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constitutional_law:part-2:pil

Public Interest Litigation And The Judicial Activism

The Public Interest Litigation (PIL) is a strategic arm of the legal aid movement which is intended to bring justice within the reach of the poor masses. It is a device to provide justice to those who individually are not in a position to have access to the courts. It was initiated for the benefit of that class of people, who had been denied their constitutional and legal rights because of their socio-economic disabilities. The aim of PIL is to give the common people of this country, access to the courts to obtain legal redress.

According to the traditional anglo-saxon concept of locus standi, only the person whose rights were violated could seek for judicial redress. No one could file a petition in the court on his behalf. This doctrine was evolved in an era when the courts were mainly concerned with the rights of the individual. Therefore, it has been felt that traditional interpretation of locus standi should be changed to bring justice within the reach of the poor masses. According to the new interpretation of this doctrine, when the rights of an individual or a class of persons are violated and if by the reasons of poverty or disability they cannot approach the court themselves, any public spirited person or institution, acting in good faith can move to the court for the judicial redress.

In a landmark case of ‘S.P. Gupta vs. Union of India’ popularly called the Judges Case, Justice P. N. Bhagwati said that major impediment in bringing the problems of under privileged before the courts was the traditional rule of locus standi. Rejecting the notion, he held that any public spirited individual can move the Court in case where the person concerned seeks judicial redress, provided that the person is acting in the interest of public and not for personal gain, private profit, political motivation or other considerations. Thus, the court has now done away with orthodox bar of locus standi and now it can be approached even by a letter which can be treated by the court as writ petition.

The first reported case of PIL was in 1979 which has focused on the inhuman conditions of prisons and undertrial prisoners. In ‘Hussainara Khatoon vs. State of Bihar’, PIL was filed by an advocate on the basis of a news report highlighting the plight of thousands of undertrial prisoners languishing in various jails. It had led to a chain of proceedings, resulting in the release of over 40,000 undertrial prisoners. After this case the Supreme Court has defined the right to speedy justice as a basic fundamental right which has been denied to the prisoners.

But still, there were many who were at the whims of the legal and judicial authorities and who have paid a lot than which is expected from them. The Supreme Court has developed a ‘compensatory jurisprudence’ to provide an amnesty for those who were victimised by justice providing authorities. The compensatory jurisprudence was most clearly articulated by the Court in 1993 in ‘Nilabati Behra vs. State of Orissa’ in response to a PIL alleging death of a boy of 22 years in police custody. The Court evolved the principle of public law doctrine of compensation for violation of rights. According to this doctrine, it is the liability of the State for violation of rights. In this case, the Court awarded Rs. 1,50,000 to the mother of the boy as compensation for custodial death.

Similarly, in ‘Bandhua Mukti Morcha vs. Union of India’ case one organisation dedicated to the cause of release of bonded labourers informed the Supreme Court through a letter that they conducted a survey of the stone quarries situated in Faridabad District of the State of Haryana and found that there were a large number of labourers working in these stone quarries under inhuman and intolerable conditions and many of them were bonded labourers. The petition requested for a writ to be issued in the view to end the misery, suffering and helplessness of these labourers. The Supreme Court treated the letter as a writ petition and appointed a Commission of Inquiry and ordered the release and rehabilitation of all bonded labourers. Hence, PIL has become the sole instrument of social revolution.

Judicial Activism

The Supreme Court has now realised its proper role in a Welfare State and it is using this new strategy not only for helping the poor for enforcing their Fundamental Rights but for the transformation of the whole society as ordered for a crime free society. The Supreme Court’s role in making up for inefficiency of the legislature and the executive is commendable. This is the evolving Judicial Activism of the higher courts.

‘Judicial Activism’ is a layman’s term for the role of Judiciary in initiating the policies to dispense justice. It is usually through the PIL, but the Supreme Court from time to time has given directions, passed writs and issued orders to redress the injustice either on the request or by its own.

Nevertheless, ‘Judicial Activism’ has been under constant criticism from other two organs of the government, the Executive and the Legislature. Though it emerged only as a result of their inefficiency or lukewarm efforts to provide justice even then they target judiciary on the legal grounds of exceeding its arena. Standing apart of the criticism it is the people who have to decide that what is wrong and what is right, and when it is the question of providing justice, the technicalities should not come in the way to foster justice. Judiciary has to act if and when time comes and other institutions failed on their respective parts.

Judiciary as the Guardian of Constitution and protector of Fundamental Rights

When the word ‘Court’ comes in your mind, what is the first thing that strikes you? It is justice. This is because the courts or the judiciary is endowed with the task of providing justice to everyone and everywhere. In India, the judiciary intervenes when Fundamental Rights, as provided in Part III of the Constitution, are violated by any person, authority or the State.

Judiciary acts in accordance to the Article-32 which prescribes the mechanism for enforcement of Fundamental Rights and justice. Dr. B. R. Ambedkar said about the importance of the Article-32 that, “If I was asked to name any particular Article in this Constitution as the most important Article without which this Constitution would be a nullity…I could not refer to any other Article except this one… It is the very soul of the Constitution and the very heart of it”. Hence Article-32 of the Constitution provides an effective remedy for the enforcement of the Fundamental Rights.

Article-32 (1) guarantees the rights to move to the Supreme Court by ‘appropriate proceedings’ for the enforcement of Fundamental Rights conferred by Part III of the Constitution. Clause (2) of Article 32 confers power on the Supreme Court to issue directions, orders or writs including writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-warranto and Certiorari. Under clauses (3) of Article 32, Parliament can empower any other Court to exercise within its jurisdiction all those powers which were exercisable by the Supreme Court under clause (2). Clause (4) says that the rights guaranteed under this Article shall not be suspended except otherwise provided in the Constitution. Thus, it provides remedy for the protection of Fundamental Rights from legislative and executive interference. Hence, it is clear that whenever there is a violation of Fundamental Rights, any person can move to the Court for an appropriate remedy.

The Judicial system adopted by our country is based on hierarchy of the courts. From the Subordinate Courts to the Supreme Court, we have a chain of the Courts that works at every level to tender justice. Hence, it is expected that the common people first seek justice from the lower level and if there is complexity in the case, then they are free to move the higher one. In this way, to lessen the burden from the Supreme Court, there is a hierarchy of Courts at different levels.

The Supreme Court and the High Courts have been provided with the powers to issues writs under Article 32 and Article 226. Parliament can also empower any Court to issue writs as similar to that of the Supreme Court and the State High Courts. Interestingly, the power of the High Court to issue Writs is wider than the power conferred on the Supreme Court. High Courts have the power to issue writs not only for the enforcement of Fundamental Rights but also for the rights other than Fundamental Rights (Article 226). There are five writs provided in the Constitution about which you must have studied in the chapter of Fundamental Rights.

Besides the writs, the Supreme Court and the High Courts can issue other directions and orders in the interest of justice to the people. Judiciary through these writs and other available mechanism employs its best to protect Fundamental Rights and freedoms of the individuals particularly those provided in the Constitution. Hence, it is called guardian of the Constitution and the protector of Fundamental Rights.

Created on 2021/01/27 14:32 by LawPage • Last modified on 2021/01/27 14:32 by LawPage