their judgments on expert opinion. The argument that courts were hithertofore not entering into this domain, does not mean that courts should not act when called upon by the citizens to protect the environment so as to make it possible for the citizens to enjoy the right of healthy and decent life guaranteed by Article 21 of the Constitution. The argument that since it has not been done before therefore it should not be done now is illogical. If courts do not interpret the law in a manner consistent with the mandate of Article 21, only because it had not been done before, then while the society would move, the law would remain static and that would be bad both for law and the society. Law must move with the society so as to respond to its hopes and aspirations.
It must, however, be remembered that the Judges in exercise of their power of judicial review, are not expected to decide a dispute or controversy which is purely theoretical or for which there are no judicially manageable standards available with them. The courts do not generally speaking interfere with the policy matters of the executive unless the policy is either against the Constitution or some statute or is actuated by mala fides. Policy matters, fiscal or otherwise, are thus best left to the judgment of the executive. However, once it is conceded that right to life guaranteed by Article 21 includes the right to live decently, the interference by the courts to ensure the same by making attempts to prevent pollution of environment cannot but be considered as a legitimate exercise in discharge of the constitutional obligation by the judiciary.
Having talked about human rights and the constitutional obligations of the courts to protect the same, there is one important aspect which needs to be dealt with by me and that is the need of "self-restraint" by the Judges while expanding and expounding the law in response to the call and need of the society in exercise of their power of judicial review.
It is in fact stating the obvious to say that courts must while exercising the power of judicial review exercise restraint and base their decisions on the recognised doctrines or principles of law. Judicial activism and judicial restraint are two sides of the same coin. It is therefore essential to remember that judicial restraint in the exercise of its functions is of equal importance for the judiciary while discharging its judicial obligations under the Constitution. 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, ignoring the limits of law, the bounds of his jurisdiction and the binding precedents, it is necessary and essential that "public interest litigation" which is taken recourse to for reaching justice to those who are for variety of reasons unable to approach the court to protect their fundamental rights should develop on a consistent and firm path. The courts must be careful to see that by their overzealousness they do not cause any uncertainty or confusion either through their observations during the hearing of a case or through their written verdicts. If unmindful of the expected restraint, the courts make observations orally or through written decisions, one way or the other, under the cover of judicial activism, they may consciously or unconsciously cause uncertainty and confusion in the law. In that event, the law will not only develop along uncertain lines instead of straight and consistent path but the judiciary's image may also in the bargain get tarnished and its respectability eroded. That would be a sad day. Judicial authoritarianism cannot be permitted under any circumstances. The courts, therefore, 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 the bounds of its own prescribed jurisdiction. The courts have the duty of implementing the constitutional safeguards that protect individual rights but they cannot push back the limits of the Constitution to accommodate the challenged violation. All it means is that Judges are expected to be circumspect and self-disciplined in the discharge of their judicial functions.
The virtue of humility in the Judges, a constant awareness that the investment of power in them is meant for use in public interest and to uphold the majesty of rule of law and the realisation that Judges are not infallible even if final, would ensure the requisite self-restraint in discharge of all judicial functions because all actions of a Judge must be judicious in character. As Justice Michael Kirby of the High Court of Australia rightly said, not too long ago, while addressing Bangalore Advocates Association on 13-1-1997, "of Judges, the community expects honesty, integrity and learning".
Prof. N.R. Madhava Menon, the outgoing Director of the National Law School of India University in his Article "Committed to Judiciousness" which appeared in the Calcutta Edn. of The Daily Telegraph on 11-8-1997 very rightly said:
"Judicial review is a weapon to discipline abuse of executive power ... . Any institution with such vast powers can become a threat if it does not have Judges of the highest integrity, sensitivity to constitutional values and great professional competence."
The criticism that since the judiciary in India is not elected, it should confine itself to its orthodox role, and leave all other matters to the elected representatives, is based on a grave misconception about the source of power of the judiciary and the role assigned to it. To say and believe that judiciary is not accountable to anyone is misleading. The Constitution is the fundamental law of the land which establishes the judiciary and empowers it to eliminate those acts of the legislature and/or actions of the executive as are found to be unconstitutional. The courts are the guardians of the Constitution framed by WE THE PEOPLE OF INDIA and have to act according to their conscience to uphold the Constitution. The courts act for the people who have reposed confidence in them. The accountability of the Judges is, therefore not only to their conscience but also to the PEOPLE in whom the ultimate sovereignty vests. Judges are the servants of law and function for the society and therefore are accountable to it. The real source of strength of the judiciary lies in the public confidence in the institution. It is, therefore, imperative that the actions of the Judges are transparent and constitutionally sound and their vast power is used in public interest to uphold the majesty of law and the Constitution - to uphold which they subscribe to the oath when entering upon their office. Erosion of credibility of the judiciary, in the public mind, for whatever reasons, is the greatest threat to the independence of the judiciary. Eternal vigilance by the Judges to guard against any such latent internal danger is, therefore, necessary, lest we "suffer from self-inflicted mortal wounds". American judge and jurist Felix Frankfurter once when asked about the three most important judicial qualities remarked - "First detachment; Second detachment and Third detachment" - let this truism forever remain present to the mind of the Judges while dealing with a cause or controversy before them and once they are conscious of it, "judicial restraint" will not remain far behind. The societal perception of Judges as being detached and impartial referees is the greatest strength of the judiciary and every Judge must ensure that this perception should not receive a setback. To the extent that judicial activism is making the legislative and executive branches function properly in accordance with the rule of law, the courts' functioning is unexceptionable but we must remember that sole check on judicial power is the use of proper judicial restraint by the Judges in discharge of their functions. The courts, must however, not shy away from discharging their constitutional obligations to protect and enforce human rights of the citizens and while acting within the bounds of law must always rise to the occasion as "guardians of the Constitution", criticism of "judicial activism" notwithstanding.
The society has placed Judges on a high pedestal. We must justify that position in the society remembering forever that the Constitution does not give unlimited powers to anyone including the Judges of all levels.
Ladies and Gentlemen I now take your leave but before doing so, I thank you for your patience.
- 2 L Ed 60 : 1 Cranch 137 (1803)
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- S.R. Bommai v. Union of India, (1994) 3 SCC 1
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- Kehar Singh v. State (Delhi Admn.), (1988) 3 SCC 609
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- Satwant Singh Sawhney v. D. Ramarathnam, AIR 1967 SC 1836
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- (1993) 2 SCC 746
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- 15 L Ed 691 (1857)
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- 347 US 483 : 98 L Ed 873 (1954)
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- Regents of University of California v. Bakke, 438 US 265 : 57 L Ed 2d 750 (1978)
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- 198 US 45 : 49 L Ed 937 (1905)
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- A.K. Gopalan v. State of Madras, AIR 1950 SC 27
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- Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248
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- Haradhan Saha v. State of W.B., (1975) 3 SCC 198
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- Maneka Gandhi v. Union of India, (1978) 1 SCC 248
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- (1981) 1 SCC 608
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- Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161
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- Mohini Jain v. State of Karnataka, (1992) 3 SCC 666
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- (1986) 4 SCC 767
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- M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544
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- Sunil Batra v. Delhi Admn., (1978) 4 SCC 494
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- Charles Sobraj v. Supdt., Central Jail, (1978) 4 SCC 104
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- T.V. Vatheeswaran v. State of T.N., (1983) 2 SCC 68
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- D.K. Basu v. State of W.B., (1997) 1 SCC 416
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- (1997) 6 SCC 241
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- (1991) 1 SCC 598
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- Rural Litigation and Entitlement Kendra v. State of U.P., (1985) 2 SCC 431
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- (1987) 4 SCC 463
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- M.C. Mehta v. Union of India, (1987) 1 SCC 395
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