Judicial activism refers to the interference of the judiciary in the legislative and executive fields. It mainly occurs due to the non-activation or failure of the other organs of the government, namely, the executive and legislatures. It is a way through which the relief is provided to the disadvantaged and aggrieved citizens.
It is a matter of common knowledge that the judiciary has rendered many landmark decisions on matters of public interest, like those relating to environmental issues, greater transparency and accountability of administration, which have made an enduring impact on the society. From corruption to crime, corporate disputes to human rights and activating the law enforcing agencies to disciplining the general public, the courts have played a pivotal role in all fields for achieving the goal of social cleansing. Supreme Court Advocates-on-Record Association vs UOI1)
The phrase “judicial activism” was coined by Arthur Schlesinger Jr., who introduced it in a January 1947 Fortune magazine article. Judicial activism refers to a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.
The idea at the root of judicial activism is that judges should use their powers to correct injustices, especially when the other branches of government do not act to do so. In short, the courts should play an active role in shaping social policy on such issues as civil rights, protection of individual rights, political unfairness, and public morality.
Black’s Law Dictionary: Judicial activism is a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.”
Christopher Wolfe:“Judicial activism is a judicial philosophy that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions.”
Christopher Wolfe:“Judicial activism can be narrowly defined as one or more of three possible actions: overturning laws as unconstitutional, overturning judicial precedent, and ruling against a preferred interpretation of the constitution.” —
Justice Anthony Kennedy:“An activist court is a court that makes a decision you do not like.”—
Public Interest Litigation (PIL) made judicial activism possible in India. PIL, which is a manifestation of judicial activism, has introduced a new dimension to judiciary's involvement in public administration.The issue of locus standi and the procedural complexities have taken a back seat in the causes brought before the courts through PIL.
In the beginning, the PIL was confined only to improving the lot of the disadvantaged sections of society, who by reason of their poverty and ignorance, were unable to seek justice and, therefore, any member of the society was allowed to file a case for appropriate directions. Consequently, the expectations of public went high and the demands on the courts to improve the administration by giving appropriate directions for ensuring compliance with statutory and constitutional prescriptions increased.
With rapid industrialization taking place, there is an increasing threat to the maintenance of the ecological balance. The public is becoming aware of the need to protect environment. Even though, laws have been passed for the protection of environment, the enforcement of the same has been tardy, to say the least. With the governmental authorities not showing any concern with the enforcement of the said Acts, and with the development taking place for personal gains at the expense of environment and with disregard of the mandatory provisions of law, some public-spirited persons have been initiating public interest litigations. The legal position relating to the exercise of jurisdiction by the courts for preventing environmental degradation and thereby, seeking to protect the fundamental rights of the citizens, is now well settled by various decisions of the Supreme Court.
India’s judges, in view of Gardiner Harris, have sweeping powers and a long history of judicial activism that would be all but unimaginable in the United States. In recent years, judges required Delhi’s auto-rickshaws to convert to natural gas to help cut down on pollution, closed much of the country’s iron-ore-mining industry to cut down on corruption and ruled that politicians facing criminal charges could not seek re-election. Indeed, India’s Supreme Court and Parliament have openly battled for decades, with Parliament passing multiple constitutional amendments to respond to various Supreme Court rulings.
The primary effort of the court, while dealing with the environmental-related issues, is to see that the enforcement agencies, whether it be the State or any other authority, take effective steps for the enforcement of the laws. The courts, in a way, act as the guardian of the people's fundamental rights, but in regard to many technical matters, the courts may not be fully equipped. Perforce, it has to rely on outside agencies for reports and recommendations whereupon orders have been passed from time to time.
Indian Council for Enviro-Legal Action vs Union of India2)Even though, it is not the function of the court to see the day-to-day enforcement of the law, that being the function of the executive, but because of the non-functioning of the enforcement agencies, the courts as of necessity have had to pass orders directing the enforcement agencies to implement the law.
The Supreme Court, being conscious of its constitutional obligation to protect the fundamental rights of the people, it has issued directions in various types of cases relating to the protection of environment and preventing pollution.
In India cases dealing with pollution of lakes and other water bodies are a few. All the cases concerned with developmental activities in the vicinity of the lakes. In none of the cases, the courts have prohibited the developmental activities totally, though developmental activities within a reasonable vicinity/distance were totally prohibited, having regard to the catchment area or the hydrology.
In the case of MC Mehta vs Union of India3),the petitioner complained that Taj Mahal is suffering decay due to large number of industries like foundries, chemical industries, Mathura Refinery etc., and sought appropriate directions to the authorities to take immediate steps to stop air pollution in Taj Trapezium Zone (TTZ). After considering the various reports, the Supreme Court went on issuing directions and ordered relocation of large number of industries. Finally, the Supreme Court permitted those industries subject to availing gas connections from Gas Authority of India Limited.
The Court also gave various directions and observed that the Taj, apart from being a cultural heritage, is an industry by itself. More than two million tourists visit the Taj every year. It is a source of revenue for the country. It cannot be disputed that the use of coke/coal by the industries emits pollution in the ambient air. The objective behind this litigation is to stop the pollution while encouraging development of industry. The old concept that development and ecology cannot go together is no longer acceptable. Sustainable development is the answer. The development of industry is essential for the economy of the country, but at the same time, the environment and the ecosystem have to be protected. The pollution created as a consequence of development must be commensurate with the carrying capacity of ecosystems.
In this case4), a PIL was filed in regard to maintenance of wetlands in the eastern fringe of the city of Calcutta. The petitioner challenged the reclamation of wetlands for economic activity. Quoting extensively from authoritative textbooks on the use of wetlands, Justice UC Banerjee (as he then was) observed—
“Wetland acts as a benefactor to the society and there cannot be any manner of doubt in regard thereto and as such encroachment thereof would be detrimental to the society, which the Law Courts cannot permit. This benefit to the society cannot be weighed on mathematical nicety so as to take note of the requirement of the society. What is required today may not be a relevant consideration in the immediate future. Therefore, it cannot really be assessed to what amount of nature's bounty is required for the proper maintenance of environmental equilibrium. It cannot be measured in terms of requirement and as such, the Court of Law cannot, in fact, decry the opinion of the environmentalist in that direction. Law Courts exist for the benefit of the society. Law Courts exist for the purpose of giving redress to the society when called for and it must rise above all levels so that justice is meted out and the society thrives thereunder.”
The Calcutta High Court also restrained the State from granting any further permission to any person from changing use of land from agriculture to residential or commercial in the area. However, the Court gave liberty to the State to seek necessary clarification, if they are desirous of having World Trade Centre or Public Exhibition Centre in a limited area.
In the case of Ajay Singh vs Union of India5), a member of Nainital Bachao Samiti approached the Supreme Court under Article 32 of the Constitution, seeking directions as would prevent further pollution of already suffocating Nainital. It was inter alia contended that Nainital Lake is polluted because of both inorganic and organic causes. The nearby mines of manganese, lead, salts, copper, cobalt and zinc make the lake toxic for life forms. The discharge of waste-water also pollutes the lake. However, the most potent source of pollution is human faeces from leaking sewers. Throwing of plastic bags and dumping of other materials added to the lakes pollution.
The Supreme Court requested the District Judge Nainital to appoint an Advocate Commissioner to examine the construction activity and other factors causing pollution. Accordingly, a report was submitted. After considering the report as well as recommendations of the Commissioner, the Supreme Court directed the following steps to be taken urgently—
In the case of MC Mehta vs Union of India6), the Supreme Court considered the question of sustainable development in the vicinity of the lakes. An environmental activist lawyer filed a writ petition under Article 32 of the Constitution seeking a direction to Haryana Pollution Control Board to control the pollution caused by stone crushers, mine operators so as to preserve environment within a radius of 5 Kms from the tourist resorts of Badkhal Lake and Surajkund Lake. Initially, the Supreme Court directed Haryana Pollution Control Board to inspect and ascertain the impact of mining on the ecologically sensitive area of Badkhal and Surajkund Lakes.
A team of Board comprising scientists inspected the area and submitted a report. The Committee recommended to prepare environmental management plan and also to stop mining activities within the radius of 5 Kms from Badkhal and Surajkund tourist places. Placing reliance on the report, the Supreme Court inter alia directed that there shall be no mining activity within 2 Kms radius on the tourist spot of Badkhal and Surajkund Lakes and that no construction of any type shall be permitted within 2 kms radius and that all open areas shall be converted into green belts.
In this case7) the earlier judgment was clarified by the Supreme Court observing that the functioning of ecosystems and status of environment cannot be the same in the country. Preventive measures have to be taken, keeping in view the carrying capacity of the ecosystems operating in the environmental surroundings under consideration. Badkhal and Surajkund lakes are popular tourist resorts almost next door to the capital city of Delhi. The natural drainage pattern of the surrounding hill areas feed these water bodies during rainy season. Large-scale construction in the vicinity of these tourist resorts may disturb the rain water drains which in turn may badly affect the water level as well as the water quality of these water bodies. It may also cause disturbance to the aquifers, which are the source of ground water. The hydrology of the area may also be disturbed.
Every citizen has right and is entitled to pollution free air and water under Article 21 of the Constitution of India. No Municipality and no person can deprive the citizen of such basic human right by reason of its activity or inaction. It would be common knowledge that pollution of drinking water with sewage and sullage is dangerous to health and more dangerous to the health of the children as well. No Municipality has a right to allow sewage water into drinking surface water resources and no such municipality can be heard that they have no funds.
In this case8) the Supreme Court has held that a responsible Municipal Council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial inability. Decency and dignity are non-negotiable facets of human rights and are a first charge on local self-governing bodies. Similarly, providing drainage systems, not pompous and attractive, but in working condition and sufficient to meet the needs of the people, cannot be evaded, if the municipality is to Justify its existence.
This case9) was filed under Article 32 of the Constitution of India as public interest litigation alleging that supply of drinking water in Agra city is being contaminated with pollutants and causing health problems. The Supreme Court called for status reports from the Government of Uttar Pradesh and based on reports, went on giving various directions pursuant to which the State Government took definite steps.
However, the Court found that the steps taken by Agra Municipality were by no stretch of imagination adequate. The Supreme Court appointed a monitoring committee to be headed by the Commissioner of Agra Division, a representative of the Pollution Control Board, Chief Medical Officer, Agra and others. The Committee was directed to meet once in every two months and prepare plans for steps to be taken. The State Government was also directed to take appropriate action as per law. These directions were given with a hope that the, monitoring committee will try its best to achieve maximum results in matter of giving unpolluted water to the citizens of Agra.
In the case of Rural Litigation & Entitlement Kendra vs Slate of UP, 10), popularly known as Dehradun Valley Case, carrying haphazard and dangerous limestone quarrying in the Mussorie Hill range of the Himalaya, mines blasting out the hills with dynamite, extracting limestone from thousands of acres had upset the hydrological system of the valley. The Supreme Court ordered the closing of limestone quarrying in the hills and observed that this would undoubtedly cause hardship to them.
In this case11), the Supreme Court ordered the closure of a bone factory which was polluting the environment by its pungent smell and making the life of the people miserable.
In thi case12) the Supreme Court set aside the decision of the Bangalore Development Authority granting permission for converting the place reserved for public-park for the establishment of a nursing home. The Supreme Court observed that the public interest on reservation and preservation of open spaces for parks and playgrounds could not be sacrificed by leasing or selling such sites to private persons for conversion to some other use.
In this case13) a park was in existence for many years. Because of the construction of underground shopping complex and parking, irreversible changes were made. The Supreme Court ordered for the demolition of the building on the site of the park and held that no authority had power to grant permission to change the land use of a site reserved for Public Park.
Adv. Sunil Sharma is a writer for about 25 years and has authored about 40 books on various legal topics including Jurisprudence, Hindu Law and Environmental Laws.