Legal Methods JUDICIAL ACTIVISM AND PUBLIC

INTEREST LITIGATION IN INDIA

Legal Methods (Jamia Millia Islamia)

LEGAL METHODS

ASSIGNMENT ON TOPIC:- JUDICIAL ACTIVISM AND PUBLIC INTEREST LITIGATION

IN INDIA

SEMESTER_III

SUBMITTED BY:-

SHANUL HAQUE & ABDUL AHAD

S.NO- 59 02
S.ID- 202004068(R) 202003969(R)

SUBMITTED TO:
DR. SUBHRADIPTA SARKAR ( ASSO. PROFESSOR /FACULTY OF LAW)

JAMIA MILLIA ISLAMIA

NEW DELHI 110025
TABLE OF CONTENTS

S.NO TOPICS PAGE NO.

1 INTRODUCTION 3-6
2 EMERGENCE OF JUDICIAL ACTIVISM AND PIL 6-8
3 RELATION BETWEEN JUDICIAL ACTIVISM AND PIL 8-10
4 JUDICIAL ACTIVISM AND SEPARATION OF POWERS 10-12
5 CONCLUSION 12-13
6 BIBLIOGRAPHY 14

1.Introduction

The term ‘judicial activism’ stand for the concern of the courts to find out suitable remedy to the
aggrieved person by formulating a new rule to adjudicate the conflicting questions in the event of
lawlessness or uncertain laws. Since the 1970s, most Indian social movements have made extensive use
of the courts, particularly the Supreme Court as a part of their social struggles. Individuals'
fundamental rights must be protected, and the Directive Principles of State Policy must be
implemented. To prevent the government from evading its responsibilities, the Indian Constitution has
given the courts inherent authority to scrutinise the government's actions. The Indian judiciary has been
regarded as the custodian and protector of the Indian Constitution in this aspect. The Indian judiciary
has played an active role in preserving individuals' fundamental rights against the State's unjust,
irrational, and unfair actions/inaction, as required by the Constitution whereas
In Black’s law Dictionary (Sixth Edition), “Public Interest” is defined as follows: “Public Interest
means– Something in which the public, the community at large has something pecuniary interest, or
some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow
as mere curiosity, or as the interest of the particular localities, which may be affected by the matters in
question. Interest shared by the citizens generally in affair of local, State or national government...” It is
litigation introduced in a court of law, not by the aggrieved party but by the court itself or by any other
private party. It is not necessary, for the exercise of the court's jurisdiction, that the person who is the
victim of the violation of his or her right should personally approach the court. Public Interest
Litigation is the power given to the public by courts through judicial activism.

The introduction of Public Interest Litigation (PIL) is one of the fundamental elements of the 'judicial
activism' approach attributed to India's higher judiciary. The participation of the courts has been critical
in furthering civil freedoms, labour rights, gender justice, public institution accountability,
environmental conservation, and the assurance of socioeconomic entitlements like as housing, health,
and education, among other things. This has not only reinforced the judiciary's standing in relation to
the other branches of government, but it has also increased its public perception.

At this point, I'd want to bring up a point made in the case of

Bihar Legal Support Society v. Chief Justice of India & Ors.1,

"The majority of our country's people are subjected to this denial of 'access to
justice,' and are overwhelmed by despair and dejection. They continue to be victims of an exploitative
society in which economic power is concentrated in the hands of a few and used to maintain dominance
over large groups of people...... This Court has developed a public interest litigation approach in order to
make justice more accessible to the impoverished and disadvantaged members of the community."

1.1RESEARCH METHODOLOGY
The research methodology applied here is doctrine method of research. The systematic investigation of
problems and of matters concerned with the topic “Judicial Activism and Public Interest Litigation” has
been done. The books and the articles available on the internet have been used to study the topic and its
verification. The researcher intends to examine the secondary sources in this project. The secondary
sources include books, websites, e-articles, and reports in appropriate form, essential for this study. The
main object of this legal research is to gain familiarity with legal phenomena and to test and verify merits
or demerits of old legal aspects to analyse the facts into new theoretical frameworks.

1. (i)HYPOTHESIS

The researcher strongly believes that:

1. Public interest litigation is the power resided to public by courts through judicial activism.

1Bihar Legal Support Society v. Chief Justice of India & Ors, 1987 AIR 38, 1987 SCR (1) 295

2. Judicial Activism is a necessary associative function since the protection of public

interest happens to be its main concern.
3. Judicial activism is a tool for liberalizing access to justice and giving relief to
disadvantaged groups of the society.

1. (ii) RESEARCH PROBLEMS

The trend of filing PIL is increasing day by day which undermines the very purpose for which the PIL
was introduced. With overburdening of cases in courts which results in the delay of deciding normal
pending cases before the court. Lack of legal aid and high expenses suffered by the Poor and
Unprivileged members of society justifies for filing the PIL. The legislative authority many a times
accused the judiciary on ground of judicial intervention and it miscarries its constitutional power.
1. (iii) LITERATURE REVIEW

The judicial process became "more interactive and democratic" after the move from locus standi to
public interest litigation. "The old judicial process geared for private law adjudication had to be
superseded by a new paradigm that was polycentric and even legislative," argues S.P. Sathe. 2

Former Chief Justice P.N. Bhagwati termed it as Social Action Legislation because herein the SC has
settled the dismal problem of lack of ‘access to justice’ to the poor and oppressed sections of Indian
society by empowering volunteers’ representatives or organizations to approach the court on behalf
of the poor and oppressed.3

People who advocate for private complaints in the name of public interest and is merely seeking
publicity rather than advocating for public causes and are abusing the PIL. – Desai and
Muralidhar (2000)

2 S.P. Sathe, Judicial Activism in India (Sixth Indian Impression, OUP 2010) 17
3 Rao, Mamta, “PIL Legal Aid and Lok Adalats”, Eastern Book Company, 2004, p.no.29

1. (iv) RESEARCH QUESTIONS

This research paper deals with:

1. The Emergence of PIL and Judicial Activism in India.
2. It also deals with the relation between PIL and Judicial Activism.
3. Does Judicial Activism intervene with the Doctrine of separation of power?
4. Issues related to the exercise of Judicial Activism through PIL.

1.(v) CHAPTERIZARTION

The research paper has been divided into five chapters. Chapter one titled Introduction,
whichhas been added at the beginning, introduces the scope of study and includes a detailed research
methodology listing out literature review, hypothesis etc. Chapter two describes emergence of judicial
activism and PIL. Chapter three defines relation between PIL and judicial activism. Chapter four
describes Judicial activism and separation of power. Chapter five concludes the paper.

2.EMERGENCE OF JUDICIAL ACTIVISM AND PIL

The concept of judicial activism, sometimes known as inventive interpretation, is not a new one. It
began in 1804 with the decision of Chief Justice Marshall in the case of "Marbury v. Madison." 4 The
constitution, he said, was the nation's fundamental and supreme law, and "it is for the court to say what
the law is." He came to the conclusion that the United States Constitution reinforces and enhances the
idea that is claimed to be inherent in all written constitutions: that a legislation that is incompatible
with the constitution is void, and that the courts, as well as other departments, are bound by it.If a bill
passed by Congress conflicted with constitutional provisions, it was the court's responsibility to uphold
the constitution and disregard the law passed by Congress. As a result, the terms judicial review and
judicial activism were coined.5

4 Marbury v. Madison, (1803) 5 U.S. 137

In the Public Interest PIL, or public interest litigation, can be broadly characterised as litigation in the
interest of that amorphous entity known as the general public. Prior to the 1980s, only the aggrieved
party could personally knock on the doors of justice to seek redress for his grievance, and no one else
could do so as a proxy for the victim or the aggrieved party. To put it another way, only the affected
parties had locus standi (legal standing) to initiate a lawsuit and pursue the action, whereas non-
affected parties did not. As a result, there was no connection between the rights provided by the Indian
Union's Constitution and legislative statutes on the one hand, and the large majority of illiterate
individuals on the other.

The outstanding efforts of Justice P N Bhagwati and Justice V R Krishna Iyer were essential in
transforming India's apex court into a Supreme Court for all Indians throughout the 1980s.PIL (Public
Interest Litigation) has shown to be a valuable new legal remedy. For at least certain portions of our
impoverished and downtrodden humanity, it has turned the rhetoric of fundamental rights into a living
reality. Inmates of asylums and care institutions living in deplorable conditions, youngsters working in
hazardous vocations, and other disadvantaged groups are being held in prisons for inordinately
extended periods of time.

Krishna Iyer J. left behind a legacy of public interest litigation in India in Mumbai Kamgar Sabha vs.
Abdul Bhai6 in 1976, and Raihvaiy vs. Union of India7 in 1977. (wherein an unregistered association of
workers was permitted to institute a writ petition under Art.32 of the Constitution for the redressal of
common grievances).

In Fertilizer Corporation Kamgar vs. Union of India8, Krishna Lyer J. enunciated the reasons for
liberalisation of the rule of locus standi (the Court introduced the principle that workers of a factory
have the 'locus standi' to challenge that major decision of management) and the ideal of 'Public Interest
Litigation' emerged in S.P. Gupta and others vs. Union of India.

5 S.P. Sathe, Judicial Activism in India,(Oxford Publications, 2002)

6 Mumbai Kamgar Sabha v Abdul Bhai [1976] AIR 1455(SC).
7 Raihvaiy vs. Union of India
8 Fertilizer Corporation Kamgar v Union of India [1981] AIR 1981 149(SC).

In India, there are two ways to pursue public interest litigation. Under Article 226 of the Constitution,
the appropriate forum for a complaint of a "legal wrong" is the state's High Court. Under Article 32, if
a 'basic right' is alleged to have been violated, a remedy may be sought from the High Court or
immediately from the Supreme Court. And can approach the court of Magistrate under Sec.133, Cr.
P.C. for any public cause.

3. RELATION BETWEEN PIL AND JUDICIAL ACTIVISM

A crucial part of the rule of law is access to justice. It is impossible to build the rule of law if justice is
not available to everybody. Individuals fail to reach the judicial system for a variety of reasons,
including a lack of basic necessities, illiteracy, poverty, discrimination, privacy, and the court system's
deficient infrastructure.

In Imtiyaz Ahmad v. State of Uttar Pradesh,

In this landmark judgments the Hon’ble Supreme court of India recognized
that access to justice is a fundamental right.
Public interest litigation has become increasingly important in recent years, attracting the attention of
all parties involved. In recent Supreme Court decisions, the traditional rule of "Locus Standi," which
allows a person whose right has been infringed alone to bring a petition, has been significantly
modified. The court now allows public interest litigation to be brought on behalf of public-spirited
persons to enforce constitutional or legal rights.
The shift from locus standi to public interest litigation made the judicial process “more participatory
and democratic.”9

Public interest litigation differs from the typical adversarial justice system, according to the court. The
court stated that public interest litigation is meant to benefit the general public. Public interest litigation
was created to provide justice to the poor and others who are socially or economically disadvantaged.
The infringement of a huge number of people's constitutional or legal rights should not go ignored.

9 S.P. Sathe, Judicial Activism in India (Sixth Indian Impression, OUP 2010) 17

Justice P.N. Bhagwati accurately stated the original intent of the PIL in 1982. He emphasised that PIL
is "a fundamentally different sort of litigation from the ordinary," and that it is "a strategic arm of the
legal aid movement that is intended to bring justice within the grasp of the poor masses, who comprise
the low visibility region of mankind." Because there is just a small fixed court charge involved in
Public Interest Litigation (PIL), vigilant individuals of the country can find a cheap legal remedy.

The Supreme Court and the High Courts have significant jurisdiction over public interest disputes. In a
number of occasions, the courts have issued crucial directives and issued orders that have resulted in
good improvements in the country. In a number of cases, the Courts' orders have greatly helped
marginalised groups of society. It has also aided in the protection and preservation of the environment,
forests, marine life, and wildlife, among other things. The directives of the courts have aided in the
preservation of public probity and transparency to some extent.

ENVIRONMENT AND PIL:

From 1980 until the present, PIL has played a key role in this field. The judiciary expanded the scope
of Section 21 of the Constitution by judicial activism.
In M.C. Mehta v Union of India10
M.C. Mehta filed a petition in court, drawing the court's attention to the Taj Mahal's deterioration as a
result of air pollution caused by chemically hazardous enterprises operating near the Taj Mahal. The
Supreme Court championed the cause of preserving national treasures like the Taj Mahal from
degradation and damage caused by pollution in the atmosphere and environment. The Precautionary
Principle and Polluter Pays Principle were used by the Court in its decision, making them part of our
country's environmental jurisprudence.

"The poor in their engagement with the judicial system have always been on the wrong side of the law," the
Supreme Court stated in Hussainara Khatoon v. State of Bihar11. They've always encountered "law for the
poor" instead of "law of the poor." The Supreme Court ruled that a fast trial is a vital and integral aspect of
A. 21's fundamental right to life and liberty. Several undertrial prisoners in Bihar were held in various jails
for several years without being tried. The court ordered that all of the inmates whose names had been
presented to the court be released immediately.
10 M.C. Mehta v Union of India [1997] SC735.
11 Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1369.

In Bandhua Mukti Morcha v. Union of India 12, It was decided that the clauses granting the Supreme
Court the ability to enforce fundamental rights in the broadest sense demonstrate the Constitution's
authors' desire to avoid allowing procedural issues to obstruct the enforcement of fundamental rights.
In procedures under A.32 for the enforcement of basic rights, an adversary procedure is not required by
any means.

4. JUDICIAL ACTIVISM AND SEPARATION OF POWER

Judges in India have increasingly resorted to shifting the scales of justice in the name of "distributive
justice" in the name of judicial activism, abandoning the traditional duty of an impartial referee. Even
if it means risking disfavor by going against the tide, the constitutionality of such activities requires
serious examination by the legal community. Without a question, the Indian judiciary has played a vital
part in the nation's growth, which is undoubtedly the main reason for people's trust in it.
The ultimate purpose of our constitution, as stated in its preamble by our honourable founding fathers,
is to secure a "welfare state." The constitution established three organs to achieve this goal: the
Legislature, the Executive, and the Judiciary.13 The constitution's core design is based on the idea of
separation of powers, which includes a system of checks and balances. Although it is not difficult to
define the distinct functional regions of these three major organs conceptually, the true issue with
judicial activism is its acceptable limitations.

12 AIR 1984 SC 802

13 Justice B.P. Jeeven Reddy, “Judicial activism: a perspective” The Hindu (Delhi) April 30, 2008

Separation between the judiciary and the executive is always a good idea in theory. The goal is to
ensure that the judiciary does not make decisions under the influence of the executive branch, but
rather observes the rule of law. However, the actual issue arises in practice, where its separation is a
source of concern. The idea of separation of powers can act as a check on judges taking over the tasks
of the Legislature and the Executive, as many protagonists in the activism debate fear.
Separation is crucial in ensuring that punishments are applied consistently and fairly. If execution
officials had the power to select when sanctions were to be implemented, enforcement policies might
reflect the officials' personal interests or prejudices; policies would also be unpredictable. When
regulations are broad and formulated by officials who may find it difficult to predict how the outcomes
of specific cases would influence their personal interests, the policies enacted are more likely to
represent a broad society judgment about desired policy rather than the officials' own private
advantage. There have been various occasions where the power of amendment has been skewed in
favour of Parliament and, in certain cases, the judiciary. The 42nd Amendment Act of Parliament made
significant changes to the Constitution's provisions. Article 368 of the Constitution, which gives
Parliament amending power, was changed in such a way that any future amendments to the
Constitution would be immune from legal challenge. The balance of power shifted in the Legislature's
favour.

Finally, in Minerva Mills v. Union of India14, the Supreme Court decided that because judicial review
is a fundamental aspect of the Constitution, it cannot be taken away by Parliament through
constitutional change.
Aside from that, there have been other cases where the Judiciary has taken the job of the Legislature
without considering the practical challenges and financial limits. It has gone so far as to draught not
merely guidelines but also policies.
The Supreme Court's decisions in Ram Jethmalani v. Union of India 15 and Nandini Sundar v. State of
Chhattisgarh (Nandini Sundar)16, as well as the directions issued in those cases, have been interpreted
by the government and many members of the public as actions that go beyond constitutional bounds,
crossing the line of separation of powers and resulting in judicial overreach.

14 Minerva Mills v. Union of India,

15 Ram Jethmalani v. Union of India,
16 Nandini Sundar v. State of Chhattisgarh (Nandini Sundar),

Doctrine essentially represents the court's decision to defer to another governmental entity, or not to
defer. Katju reminded the judiciary, politely but firmly, that courts frequently fail to recognize their
own limitations. "Apart from the theory of separation of powers, courts must recognize that the country
has many challenges that courts, no matter how much they want to, cannot fix," he stated. He stated,
"The country can ill afford to be dominated by court rulings."

The judge argued that any attempt to pass such writs/orders would not only be "grossly undemocratic,"
but also dangerous, because courts lack the knowledge and resources to do so, and encouraged the
Judiciary to dispense justice in accordance with the law and the Constitution. "He cannot expect other
departments of the government to stay within their constitutional bounds if he exceeds his own," he
remarked, invoking the adage "Who will guard the Praetorian guard?"

The notion of separation of powers is not recognised in the Indian constitution, yet the functions of the
several components or divisions of government are sufficiently differentiated. The Supreme Court held
in Union of India v. Deoki Nandan Agarwal17 that the court cannot order the legislature to pass a
specific statute. In Rajindra Singh v. Prem Mai18, the court rejected the justification often given for
judicial encroachment into the domain of the executive or legislature in cases where the other two
organs are not doing their jobs properly, as the same allegation can be made against the judiciary as
well because there are cases pending in courts for more than half a century.

5. CONCLUSION
The Supreme Court has made a constructive contribution to the enforcement of the rights of prisoners,
employees, retirees, consumers, environmental pollution victims, and others through the method of
Public Interest Litigation. PIL has played a vital role in ensuring that the administration is accountable
to the people, that there is a rule of law in all domains of public life, and that the court is
independent.The Indian PIL experience also demonstrates the importance of ensuring that PILs do not
become a backdoor into the temple of justice in order to satisfy commercial interests, settle political
grudges, or just acquire easy attention. Courts should not use PIL to administer the country on a daily
basis or to intrude into the executive and legislative branches' lawful domains. The judicial activism
17 Union of India v. Deoki Nandan Agarwal,
18 Rajindra Singh v. Prem Mai,

expressed in the PIL method sets the path for public-spirited and enlightened individuals to participate
in India's development process and demonstrates the legal system's ability to provide justice to the
impoverished and downtrodden. Many mediaeval practises that are still prevalent in India have been
brought to light as a result of the strategy, including prisoner relief, the plight of women in protective
homes, victims of the flesh trade, children in juvenile institutions, and exploitation of bonded and
migrant labourers, untouchables, tribals, and others. If there is wrongdoing in society, it is the
responsibility of the judiciary to restrain it by carrying out their constitutional obligations. The
judiciary's exercise of power is not for show, but rather to fulfil its constitutional obligations. Judges
can not only "apply the law," but they can also "create the law" through judicial activism.PIL plays a
significant function in the civil justice system because it provides a path to justice for those who are
marginalised in society and may not even be aware of their rights. Furthermore, it provides a
mechanism for enforcing scattered rights for which it is difficult to identify an injured party or for
which aggrieved parties have no reason to approach the courts. PIL could also help to improve
governance by holding the government to account. Last but not least, PIL empowers civil society to
play a more active role in raising public awareness about human rights, giving marginalised people a
voice, and allowing them to exercise their rights.

BIBLIOGRAPHY

i. S.P. Sathe, Judicial Activism in India (Sixth Indian Impression, OUP 2010)
 ii. Rao, Mamta, “PIL Legal Aid and Lok Adalats”, Eastern Book Company, 2004
iii. Justice B.P. Jeeven Reddy, “Judicial activism: a perspective” The Hindu (Delhi) April 30, 2008
iv. S.P. Sathe, Judicial Activism in India,(Oxford Publications, 2002)
v. Bihar Legal Support Society v. Chief Justice of India & Ors, 1987 AIR 38, 1987 SCR (1) 295
vi. Marbury v. Madison, (1803) 5 U.S. 137
vii. Mumbai Kamgar Sabha v Abdul Bhai [1976] AIR 1455(SC).
viii. Raihvaiy vs. Union of India
ix. Fertilizer Corporation Kamgar v Union of India [1981] AIR 1981 149(SC).
x. Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1369.
xi. M.C. Mehta v Union of India [1997] SC735.
xii. Union of India v. Deoki Nandan Agarwal,
xiii. Nandini Sundar v. State of Chhattisgarh (Nandini Sundar),
xiv.Minerva Mills v. Union of India,
xv. Ram Jethmalani v. Union of India,
xvi. Rajindra Singh v. Prem Mai,