Judicial Activism: Article 21 of the Constitution

By Bhavani Kumar, SLS Pune

Editor’s Note: Black’s Law Dictionary defines judicial activism as the doctrine where “judges allow their personal views about public policy, among other factors, to guide their decisions.” The concept of judicial activism is unique to common law countries as it is an extension of the common law mandate of judge made law. The question that this paper seeks to address is whether judicial activism has a positive effect on society? The landmark Kesavananda Bharti case is the first example of the court extending its powers of interpretation to such an extent that it crosses the line between traditional function and judicial activism. This paper discusses landmark judgments and shows how courts have expanded its powers over the years. The author supports the doctrine of judicial activism however, she believes that it should be exercised within a limited scope.  

INTRODUCTION

The definition of judicial activism, like the concept itself, may vary in scope depending on the personal views of a person. While one view thinks of judicial activism as merely the court or judiciary exercising its power of judicial review that has been vested to it under Article 32 and 226 of the Constitution of India. Another view is that the court departs from its traditional function of being an impartial adjudicator based on the interpretation of the law and allows its personal views and opinions to colour the nature of its judgement. The latter view has been taken by Black’s Law Dictionary which defines it as “judges allow their personal views about public policy, among other factors, to guide their decisions.”[i]

The concept of judicial activism is unique to common law countries as it is an extension of the common law mandate of judge made law. This concept was originally meant to be understood as law contributed by the judges through their interpretation of law, as time passed the interpretation of law became so far removed from the actual language of the legislature that the judges were reading more into the law than the legislature ever intended.

The first signs of judicial activism appeared in the realm of constitutional law when the Supreme Court ruled that the parliament could amend any part of the constitution save what they considered the ‘basic structure of the constitution.’ The court then moved on to making this provision paramount in the Maneka Gandhi case and has since ruled in many cases in a manner that can only be described as judicial activism.

The framers of the constitution intended for the Constitution to adapt itself with change in times but the intention was that the law be amended through legislative progress and not judicial decisions. While one view holds that the judiciary is justified in filling the void created by legislative and executive inaction the other holds that power cannot be vested in a body that is not democratically elected to perform the function of law making thus going against the basic cannons of democracy. The most pertinent question that must be asked in this context concerns the benefits of judicial activism. Even if we allow that the ends justify the means, does judicial activism have a positive effect on society?

EVOLUTION

Gopalan Case

The case of A K Gopalan v. State of Madras[ii] is not an example of judicial activism but the case must be studied as an example of the traditional functioning of the law. In this case the majority judgment ruled that the words ‘procedure established by law’ would mean the procedure as per any legislature enacted by the parliament irrespective of whether the law complied with the cannons of natural justice or not. This judgment followed the traditional role of judges as interpreters of the law in the strictest of senses; this however means that the court fails in its function of ensuring justice to all. One must also not that this does not mean that there were no checks on the executive and they were given a free reign to do anything that they wanted. The court still ensured that the law as established by the legislative was followed. The best example of this being that of Ram Narayan Singh v. Delhi[iii] in which the court held that the detention of a person after an order of adjournment has been passed is violation of section 344 of the Code of Criminal Procedure.

Thus, Gopalan is an example of how the court protects the rights if the people even without exceeding the scope of its mandate. However, one had to admit that the judgement in Gopalan was a violation of the principle of natural justice and one violated the rights and dignity of a human being of the executive has the power to arbitrarily deprive a person of his liberty.

Kesavananda Bharati Case  

The first act of judicial activism to get widespread recognition was the case of Kesavananda Bharati v. State of Kerala[iv]. Although not often recognizes as an act of judicial activism the majority judges in this case evolved the concept of a ‘basic structure’ to the constitution that was not explicitly mention or even implied in any part of the constitution. The rationale of the court behind this may be two fold. The first is that the court interpreted it on the basis of the legislative intent behind the constitution and the second to protect the rule of law in the country. While the first explanation may still be in compliance with the traditional role of the court, the second would be an extension of the courts authority. Thus this is the first example of the court extending its powers of interpretation to such an extent that it crosses the line between traditional function and judicial activism.

Maneka Gandhi Case

In stark contrast to the Gopalan case is the case of Maneka Gandhi v. Union of India[v]. In this case the court agreed to stretch its powers of interpretation to an extent as to allow natural law to come within its ambit. In ruling that the right to travel was a fundamental right and can thus not be deprived except by procedure established by law and in addition this procedure must not be arbitrary the court was committing an act of judicial activism, first by extending the scope of life and liberty to include travel and second by over ruling the Gopalan judgement and holding that the principles of natural justice must apply in all cases.

The court made two ground breaking changes to Indian jurisprudence in this case. The first is that natural law now became a subject matter of Indian law and judges were now vested with the authority to adjudge if a particular action was just, fair and moral. This marks the formal beginning of judicial activism as judging on the basis of natural law widens the scope of interpretation to an extent that requires personal opinion as natural law is not codified for it to be positively interpreted.

The second change is the scope the court allowed in the interpretation of the words ‘life and personal liberty’ till the Maneka judgement liberty was only construed to mean physical liberty as opposed to physical confinement. The judgement extended its meaning to also mean freedom to travel not only within the country but also without. This case is only the beginning in a long line of extensions to the meaning of the words ‘life’ and ‘liberty’.

Quality Life

In CERC v. Union of India[vi] the Supreme Court observed “The right to life with human dignity encompasses within its fold, some of the finer facets of human civilization which makes life worth living.” This justification was one of the many used by the Supreme Court in the recent Ramlila Maidan[vii] case in which the court held that right to sleep is a part of right to life under Article 21. This interpretation by the court shows how the court has covered almost every aspect of life in its expansion of Article 21. The court was however careful to state that by this interpretation they only impose a negative duty on the state to not infringe on a person’s right to sleep and not a positive duty to ensure that every citizen can sleep.

This right to a quality life being a part of right to life is a blanket right that covers several other rights, such as the right to medical care, minimum income, privacy, education etc. This is best expressed in the words of the Supreme Court in its judgement of Chameli Singh v. State of U.P.[viii]  which states:

Right to live guarantee in any civilised society implies the right to food, water, decent environment, education, medical care and shelter. These are basic human rights known to any civilised society. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention or under the Constitution of India cannot be exercised without these basic human rights

Right to Privacy

The question or privacy as a fundamental right has always been in question. Like many other rights the right can be read into both articles 19 and 21 and has been widely debated. The first time this right was recognized was in the 1991 case of People’s Union for Civil Liberties v. Union of India[ix] in which the Supreme Court held that:

We have, therefore no hesitation in holding that right to privacy is a part of the right to “life” and “personal liberty” enshrined under Article 21 of the constitution. Once the facts in a given case constitute a right to privacy, Article 21 is attracted. The said right cannot be curtailed ‘except according to procedure established by law’

The right to privacy has now become an established right in Indian as a part of right to life. The court as never defined the concept of privacy itself saying that it is too wide a concept to define judicially. This means that the right to privacy has in itself become a super set from which other right has been developed. The most recent example of this is the case of Selvi v. State of Karnataka[x] in which right to not be subjected to narcoanalysis, brain mapping, polygraph tests and other similar methods of interrogation has been asserted as it violated a person’s right to privacy and right against self incrimination.

Livelihood

Before the judgement in the Maneka case the court was of the opinion that the right to lively hood can only be protected, to a limited extent, under Article 19 and possibly 16 of the constitution but nothing in the language of Article 21 give a person the right to lively hood. This view was asserted in various other cases such as Sant Ram[xi], A.V. Nachane v. Union of India[xii] and Begulla Bapi Raju v. State of Andhra Pradesh[xiii] in which the court applied the above principle to reject any argument that included lively hood in Article 21.

The court in Olga Tellis v. Bombay Municipal Corporation[xiv] exercised its new found powers in light of Maneka to expand the scope of the words of the legislature to expand the preview of life to include livelihood. The reasoning of the court in this matter was that a person can be deprived of his life through various means and not only through the actual act of sentencing him to death. This is the same reasoning used in Maneka to say that the right to liberty is not mere imposition of physical constrains but also constructive means of depriving a person of their liberty.

The court noted that “If the right to livelihood is not treated as a part and parcel of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation

In this context as well the court made it clear that it only imposed a negative duty on the state and they were not compelled to provide livelihood for all citizens.

Medical Care

While the above three rights did not impose a positive duty on the state to take affirmative action to guarantee a particular right the tight to medical care does impose a positive duty on the state. In the case of Parmanand Katara v. Union of India[xv] the Supreme Courte held that doctors were under moral obligation to treat any patient no matter what the circumstances.

In Paschim Banga Khet Mazoor Samity v. State of West Bengal the court clearly heal that it was the responsibility of the state to provide adequate medical care to its citizens as it was a direct extension of right to life.

Sexual Harassment

The court in Vishaka v. State of Rajasthan[xvi] has takes the scope of judicial interpretation one step further from imposing a positive duty to imposition of particular rules and regulations and also bringing private companies into the purview of Article 21.

The court, in this case held that they are justified in looking to international treaties and conventions to fill a void in domestic law so long as the international law is not in contravention to domestic law. The international practices to prevent sexual harassment in the work place are not in contravention to international law but rather, fall under Article 21 as sexual harassment violates the woman’s right to live a dignified life.

Roads

Another creative interpretation of Article 21 by the Supreme Court has been in Sate of Himachal Pradesh v. Umed Ram[xvii]. In this case the court read the access to roads as being a part of Article 21 as the lack of access would hinder the natural growth of a person and prevent him from living life to the fullest extent possible. The court held that:

We accept the proposition that there should be road for communication in reasonable conditions in view of our Constitutional imperatives and denial of that right would be denial of the life as understood in its richness and fullness by the ambit of the Constitution. To the residents of the hilly areas as far as feasible and possible society has constitutional obligation to provide roads for communication.”

In this case as well the court imposes a positive duty on the state to ensure that every citizen has access to means of communication.

Environment

One of the most prominent developments from judicial activism is in the field of environmental jurisprudence. The courts activities in this field have been twofold: The first being the framing of rules and regulations in compliance with international standards to fill the void in domestic laws and the second in issuing directives to the executive to exercise it powers to protect the citizen’s right to live in a pollution free environment.

An example of the first case is that of Goa Foundation (II) v. Union of India,[xviii] in which the court ordered the government to take action against pollution mines, noting that the government was not powerless to act but just chose not to.

The best example of the second case is that of M.C. Mehta v. Union of India[xix] in which the court developed the ‘polluter pays’ principle in accordance with the 1992 Rio Declaration which state that the party that is responsible for the pollution must have ultimate responsibility, not only for the compensation of the victim but also for the restoration of the environment.

The most recent case in the field of environmental jurisprudence is that of Samaj Parivartana Samudaya v. State of Karnataka[xx]. In this case the Supreme Court held that the circumstances of the case were so grave and extraordinary that the conventional remedies provided for by the law are insufficient and hence the court resorted to issuing directions on the basis of some of the recommendations of the Central Empowered Committee (CEC) that was looking into the issue of illegal mining in Karnataka that was causing widespread environmental degradation and deforestation. The directions in no way contradict existing provisions that give effect to the environmental scope of Article 21 but only go to strengthen these provisions.

Analysis in light of legislative intent

On the basis of the above cases one can see that while some of the cases of judicial activism are merely cases of the court interpreting the word of the legislature in a creative manner and thereby providing fair and equitable justice some of the other cases are instances in which the court has far exceeded its authority to an extent that goes beyond the legislative intent of the law and also infringes on the principle of separation of powers espoused in the constitution.

In analysing the positive aspects of the case we find that judicial activism by the courts has, to a large extent changed the face of Indian jurisprudence for the better. The shining beacon of this is the cases of Maneka and Kesavananda. Before Kesavananda the legislature had the power to amend any part of the constitution including the concepts of secularism and republic. So much power in the hands of a few is dangerous in any society. We must note that in this particular judgement the court was within the possible legislative intent behind the constitution in saying that certain things cannot be changed. India, being a democratic state cannot allow for things such as its status as a republic being amended without the entire constitution collapsing into nothing.

In the case of Maneka, it is not as easy to say that the judicial intent behind the constitution was to make constructive restraint a violation of Article 21. It is true that the article would have very little power if it were held that only physical constraint amounted to deprivation of liberty. It would have been as bad as saying that ‘procedure established by law’ meant any law passed by the legislature as one of the functions of the judiciary is to check the powers of the legislature. Thus the judgement in Maneka is also commendable as it make the law an effective and just law.

The negative duty to not infringe on the livelihood of a person imposed in Olga is also a positive outcome of judicial activism as it is a practical application of Article 21. The court makes a very valid point in stating that the easiest method of depriving a person of his life would be to remove his means of livelihood. Although not exactly within the scope of interpretation this is a very practical application of the law that showcases the best use of judicial activism.

The justification for judicial activism has always been to provide justice for those to whom it seems beyond their reach and to provide fair and equitable justice. This justification vindicates itself in the case of providing that the state is obliged in providing medical care to all its citizens as a part of right to life. The provisions that were made for protection of women in Vishaka is also in furtherance of the same objective. While the intent behind these two judgements is commendable it is worrying that in the instance of medical care the court has brought private parties within the ambit of Article 21 and in Vishaka had infringed into the workings of the legislative to such an extent that the court is now framing laws.

The justification that the court is entitled to fill the voids left by legislative inaction puts the principle of separation of powers on a weak footing as this can mean that the legislature will also feel justified in filling the voids of judicial inaction. The provisions of the Judicial Accountability bill comes dangerously close to this.

The judgment of the court in the Ramlila Maidan case faced the criticism Justice S H Kapadia who noted that to enforce such a right as right to sleep is impossible and that the court must take into consideration the enforceability before pronouncing a judgment. In addition to this, another aspect that causes concern is the question of how far this can go and unto what extent can the court stretch the provisions of the Article; can one start claiming that the right to food without pesticides is a fundamental right or that the access to parks for exercise is also required for good health, by way of which, life?

Coming to the case of Selvi, the court expanded the right to privacy to such an extent that mental privacy also came into its preview. One must note that the legislative intent behind Article 21 come nowhere close to privacy itself, let alone mental privacy. Even the legislative intent behind Article 20(3) can only be to protect the innocent from being forced to incriminate themselves. One must note that an individual looses a large amount of his privacy the moment he is suspected or in any way involved in a crime as the investigators have access to a lot of physical evidence in his possession infringement of his mental privacy as well will only aid in coming to the conclusion of the case all the sooner.

This same principle of protection the small man is applied even in the case of environmental legislations. The problem with this is that the court in protection the weaker sections of society often forgets the larger picture. To prevent illegal mining activity in Karnataka the court put a ban on all mining activity in the region, both legal and illegal. This would adversely affect the national economy. The same happened in the case of the 2G case in which all licences issued within a particular time period were withdrawn. In this case the court said that they were only exercising their powers of strict interpretation.

If the court feels that it can exceed the scope of its mandate to protect certain interests of the society why can it not do the same for national economic interest as well? While its objectives are commendable a large amount of personal judgment and thus arbitrariness creeps in that may have a negative impact in the long run. The legal community must work on a way to allow for judicial activism but within a limited scope.

Edited by Hariharan Kumar

[i] http://www.nationalreview.com/corner/352017/judicial-activism-defined-mario-loyola

[ii] AIR 1950 SC 27

[iii] AIR 1953 SC 272

[iv] AIR 1973 SC 1461

[v] AIR 1978 SC 1643

[vi] AIR 1995 SC 922

[vii] In Re (2012) 5 SCC 1

[viii] AIR 1996 SC 1051

[ix] AIR 1991 SC 207

[x] 2010 (7) SCC 263

[xi] Re Sant Ram, AIR 1960 SC 932

[xii] AIR 1982 SC 1126

[xiii] AIR 1983 SC 1073

[xiv] AIR 1986 SC 180

[xv] AIR 1989 SC 2039

[xvi] AIR 1997 SC 3011

[xvii] AIR 1986 SC 847

[xviii] (2005) 11 SCC 560

[xix] AIR 1997 SC 761

[xx] (2013) 8 SCC 154

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