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Friday, November 26, 2010

INDIAN JUDICIARY

The Judicial system comprizes of Supreme Court, High courts, District courts and Lok adalats. The Supreme Court is the Apex court in the country. The High Court stands at the head of the state`s judicial administration. Each state is divided into judicial districts, which is controlled over by a district, and session`s judge, who is the highest judicial power in a district. Below him, there are courts of civil jurisdiction, known in different states as munsifs, sub-judges, civil judges etc. Similarly, criminal judiciary comprises chief judicial magistrate and judicial magistrates of first and second class.
The Judicial System of India comprises of the following:
Supreme Court of India
The Supreme Court of India is the highest court of the land as established by Part V, Chapter IV of the Constitution of India. According to the Constitution of India, the role of the Supreme Court of India is that of a centralized court, protector of the Constitution and the highest court of appeal. The Supreme Court has special advisory jurisdiction in matters, which may specifically be referred to it by the President of India under Article 143 of the Constitution.
High Courts of India
The High Courts are the principal national courts of original jurisdiction in the state, and can try all offences including those punishable with death. The work of most High Courts consists of Appeals from lowers courts and summons or petitions in terms of Article 226 of the Constitution of India. The precise jurisdiction of each High Court vary from each other. Each state is divided into judicial districts authorised by a `District and Sessions Judge`.
District Courts of India
The District Courts of India are controlled over by a judge. They govern justice in India at a district level. These courts are under governmental and judicial control of the High Court of the State to which the district concerned belongs. Judicial independence of each court is the characteristic feature of the district judiciary.

The Supreme Court of India is the highest court of the land as established by Part V, Chapter IV of the Constitution of India. According to the Constitution of India, the role of the Supreme Court is that of a federal court, guardian of the Constitution and the highest court of appeal. Articles 124 to 147 of the Constitution of India lay down the composition and jurisdiction of the Supreme Court of India. Primarily, it is an appellate court which takes up appeals against judgments of the provincial High Courts. But it also takes writ petitions in cases of serious human rights violations or if a case involves a serious issue that needs immediate resolution. The Supreme Court of India had its inaugural sitting on January 28,1950, and since then has delivered more than 24,000 reported judgments.

Constitution of the court

On January 28, 1950, two days after India became a sovereign democratic republic, the Supreme Court came into being. The inauguration took place in the Chamber of Princes in the Parliament building. The Chamber of Princes had earlier been the seat of the Federal Court of India for 12 years, between 1937 and 1950, and was the seat of the Supreme Court until the Supreme Court acquired its present premises in 1958. After its inauguration on January 28, 1950, the Supreme Court commenced its sittings in the Chamber of Princes in the Parliament House. The Court moved into the present building in 1958. The Supreme Court Bar Association is the bar of the highest court. The current president of the SCBA is Mr. M.N. Krishnamani.

The original Constitution of India (1950) provisioned for a Supreme Court with a Chief Justice and 7 lower-ranking Judges—leaving it to Parliament to increase this number. In the early years, a full bench of the Supreme Court sat together to hear the cases presented before them. As the work of the Court increased and cases began to accumulate, Parliament increased the number of Judges from 8 in 1950 to 11 in 1956, 14 in 1960, 18 in 1978 and 26 in 1986. As the number of the Judges has increased, they sit in smaller Benches of two and three (referred to as a Division Bench)—coming together in larger Benches of 5 and more only when required (referred to as a Constitutional Bench) to do so or to settle a difference of opinion or controversy. Any bench may refer the case up to a larger bench if the need to do so arises. The Supreme Court of India comprises the Chief Justice of India and not more than 25 other Judges appointed by the President of India. However, the President must appoint judges in consultation with the Supreme Court and appointments are generally made on the basis of seniority and not political preference. Supreme Court Judges retire upon attaining the age of 65 years. In order to be appointed as a Judge of the Supreme Court, a person must be a citizen of India and must have been, for at least five years, a Judge of a High Court or of two or more such Courts in succession, or an Advocate of a High Court or of two or more such Courts in succession for at least 10 years, or the person must be, in the opinion of the President, a distinguished jurist. Provisions exist for the appointment of a Judge of a High Court as an ad-hoc Judge of the Supreme Court and for retired Judges of the Supreme Court or High Courts to sit and act as Judges of that Court. The Supreme Court has always maintained a wide regional representation. It also has had a good share of Judges belonging to religious and ethnic minorities. The first woman to be appointed to the Supreme Court was Justice Fatima Beevi in 1987. She was later followed by Justices Sujata Manohar and Ruma Pal. Justice K. G. Balakrishnan in 2000 became the first judge from the dalit community. In 2007 he also became the first dalit Chief Justice of India. Justice B.P.Jeevan Reddy was the only judge to be elevated to be the Chairman of the Law Commission of India even though he was not the chief justice of India.

Jurisdiction

The Supreme Court has original, appellate and advisory jurisdiction.

Original jurisdiction

It has exclusive original jurisdiction over any dispute between the Government of India and one or more States or between the Government of India and any State or States on one side and one or more States on the other or between two or more States, if and insofar as the dispute involves any question (whether of law or of fact) on which the existence or extent of a legal right depends. In addition, Article 32 of the Constitution grants an extensive original jurisdiction to the Supreme Court in regard to enforcement of Fundamental Rights. It is empowered to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari to enforce them.

Appellate jurisdiction

The appellate jurisdiction of the Supreme Court can be invoked by a certificate granted by the High Court concerned under Articles 132(1), 133(1) or 134 of the Constitution in respect of any judgement, decree or final order of a High Court in both civil and criminal cases, involving substantial questions of law as to the interpretation of the Constitution. The Supreme Court can also grant special leave to appeal from a judgement or order of any non-military Indian court. Parliament has the power to enlarge the appellate jurisdiction of the Supreme Court and has exercised this power in case of criminal appeals by enacting the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970. Appeals also lie to the Supreme Court in civil matters if the High Court concerned certifies : (a) that the case involves a substantial question of law of general importance, and (b) that, in the opinion of the High Court, the said question needs to be decided by the Supreme Court. In criminal cases, an appeal lies to the Supreme Court if the High Court (a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to imprisonment for life or for a period of not less than 10 years, or (b) has withdrawn for trial before itself any case from any Court subordinate to its authority and has in such trial convicted the accused and sentenced him to death or to imprisonment for life or for a period of not less than 10 years, or (c) certified that the case is a fit one for appeal to the Supreme Court. Parliament is authorised to confer on the Supreme Court any further powers to entertain and hear appeals from any judgement, final order or sentence in a criminal proceeding of a High Court.

Advisory jurisdiction

The Supreme Court has special advisory jurisdiction in matters which may specifically be referred to it by the President of India under Article 143 of the Constitution.

Judicial independence

The Constitution seeks to ensure the independence of Supreme Court Judges in various ways. Judges are generally appointed on the basis of seniority and not on political preference. A Judge of the Supreme Court cannot be removed from office except by an order of the President passed after an address in each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of members present and voting, and presented to the President in the same Session for such removal on the ground of proved misbehaviour or incapacity. The salary and allowances of a judge of the Supreme Court cannot be reduced after appointment. A person who has been a Judge of the Supreme Court is debarred from practising in any court of law or before any other authority in India.

Powers to punish contempt

Under Articles 129 and 142 of the Constitution the Supreme Court has been vested with power to punish anyone for contempt of any law court in India including itself. The Supreme Court performed an unprecedented action when it directed a sitting Minister of the state of Maharashtra to be jailed for 1 month on a charge of contempt of court on May 12 2006. This was the first time that a serving Minister was ever jailed. [1]

Landmark Judgements: Judiciary-Executive Confrontations

Land reform (early confrontation)

After some of the courts overturned state laws redistributing land from zamindar (landlord) estates on the grounds that the laws violated the zamindars' fundamental rights, the Parliament of India passed the First Amendment to the Constitution in 1951 followed by the Fourth Amendment in 1955 to protect its authority to implement land redistribution. The Supreme Court countered these amendments in 1967 when it ruled in Golaknath v. State of Punjab that Parliament did not have the power to abrogate the fundamental rights, including the provisions on private property.

Other laws deemed unconstitutional by the Supreme Court

On February 1, 1970, the Supreme Court invalidated the government-sponsored Bank Nationalization Bill that had been passed by Parliament in August 1969. The Supreme Court also rejected as unconstitutional a presidential order of September 7, 1970, that abolished the titles, privileges, and privy purses of the former rulers of India's old princely states. Response from the Parliament of India In reaction to the decisions of the Supreme Court, in 1971 the Parliament of India passed an amendment empowering itself to amend any provision of the constitution, including the fundamental rights. The Parliament of India passed the 25th amendment, making legislative decisions concerning proper land compensation non-justiciable. The Parliament of India passed an amendment to the Constitution of India, which added a constitutional article abolishing princely privileges and privy purses. Counter-response from the Supreme Court

The Court ruled that the Basic Structure of the Constitution cannot be altered for convenience. On April 24, 1973, the Supreme Court responded to the parliamentary offensive by ruling in the Kesavananda Bharati v. the State of Kerala case that although these amendments were constitutional, the court still reserved for itself the discretion to reject any constitutional amendments passed by Parliament by declaring that the amendments cannot change the constitution's "basic structure", a decision piloted through by Chief Justice V. R. Krishna Iyer.

The Darkest Hour: Emergency and the Habeas Corpus Case

However, the newfound independence of the judiciary was seriously undermined, and the constitution considerably weakened in what has been called the darkest hour of Indian democracy[1]. This was during the Indian Emergency (1975-1977) of Indira Gandhi. In an atmosphere where a number of High courts had agreed with the rights of detainees under the restrictive Maintenance of Internal Security Act, the case of Additional District Magistrate of Jabalpur v. Shiv Kant Shukla, popularly known as the Habeas Corpus case, came up for hearing in front of the Supreme Court. A bench with five of its seniormost judges decided for unrestricted powers of detention during emergency. Justices A.N. Ray, P. N. Bhagwati, Y. V. Chandrachud, and M.H. Beg, stated in the majority decision:(under the declaration of emergency) no person has any locus to move any writ petition under Art. 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention. The only dissenting opinion was from Justice H. R. Khanna, who stated: detention without trial is an anathema to all those who love personal liberty... A dissent is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possible correct the error into which the dissenting Judge believes the court to have been betrayed. Before delivering his dissenting opinion, Justice Khanna had mentioned to his sister: ‘‘I have prepared my judgment, which is going to cost me the Chief Justice-ship of India.’’[3] True to his apprehensions, he was superseded for the post of Chief Justice in January 1977, despite being the most senior judge at the time. In fact, it was felt that the other judges may have gone along for this very reason. Justice Khanna remains a legendary figure among the legal fraternity in India for this decision. The New York Times, wrote of this opinion: "The submission of an independent judiciary to absolutist government is virtually the last step in the destruction of a democratic society; and the Indian Supreme Court’s decision appears close to utter surrender." During the emergency period, the government also passed the 39th amendment, which sought to limit judicial review for the election of the Prime Minister; only a body constituted by Parliament could review this election[4]. The court tamely agreed with this curtailment (1975), despite the earlier Keshavanand decision. Subsequently, the parliament, with most opposition members in jail during the emergency, passed the 42nd Amendment which prevented any court from reviewing any amendment to the constitution with the exception of procedural issues concerning ratification. A few years after the emergency, however, the Supreme court rejected the absoluteness of the 42nd amendment and reaffirmed its power of judicial review in the Minerva Mills case (1980). As a final act during the emergency, in what Justice V. R. Krishna Iyer has called "a stab on the independence of the High Court"[1], judges were moved helter-skelter across the country, in concurrence with Chief Justice Beg.

Post-1980: An Assertive Supreme Court

Fortunately for Indian jurisprudence, the "brooding spirit of the law" referred to by Justice Khanna was to correct the excesses of the emergency soon enough. After Indira Gandhi lost elections in 1977, the new government of Morarji Desai, and especially law minister Shanti Bhushan (who had earlier argued for the detenues in the Habeas Corpus case), introduced a number of amendments making it more difficult to declare and sustain an emergency, and reinstated much of the power to the Supreme Court. It is said that the Basic Structure doctrine, created in Kesavananda, was strengthened in Indira Gandhi's case and set in stone in Minerva Mills. The Supreme Court's creative and expansive interpretations of Article 21 (Life and Personal Liberty), primarily after the Emergency period, have given rise to a new jurisprudence of public interest litigation that has vigorously promoted many important economic and social rights (constitutionally protected but not enforceable) including, but not restricted to, the rights to free education, livelihood, a clean environment, food and many others. Civil and political rights (traditionally protected in the Fundamental Rights chapter of the Indian Constitution) have also been expanded and more fiercely protected. These new interpretations have opened the avenue for litigation on a number of important issues. It is interesting to note that the pioneer of the expanded interpretation of Article 21, Chief Justice P N Bhagwati, was also one of the judges who heard the ADM Jabalpur case, and held that the Right to Life could not be claimed in Emergency situations

India's judicial system is made up of the Supreme Court of India at the apex of the hierarchy for the entire country and twenty-one High Courts at the top of the hierarchy in each State. These courts have jurisdiction over a state, a union territory or a group of states and union territories. Below the High Courts are a hierarchy of subordinate courts such as the civil courts, family courts, criminal courts and various other district courts. High Courts are instituted as constitutional courts under Part VI, Chapter V, Article 214 of the Indian Constitution.

The High Courts are the principal civil courts of original jurisdiction in the state, and can try all offences including those punishable with death. However, the bulk of the work of most High Courts consists of Appeals from lower courts and writ petitions in terms of Article 226 of the Constitution of India. The precise jurisdiction of each High Court varies. Each state is divided into judicial districts presided over by a 'District and Sessions Judge'. He is known as a District Judge when he presides over a civil case, and a Sessions Judge when he presides over a criminal case. He is the highest judicial authority below a High Court judge. Below him, there are courts of civil jurisdiction, known by different names in different states.

Judges in a High Court are appointed by the President of India in consultation with the Chief Justice of India and the governor of the state. High Courts are headed by a Chief Justice. The Chief Justices are ranked #14 (in their state) and #17 (outside their state) in the Indian order of precedence. The number of judges in a court is decided by dividing the average institution of main cases during the last five years by the national average, or the average rate of disposal of main cases per judge per year in that High Court, whichever is higher.

The Calcutta High Court is the oldest High Court in the country, established on 1862-07-02. High courts which handle a large number of cases of a particular region, have permanent benches (or a branch of the court) established there. Benches are also present in states which come under the jurisdiction of a court outside its territorial limits. Smaller states with few cases may have circuit benches established. Circuit benches (known as circuit courts in some parts of the world) are temporary courts which hold proceedings for a few selected months in a year. Thus cases built up during this interim period are judged when the circuit court is in session.

[edit] High Courts

The following are the twenty-one High Courts sorted by name, year established, Act by which it was established, jurisdiction, seat of governance (headquarters), benches (branches), and the maximum number of judges sanctioned.

Court name

Established

Act established

Jurisdiction

Seat

Benches

Jud.

Allahabad High Court[1]

1866-06-11

High Courts Act, 1861

Uttar Pradesh

Allahabad

Lucknow

95

Andhra Pradesh High Court

1954-07-05

Andhra State Act, 1953

Andhra Pradesh

Hyderabad

39

Bombay High Court

1862-08-14

High Courts Act, 1861

Maharashtra, Goa, Dadra and Nagar Haveli, Daman and Diu

Mumbai

Nagpur, Panaji, Aurangabad

60

Calcutta High Court

1862-07-02

High Courts Act, 1861

West Bengal, Andaman and Nicobar Islands

Calcutta

Port Blair (circuit bench)

63

Chhattisgarh High Court

2000-01-11

Madhya Pradesh Re-organisation Act, 2000

Chhattisgarh

Bilaspur

08

Delhi High Court[2]

1966-10-31

Delhi High Court Act, 1966

National Capital Territory of Delhi

New Delhi

36

Guwahati High Court[3]

1948-03-01

Government of India Act, 1935

Arunachal Pradesh, Assam, Manipur, Meghalaya, Nagaland, Tripura, Mizoram

Guwahati

Kohima, Aizwal & Imphal. Circuit Bench at Agartala & Shillong

27

Gujarat High Court

1960-05-01

Bombay Re-organsisation Act, 1960

Gujarat

Ahmedabad

42

Himachal Pradesh High Court

1971

State of H.P. Act, 1970

Himachal Pradesh

Shimla

09

Jammu and Kashmir High Court

1943-08-28

Letters Patent issued by the Maharaja of Kashmir

Jammu & Kashmir

Srinagar & Jammu[4]

14

Jharkhand High Court

2000

Bihar Re-organisation Act, 2000

Jharkhand

Ranchi

12

Karnataka High Court[5]

1884

Mysore High Court Act, 1884

Karnataka

Bangalore

Circuit Benches at Hubli-Dharwad & Gulbarga

40

Kerala High Court[6]

1956

States Reorganisation Act, 1956

Kerala, Lakshadweep

Kochi

40

Madhya Pradesh High Court[7]

1936-01-02

Government of India Act, 1935

Madhya Pradesh

Jabalpur

Gwalior, Indore

42

Madras High Court

1862-08-15

High Courts Act, 1861

Tamil Nadu, Pondicherry

Chennai

Madurai

47

Orissa High Court

1948-04-03

Orissa High Court Order, 1948

Orissa

Cuttack

27

Patna High Court

1916-09-02

Government of India Act, 1915

Bihar

Patna

43

Punjab and Haryana High Court[8]

1947-11-08

High Court (Punjab) Order, 1947

Punjab, Haryana, Chandigarh

Chandigarh

53

Rajasthan High Court

1949-06-21

Rajasthan High Court Ordinance, 1949

Rajasthan

Jodhpur

Jaipur

40

Sikkim High Court

1975

38th Amendment

Sikkim

Gangtok

03

Uttarakhand High Court

2000

U.P. Re-organisation Act, 2000

Uttarakhand

Nainital


District Courts of India are presided over by a judge. They administer justice in India at a district level. These courts are under administrative and judicial control of the High Court of the State to which the district concerned belongs.Composition of District courtsThe highest court in each district is that of the District and Sessions Judge. This is the principal court of civil jurisdiction. This is also a court of Sessions. Sessions-triable cases are tried by the Sessions Court. It has the power to impose any sentence including capital punishment.There are many other courts subordinate to the court of District and Sessions Judge. There is a three tier system of courts. On the civil side, at the lowest level is the court of Civil Judge (Junior Division). On criminal side the lowest court is that of the Judicial Magistrate. Civil Judge (Junior Division) decides civil cases of small pecuniary stake. Judicial Magistrates decide criminal cases which are punishable with imprisonment of up to five years.At the middle of the hierarchy there is the Court of Civil Judge (Senior Division) on the civil side and the Court of the Chief Judicial Magistrate on the Criminal side. Civil Judge (senior division) can decide civil cases of any valuation. There are many additional courts of Additional Civil Judge (senior division).The Jurisdiction of these addition courts is the same as that of the principal court of Civil Judge (Senior Division). The Chief Judicial Magistrate can try cases which are punishable with imprisonment for a term up to seven years. Usually there are many additional courts of Additional Chief Judicial Magistrates. At the top level there may be one or more courts of additional district and sessions judge with the same judicial power as that of the District and Sessions judge.Judicial independence of each court is the characteristic feature of the district judiciary. In each district there is a strong bar which ensures that courts decide cases according to law and without fear or favour. The greatest problem of district courts is that of huge backlog of cases leading to undue delay in deciding cases.

JUDICIAL REVIEW: NUISANCE OR ABSOLUTE NECESSITY

Judicial Review is the power of the courts to annul the acts of the executive and/or the legislative power where it finds them incompatible with a higher norm. Judicial review is an example of the functioning of separation of powers in a modern governmental system (where the judiciary is one of several branches of government). This principle is interpreted differently in different jurisdictions, which also have differing views on the different hierarchy of governmental norms. As a result, the procedure and scope of judicial review differs from country to country and state to state.

Judicial review of administrative acts

Most modern legal systems allow the courts to review administrative acts, i.e. individual decisions of public body, e.g. a decision to grant a subsidy or to withdraw a residence permit. Certain governmental systems, most notably in France and Germany, have implemented a system of administrative courts, that are charged exclusively with deciding on disputes between the members of the public and the administration. In other countries, e.g. the United Kingdom and the Netherlands, judicial review is carried out by regular civil courts, although it may be delegated to specialized panels within these courts, such as the Administrative Court within the High Court of England and Wales. It is quite common that before a request for judicial review of an administrative act is filed with a court, certain preliminary conditions, such as a complaint to the authority itself must be fulfilled.In most countries, the courts apply special procedures in administrative cases

Judicial review of legislation

In American legal language, the term "judicial review" usually refers to the review of the constitutionality of legislation by both federal and state courts, such as the Supreme Court of the United States. However, many legal systems specifically do not allow any review of primary legislation, passed by parliament. In the United Kingdom, statutes cannot be set aside under the doctrine of parliamentary sovereignty. Another example is the Netherlands, where the Constitution expressly forbids the courts to rule on the question of constitutionality of primary legislation. Many of the countries whose constitutions do provide for a review of primary legislation on compatibility with the constitution, have established special constitutional courts that have the exclusive authority to deal with this issue: see List of constitutional courts.

A theme of uneasiness, and even of guilt, colors the literature about the judicial review. Many of those who have talked, lectured, and written about the Constitution have been troubled by a sense that judicial review is “undemocratic”. They argue that the strength of the courts has weakened other parts of the government. This legal debate raises the important and inevitable question that how far this statement holds true about judicial review powers and capacities of the Indian Judiciary.

The Indian Constitution, like other written Constitutions, follows the concept of “Separation of powers” between the three sovereign organs of the Constitution. The doctrine of separation of powers stated in its rigid form means that each of the organ of the Constitution, namely, executive, legislature and judiciary should operate in its own sphere and there should be no overlapping between their functioning. The Indian Constitution has not recognized the doctrine of separation of powers in its absolute form but the functions of the different organs have been clearly differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ of the functions that essentially belongs to another. Though the Constitution has adopted the parliamentary form of government, where the dividing line between the legislature and the executive becomes thin, the theory of separation of powers is still valid.

Even though the Constitution of India does not accept strict separation of powers, it provides for an independent judiciary with extensive jurisdiction over the acts of the legislature and the executive. Independent judiciary is the most essential attribute of rule of law and is indispensable to sustain democracy. Independence and integrity of the judiciary in a democratic system of government is of the highest importance and interest not only to the judges but also to the people at large who seek judicial redress against perceived legal injury or executive excess. Judicial review is the basic structure, independent judiciary is the cardinal feature, and an assurance of faith enshrined in the Constitution. The need for independent and impartial judiciary is the command of the Constitution and call of the people. The subordinate judiciary is a complement to constitutional courts as part of the constitutional scheme and plays a vital part in dispensation of justice. Thus, subordinate courts are integral part of the judiciary under the constitution.

Scope and components of judicial review

Broadly speaking, judicial review in India comprises of three aspects: judicial review of legislative action, judicial review of judicial decisions and judicial review of administrative action. The judges of the superior courts have been entrusted with the task of upholding the Constitution and to this end, have been conferred the power to interpret it. It is they who have to ensure that the balance of power envisaged by the Constitution is maintained and that the legislature and the executive do not, in the discharge of functions, transgress constitutional limitations. Thus, judicial review is a highly complex and developing subject. It has its roots long back and its scope and extent varies from case to case. It is considered to be the basic feature of the Constitution. The court in its exercise of its power of judicial review would zealously guard the human rights, fundamental rights and the citizens’ rights of life and liberty as also many non-statutory powers of governmental bodies as regards their control over property and assets of various kinds, which could be expended on building, hospitals, roads and the like, or overseas aid, or compensating victims of crime.

In U.O.I v K.M.Shankarappa the Supreme Court held that the provision for revision by Central Government of decisions of the Appellant Tribunal under Section 6(1) of the Cinematograph Act, 1952 is unconstitutional. The Supreme Court observed:

In the landmark judgment of P.U.C.L v U.O.I Justice Shah observed: “The legislature in this country has no power to ask the instrumentalities of the State to disobey or disregard the decisions given by the courts.

The above discussion unerringly points towards the permissibility and democratic nature of the judicial review in India. The judicial review in India is absolutely essential and not undemocratic because the judiciary while interpreting the constitution or other statutes is expressing the will of the people of India as a whole who have reposed absolute faith and confidence in the Indian judiciary. If the judiciary interprets the Constitution in its true spirit and the same goes against the ideology and notions of the ruling political party, then we must not forget that the Constitution of India reflects the will of the people of India at large as against the will of the people who are represented for the time being by the ruling party. If we can appreciate this reality, then all arguments against the democratic nature of the judicial review would vanish. The judicial review would be undemocratic only if the judiciary ignores the concept of separation of powers and indulges in “unnecessary and undeserving judicial activism”. The judiciary must not forget its role of being an interpreter and should not undertake and venture into the task of lawmaking, unless the situation demands so. The judiciary must also not ignore the self-imposed restrictions, which have now acquired a status of “prudent judicial norm and behaviour”. If the Indian judiciary takes these two “precautions”, then it has the privilege of being the “most democratic judicial institution of the world, representing the biggest democracy of the world”.

Meaning &scope of judicial activism?

judicial activism is more prominent in USA & UK.(developed countries) and in developing countries like INDIA.Judicial activism means the "mass particpation of common citizens in the judiciary." This means that the general public, who have no connection with the victim, fights for the rights of the person, even if that involves going against the Judiciary's views. Judicial activism in developed countries is a rare things because perhaps, they have reached a level where it is not required. Also the system is much more faster and efficient than in developing countries.In developing countries, Judicial system has been recently used to change the verdict in many cases. It has successfully got justice sometimes and failed soe other times. The scope is great because of the rise in bribery, lack of innovation, pressure on the people econcerned, etc. However, in a healthy system, it should not be a regular practice. This shatters the faith in judiciary and sometimes innocent people are sentenced due to the mob revolting. Here too, the judges come under mob pressure. Judicial Activism is like a pesticide which must be sprayed, but too much of it or to often is harmful. The judicial activism, once carried out, should be sufficient to solve further cases in a just manner.

Judicial Activism in Public Interest Litigation

Public interest litigation, or PIL as it is conveniently called, has become a major and prominent segment of the jurisdiction of the Supreme Court and 21 High Courts in India. Whilst its necessity and utility in upholding the rule of law is undoubted, its extravagant and unprincipled use at times by courts has brought PIL into controversy.

Relaxation Must Be Procedural
PIL is basically the application of the well settled principles of judicial review by courts of actions of government and public authorities, with the modification of courts allowing the petitioner(s) applicant to approach the court on behalf of other persons, who themselves are unable to come to the court because of ignorance of their rights or the difficulty and cost of litigation. In such cases, the court relaxes the strict rule of locus standi of the applicant and also relaxes procedural formalities. It may even entertain a letter addressed to the court by a complainant. PIL was devised as a means for redressing the basic rights of generally the poor and marginalised sections of the society, who were unable to get judicial help on their own. It must also be borne in mind that public interest litigation is not something unique to India. Other jurisdictions such as South Africa, Canada and USA also have public interest litigation, though it is not described as such.

It is, therefore, important to note that except for procedural relaxations, the PIL jurisdiction should not exceed the permissible limits and parameters of judicial review by the court over the actions or omissions of government, legislatures or public bodies, or transcend the basic separation of powers underlying the Constitution. Judicial review in a democratic constitution must also not supplant the normal processes of representative self-government, in which the representatives of the people make choices and policies which may not be ideal or correct, but which can be set right by the people themselves. What is not within the bounds of judicial review by courts cannot be within their reach because it comes under the description of public interest litigation before it. PIL jurisdiction is, therefore, not a unique jurisdiction by which courts can transcend their limitations to act as a body to set right actions of the government, which are believed to be wrong or could be improved. Once this basic foundation of PIL is kept in mind, the parameters of intervention in PIL are easily grasped and its misapplication can be seen and avoided.

Judicial Activism Not PIL
Another misconception is equating PIL with judicial activism in India. Judicial activism is not PIL. A court can be judicially active or inactive irrespective of PIL. Judicial activism is a word of many shades. No person today subscribes to Bacon's view that judges must only declare the law and do not make law. Such a view was rightly described as a fairy tale by a distinguished English judge Lord Reid. Judges do and must make law but not in the manner of legislatures. There is much scope for creative judicial activism in the interpretative functions of judges, on the choices inherent in their function and in the gaps in legal rules, as has been done by superior courts in several countries for many years.

The Indian Supreme Court's own creative jurisprudence of the inviolability of the basic structure of the Constitution in 1973 and the importation of non-arbitrariness in the fundamental Right of Equality, and of due process of law in the right to personal liberty in Maneka Gandhi case in 1978, are stellar examples of how judicial function can be creative. Regrettably, this kind of creative judicial activism in Indian courts seems to have become dormant and displaced by a poor substitute of routine judicial correction and monitoring of governmental functions by courts in PIL. Judicial activism is equated with PIL mainly because it is a most convenient vehicle for bringing public grievances before courts and because the courts' orders in PIL are far-reaching and some times sensational.

Once these fundamentals of judicial review are borne in mind by courts in exercising PIL jurisdiction, it can be a useful judicial process for the benefit of the public, particularly of the poor, the indigent and marginalised sections of society, whose fundamental rights are to be protected by court orders. It is the historic and constitutional duty of courts to safeguard and enforce the basic liberties and rights of individuals. A court is strongest and least vulnerable, when it grounds its interventions in enforcing the basic rights of individuals against authority. No question of the court breaching the separation of powers can arise, as it carries out its constitutional function of protecting the basic rights of individual in such cases.

Introduction
The development of Public Interest Litigation (PIL) in the country has very recently uncovered its own pitfalls and drawbacks. The genuine causes and cases of public interest have in fact receded to the background and irresponsible PIL activists all over the country have started to play a major but not a constructive role in the arena of litigation. They try to utilise this extraordinary remedy, available at a cheaper cost, as a substitute for ordinary ones. This mini article briefly narrates the ill effects of the emerging malady and possible remedies.

Justice without force is impotent;
force without justice is tyranny
-Pascal in Pensees.

There are times when even justice brings harm with it
-Sophocles in Electra.

Injustice anywhere is a threat to justice everywhere
-Martin Luther King,Jr.

Till 1960s and seventies, the concept of litigation in India was still in its rudimentary form and was seen as a private pursuit for the vindication of private vested interests. Litigation in those days consisted mainly of some action initiated and continued by certain individuals, usually, addressing their own grievances/problems. Thus, the initiation and continuance of litigation was the prerogative of the injured person or the aggrieved party. Even this was greatly limited by the resources available with those individuals. There was very little organised efforts or attempts to take up wider issues that affected classes of consumers or the general public at large.However, all these scenario changed during Eighties with the Supreme Court of India led the concept of public interest litigation (PIL). The Supreme Court of India gave all individuals in the country and the newly formed consumer groups or social action groups, an easier access to the law and introduced in their work a broad public interest perspective.

Public Interest Litigation (PIL)-The legal history:
Public Interest Litigation popularly known as PIL can be broadly defined as litigation in the interest of that nebulous entity: the public in general. Prior to 1980s, only the aggrieved party could personally knock the doors of justice and seek remedy for his grievance and any other person who was not personally affected could not knock the doors of justice as a proxy for the victim or the aggrieved party. In other words, only the affected parties had the locus standi (standing required in law) to file a case and continue the litigation and the non affected persons had no locus standi to do so. And as a result, there was hardly any link between the rights guaranteed by the Constitution of Indian Union and the laws made by the legislature on the one hand and the vast majority of illiterate citizens on the other.However, all these scenario gradually changed when the post emergency Supreme Court tackled the problem of access to justice by people through radical changes and alterations made in the requirements of locus standi and of party aggrieved. The splendid efforts of Justice P N Bhagwati and Justice V R Krishna Iyer were instrumental of this juristic revolution of eighties to convert the apex court of India into a Supreme Court for all Indians. And as a result any citizen of India or any consumer groups or social action groups can approach the apex court of the country seeking legal remedies in all cases where the interests of general public or a section of public are at stake. Further, public interest cases could be filed without investment of heavy court fees as required in private civil litigation.

PIL- A BOON:
1. In Public Interest Litigation (PIL) vigilant citizens of the country can find an inexpensive legal remedy because there is only a nominal fixed court fee involved in this.
2. Further, through the so-called PIL, the litigants can focus attention on and achieve results pertaining to larger public issues, especially in the fields of human rights, consumer welfare and environment.

ABUSE OF PIL:
However, the development of PIL has also uncovered its pitfalls and drawbacks. As a result, the apex court itself has been compelled to lay down certain guidelines to govern the management and disposal of PILs. And the abuse of PIL is also increasing alongwith its extended and multifaceted use.Of late, many of the PIL activists in the country have found the PIL as a handy tool of harassment since frivolous cases could be filed without investment of heavy court fees as required in private civil litigation and deals could then be negotiated with the victims of stay orders obtained in the so-called PILs.Just as a weapon meant for defence can be used equally effectively for offence, the lowering of the locus standi requirement has permitted privately motivated interests to pose as public interests. The abuse of PIL has become more rampant than its use and genuine causes either receded to the background or began to be viewed with the suspicion generated by spurious causes mooted by privately motivated interests in the disguise of the so-called public interests.

STEPS NECESSARY:
With the view to regulate the abuse of PIL the apex court itself has framed certain guidelines (to govern the management and disposal of PILs.) The court must be careful to see that the petitioner who approaches it is acting bona fide and not for personal gain, private profit or political or other oblique considerations. The court should not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain political objectives. Political pressure groups who could not achieve their aims through the administrative process or political process may try to use the courts (through the means of PILs) to further their closely vested aims and interests.

There may be cases where the PIL may affect the right of persons not before the court, and therefore in shaping the relief the court must invariably take into account its impact on those interests and the court must exercise greatest caution and adopt procedure ensuring sufficient notice to all interests likely to be affected.

At present, the court can treat a letter as a writ petition and take action upon it. But, it is not every letter which may be treated as a writ petition by the court. The court would be justified in treating the letter as a writ petition only in the following cases-
(i) It is only where the letter is addressed by an aggrieved person or
(ii) a public spirited individual or
(iii) a social action group for enforcement of the constitutional or the legal rights of a person in custody or of a class or group of persons who by reason of poverty, disability or socially or economically disadvantaged position find it difficult to approach the court for redress.

Even though it is very much essential to curb the misuse and abuse of PIL, any move by the government to regulate the PIL results in widespread protests from those who are not aware of its abuse and equate any form of regulation with erosion of their fundamental rights. Under these circumstances the Supreme Court Of India is required to step in by incorporating safe guards provided by the civil procedure code in matters of stay orders /injunctions in the arena of PIL.

In the landmark case of Raunaq International Limited v/s IVR Construction Ltd, Justice Sujata V Manohar rightly enunciated that - when a stay order is obtained at the instance of a private party or even at the instance of a body litigating in public interest, any interim order which stops the project from proceeding further must provide for the reimbursement of costs to the public in case ultimately the litigation started by such an individual or body fails. In other words the public must be compensated both for the delay in the implementation of the project and the cost escalation resulting from such delay.

Conclusion:
Public Interest Litigants, all over the country, have not taken very kindly to such court decisions. They do fear that this will sound the death-knell of the people friendly concept of PIL. However, bona fide litigants of India have nothing to fear. Only those PIL activists who prefer to file frivolous complaints will have to pay compensation to then opposite parties. It is actually a welcome move because no one in the country can deny that even PIL activists should be responsible and accountable. It is also notable here that even the Consumers Protection Act, 1986 has been amended to provide compensation to opposite parties in cases of frivolous complaints made by consumers. In any way, PIL now does require a complete rethink and restructuring. Anyway, overuse and abuse of PIL can only make it stale and ineffective. Since it is an extraordinary remedy available at a cheaper cost to all citizens of the country, it ought not to be used by all litigants as a substitute for ordinary ones or as a means to file frivolous complaints.

1 comment:

  1. awesome collection, really impressed ..thanks a lot for posting such a informative collection ...

    ReplyDelete