PIL and Judicial Activism
"I believe that an independent judiciary is the crown jewel of our constitutional republic"
Public Interest Litigation (PIL)
- Hussain Ara Khatoon vs State of Bihar Case 1979
Bihar → Many prisoners have been in jail for several years without presenting them before the magistrate (even for pity crimes) → this violates their fundamental rights under Article 21 and 22.
So, Hussain Khatoon submitted the first PIL in the Supreme Court.
Public Interest Litigation
- Not mentioned in the Constitution of India or provided by any act of the parliament.
- It is a judiciary innovation.
- Also strengthens a DPSP under Article 39A (free legal aid).
- Sunil Batra vs Delhi Administration Case 1979
Prisoners of Tihar jail, Delhi were brutally assaulted → which violates their fundamental right under Article 21 (Right to dignified life)
Sunil Batra (a prisoner in that jail) → wrote a letter to the Supreme Court → Supreme Court converted this letter into a PIL and proceeds further.
Public Interest Litigation - PIL can be defined as a litigation that seeks to protect and promote the interest of pubic at large. It is based on the principle of Pro Bono Publico which means for the public good.
The concept is inspired by another concept prevalent in US which is called as Social Action Litigations.
PIL is used to enforce the legal obligations on executive, legislature and even judiciary and thus maintain rule of law.
The purpose of the PIL is to provide speedy and inexpensive justice and help in the promotion of well being of public.
PIL is used to protect the group interest not the individual interest for which Fundamental rights and other legal rights are given which can be safeguarded by filing writ petition or ordinary pretition.
The system of PIL comes from the power of the judiciary to carry out judicial review and the power to issue writ.
Thus, the power to accept PIL is available only with the Supreme Court and High Courts since only they can issue writs and carry out judicial review not the lower courts.
PIL can be filed by an publicly spirited individual or organisation provided the person filing PIL is not having vested interest or an ulterial motive in filing the PIL.
Courts can also wave off the fee in case of PIL.
PIL are normally filed public authority however PIL can also be filed against any private individual or organisations if their action is causing injury to the interest of public at large.
Courts can provide justice in response to PIL by issuing particular order, direction to parties concerned or ordering for compensation to the affected parties.
PIL has 4 major purposes -
- PILs have allowed judiciary to give various derivations of Fundamental Rights. Thus expanded the scope of Fundamental Right and strengthened Fundamental Rights.
- Such as declaring Right to Privacy as derived fundamental right under Right to Life.
- PILs allow discussion critical matters of social reform which are otherwise considered taboo.
- PILs allow judiciary to force the legislature and executive to perform their constitutional obligations properly and thus maintaining rule of law.
- PILs have allowed awareness among the masses about their rights and rule of judiciary in safeguarding them.
Through PIL, Judiciary has succeeded in providing a livable and corruption free administration.
Criticism of PIL
However PIL can also be criticised for -
- Chocking the legal system with large number of cases.
- PIL was largely misused for vested interest or for gaining publicity.
For this Supreme Court started putting exemplary fines and punishment on the people found misusing the use of PIL.
Court has started to appoint a screening committee consisting of lawyers and social activists to screen the PIL and report back to the court, whether the PIL actually contains a subject of public interest or not.
Supreme Court has shifted the burden of proof to the party filing PIL and now it is mandatory for the party filing the PIL to Prima Facie establish a case of public interest before a court can take up a petition.
Court has also started appointing Amicus Curiae (friend of court) to investigate the issue and submit a report to the court so that court can take appropriate action.
Judicial Activism
Activist means one who works for the interest of the people.
Judicial Activism -
- When judiciary does the work of either of the legislature or executive for the interest of the people.
- It strengthens the fundamental rights for the interest of the people
- It can also lead to the creative interpretation of the constitution of India for the interest of the people as well as for the values of the constitution.
For example -
- Spelling out the idea of Basic Structure of the Constitution (1973)
- Declare that Article 21 includes due process of law instead of procedure established by the law (1978)
- Started the trend of entertaining the toll by PIL.
- Ordered CBI to report to it on daily basis in Jain Harwala Case.
- Ordered release of excess food grains from the FCI godowns.
- Ordered ban of firecrackers in Delhi before Diwali.
- Ordered ban on alcohol near highways.
- Lilly Thomas Case → Disqualification of legislatures
- Recognised 3rd gender
- Scrapped Section 377 of IPC
- Scrapped adulatory as a crime
- Idea of Collegium
- Right to Privacy as Right to life
- Right to marry as Right to life
- Right against Corruption as Right to life
- Right to sexual orientation as Right to life
- Formed SIT on black money, etc.
Note - Judicial Activism sometimes violates Separation of powers as well as checks and balance.
Judicial Activism - It refers to the assertive and proactive role played by the judiciary to force the organs of the government to discharge their duty towards the people in a rightful way.
This may involve judiciary itself taking up the role of the legislature or executive or giving a creative interpretation to the constitution to strengthen the values of constitution and safeguard the societal interest.
Judicial activism helps in strengthening democracy and rule of law (like backing MCC, introduction of PIL, etc)
PILs are greatest facilitator of judicial activism and thus considered as 'the backbone of judicial activism'.
Powers of judicial activism comes with judiciary of being the interpretator of constitution, also with the power of judicial review as well as having the powers to issue writs (so only High Courts and Supreme Courts have powers of Judicial Activism).
However judicial activism is a welcome measure only in short run but if carried for long or shown frequently, it will destroy the concept of separation of power as well as checks and balance both of which themselves are part of basic structure of the constitution.
It will lead to judiciary assuming excess powers at the expense of executive and legislature without adequate responsibility. Thus, judicial activism should be shown sparingly/rarely as a matter of last resort where all other attempts to maintain rule of law or rectify the problem have failed or the organs of the government are deliberately avoiding their responsibility against the public interest.
Thus, judiciary should use self restrain or evolve a proper code of conduct for the judges for using judicial activism.
Thus a bench of Supreme Court in 2007 held that in the name of judicial activism, judiciary should not take up the role of legislature or executive because like legislature, judiciary is not a representative body and like executive, judiciary is not a expert in running the administration and may not appreciate the fine nuisances/problems of running the administration on the ground.
i.e., the judgement may be idealistic but may not be practical.
Thus, the function of judiciary should largely be limited to enforceability of existing laws and ensuring justice.
Role of Supreme Court in the growth of constitution/Functions of the Supreme Court
Supreme Court performs many functions and the most important are -
- Acting as a custodian of the constitution of India and final interpretator of the constitution.
- Primary protector of the Fundamental rights.
- Sole arbitrator of disputes between centre and state as well as among the states.
These functions have not only help in protecting the constitution but also in ensuring the growth of the constitution.
Supreme Court has been described as Continuous Constitutional Convention, since it continues to expand the scope of the constitution in conformity with the growing needs of the society.
Supreme Court has ensured expansion of the scope of fundamental rights particularly Article 21 and Article 19 by giving many inferred Fundamental rights through a liberal interpretation of fundamental rights.
Supreme Court has succeeded in maintaining a balance or harmony between two very important parts of the constitution, i.e., Part III (Fundamental Rights) and Part IV (DPSP).
Supreme Court extended the application of judicial review to important articles like Article 352 (National emergency), Article 356 (Presidential Rule) and Schedule 9 (if law was made after April 23, 1973 - K.N.B. Case)
Supreme Court has effectively started the concept of PIL to increase the responsibility of executive and legislature and largely ensure that the citizen gets a livable and corruption free administration.
Supreme Court has lived up to the dictation that the constitution does not speak for itself but it manifest itself through judiciary.
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Note - This is my Vision IAS Notes (Vision IAS Class Notes) and Ashutosh Pandey Sir's Public Administration Class notes. I've also added some of the information on my own.
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